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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Whigging out

November 30, 2011

Presidential candidates, political observes, and Americans in general aren’t usually known for their intense support of Congressional power. But even by those standards, the last few weeks have really been something else: I’ve already  reviewed Rick Perry’s plan for Congress;  Drew Westen rubbed my whiggism the wrong way; the GOP debate last Tuesday was better suited to a monarchy than a republic under the rule of law; a new line-item veto bill has been introduced by powerful bipartisan Members; and oh, by the way, the Senate is debating indefinite detention of U.S. citizens by the Executive.

But from a sentimental institutionalist’s perspective, the saddest thing was watching Newt Gingrich** — former Speaker of the House — slam the Congressional Budget Office:

The Congressional Budget Office is a reactionary socialist institution which does not believe in economic growth, does not believe in innovation and does not believe in data that it has not internally generated.

Plenty of people jumped to CBO’s defense, starting with former Republican CBO director Douglas Holtz-Eakin, who called the statement “ludicrous.” Former Acting Director Donald Marron piled on, and Ezra Klein wrote  in defense of congressional staff (although see Matt Yglesias in partial defense of Newt.)

This has been followed by some interesting analysis of Gingrich vis a vis institutions. Bruce Bartlett wrote an excellent piece describing how then-Speaker Gingrich attempted to undermine congressional institutions, and Andrew Sullivan labeled Gingrich a Jacobin. Jonathan Bernstein agreed that Gingrich is no Burkean conservative with respect to institutions and asserted that, even worse, Newt is something of a tactical and strategic loose-cannon.

I’d like to take the discussion a bit wider, because Gingrich in many ways encapsulates the Whig dilemma of the modern age: how do you institutionally structure the legislative branch to maximize its power against the executive? Four points:

1) The Gingrich/Bartlett argument over CBO as non-partisan arbiter sidesteps the issue a bit. Many of the commentators have understood Gingrich’s comments on CBO as a partisan or ideological attack; even in an institutional analysis such as Bartlett’s, the thrust of the argument is that Gingrich’s motive for weakening the non-partisan congressional agencies was to consolidate legislative power:

Mr. Gingrich’s real purpose [in shrinking Hill institutional support] was to centralize power in the speaker’s office, which was staffed with young right-wing zealots who followed his orders without question. Lacking the staff resources to challenge Mr. Gingrich, the committees could offer no resistance and his agenda was simply rubber-stamped.

While I don’t disagree, there’s a more fundamental problem with dismantling the institutional infrastructure of the Hill: it would significantly empower the Executive branch. As I wrote last week, the President has a massive informational advantage over the legislature  —  an $800 million annual appropriation and 1800 staffers in the EOP alone — that helps him research, craft, message, and fight for his policy proposals. This isn’t necessarily a bad thing; the President needs information. But one of the primary reasons CBO was created was to give Congress its own independent source of budgeting and economic numbers; without it, they had to rely on OMB, which was perceived to have a bias toward the president’s positions.

This is true of all the non-partisan institutional furniture on the Hill — the Library of Congress, the Congressional Research Service, the Government Accountability Office, the House and Senate Legal Counsels. Their primary function is to enhance the institutional capacity of the legislature. Does their role sometimes have the effect of infuriating ideological partisans? Sure. But their prime function isn’t to ideologically smooth out the legislative process. That’s a great side benefit, but it’s tangent to their central institutional function, which is aid the legislature in policymaking and oversight of the executive branch, which in turn provide an institutional counterweight to the expansive political capacity of the Executive branch and the President.

2) It’s difficult for Congress to take on the President directly in institutional power struggles. Political battles between the branches tend to favor the President, for two main reasons. First, the President has unity of mind and can always deliver a consistent and stable message to a receptive media audience, whereas Congress is almost always divided and sending a mixed message. In this arrangement, the President will also almost always have allies in the legislature for his political positions; Members of Congress will often be forced to weigh the long-term institutional power of the legislature against the short-term ideological and partisan policy/political benefits of supporting the President, and they will often side with the President. Especially when the Member is a co-partisan.

Second, and most importantly, Americans tend to want a strong Presidency and an effective executive branch. People tend to like the services the federal government provides; the modern executive branch can not, as a whole, be radically shrunk. The electorate would not stand for it. To the degree that the President draws his institutional power from presiding over a large federal government, there’s nothing that can be done; the only place to build federal governing capacity is the executive branch, and it all has to be built under the President, power byproducts be damned. In other words, Congress has inherently expanded the power of the President by enlarging the role of the government. The two things go hand in hand.

In addition, the general population simply would not support a targeted all-out Congressional attack on the explicit power resources of the President. While it is true that the vast majority of Presidential power is not constitutional but instead the consequence of legislation written by Congress, it is not the case that such powers can simply be revoked. It’s politically impossible. In the time it takes to quickly pass one law, Congress could scrap the entire EOP,  turn the lights off at the White House, take away the President’s free housing in DC, and make him walk to the State Department to phone our allies. None of those current benefits are his constitutional right. But no one wants to do those things. Sober observers know we can’t have a weak President. And even if they thought we could, the general population would not stand for it.

And that’s if Congress was unified. But as noted above, such a situation is extremely rare. And if Congress is not unified, the President can unilaterally block any legislative attempt to undermine his power if he can muster just 1/3 of one chamber to prevent an override of his veto. The menu of powers that 2/3 of both chambers of Congress would be willing to revoke for any given President are very small; it would take quite egregious Presidential actions (think Nixon, term two) to summon that level of congressional support. Most inter-branch political disputes do not create that sort of unanimity within the legislature, especially once issues of co-partisanship are taken into account. (This, of course, is why I support sunsets for all legislative grants of presidential power).

3) There are two main unilateral strategies Congress has against the Executive. So what can Congress do? Well, one option is to look inward. That is, to what degree can Congress improve it’s capacity to win political disputes with the President by doing things that, rather than hopelessly attack the President’s power, enhance their own? Such avenues seem like good places to look: the issue isn’t the absolute power of the Presidency so much as it’s the relative power of the President vs. Congress. To this end there are two general strategies available to the legislature: centralization of power and institutional expansion of the legislative branch. Both of these are familiar (although perhaps not stated) to anyone following the current debate. And each responds to a particular disadvantages Congress has, information on the one hand and unity on the other.

Institutional expansion is the concept of increasing the capacity of Congress to effectively act by literally building up the institution: gather resources and expend them in ways that serve Congress as a whole, for the purpose of shrinking the information deficit between the legislative and executive branches. This is the logic behind CBO and the other legislative branch agencies: increase the resources of the legislature so it isn’t beholden and/or outgunned politically by the resources of the executive. It’s also the theory behind committee and personal staff for Members on the Hill. The more people working to conduct oversight of the executive branch, and the more people independently gathering policy information for Congress, the lower the relative informational advantage of the President. The House General Counsel and Senate Legal Counsel operate on a similar principle: they provide for the institutional representation of Congress in the courts, serving not to defend a partisan or ideological position, but to defend the Congress as a whole.

The other strategy is centralization of power. The idea here is to solve the legislature’s collective action problem by making the leaders strong. Imagine if Congress was just one person. All of a sudden, it would start to look like the President was at quite the disadvantage: Congress would speak with a unified position, internal legislative outcomes would never be in doubt, the veto would be ineffective, bargaining positions would be stronger, and so forth. The idea of centralizing power is to mimic that situation as closely as possible in the real world. And this brings us to Gingrich’s moves as Speaker: whatever the motivation for them, centralizing power in the House can have beneficial results in fighting the President. By reducing the power of the committee system and tightly unifying the GOP conference under a powerful Speaker’s Office, Gingrich was probably able to more effectively combat President Clinton in 1995 than he otherwise would have been.

Both of these strategies, unfortunately, have down sides. The beefed-up legislative branch agencies, no matter how valuable in providing an informational counter-weight against the President, can have the side effect of getting in the way of ideological goals, or they can become political actors of their own. Both complaints have been lodged against CBO, most recently in regard to its role in the health care reform debate during the 111th Congress. Similarly, whatever benefits can be gained toward opposing the executive from centralizing power in the legislature have to be weighted against the explicit problems within the legislature of centralizing power. There’s plenty of political theory that suggests some benefits to a decentralized legislature; scrapping them to fend against the executive may be necessary, but it certainly isn’t costless.

But the most important problem with centralization and institutional expansion is…

4) Unfortunately, the two strategies tend to be at odds. This is much of what the spat has been this week over Gingrich’s comments about CBO. You just can’t get around the fact that, instead of being complementary, the two strategies tend to work against each other. Increasing the institutional capacity of the legislative branch agencies and the committee system is often diametrically opposed to centralizing power in the legislature. You cannot empower the leaders without, at least in part, shrinking the committee system, and you cannot beef up the committee system without weakening the leadership. Strong leaders do not want to work within the constraints that a powerful CBO or other institutional agency presents to them. Likewise, the greatest threat to a strong committee system is a powerful leader. Consequently, the two primary unilateral strategies gain little synergy from each other and may spawn, like Gingrich and the CBO, adversarial relationships over internal legislative power,  rather than partnerships against the executive.


**There was a time, in the wake of 9/11, when I actually could imagine Gingrich someday in the distant future being a historical Whig hero. Back then, you could imagine a history book being written 100 years from now, in which the 1995 battle with Clinton was the last stand of the legislative branch prior to a 9/11 induced fall, and that if Gingrich had won that and then won impeachment, the country may have drifted toward a much stronger legislature. Of course, the last five to ten years have obviously dumped that — Gingrich has become a huge supporter of executive power, of which his current campaign is just a recent example.


The Other Caucuses

November 29, 2011

In the wake of Representative Frank’s decision to retire, there has already been some speculation about who will be the top Democrat on the House Committee on Financial Services next Congress. But wait, you say, isn’t that simply a matter of looking at the seniority list of the committee democrats, and seeing that Rep. Waters is the most senior Democrat after Rep. Frank?

Nope. And that means this is as good a time as any to discuss the party rules and party infrastructures on the Hill. I’ll do it Q&A style.

Q. Wait, the parties have rules?

A. Yes. Both the Democratic Caucus and the Republican Conference have written rules. The GOP rules are available online. These rules are different than the Rules of the House of Representatives, which are chamber rules approved by a majority of Representatives. The party rules are approved by the caucus/conference, and deal with internal party issues, although as we will see, in some ways they end up structuring the House of Representatives much like the Rules of the House.

Q. What exactly is a caucus/conference?

A. In the loosest sense, it’s simply the collection of all the Representatives who belong to that party. Like when you hear a description of a floor vote. The entire caucus voted against the bill, with no defectors. In the more formal sense, it’s the institutional organization those Members use to promote their common goals. The caucus elects the party leadership, develops legislation and policy positions, and coordinates party messages on those topics. In any case, it’s the institutional substance of the party in the House.

Q. So is the organization just all the Members getting together in a room?

A. No, although that would certainly qualify. In practice, the party organizations are much more robust. They receive annual appropriations in the Legislative Branch Appropriations Act (in FY2011, each party organization got just under $3,000,000), and this money is use to pay for staff and other expenses related to their missions. Each party organization employs about 25 staffers.

Q. Wait, the parties get taxpayer money? That seems odd.

A. It isn’t really. Remember, the caucus/conference are not involved in campaigning or fundraising. Party organizations that engage in those activities — such as the Democratic Congressional Campaign Committee (DCCC) or the Democratic National Committee — are not funded by legislative branch appropriations. They are private entities, and only connected to the caucus/conference in that the caucus elects their leadership. The caucus/conference organizations serve in direct support of the party policy operations in the House, no different in substance than the staff of individual Members or committees.

Q. So how is the caucus/conference structured?

A. Just like any organization, really. There are a set of rules adopted by the caucus/conference that structure internal decision-making. In both parties, the rules provide for election of chamber and caucus leaders, selection of committee chairs, selection of committee and subcommittee assignments, party procedures on floor action, and Member conduct and discipline.

Q. When are the rules adopted?

A. Both parties usually convene in the weeks after the November congressional elections to hold the initial caucus meeting, at which they usually adopt rules and select leaders. The rules, of course, provide for their own amendment, so in theory the caucus can change its rules at any time.

Q. Ok. So back to the committee chair thing. How come Rep. Waters won’t just become the top Democrat on Financial Services next Congress?

A. Because the caucus nominates the chair/ranking of the committee, and seniority is only one factor taken into consideration. There are a bunch of other factors written into the rules, and of course there are politics involved as well.

Q. What do you mean “nominates”?

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

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

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

Q. Who’s on the DSPC?

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

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

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

Q. Are there often contested elections in the caucus, for committee chair or for party leader?

A. Not regularly. Most elections are uncontested and approved by acclaim. Even races that might start out contested — such as the race between Rep. Hoyer and Rep. Clyburn for Whip in 2010 — are settled by negotiations prior to any actual vote. Two recent races that did come to a vote were the 2006 race between Rep. Murtha and Rep. Hoyer for Majority Leader, and the 2008 race between Rep. Dingell and Rep. Waxman for chair of the Energy committee. In 2010, Rep. Shuler ran a “protest” race against Rep. Pelosi for party leader.

Q. Can you ever find out how people voted in the secret ballot?

A. Not unless they say. Often, however, candidates in a party election will try to accumulate public endorsements, which in turn reveal a sizable percentage of the positions within the caucus. Matthew Green has an excellent short article on the 2006 race between Rep. Hoyer and Rep. Murtha that covers a lot of the dymanics of these party elections.

Q. Are these procedures the same in the Republican conference?

A. Not exactly. But in general structure, yes. If you’d like to see the details, the GOP conference rules are online.

Q. So how does the caucus develop policy?

A. Well, for one they talk about it! Each caucus/conference has regular closed meetings of the membership, at which the party leadership as well as rank-and-file Members can candidly discuss both short-term and long-term policy. As mentioned above, the party organizations also employ staff who work on policy development. And finally, the caucus is integrated into the network of leadership, committee, and personal Member offices, with whom it has regular contact and conversations.

Q. You mentioned that the caucus rules interact with the House rules on the floor. What did you mean?

A. Both caucuses have rules that bind the leadership to certain uses of House rules. For example, under House rules the Speaker has wide latitude to entertain motions to suspend the rules. GOP party rules, however, put further limitations on what kinds of suspensions may be entertained when the party controls the Speakership. Similarly, Democratic Caucus rules prohibit Democratic Members of the Rules Committee from supporting any closed rule when in the minority, subject to certain waivers.

Q. Can the caucus/conference bind Member voting decisions like that?

A. Technically, no. Members are only beholden to the caucus to the degree they find it a beneficial arrangements. Of course, most Members do find it beneficial to be part of a party. Both caucus/conferences rules have provisions for disciplining Members, including expulsion.

Q. How else does the caucus supplement House rules?

A. One example would be term limits for committee chairs. In some Congresses, such limits have been placed directly into House rules. In others, however, they have not. In such cases, a caucus rule that included term limits would effectively achieve the same goal (for any party that had that rule), if the Members of the caucus sought to enforce it.

Q. What else does the caucus expect of Members?

A. Typically, that they remain members of the political party, that they don’t campaign for members of other parties, that they support the caucus-ratified candidates on the floor for committee assignments and Speaker, that they work toward the goals of the caucus when doing things like offering motions to recommit, and that they adhere to code of ethics.

Q. Are the caucus rules ever controversial?

A. They can be, especially when a caucus has factions that are divided over policy issues. One significant aspect of caucus rules is that they structure how much power the leadership has within the party. For example, imagine a hypothetical caucus rule that allowed the party leader to unilaterally make all committee assignments, including chairmen. That would be a powerful leader indeed! Now imagine the opposite: a caucus rule structure that did not allow the party leader to even nominate any committee Members, even to the Rules committee, and instead used a caucus committee to make all nominations. That would be a much weaker institutional leadership position. As currently structured, both party organizations use a mix of these systems, allowing the leadership direct nomination in some cases and using a committee in other cases.

Q. So what’s the outlook for the Financial Services Committee Chair/Ranking for the Dems?

A. Hard to say. There’s a lot of intervening events between now and the first caucus meeting in November 2012. There’s the election, which could shake up the membership of the committee either by current Members being defeated, or by the Democrats winning control of the House and gaining more committee seats. Then there’s the caucus rules, which could always be amended. We don’t know for sure who the Democratic leaders will be after the election. And we don’t know who wants the committee post. So there’s a lot left to be determined. Much of it could be sorted out in the next week on an informal basis, but the die will not be cast until the caucus meets a year from now, and then when the House elects the committee membership in January 2013.

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Senior Moment

November 28, 2011

Rep. Barney Frank (D-MA) announced today that he will not seek reelection in 2012, after 16 terms in the House. Massachusetts will also be losing Rep. John Olver (1st district), who announced his retirement last month after 10 terms in the House.

Representative Frank is the Ranking Member of the House Committee on Financial Services. Representative Olver is the Ranking Member on the House Appropriations subcommittee on Transportation, Housing and Urban Development, and Related Agencies, as well as the only Member from Massachusetts on the Appropriations Committee. While we don’t know who will replace Rep. Frank and Rep. Olver in the House next Congress, we do know that it is highly unlikely they will be chair/ranking on a committee or an appropriations subcommittee.

This suggests one under-appreciated aspect of retirements — the effect that the loss of individual Member seniority has upon a state. Although Representatives are elected from districts, there are distinct state (and regional) interests that benefit from the seniority of both individuals as well as state delegations. Both formal and informal factors produce the seniority advantage. On the formal side, the institutions of the Hill (the committee system, the party caucuses, etc.) use seniority to assign priority; on the informal side, the experience and relationships developed by Members give them marginal advantages over less-senior Members.

One reason this is particularly interesting today is because the Massachusetts delegation has the highest average years of House service of any state, except Rep. Don Young’s 37+ years in at-large Alaska. A the beginning of the 112th Congress, the ten Massachusetts Members had an average of 15.8 years of experience in the House (including freshman Representative Keating), compared to an overall House average of 9.8 years of experience.

The chart below reports the average years of service of Representatives from all states, as of the beginning of the 112th Congress.* The numbers in parenthesis next to the state name are the number of Representatives from that state with 10 or more years of House experience and the total delegation size.

As shown in the chart, there’s large variation in delegation experience.  You can see the start difference by comparing MA, CA, FL, and PA — four of the biggest states. Not only do MA and CA have much higher average experience among Members, but more than 2/3 of their delegation has been in the House for 10 or more years. On the other end, FL and PA have average tenures half  the size, plus less than 1/3 of their delegation with 10 or more years of service.

A few other  institutional notes:

1. All else equal, there’s an obvious advantage to having low turnover in your state delegation: within the context of the seniority system, you simply cannot put Representatives from your state into the highest positions of institutional power unless they gain the seniority over time to get there. Conversely, once they are there, it becomes a powerful disincentive to remove them from office, given that the alternative (as Massachusetts will see in 2013) is a newcomer with no accumulated seniority or place in the committee system. This raises the historical example of the South during the civil rights era: the non-competitive elections in much of the South during the mid-20th century created a disproportionate number of southern Members with long experience, which in turn placed them in the most senior positions in much of the committee system. It also points toward partisan gerrymanders being beneficial from the state perspective; if there are no competitive seats, a state will likely produce many senior Members.

2. In some ways, the average or median is less important than the sheer number of Representatives with a lot of seniority. There are a limited number of positions in the House that are very powerful (such as chair of a committee), and from a state perspective, you might rather have five of those with a lower delegation median than 3 of those with a higher median. This also points to a potential small state disadvantage within the system; if you only have 3 Representatives, your state simply can’t acquire a lot of powerful positions in the House, regardless of how long those Members have been serving.


*The use of averages (vs. medians) is a tradeoff; while you get the visual skew of some states with a few very senior Members (such as Michigan with Rep. Dingell and Conyers, whose average is nearly double the median), you lose some bias in other places (such as South Carolina, which has a median of zero, but an average of 4.5 because of  Rep. Clyburn’s 18 years).

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Imagine a boot stamping on a human face — forever.

November 23, 2011

Blog posts will be light for the rest of the week — I’m in upstate New York with the family. But as a libertarian, I feel compelled by my own conscience to spread the word about what took place at the GOP convention last night.

As regular readers know, I’m not a huge fan of the Patriot Act. Now, I don’t think it was inherently unreasonable as a temporary response to an unknown acute crisis. But ten years later it has been both normalized  into the culture and validated by both political parties, no different than any of the hideous “emergency laws” in place throughout the non-democratic world. The Patriot Act — and the “war on terror” seem here to say, like so many of those emergency laws.

As a practical matter, there are two possible realities: either the Patriot Act has been an utterly smashing success as a law enforcement tool, or the danger of international terrorism was not quite as great as we thought in Fall 2001. The truth is probably somewhere in the middle. But that’s an argument to swing the pendulum back the other way a bit, and I don’t see that happening any time soon. If anything, it appears to be plowing forward.

I know all this. And yet I was still unnerved watching the GOP debate last night. Let’s go to the transcript. In increasing order of ridiculousness:

Newt Gingrich thinks “innocent until proven guilty” — i.e. the foundation of western civil liberty — shouldn’t apply if the suspect is involved in a “national security” issue:

Again, very sharp division. Criminal law, the government should be frankly on defense and you’re innocent until proven guilty. National security, the government should have many more tools in order to save our lives.

Let me guess: the President will decide what constitutes “national security.”

Mitt Romney is even more stark. Treason — a crime under the Constitution that requires multiple witnesses and conviction in an open court , should be governed by the laws of war, even when committed on America soil:

And that means, yes, we’ll use the Constitution and criminal law for those people who commit crimes, but those who commit war and attack the United States and pursue treason of various kinds, we will use instead a very different form of law, which is the law afforded to those who are fighting America.

Rick Santorum is convinced we are dealing with something called a “present domestic threat.” Presumably, that means American citizens shouldn’t be guaranteed their, well, constitutionally-guaranteed rights:

But the issue of the Patriot Act is — is a little different. We are at war. The last time we had a — we had a threat at home like this — obviously, it was much more of a threat at home — was during the Civil War … and, of course, Abraham Lincoln ran right over civil rights. Why? Because we had a present domestic threat. In the previous wars that we’ve had, we haven’t had this type of threat that we have here in the homeland. And we have to deal with it differently.

That is an argument fit for a banana republic dictator. I’ll make you a deal, Rick: when there’s an enemy army stationed and moving 20 miles from DC and Congress is not in session, I’ll give you some latitude to suspend Habeus Corpus and raise an army and navy and blockade the south until Congress convenes. Until then, cool it with the Lincoln comparisons.

Michelle Bachmann thinks those suspected of terrorism do not have any rights:

When the bomber — or the attempted bomber over Detroit, the underwear bomber was intercepted, he was given Miranda warnings within 45 minutes. He was not an American citizen. We don’t give Miranda warnings to terrorists, and we don’t read them their rights. They don’t have any.

That’s right: non-citizens accused of terrorism have no rights. None.

Rick Perry evidently didn’t have any specific piece of the Constitution he wanted to abridge, so he just went with this:

I agree with most of my colleagues here on the stage when we talk about the Patriot Act.

Herman Cain strikes what at first seems like a moderate tone, but on second look seems more like a call to martial law:

Now, relative to the Patriot Act, if there are some areas of the Patriot Act that we need to refine, I’m all for that. But I do not believe we ought to throw out the baby with the bathwater for the following reason. The terrorists have one objective that some people don’t seem to get. They want to kill all of us.

So we should use every mean possible to kill them first or identify them first — first.

What a depressing evening. This stuff should not be taken lightly. Especially since the current occupant of the White House doesn’t exactly have a sterling record on civil liberties. An interesting question is why this is happening now? As an old high school friend of mine noted today on Facebook, it’s amazing how fast some of these liberties are being culturally discarded, given that almost all of them survived the Cold War intact, when a much more existential threat was pointed openly and directly at the nation.

Thank god for Ron Paul. Given that Romney is highly-likely to win the nomination, I would urge any eligible GOP voters in the early primary states to vote for Paul, and let be know that it’s over these issues. And let’s hope Paul runs as an independent candidate and garners enough support to be invited to the debates. These issues need to be aired with everyone watching. Paul has no chance at the presidency, and that’s a good thing; he’s too radical on too many issues. But he’s right on this one. Say what you want about his positions on economics and whatnot, he brings the truth about civil liberties:

I think the Patriot Act is unpatriotic because it undermines our liberty … today it seems too easy that our government and our congresses are so willing to give up our liberties for our security. I have a personal belief that you never have to give up liberty for security. You can still provide security without sacrificing our Bill of Rights … I think we’re using too much carelessness in the use of words that we’re at war. I don’t remember voting on — on a declared — declaration of war. Oh, we’re against terrorism. And terrorism is a tactic. It isn’t a person. It isn’t a people. So this is a very careless use of words. What about this? Sacrifice liberties because there are terrorists? You’re the judge and the jury? No, they’re suspects. And they have changed the — in the — in DOD budget they have changed the wording on the definition of al-Qaeda and Taliban. It’s anybody associated with organizations, which means almost anybody can be loosely associated so that makes all Americans vulnerable … And now we know that American citizens are vulnerable to assassination.

So I would be very cautious about protecting the rule of law. It will be a sacrifice that you’ll be sorry for.

Right on, Ron. Right on.


Thanksgiving Briefing Book, Part III: Strategies

November 23, 2011

For part II, click here.

For part I, click here.


Thanksgiving Briefing Book, Part II: Issue Choice

November 22, 2011

For part I, click here.

For part III, click here.

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Thanksgiving Briefing Book, Part I: The Outlook

November 21, 2011

For part II, click here.

For part III, click here.


Ready Steady Stoned

November 21, 2011

This post is named after the second album by my all-time favorite indie band, The Figgs. I always thought it was a wonderful title for a record. It’s also the first phrase that popped into my head when I read this op-ed, which you will be hearing a whole lot about on Monday, despite the fact that its premise is that President Obama should step aside so that Hilary Clinton can win the 2012 election and “unite the country around a bipartisan economic and foreign policy.”

Read that last sentence again. Yes, indeed. Ready Steady Stoned.

Tomorrow, a whole lot of people will shred the op-ed, Westen-style. I mean, Brendan Nyhan is already tweeting up a storm. I’m not going to go line by line through the thing, but I do want to make a few historical points:

1. The proposition that LBJ “decided against running” in 1968 because he “accepted the reality that [he] could not effectively govern the nation if [he] sought re-election” is complete nonsense. LBJ didn’t “not run.” He dropped out of the race after Eugene McCarthy and a bunch of college kids landed what amounted to a knock-out blow in New Hampshire, which convinced RFK to get in to the race four days later. LBJ didn’t step aside; he was a candidate who dropped out when it became clear he couldn’t win. In other words, he sought the nomination, and he lost the nomination.

2. It’s certainly theoretically true that a party might benefit from not renominating an unpopular president. But the problem is that there’s a huge correlation between presidential popularity and party popularity, and historically it has been the case that whatever positive marginal effect there is from replacement, it hasn’t been enough to get the party over the top. As John Tabin noted on Twitter, Truman and LBJ “stepping aside” didn’t exactly result in President Stevenson and President Humphrey (and don’t start in on how RFK would have beat Nixon; it’s far, far from obvious).

In fact, even if you go back to the 19th century strong-party era, when replacing the president on the ticket was easier and more common, only twice did a party win back to back elections with two different non-incumbents — Pierce/Buchanan, ’52 and ’56, and Hayes/Garfield, ’76 and ’80. And neither Pierce nor Hayes were unelectable candidates who stepped aside for the good of the party. The Pierce administration had indeed been destroyed by the Kansas-Nebraska Act and its aftermath, but he stood for nomination at the 1856 Democratic convention, and lost a four-way race in which he got 40% of the vote on the first ballot. The Hayes example I don’t even count as relevant — he certainly didn’t seek renomination in ’80, but he had pledged not to do so back in ’76 and was not particularly unpopular when he left office.

3. Finally, there’s this:

Never before has there been such an obvious potential successor—one who has been a loyal and effective member of the president’s administration, who has the stature to take on the office, and who is the only leader capable of uniting the country around a bipartisan economic and foreign policy.

Say what? Obviously, as mentioned above, the last clause of that sentence is just absurd. A Clinton presidency right now might be effective or might not be, but in any case it wouldn’t be bipartisan and it wouldn’t unite the country, even if those ridiculous things were somehow the goals. But the first clause is my real favorite. Never has there been such an obvious potential successor? What about Seward in 1864? What about Webster in 1852? Have the authors even heard of the 19th century? On the flip side, it’s not always going to work out when you stick the most obvious potential successor of all-time onto the ticket — see Henry Clay, 1844. It just drives me nuts when people make historical claims, but limit them to a history that starts about the time their parents were born.

Ok, enough. I’ll just leave you with a funny thought an old college buddy emailed me, writing “the only upside to Gingrich winning the nomination and then taking on HRC for the presidency would be that Kurt Cobain would probably come out of hiding with like 5 full albums worth of great new material.” Amen to that.

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The Adventures of Link(s)

November 19, 2011

Two things I have enjoyed reading and thinking about in the last few days, with a quick take on each:

I think the baseball playoffs are both amazing and stupid. Amazing because there is simply nothing in all of sports like high-tension baseball. It’s incredible to watch. But stupid in that they aren’t really a legitimate mechanism of determining the best team; it’s more or less a crapshoot, just a fun bonus add-on at the end of the season. Baseball as a spectator sport is about two things: the thrill of really getting to know a team over the course of a spring and summer through the monotonous grind of seemingly meaningless game after meaningless game; and the live-or-die excitement of a September pennant race. I know MLB has money it needs to make, but the long-term viability of baseball is not in trying to structurally duplicate the product that the NFL and NBA and NCAA basketball produce. It’s about playing to the strengths of baseball. Every step that expands the importance of the post-season, in my opinion, takes baseball one step in the wrong direction.

    • The dust-up over election forecasting and the relative importance of campaigns vs. fundamentals continues unabated. John Sides post was excellent and provides a good set of references to the whole conversation. The reads and reactions section of Nate Silver’s blog also has a nice digest.

    I don’t have much to add to this debate, except to say that I think a lot of people get clouded by their normative desires for democracy when they think about this issue. People want to believe in the importance of ideas and the importance of leadership and the ability of impassioned advocates swaying votes through powerful speeches that change voters hearts and minds. They don’t want to believe that voters will toss honest men with good ideas out of office and replace them with crooked hacks simply because time are tough. And so I think many people tend to overestimate and romanticize the electoral/campaign system. Obviously, campaigns have some marginal effect on outcomes. But in my view, assuming you get candidates who are of a minimal-threshold of competency, the cake is baked more often than not well before the campaign starts.

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    By the Numbers: Constitutional Amending in the House

    November 18, 2011

    Later today, the House of Representatives will vote on House Joint Resolution 2, a proposal to amend the Constitution. Here is the text:

    Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless three-fifths of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.

    Section 2. The limit on the debt of the United States held by the public shall not be increased, unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote.

    Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.

    Section 4. No bill to increase revenue shall become law unless approved by a majority of the whole number of each House by a rollcall vote.

    Section 5. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law.

    Section 6. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.

    Section 7. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.

    Section 8. This article shall take effect beginning with the later of the second fiscal year beginning after its ratification or the first fiscal year beginning after December 31, 2016.

    This is a big deal. Not because it looks like it will pass Congress; based on the reported tea leaves, it will probably not pass the House (the Democratic leadership is whipping against the resolution), the Senate is probably an even bigger hurdle, and who knows what would happen in the states. No, it’s a big deal because the elected representatives of the United States may plausibly propose that we change the constitutional structure of our government and our nation. Setting all the politics aside, we are watching a centuries-old mechanism of self-government being put to use. And that’s fundamentally important.

    Anyway, let’s get to the numbers!

    0: The number of Constitutional amendments that have been passed by Congress and sent to the states for ratification since August 22, 1978, when the D.C. Voting Rights Amendment was passed by Congress.

    2/3: The fraction of votes necessary in the House (and the Senate if the resolution passes the House) necessary to pass the resolution and send it to the states as required under the Constitution. Many news outlets are reporting that the resolution needs 290 votes (2/3 of the 435 Members of the House) to pass. That’s not true. Under past court rulings, it has been decided that “2/3” as written in Article V refers to two-thirds of the Members present, assuming a quorum, not two-thirds of the total membership. With Oregon’s 1st district currently vacant and Rep. Giffords unlikely to return to Washington for the vote, the maximum number of Members present should not exceed 433, two-thirds of which is only 289.

    3/4: The constitutional fraction of states need to ratify an amendment. Currently, this is 38. If states are added to the union while an amendment is open for ratification, the threshold can go up; it is not fixed to the number of states existing at the time of passage.

    1: The number of Amendments added to the Constitution since August 22, 1978, when the D.C. Voting Rights Amendment was passed by Congress. No, it wasn’t the DC voting rights amendment. It was the 27th amendment, which prevents Member pay increases from going into effect prior to the following election and was passed by Congress on September 25, 1789, but not ratified by 3/4 of the states until 1992. Under a 1939 Supreme Court decision, any proposed amendment that does not specify an expiration date may be ratified at any time in the future.

    5: The number of hours of debate there will be in the House on the proposed amendment. This is under a special rule, H.Res.466, which was agreed to yesterday. Here is the text:

    Resolved, That it shall be in order at any time through the legislative day of November 18, 2011, for the Speaker to entertain motions that the House suspend the rules, as though under clause 1 of rule XV, relating to the joint resolution (H.J. Res. 2) proposing a balanced budget amendment to the Constitution of the United States. Debate on such a motion shall be extended to five hours.

    Sec. 2. The Chair may postpone further consideration of a motion considered pursuant to this resolution to such time as may be designated by the Speaker.

    Why will the House be considering the joint resolution under the suspension procedure, which requires a 2/3 vote for passage and usually is reserved for non-controversial legislation? And why are they using a special rule to get there? Three points: first, the resolution needs a 2/3 vote anyway, so it doesn’t matter if they do it by suspension or by rule; there’s no handicap to using the suspension process. Second, they needed to pass the special rule to extend the debate time, which is limited to 40 minutes under the suspension procedures. Finally — and this is just speculation — they might have gone with a suspension in order to avoid the motion to recommit, which would have allowed the Democrats to propose an amendment to the resolution. A strategic amendment (a so-called ‘poison pill’) — such as a more conservative version of the resolution — might have been able to get the bare majority needed to amend the resolution, but also guarantee that the amended resolution could not capture the 2/3 for passage.

    6: The number of proposed Constitutional Amendments that have been passed by Congress but failed to be ratified. These include two early proposed amendments (one to adjust the size of the House in 1789, another to strip citizenship of anyone who accepts a foreign title in 1810); the Corwin Amendment, passed in March 1861 by a secession-shrunk Republican Congress, which was an attempt to end the secession crisis by offering guarantees to the South that slavery could not be attacked in states where it already existed; an anti-child-labor amendment, passed in 1926, which would have empowered Congress to regulate child labor; the well-known ERA amendment; and, of course, the DC Voting Rights Amendment. Both the ERA amendment and the DC voting rights amendment were time-limited and have since expired. The other four are still eligible for ratification, although the Corwin amendment is now moot. The anti-foreign title amendment has been ratified by 12 states so far, but none since 1812. The child labor amendment is functionally moot, but has been ratified by 28 states, the last in 1937. The House size amendment is also functionally moot, and has been ratified by 10 states, the last in 1791.

    7: The number of proposed Constitutional Amendments that have been passed by the House since the DC Voting Rights Amendment went to the states in 1978. Six have been amendments to empower the states and federal government to ban flag burning. The other was the Balanced Budget Amendment of 1995. None of the flag burning amendments received a vote in the Senate. The balanced budget amendment in 1995 fell two votes short (64-35) of passage on June 6, 1996.

    7: The number of years that today’s proposed amendment will be open for ratification by the states if passed by Congress.

    28: The number of proposed Constitutional Amendments that have seen floor action in the House since the DC Voting Rights Amendment went to the states in 1978. In addition to the 7 described above that have passed the house, these have included balanced budget amendments, an anti-busing amendment, an amendment to alter the system of filling vacant House seats, an equal rights amendment, a term limits amendment, an amendment to require a 2/3 vote to raise taxes, other tax limitation amendments, an amendment to limit campaign spending, and a definition of marriage amendment.

    59: The number of proposed Constitutional Amendments that have been introduced in the House so far this Congress.

    268: My guess for the number of votes the resolution gets in the House today. Not enough to pass.

    Update: The vote was 261-165, with 8 not voting. 4 Republicans vote against it; 25 Democrats votes for it.

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    All the news that’s fit to incinerate

    November 17, 2011

    Three weeks ago, I asserted that Drew Westen had achieved anti-perfection with a New York Times piece. But he may have outdone himself last night. Last time, people were joking on Twitter that his article had been so completely shredded that the only thing left to go after was the grammar and punctuation. Mr. Westen may have been following that conversation, because not only did he bring all the nonsense we’ve become accustomed to in his latest piece, but he has also decided to start using unnecessary quotation marks, like “pre-existing conditions” and “adult in the room” and “grand bargain,” the last one selectively.

    So there’s once again plenty of room for take-down commentary.

    But you have to get up pretty early in the morning to have first crack at Mr. Westen: Brendan Nyhan was on the case via Twitter shortly after publication last night, and Jonathan Bernstein did an excellent full-length takedown before 7:30am. More are surely to follow; it’s just preposterously poor quality for a college daily. Or the global paper of record. If you think I’m exaggerating for effect, I urge you to go read the article. It’s a stunning achievement for something that’s not even 1400 words long.

    Here’s one thing that bothered me that hasn’t been covered yet: Westen seems to have no sense of the role and power of the President within the political system. (This makes him two for two, since I’ve already covered his misunderstanding of the legislature; maybe next week he can write about the health care lawsuit!)  Brendan Nyhan pointed out the most egregious example of this — Westen’s claim that the President was crazy for leaving decisions about legislation to Congress — but that’s just the tip of the iceberg. Five times, Westen suggests presidential ownership of things that are unambiguously shared responsibilities with Congress:

    • “When [Obama] made his ‘grand bargain’ over the summer”
    • He created the Congressional committee”
    • “After his grand bargain on the debt”
    • he has empowered a ‘supercommittee’ to make just the kinds of decisions”
    • “a decision to override a plan produced by his own Environmental Protection Agency

    Maybe I’m just being a cranky Whig because of Rick Perry’s assault on Congress this week, but this stuff really bothers me. Too many people already think the president is an all-powerful political actor. I hate seeing respectable media sources allowing it to be repeated as if it’s not up for debate. I know all the presidential candidates say things like “under my plan” and “when you compare my tax plan with his plan,” but the assertion that the President has unilateral control over policymaking or policy implementation simply does not reflect either the constitutional arrangements of the federal government or the practice of contemporary federal politics.

    The President cannot create congressional committees. The President cannot empower congressional committees. The President does not declare “grand bargains” by fiat. The President cannot raise or lower taxes. The President cannot increase or cut spending. And the executive branch is not exclusively owned by the President. The job of the EPA is to implement and enforce laws passed by Congress. Arrggghhh! And lest you think this is just a style and usage issue for Westen, in other places in the article he says “the White House and the Democrats” when referring to the legislative process. Just kill me.



    More on Perry’s Plan: A Whig Perspective

    November 16, 2011

    I’m still digesting Rick Perry’s plan to uproot and overhaul Washington. There’s just a lot to take in.

    There’s been some good writing around the blogsphere already on the congressional side of things — Jamelle Bouie and Jonathan Bernstein and Matt Yglesias addressed many of  the fundamental problems with populist downsizing and amatuerization of legislatures; Kevin Collins pointed out that de-professionalization would probably reduce congressional responsiveness to voters and cited some political science on the topic; and I made a small empirical point about congressional salary.

    One thing that  hasn’t been voiced so far is the whiggish response to Perry’s plan, and I just can’t let this pass. If you look at the document from a holistic point of view and strip away all the policy-side stuff, it boils down to a pretty strong attack on the legislative and judicial branches, while leaving the Presidency largely intact, or in some cases enhancing its power.

    Start with the judiciary: Perry’s plan it to pass a constitutional amendment ending life tenure for federal judges, replacing it with fixed terms.  But unless judges are not allowed to be reappointed — and that would be insane in the lower federal courts — the obvious results would be a politicization of the courts and significant political leverage for the president (and, to a lesser degree, Congress) over the judiciary. You think the court decisions are political now? Just wait!

    But the courts aren’t the most egregious issue; the real problem is that Perry’s plan would strip Congress of its political resources but do nothing to reduce the resources of the President. Yesterday, many of the commentators focused on how reducing the staff and deprofessionalizing the legislature would empower interest groups: Members need to get information about legislation and oversight from somewhere, and if they do not have the resource capacity to gather it themselves, they will turn to other places, like leadership and interest groups. If congressional staff are cut, interest groups (and leadership) would gain an informational advantage, and thus increase their power over legislation.

    But the President would also gain a massive informational advantage. Right now, the president gets just north of $800 million annually to fund the Executive Office of the President, which employs over 1800 people and exists to provide the president with a myriad of staff support: it includes OMB, the National Security Council, the Council of Economic Advisers, the direct White House staff, and other offices. There’s not a word in Perry’s plan about cutting the EOP.

    And the end result of cutting congressional staff but not EOP staff would be to politically advantage the president in any legislative dispute that required research, analysis, or public persuasion. Which is, to say, all of them. This isn’t fantasy: one of the reasons the Congressional Budget Office was created in the 70’s was because Congress did not have their own independent source of budgeting and economic numbers; they had to rely on OMB, which was perceived to have a bias toward the president’s positions. Not only can you not make informed decisions without resources, you also can’t effectively take part in a public debate.

    This is not to say that my solution would be to cut the EOP. Far from it. And this raises the main blindspot of Perry’s plan: part of the reason the number of staffers in Washington has grown is because the complexity of issues facing the nation has grown. It’s not 1915 — the president cannot survive on a dozen or so White House staffers, and individual Members of Congress cannot make optimally-informed decisions without significant staff research and analysis. Maybe Perry has read the Brownlow Commission report from 1937 but is taking its core message — The President needs help — a little too literally. Everyone needs help in the modern environment.

    And look, I’m a libertarian. My personal preference would probably be for a somewhat smaller federal government. But even a small federal government — which is clearly what Perry wants — needs informed policymakers. But that’s really besides the point, because the fundamental issue is how all the Washington staff affect the government. This is another blind spot of Perry’s; he seems to think that because the growth of Washington followed the growth of government, you can somehow shrink the government by shrinking the Washington establishment. I don’t buy it. Shrinking the political apparatus in Washington will certainly produce a different government, but I doubt it would be a smaller one, and I’m quite certain it won’t be a better one.

    But let’s move on. Perry does propose some  reforms for the executive branch, none of which seem to affect the power of the president very much. He wants a freeze on federal regulations, followed by an OMB review of existing regulations promulgated since 2008. This could mostly be done by executive order (I think) and, of course, he notes that “common-sense exceptions” would be made by the President. He proposes that FOIA be applied to both the legislative branch as well as the White House, but my impression is that  the president could always fall back on some variation of the constitutional executive privilege doctrine or a national-security FOIA exemption to avoid application.

    Next, Perry proposes that the annual congressional budget resolution become statutory, which could in theory create stronger spending caps, but definitely brings the president into the equation. This is odd given that (a) the President already submits his own complete budget as Congress requires under law, and  (b) he can already veto appropriations bills. But leave that aside. Suggesting that Congress should modify a process that is designed to regulate the inner-workings of the legislative appropriations process so that the president can become a veto player is, well, it’s just out of line. It’s like Congress asking the President to submit to Senate approval for presidential pardons.

    Finally, I want to say a word about oversight. Perry seems to take the view that congressional staff serve two main functions: helping constituents and getting in the way of Members’ direct control over legislation. Not surprisingly, he leaves out one of the most important functions of congressional committee staff: oversight of the executive branch. Whether you think Congress is doing a good job or a terrible job of oversight in the modern era, it’s pretty obvious that reducing the number of staff will not help improve it. And the crazy thing is that congressional oversight of the executive branch is a core conservative concern; if Congress does not have the tools to properly evaluate bureaucratic effectiveness and uncover problems, then popular control over government is reduced. And, more importantly, political power is further concentrated into the presidency.

    I don’t want to make too big a deal about all of this stuff; it’s unlikely Perry is going to be President, and even if he was, it’s unlikely many of these reforms would be put into place. But I also believe that ideas matter, and anyone who believes in the power of Congress and worries about the expansion of the power of the president should not sit by and watch when presidential candidates propose things that, whether intended or not, are quite obviously consequential power plays in favor of the executive over the legislature.


    Research Note: Member Pay

    November 15, 2011

    In his plan to overhaul Washington, Rick Perry states that:

    When the first Congress convened in 1789 following the ratification of the Constitution, federal lawmakers were paid $6 a day, and an annual salary of $1,500 was not authorized until 1815. Had Congressional salaries merely risen with inflation, a member of Congress today would make less than $20,000 each year. Instead, annual Congressional salaries have risen almost 10 times faster than inflation and now total $174,000 – more than 3.5 times higher than the country’s median household income of $49,445 in 2010.

    He then follows them with this chart, showing congressional salaries, 1933-present:

    I haven’t checked if his statements about inflation are true (I have no reason to doubt them technically), but if they are true then almost all the real increase in congressional salaries took place in the 19th century.* According to the inflation figures Perry used, real prices fell by almost 50% between 1815 and 1907, while Members’ salaries went from $1500 to $7500. There’s the entirety of the 10-fold increase he cites.

    Contemporary Members make little more in real dollars than Members did in the early 20th century. Below is a graph that charts inflation-adjusted (CPI) salaries for Members, 1913-2010, in constant 1913 dollars.** (For the short period of time in 1990-1991 during which pay differed for Representatives and Senators, Representatives salaries are used).

    As the chart shows — and this is the same data that Perry uses — Members make approximately 1.7% more in real dollars than they did 100 years ago. So if the salaries of the legislative branch ran wild because something changed in Washington, that something took place in the 19th century, not the 20th.

    Some details for people interested in the spikes on the chart: prior to 1967, pay raises were accomplished by specific pieces of legislation, and were sporadic. They occurred in 1925, 1934, 1935, 1947, 1955, 1965, and are reflected in the chart by the various spikes, which are then eroded/augmented over time by inflation/deflation (pay was also reduced in 1932 and 1933).

    While Congress may still adjust pay by stand-alone legislation, since 1967 there have been a few other statutory mechanisms: first a commission to recommend increases (which occurred in 1969, 1977, and 1987), followed by a system begun in 1975 in which Congress needed to accept or reject raises based on formula (accepted in 1975, 1979, 1984, 1985, and 1987; rejected all other years 1976-1989), and finally, under the Ethics Reform Act of 1989, a system of automatic raises that go into effect unless Congress rejects them (rejected in 1994, 1995, 1996, 1997, 2007, 2010, 2011). Under the automatic system, Members will also not get a raise in 2012, because the law bars Members from getting a larger increase than federal workers, who are currently under a COLA freeze.

    Because the automatic adjustment (1) has occurred more often; and (2) is calculated from a formula based on variables that reflect inflation, real pay is somewhat more stable in recent decades than it was for much of the 20th century, as shown in the chart. It is also the case, however, that real wages for Members are likely to slowly decline, because in any given year, the most likely outcome is either (a) an automatic raise that keeps pace with inflation; or (b) a rejection of the automatic raise, which results in real pay erosion. The action necessary to reverse inflation-erosion from the rejected years would be stand-alone legislation that authorized a greater-than-inflation increase in pay, and that is politically unlikely to pass in most climates. at least until real pay has eroded significantly over many years.


    * One slightly misleading statement Perry makes is that “an annual salary of $1,500 was not authorized until 1815.” That’s true, but it implies an annual salary was then used going forward. In fact, the annual salary was only used from 1815-1817, after which Congress returned to a per diem system until 1855, when the salary was set at $3,000.

    **1913 was used instead of 1907 so that the consistent CPI metric could be used; the estimated CPI from 1907 to 1913 shows virtually no aggregate inflation, and using 1907 would not alter the findings.


    I’ll take “Things That Surprised Me” for $200

    November 15, 2011

    Each Congress, quite a few pieces of legislation are introduced to amend the Constitution. If you look through the House Joint Resolutions introduced this Congress, you will find the following:

    proposals for a balanced budget amendment; proposals for term limits on Members of Congress; a proposal for a parents’ rights amendment; proposals to cap total federal spending; proposals to empower Congress to regulate campaign finance; a proposal to bar out-of-district campaign contributions; a proposal to empower the regulation of flag burning; a proposal for a presidential line-item veto; a proposal to repeal the 16th amendment (graduated income tax); a proposal to repeal the 22nd amendment (presidential term limit); a proposal to prohibit the United States from owning stock; a proposal to require a super-majority vote to raise taxes; a proposal to allow residents of territories to vote for president and vice-president; a proposal to restructure congressional succession with an “alternate Member” system; a proposal to establish a right to public prayer; a proposal to alter voting rights; a proposal to establish a constitutional right to an education; a proposal to establish a constitutional equal right for men and women, and reproductive rights; a proposal to establish a constitutional right to affordable housing; a proposal to establish a constitutional mandate for progressive taxation; a proposal to establish a constitutional worker’s rights; a proposal to establish a constitutional right to a clean environment; a proposal to bar all income, estate, and gift taxes, and prevent the government from competing with private business; a proposal to repeal the deadline for the ERA amendment; a proposal for a new ERA amendment; a proposal to restrict the authority of executive orders, treaties, and international agreements; a proposal to abolish the electoral college; a proposal to require a super-majority to increase the debt limit; two proposals to allow repeal of federal laws by the vote of 2/3 of state legislatures; and a proposal to bar the use of foreign law as authority in federal courts.

    What you will not find, best I can tell, is a Right to Life or other anti-abortion amendment. This surprised me greatly. Hundreds of  RTL amendments have been introduced since the Supreme Court decision in Roe. v. Wade, and at least one was proposed in the House each Congress for decades. Then, in 2005, they just stop. The last one that I can find is H.J.Res 4 from the 109th Congress, introduced on January 4, 2005.

    Perhaps there’s a back story here about the changing strategy of the pro-life movement, but it’s not one I’m familiar with. Or maybe I’m missing something. But I don’t think so.

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    The other rule 22

    November 14, 2011

    Last Tuesday, former president Clinton gave his support to altering the 22nd amendment so that it only limited the number of consecutive terms a person could serve as president, allowing people to leave office and serve again later:

    I’ve always thought that should be the rule … I think as a practical matter, you couldn’t apply this to anyone who has already served, but going forward, I personally believe that should be the rule.

    How should we think about presidential term limits? Five points.

    1) The presidency is different than other offices. I’m totally against any term limits for Representatives or Senators or other officeholders. For all the usual reasons.

    But the presidency is far more politically powerful and, more importantly, more ripe for highly-consequential abuse. As Jonathan Bernstein noted while thinking about this a while back, presidents are in a unique position of influence across all policy areas, with lasting effects on the systemic power structure. Someone who could build even a modest House-like incumbency advantage would gain a whole lot of discretion without much of a check from popular elections. And that could have long-term consequences, for both the presidency and for the relative power of the presidency within the system. It’s not clear what kind of incumbency advantage first-term presidents gain — for what it’s worth, David Mayhew thinks it’s pretty significant, and Larry Sabato’s shop has hilariously calculated it at 4.4% — but it’s hard to imagine it’s nothing.

    But the thing that scares me about a four-term president isn’t that he might be winning the elections due to an artificial incumbency advantage. It’s that the lack of rotation in the most powerful office might have a seriously corrosive effect on the democratic character of the system itself. The American system does not differentiate between the head of state and head of government, and the fusion of those two roles creates a presidency that not only embodies the nation, but also comes to define it. Ever been in the same general vicinity of a president who you didn’t vote for and really don’t care for? It’s not uncommon for people to just start spontaneously clapping. That sort of gut-patriotism alone is enough to creep me out when I think about undoing the 22nd amendment; then I imagine someone turning 18 who can’t ever remember anyone else being president.

    2) The 22nd amendment has some negative consequences. Despite everything said above, there’s little doubt that the 22nd amendment (or the norm that preceded it) has a few serious negative consequences, which can be broadly placed into three different buckets. First, second- term presidents have no electoral incentives to constrain their actions. Sure, public opinion polling matters and presidents certainly prefer to be in good standing over bad. And people like to talk about “legacy” as the constraint. But the observable actions of 2nd term presidents —like  proposing politically-risky policies (like Bush re: SS privatization) or making inexcusable pardons — point toward these alleged constraints being quite different than the electoral connection. You might, of course, think these are good things, and it’s true that they would be available to any president who knew he wasn’t running again, but my instinct is that a higher percentage of presidents would leave office due to electoral defeat absent the 22nd, and so there would be an overall aggregate mitigation of these concerns.

    The second issue is that the lame-duck status of the president tends to  hamper his political effectiveness during his second term. Especially by the second Congress of his second term, the president begins to lose public attention and standing as the competitors for the nomination in both parties — as well as their policy prescriptions — arise. Similarly, the various tools of political leverage — patronage appointments, campaign assistance, greasing the skids for specific legislation — become less valuable and less effective, because presidents can’t make future guarantees about anything that happens after the are out of office, and because they tend to run out of chits before then anyway. This point (as well as the first) is not a specific function of the 22nd amendment — it would be true of any last term president who made his intentions known prior to nomination season — but the amendment guarantees that half of any re-elected presidency will function under this cloud.

    Finally, there’s the crisis issue. It’s a silly political saying, but there’s a lot of merit to the don’t-change-horses-midstream logic.  I think FDR’s decision to run in 1944 was quite justifiable. Much more so than in 1940. Roosevelt was managing a global war and had personal relationships with the leadership of our allies. It was a tough enough transition when he abruptly died; to crate 2+ months of lame-duckness followed by a change in command might have seriously impacted our global strategy and prospects. The point is that I think it would be a tough situation to be trapped in a long war or crisis situation and be constitutionally required to change leadership. This was one of the key minority arguments against the amendment in the committee report that came to the House floor with it.

    3) We never really got to see the post-two-term world. When you stop and think about it, there was a very strange dynamic at play when the amendment was ratified in 1951. In effect, a constitutional amendment was passed to enforce a norm. But that raises the question: if the norm was so widely believed, what need was the amendment? And if the amendment was popular enough to pass, why wasn’t the norm good enough? The answer, of course, is somehow related to FDR and/or the depression and the war. But it’s an open question as to whether 3rd terms — or even presidents seeking 3rd terms — would have become commonplace.

    It’s true that the approval ratings of Eisenhower, Reagan, and Clinton were high enough during their last Congresses to plausibly have made reelection possible (Bush 43’s were not). But there’s too much endogeneity to know for sure, and 2nd term presidents might benefit from good feeling once they are out of the electoral game. But even though the norm had been crumbling for the better part of a century — Grant sought a non-consecutive nomination in 1880, TR ran for what would have more or less been a non-consecutive 3rd term in 1912 — it would still have had an impact, judging from the fact that the amendment was ratified. So it’s far from clear that FDR would have opened the floodgates to 2nd term presidents automatically standing for re-election the way 1st term presidents do.

    In effect, we’ve had four historical phases regarding the terms. First, in the patrician era there was strong elite opinion against the 3rd term, stemming from some combination of political theory, Founding thought, and Washington’s example. Following Jackson’s presidency and the onset of the powerful mass political parties, there was an institutional constraint on the 3rd term — the parties were loathe to nominate candidates even a second time, out of fear that the president could build his own patronage system and come to dominate the party, rather than be beholden to it. Later, in the later 19th and early 20th century, there existed a popular norm against the 3rd term, even as the parties warmed to the idea of multi-term candidates. Finally, beginning with the Eisenhower presidency, there is the constitutional rule.

    4) Clinton’s plan does not strike me as an improvement. There are two distinct ides in the 22nd amendment. The first is that no one should be president for more than 8 consecutive years (or 10 in the case of inheriting the office). The second is that no one should be president for more than 8 years (or 10) during their lifetime. Clinton’s proposal is to scrap the second idea, and allow former presidents to stand for the office. There’s an intuitive appeal to this; it certainly mitigates the incumbency-advantage issue. But it doesn’t do anything to address the problems of the 2nd term president or the changing-horses-midstream problem.

    And I think it comes with it’s own problems. Former presidents in the modern age are not, by and large, political animals. They are around as statesmen and such, but they don’t hang huge shadows over the political parties. If they were allowed to run again, but not run for a 3rd term, you might end up in a situation where they very much were shadows. That might not be a bad thing, it’s pretty fuzzy. But my intuition is that presidents are quite influential in shaping the party ideology these days, and when combined with the open possibility of running again but having to sit on the sidelines, might create a mess. Could it work out well? Sure, I think Clinton in 2004 might have been a good and winning candidate. But we don’t really know what a Clinton shadow over the party would have meant from 2001-2004.

    5) On balance, I think it’s a very close call on repeal. I’d probably end up opposing a straight repeal of the 22nd amendment, because I’m both risk-averse and very much an opponent of expanded presidential power. And that’s what really worries me, the worst-case scenario: someone developing a personal cult, serving for seven terms, and then having his son elected to the office upon his death. It’s farfetched, but in the age of the runaway executive I think any move that expands the power of the presidency has to be approached with an eye toward the worst-case scenarios. It’s naive to think that a contemporary four-term president wouldn’t develop a personal power that went beyond anything we’ve ever seen. And that’s very troubling.

    Still, I would be pretty torn about it. The problems with the unlimited system are, like the above hypothetical, almost completely theoretical, whereas the problems with the limited system are well-known and consistently evidenced in two-term presidencies. On this I agree with Bernstein; the best world would be the post-Jacksonian and pre-FDR world, where the norm was either culturally strong among voters or institutionally enforced by political parties jealous of the power multi-term presidents might acquire at their expense. And while the latter is unlikely to ever be coming back, the cultural/electoral norm could theoretically be resurrected.

    Still, the ship has sailed on a two-term system held together by norms. Not because I don’t think the norm exists in the modern mindset, but because the only plausible situation in which  the 22nd amendment could be undone is one in which  there is a groundswell against both the amendment and the norm. Nor do I think there are other workable solutions. I don’t like Clinton’s plan. I think a three-term limit would be completely counterproductive, embodying the worst of both an unlimited system and the 22nd amendment system.  And you don’t have to live in Virginia to know that all the proposals for a single 6-year term are insane.

    1 Comment

    Church Democracy

    November 13, 2011

    Our church was holding elections this morning for the pastoral council. So much to talk about, but just a few quick points here.

    1) I’m a huge fan of democratically-structured institutions of civil society. At my wife’s request, we go to a Catholic church, which I have always rated low the self-democracy scale. It’s an international institutions with a pretty strong hierarchy preaching a pretty strong organizational authoritarianism and providing little congregation control over decision-making at the local or regional level. So I was pleased to see the ballot boxes out today, even if the organizational structure doesn’t allow for a whole lot of democratic decision-making and the elections were for what is, more or less, an advisory council..

    I grew up in a liberal Protestant church that was pretty much exactly the opposite — close to total self-reliance on donated funds from the small congregation to run the church, with corresponding democratic control over pretty much the whole ball of wax — pastor salary, worship logistics and contents, youth curriculum, building improvements — with minimal to no input from the larger national church structure. As with any organization, there were large variations among the congregation regarding interest in decision-making, and practical political control of the church fell to a small cadre of highly-interested people. But the basic sense of the community was self-governance, and it was a pervasive cultural attitude of the church. People talked about the church budget, and the sunday school curriculum, and the proposed additions to the building.  And when decisions were made, it felt like the community was making them.

    Honestly, to me this is the single best thing about the American-born churches, as well as one reason I am more fond of American protestantism than I am of Catholicism. Strip away all of the salvation theology and the ethics system and what you have at the foundations of American protestantism is the essence of democratic civil society. We voted on everything in my church growing up. Yes, it could be bitter, and yes there were political factions. But it gave people a chance to participate in self-government in a way that I think reinforced both the clear advantages of the democratic system over all possible governing structures as well as the limitations and shortcomings of the same. Democracy is far from perfect, but you can’t help but believe in its magic after you observe how well it serves a 300-person church that doesn’t even have the power to tax. The spillover effects of democracy, both from public life to our church, and from our church to public life, were unmistakable.

    2) I was unimpressed with the election structure today. Nine candidates for four seats, voters allowed to mark four candidates on a ballot, top four plurality winners elected, voting open after mass yesterday, today, and next Saturday and Sunday. This looks to me like a structure that could likely result in factional candidates — ones with lots of support but also lots of opposition — winning seats over consensus candidates. That’s never a great outcome, but it’s especially bad in a private non-profit organization, I think. One remedy would be to go to some form of Borda voting, but that would never happen in a church. Nor would a runoff. Luckily, this election did not seem at all divisive.

    Another problem in a massive Catholic parish is that not everyone knows each other. With four different masses on a given weekend and people tending to always go to the same one, it can kind of feel like four different churches. And thus you get a situation where the candidates are unknown to a good many of the voters.  Obviously, you can’t do anything about this; but it does speak to how the usually-smaller protestant churches, with their single services and tighter communities, are perhaps better structured for democracy. To combat this today, there was a candidate brochure available, which had pictures of each of the nine candidates and a brief (150 word) statement from each of them. Perusing the brochure, not a single candidate spoke to policy; the appeals were either made to gyroscopic representation (I’ve been a member here for 20 years; my kids are in the youth program, etc.) or to experience (I’ve been on the board for 3 terms, etc.).

    The lack of policy positions revealed what was actually the most problematic aspect of the election — I don’t think most voters have any more than a vague sense of what the job actually entails. Well, I don’t at any rate. And maybe that’s because I’m not Catholic, but my wife didn’t know either. I assume it’s some sort of advisory group to the parish priests on various church matters, but I really don’t know. It can’t be like a stand-alone protestant church trustees situation, because there’s not that much congregation control in a Catholic church. But on the other hand, it might have actual administrative powers of some sort. I guess the point is that it would probably serve the church well to put up a description of the powers/duties of the job in the front of the candidate brochure.

    3) On the good side, the voter eligibility was wide. According to the candidate brochure, any “registered parishoner” was eligible to vote. I assume this means any confirmed member of the church, which means that most high school students would qualify. That’s good for both the teenagers and the church. The teenagers benefit because there’s something very powerful about participatory democracy and self-government, and there’s no way to build a lifetime understanding of that then by getting started at it early. Teenagers live in a world dominated by authority: at home, at school, on the sports teams. To hand them even the smallest token of equality in a private institution is an eye-opener. I know it was for me. And this is to say nothing of the spill-over effects it may have on public society in their community or the nation.

    But I think the big winner is the church. There’s no real reason to restrict the franchise in a situation like this; I’m almost certain that any of the nine candidates would be minimally-competent at the job. But the gains an organization can make by including their children and young adults in a process like this are potentially huge. First, you give them a sense of ownership over the church; it may be a trivial election to the adults, but any child who feels like they helped put a winning candidate over the top will find themselves looking at the institution in a new way, and they will bring a new sense of care to it. Second, churches constantly struggle to maintain memberships. In a country with a protestant/capitalist mentality, even the Catholic church cannot rely on its theology to bind parishoners; it surely competes less on the open-market than the protestant churches, but it still competes. Allowing teenagers to participate in the church administrative structure aids this retention, through both participatory effects and (in theory) policy outcomes.

    4) I observed turnout for a while after church. It was abysmal.This doesn’t surprise me, because as I noted above, I don’t think a lot of people understand what the job does, nor do I think that the council has a lot of actual administrative powers. Still, it irks me that they don’t do a better job with it on the institutional side. The election was reasonably publicized, but the voting table was out of the way and not particularly visible. The in-mass message from the priest reminding people to vote was also pretty lukewarm. For a church that has no problem issuing dead-serious prescriptions for salvation and ethics, I would think that something along the lines of “it’s your duty to vote” could have been proffered without a lot of trouble and to some definite effect. I doubt they get 10% turnout across all of the voting days.


    More Congressional Jargon

    November 12, 2011

    A few months ago, I put up a post with a long list of Hill jargon in response to a short-but- good published article (subscription required). Since my original post was pretty well received, here’s an updated version with another three dozen terms. As with the first installment, this isn’t formal terminology related to floor procedure, that can be found in quite a few places. This is the language that staffers use. Like any profession, the Hill is chock-full of wonderful phrases and sayings. But unlike a lot of other professions, politics tends garner a lot of interest from non-practitioners. So enjoy. These are off the top of my head. So feel free to add on in the comments.

    BTU (or BTU’d): When backbench majority House Members cast a tough vote to support the leadership, but then the policy never even materializes because the Senate doesn’t take up the bill. Named after a vote in 1993, in which House Democrats cast a painful vote to raise taxes on home heating oil and other energy, measured in BTU’s, only to see the Senate never even take up the bill. Usage: I hope to god we don’t get BTU’d on this health care vote. It was bad enough on the climate change bill.

    Rolled: When a faction of a party or group gets end-run or otherwise outmaneuvered politically. Usage: I can already see what’s going to happen here: the liberals are going to get rolled again by a conservative coalition.

    Apoplectic: When a Member or staff gets enraged by new information or news. Usage: When he found out the minority was going to move 30 amendments, the Chairman was apoplectic.

    Recommend: Polite language staffers often use to tell their bosses what they should do. Usage: On the tax amendment, I recommend you vote no.

    Ping-pong: Reconciling the differences between a House-passed bill and a Senate-passed bill by amendments between the chambers, rather than forming a conference committee. More common now than in the past. Usage: I don’t think they have the time or inclination to put a conference together on the omnibus, we’ll probably just ping-pong it.

    Mr./Ms.: The title staffers use for Members other than “their boss.” Usage: Is everyone in the hearing room? No, we’re still waiting on Mr. Obey and Mr. Skelton.

    Camel’s nose: The principle that once funding starts — no matter how little — for a project, it will be difficult to cut and probably grow larger. Usage: But they only want $250,000 for it. Yeah, but that’s just the camel’s nose.

    Justifications: Short for budget justifications, documents submitted by agencies to the appropriations committee outlining their budget requests for the following fiscal year. Usage: What the hell is this $2 million for “additional overages”? I don’t know, check the justifications.

    Push-back: When a stakeholder objects to draft or proposed legislation coming out of a Member’s office or a committee. Usage: We thought it would work to structure it that way too, but we got a lot of push-back from the auto industry.

    Stakeholder: An interest group or other entity that has a position on a piece of legislation. Usage: This bill is a nightmare. There are a million stakeholders,and they all want something different!

    Pen and Pad: A type of press availability held by Members on the Hill at which video/photography is not allowed, usually associated with leadership Members who often hold them on a weekly basis at a scheduled time. Named as such because the reporters all used to gather around the Member with their pads of paper and pens. Now many just put a tape recorder on the table. Usage: Are you going to Hoyer’s pen and pad tomorrow?

    Build a public record: The main reason for holding a hearing, which is to get the committee majority’s position and rationale for a bill down on paper. Usage: The boss wants it to move by Christmas. So we need to build a public record on this thing. I guess we should schedule a hearing.

    MRA: Short for Members Representational Allowance. The money that each House office is given to fund staff salaries, travel, office expenses and franked mail. Senate equivalent is the SOPOEA (Senator’s Official Personnel and Office Expense Account). Usage: Can drinks at Bullfeather’s be charged to the MRA if we talk about politics?

    Face Time: One-on-one interactions between a staffer and the Member he/she works for. Usage: How’s your new job on the Hill? It’s great, but my boss is so busy that I’m lucky to get 30 minutes of face time a week.

    D.O.: District Office. Virtually all Members employ staffers to work in their home districts, usually to handle casework and constituent outreach. Usage: What the intake procedure for these constituent passport questions? I have no idea, call the DO.

    Move: To advance legislative action on a bill, either in committee or on the floor. Usage: Any word on when the defense reauthorization is going to move? Nope. But they’re moving the minibus on Thursday, so I think it might happen next week.

    D-Trip: Short for D-Triple-C, which is slang for DCCC, which is the acronym for the Democratic Congressional Campaign Committee, which is the primary campaign arm of the House Democrats. Republican equivalent is the NRCC; Senate equivalents are the DSCC and NRSC. Usage: Did Chris get that job with Smith? No, but he landed a sweet position at the D-Trip.

    Christmas Tree / too many ornaments: Refers to the process of too many amendments/ideas being added to a bill, causing opposition to grow. Interchangeable with “collapsed under its own weight.” Usage: I thought the omnibus had a chance, but now there are too many ornaments weighing down the Christmas tree.

    Subcommittee print: A document produced by subcommittee staff for Members and other staff, often related to a bill. Usually never made public, but often a great source of information. Usage: How much money did that agency get in FY08? I have no idea, check the subcommittee print.

    FTE: Acronym for “full-time equivalent,” which is the standard metric for number of employees in an executive branch agency. Usage:Did you see the budget justifications the agency sent over? They’re asking for 45 new FTEs!

    Report language: Instructions, observations, and expectations found in the committee report that accompanies a bill to the floor. Does not have the force of law (as “bill language” does), but agencies ignore it at their own risk. Usage: Call them back and tell them we’re serious about the unauthorized travel. And if they don’t want to listen, tell them we’ll add some stern report language to the reauthorization. And if they still don’t want to listen, we’ll just put it in bill language.

    Budget drills: In the early stages of appropriations season, prior to the passage of a budget resolution and 302(b) suballocations, appropriations staffers will often produce hypothetical appropriation bill estimates at various percentages of the previous year’s allocation. Usage: What have you been up to? Just some light budget drills — we look good at 2% over FY11, but anything less is going to be tough.

    Test vote: A procedural or other non-final vote, almost always in the Senate, that gives a signal as to where different Members stand on the underlying issue, and thus a roadmap as to how a bill might or might not have to change to win support. Usage: I don’t know where we stand on the debt deal, but they’ve lined up a couple test votes this afternoon, so we’ll know then.

    Marker: A piece of legislation intended not to make law, but to lay down a position, for either political or negotiation purposes, or both. Often the introduction of a bill or a proposed amendment. Usage: The details of the legislative language don’t have to be perfect, we’re just laying down a marker.

    Byrd bath: A review of legislative language prior to floor action under the reconciliation process to make sure that it conforms to the Byrd Rule, which bars certain extraneous legislation in reconciliation bills. Usage: When do you think they are going to move the reconciliation package? I know that they are doing the Byrd bath on Tuesday night, so probably by the end of the week.

    Take down / bring down: When the majority is defeated on the floor in the House, which by definition involves Members of the majority voting against the leadership. Usage: The blue dogs are pretty upset right now, but I don’t think they’ll try to take down the rule on the Labor/H bill.

    Lovefest: A committee hearing or markup in which the majority and minority are almost entirely in agreement, featuring little opposition and perhaps no amendments offered. Usage: I thought we’d see some fireworks at the Interior markup, but it turned out to be a lovefest.

    Case: A constituent request for help from their Member’s office. Usage: I’m absolutely swamped here in the DO, we’ve got over 1500 open cases, and half of them are passport requests because of the State Department backup.

    Floor: The actual House and Senate chambers, the only places where legislation can actually pass. Usage:When do you think the Defense bill will be on the floor? No idea, but if they can’t get a UC on the Patriot Act reauthorization, that could take the rest of the week.

    Eat: When an agency is given a new responsibility but not increased appropriations to pay for it. Usage: We’re not going to be able to get an appropriations for this. Well, they’ll just have to eat it out of the Administrator’s funds.

    Stack: Votes in the House can be postponed, and then taken one after another. Usage: What time do we have to be back in DC on Tuesday? Not till late. It’s just a pile of suspension votes, and they’re going to stack all the votes around 5pm.

    Over a barrel: Having people in a political bind, such that they have to do what you want. Usage: It really looked like Stupak had the leadership over a barrel during the health care fight, but they managed to break his support.

    Cardinal: An appropriations subcommittee chairman/chairwoman. Usage: I can’t believe Mr. Smith is already a cardinal. I feel like he was just a freshman on the committee yesterday.

    UC: unanimous consent, or unanimous consent agreement. Perhaps the most important phrase in the Senate. If no one objects, the time-consuming process for moving anything on the Senate floor can be reduced to mere seconds. Usage: We need to line everyone up on this, if we can’t get a UC then it’s not going to move.

    Run the traps: The process of vetting an idea by making sure all key players sign-off on it. Usage: I think this language will work, but you need to run the traps on it. Start by calling Ben in the Speaker’s office.

    Member-level:  In bill or report language negotiations, an issue that can’t be handled by staff and will require Member-to-Member communication. Usage: Q: Can you delete the language on the park issue? A: No. That’s going to have to be a Member-level decision.

    Mark: The version of a bill used by a committee when the committee formally acts to amend legislation. Usage: Have you seen the mark for the Defense bill yet?

    Rattle the cage: To surprise a hearing witness with unexpected or unwanted questions. Usage: When the secretary comes down here next week, I think the chairman is going to rattle the cage a little.

    Embargo: A ban on the disclosure of information of any sort until a certain time. Usage: Here’s the report language for the bill. There’s an embargo on it until 3pm tomorrow.

    D’s/R’s: Democrats and Republicans. Usage: If we put that on the floor this week, the D’s are going to be might upset.

    Scores: When a provision in a bill costs money, but especially when the provision does not appropriate money, it scores. The Congressional Budget Office evaluates the cost of all bills that come out of committee, and appropriations bills are subject to caps on their budget authority and outlays. So it’s not good when something scores. Usage: I don’t think we can include those riders. They’re both going to score, and we don’t have room under the cap.

    Book(s): Short for briefing book(s). The large binders that staff put together for Members and themselves prior to committee and other events, filled with things like statement texts, markup notes, bill language, data, etc. Usage: We’ve got to get moving on this draft. It’s already 9pm and we haven’t even started putting the books together.

    Go down: Send bill or report language to GPO for overnight printing. Usage: I’m hoping we can finish this afternoon and go down tonight. That way we can read a bit tomorrow.

    Sit and read/ turn pages: Collectively walking through a bill (especially an appropriations bill) out loud with multiple people, to check new drafts against old ones and confirm that language is exactly correct. A slow process. Usage: I’d like to turn pages on Thursday, so adjust your schedule accordingly.

    Optics: how a bill or report language or policy will look from a constituent point of view. Usage: I agree with you, John, but the optics of this thing are terrible.

    Drop: to introduce a bill. Usage: We need that language ASAP, because we want to drop this bill tomorrow.

    Take a haircut: have your appropriation cut by some percentage. Usage: I know you have a lot of needs, but in this climate everyone is going to have to take a haircut.

    Plus up: An appropriations increase, especially in contrast. Usage: the overall bill is flat but we gave a plus up to agency XYZ.

    Four corners discussion: staff or Member meeting (often prior to formal conference) that includes majority and minority staff or Members of both House and Senate. Usage: Let’s try to put together a four corners discussion for Tuesday. See if they’ll come over here.

    CR: continuing resolution. If all 12 appropriations bills are not signed into law by October 1, the government will have at least a partial shutdown, unless a continuing resolution is passed to temporarily fund things until the regular bills can be passed. Usage: The CR expires on November 3rd. Do you think they’ll have it all done by then, or do you think there will be another CR?

    IQ: the most popular correspondence management system on the Hill. Used by Member offices to track and respond to constituent communications. Usage: Our new staff assistant is terrible. Five weeks and he can’t figure out IQ.

    SA/LC/LA/LD: Four common positions in a Member office: Staff Assistant, Legislative Correspondent, Legislative Assistant, and Legislative Director. The basic chain of command beneath the chief of staff. Usage: We need to hire two new LAs this month and it looks like our LD might be leaving.

    Clerk: lead staffer on a committee or subcommittee, particularly on Appropriations. Largely interchangeable with Staff Director. Calls the roll for committee votes. Usage: I think that’s right, but you better check with the Clerk.

    CRS/CBO/GPO/GAO/LOC/AOC: Some of the legislative branch agencies. Congressional Research Service, Congressional Budget Office, Government Printing Office, Government Accountability Office, Library of Congress, Architect of the Capitol. Usage: I can’t believe the roof is leaking again. Get the AOC down here stat.

    Give away: to have no floor votes on a day when there were initially going to be votes. Thus, Members are free to return to their districts early, and the Hill quiets down. Usage: I heard they are going to give away Friday this week.

    The smell of jet fuel: an allusion to the impatience that sets in when Members are imminently leaving town for the weekend. Such situations can be used to quickly get through mark ups or floor action that might have otherwise taken time. Usage: It’s great we’re going last today. The smell of jet fuel is in the air, so there’s little chance we’ll face many hostile amendments.

    Cats and dogs: Small details in a bill. Usage: we’ve pretty much ironed out all the outstanding issues. Just a few cats and dogs left, but nothing major.

    CODEL/STAFDEL: Acronym for congressional delegation and staff delegation, the groups that might go on an official trip overseas. Usage: Did we get the money for the CODEL to South Africa yet? No, but I hear its coming.

    Hotline: any number of uses related to moving a bill through the Senate by unanimous consent. Formally the decentralized phone system used to clear bills with all Members prior to bringing them to the floor. As a verb, the practice of moving bills in this manner. Usage: When are they going to do the land use bill? They’re going to try to hotline it tomorrow afternoon.

    Ramseyers: refers to the Ramseyer’s Rule, which requires committee reports for House bills to include a section that describes how the proposed legislation would alter current law. Usage: I’m so glad we can farm out the Ramseyers to legislative counsel, those are a pain to write.

    Side-by-side: A document that places the text of two similar bills (perhaps a House version and a Senate version) next to each, line by line. Allows easier comparison of the exact language difference between the bills. Usage: We’re almost ready for the staff-level conference negotiations, but we need to finish the side-by-side.

    Markup notes: a document produced by committee staff for Members to use as a companion to a bill at markup. Most common in appropriations bills. Usage: If you’re having trouble understanding section 5, refer to the markup notes, which have more details.

    HR/SR: House recedes or Senate recedes. Notation used in conference negotiations to indicate one chamber or the other giving in on bill language that differs between the chamber-passed versions. Usage: On page 12, section 3, 4, and 5 are all HR’s.

    Suspension: Any bill going through the House of Representatives under suspension of the rules, which can move a bill quickly, but requires a 2/3 vote. Usually used with non-controversial legislation. Usage: How many suspensions are we doing today?


    All Quiet on the Western Front

    November 11, 2011

    Two quick items and then a bunch of recommendations for excellent blog reads from this week:

    1. I haven’t said anything about Penn State, mostly because I don’t have the heart to really get into it. I tried to read the grand jury presentment, but I had to stop because it I couldn’t take it; it was (literally) making me physically ill. I don’t see how any parent could read that whole thing. Sandusky is obviously a monster. Paterno, McQueary, and the Penn State administration are clearly morally bankrupt. The riot on Wednesday night might have been the dumbest protest/riot in U.S. history, and that’s saying something. And big-money college sports are perhaps beyond saving at this point.

    The last point makes me sad because my one of my first sporting loves as a child was watching college basketball with my father. My parents’ house is spitting distance from Siena College, a tiny Catholic school with a cult following for its high mid-major basketball team. One thing you learn when you go to a lot of Catholic school college basketball games is that priests love college basketball. I can remember asking my father once why that was the case. And he said, “This — watching college sports — is pretty much the most wholesome and innocent entertainment available on a Saturday night in America.” That’s a fantasy I’ve always enjoyed, even as it has gradually crumbled for me. I won’t be able to stop watching Siena basketball, but I never really liked college football anyway. And so I’m done with it.

    2. It’s Veteran’s Day. I have very mixed feelings about it as a holiday. I don’t believe in violence for either individuals or nations, except in the most direct cases of self defense. And I don’t believe that any modern war can be conducted in even a remotely just manner, certainly not by the classic Roman or Christian standards. Both of my grandfathers were in the Navy in WW2 — one as a radio operator on a boat in the Pacific, the other stateside as a chaplain counseling returning sailors — and while both of them always made the war seem like McHale’s Navy, it was pretty obvious that what they saw/heard scarred them for life.

    On the other hand, I accept the imperfections of the world and I have an admiration for people who are willing to set their own lives aside for national service. I don’t hate the military; in fact, in an age of decreasing social mobility in America, it’s still one of the best ways for someone born into poverty to lift themselves and their family into the middle class. But I see a lot of people lament the muted celebrations of today compared to Veterans’ Days past — there’s no parade in my town today and the schools aren’t even closed — and I couldn’t disagree with them with more. Less celebration on Veteran’s Day indicates there are fewer veterans, which means fewer or less intense recent wars. And that is unambiguously a good thing.

    Here’s a bunch of reads from this week that I highly recommend:

    1. Brendan Nyhan and Jacob Montgomery have an excellent post on presidential election forecasting.

    2. Definitely read John Sides’ response to Michael Tomasky’s piece regarding Obama’s election chances.

    3. William Galston’s piece on mandatory voting provoked solid responses from Sides and from Jon Bernstein and also see this from Josh Huder. I also really liked Bernstein’s post on involving yourself in politics this electoral season.

    4. And speaking of the Rule 22 bloggers, they are running a great political science series on institutions. Anyone interested in Congress should read it.

    5. Buzz Bizzinger’s take on Penn State is a must-read.

    6.. Bret Victor’s article on the future of technology is awesome.

    7. I have no idea if he’s correct but Ken Anderson’s cold calculus about higher education is scary if you have kids.


    Debate Q&A on ‘ObamaCare’

    November 10, 2011

    Question: How many times was the word “Obamacare” said during the debate last night?

    Answer: Based on this transcript, it was said 11 times.

    Question: Who said it?

    Answer: Bachmann said it four times. Romney said it three times. Perry and Santorum said it once each. Gingrich, Huntsman, Paul, and Cain never said it.

    Question: But that only adds to 9? I thought the answer was 11?

    Answer: That’s because moderator Maria Bartiromo said it twice. First, when introducing the topic of what would replace the ACA, she said:

    “You have all said that — that you will repeal the president’s health care legislation. We will get into that, because we want to know, then what? What is the plan once you repeal Obamacare?”

    Later, she reintroduced the issue:

    You have all said that you will repeal President Obama’s health care legislation. Down the line, 30 seconds, if you repeal Obamacare, what’s the answer?

    Question: What do you make of this?

    Answer: I didn’t like it, for two reasons. First, I think it’s a pejorative term for the Patient Protection and Affordable Care Act, or at least a loaded one, and I don’t think debate moderators should be using politically loaded terms when they ask questions. My hunch is that the vast majority of people who use the term are negatively describing the law, and my guess is that a lot of liberals and supporters of the bill find ‘Obamacare’ to be partisan slang.

    Now, it may be the case that ‘ObamaCare’ has just simply entered the lexicon as popular slang. I still don’t think journalists should be using it. It assumes a certain political orientation. I’m pretty skeptical about the health care plan — I don’t think it’s going to accomplish the bulk of what it sets out to do — but I would still never refer to it as ‘Obamacare’ if I was asking politicians questions.

    Second, I don’t like the president-centric aspect of the name. Maybe I’m too much of a Whig, but President Obama didn’t pass the law, Congress did. Hell, President Obama didn’t even propose the bill; as we all know so well, it came straight through the committee system without the White House ever offering up their own public version of health care reform in legislative language.

    I don’t mean to take this too far. There’s obviously a line to be drawn. For example, I don’t think ‘Bush tax cuts’ is out of bounds; that’s what everyone calls them, both opponents and supporters. But to me, ‘Obamacare’ is more like saying ‘death tax’ than it is like saying ‘Bush tax cuts.’ If moderators want to say ‘the President’s health care legislation’ as Maria did, I’m ok with it (although I would still think it less than perfect given my second objection). But I think ‘Obamacare’ crosses a line.

    Some people might say who really cares? Maybe that’s a fair point. But I think language matters significantly in politics, and the words we choose to represent different ideas and policies have consequences. Like I said, I’m skeptical of the law and think it’s not ultimately going to be the final national health care policy, even if it’s not repealed. So it’s not like my blood is boiling over this. But if I were a liberal Democrat, I’d be at least a little ticked off about it.

    Question: Is Maria the first moderator to use the term in a debate?

    Answer: Actually, no. I went back and checked the transcripts. The word ‘Obamacare’ had been said 124 times by candidates in the eight debates going into last night. It had been said 5 times by moderators, but 4 of those instances were somewhat special circumstances.

    Here are the number of times a candidate said ‘ObamaCare’ and the number of times a moderator said “ObamaCare” in each of the debates:

    • FOX NEWS / SC Republican Party Debate (5/5, transcript here): 0 candidates /0 moderator
    • CNN / NH Union Leader (6/13. transcript here): 24/0
    • FOX NEWS /Iowa GOP Debate (8/11, transcript here): 14 / 0
    • NBC NEWS / Politico Debate (9/7, transcript here): 15 / 0
    • CNN / Tea Party Express Debate (9/12, transcript here): 16 / 0
    • FOX NEWS / FL GOP Debate (9/22, transcript here): 18/2 (both in reference to a word cloud graphic)
    • BLOOMBERG / WaPo Debate (10/11, transcript here): 17/2 (both clarifying what a candidate meant)
    • CNN/Western Republican Debate (10/18, transcript here): 18/1 (Anderson Cooper question)
    Both moderator uses on 9/22 were in reference to a word cloud graphic built from public data, so they don’t really count. Both references on 10/11 were Karen Tumulty seemingly trying to clarify what Gingrich was talking about.
    That leaves Anderson Cooper on 10/18 as the only previous unambiguous use of ‘Obamacare’ by a moderator. He said:
    “Speaker Gingrich, you’ve also been very critical of Mitt Romney’s plan, not only on “Obamacare” but his plan to lower the capital gains tax only on those earning under $200,000.”

    Since I’m chastising Maria here, it’s only fair that I chastise Anderson as well. Bad job, Mr. Cooper.

    Update: Go read Jon Bernstein’s thoughts on this, in which he argues quite rightly that Patient Protection and Affordable Care Act is not a neutral term, but a propaganda titling. Good point! He recommends using ACA, which I 100% agree with, and usually use myself. I don’t fully agree, however, that ‘ObamaCare’ is the equivalent of ‘Dodd/Frank’ or ‘Pell Grants’ or ‘Bush Tax Cuts.’ All of those terms are used by both supporters and opponents of the laws. Two years ago, Democrats on the Hill were bristling at the ‘ObamaCare’ terminology; if they now accept it, that just tells me that they’ve lost part of the rhetorical battle over the law. But I don’t think liberals have generally accepted the term, and I don’t think they should have to accept it from the press.

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    Turn-out, tune-in, and roll-off in Fairfax County, VA

    November 9, 2011

    Reported below are voter turnout and roll-off figures for last night’s elections in Fairfax County, Virginia. Data was assembled from election returns available here. Turnout is calculated from the reported 696,083 eligible voters.  Races allowing a voter to pick multiple candidates from a field are denoted with an M (and total votes divided by appropriate number). An asterisk denotes uncontested races or partially uncontested races.  Roll-off is calculated as the percentage of votes cast in the top race but not cast in a lower race; since there was no gubernatorial election, the aggregate votes cast in the state Senate races is used as the top race.


    State Senate (Aggregate of 9 races )









    Board of Supervisors Chair 191,510 27.5% 9,534 4.7%
    School Bond referendum 188,593 27.1% 12,451 5.1%
    Sheriff 188,168 27.0% 12,876 6.4%
    House of Delegates (Aggreg. of 17 races)* 182,823 26.3% 18,221 9.1%
    School Board (Aggreg. of 9 races)* 178,870 25.7% 22,174 11.0%
    Board of Supervisors (Aggreg. of 9 races)* 178,278 25.6% 22,766 11.3%
    School Board At-Large (M) 170,991 24.6% 30,053 14.9%
    Commonwealth Attorney* 150,851 21.7% 50,193 25.0%
    Soil and Water Conservation Board (M) 128,148 18.4% 72,896 36.3%
    Total 1,759,276 25.3% 251,164 13.9%

    A few comments:

    1) Low turnout is no surprise here. You don’t have to read the endless political science studies to know that state and local elections held in an off-year are going to feature lower turnout than presidential elections. Last night, 201,044 votes were cast in Fairfax County for State Senate, the most in any race. In 2010, 303,379 voters cast votes in the U.S. House elections in Fairfax County, and 516,254 votes were cast for President in Fairfax County in 2008. There is simply less voter interest in state and local politics, and as I’ve written before, that’s a fact that I find highly lamentable. Still, it could be a lot worse: 25% of all possible voters were cast, and that’s many multiples of what some localities in other parts of the country received last night, I’m sure.

    2) Um, what’s roll-off? It’s the tendency of voters to only cast a vote for the top races on a ballot, such as President, and to decline to cast a vote in lower-profile races that appear on the same ballot. The standard metric is the percentage of voters who vote in the top race but do not vote in a lower race. Roll-off tends to increase as you head down a ballot, such that in a Presidential election year you might get a 2 to 5% roll-off in a given House race, but 15% or more roll-off for a local election. For example, in Fairfax County in 2008, 516,254 voters were cast for President, but only 509,473 for U.S. Senate (1.3% rolloff), only 504,243 for U.S House (2.3%) , and only 493,642 for the lone bond issue (4.4%). The roll-off in Fairfax County last night was massive in some cases. A full one-third of votes for the soil and water conservation board were left on the table. As were 15% of the votes for School Board At-Large.

    Roll-off raises a number of issue for a democracy: is it an indication of voter indifference for local government? A crowding out of local politics by state and federal issue coverage? A reason to not have concurrent federal,state, and local elections? Roll-off figures also provide us with clues as to the health of local democracy: if the number of voters who are already at the polling place but who cannot be compelled to choose a local official increases over time, that might be cause for concern.

    3) What caused the roll-off last night? The political science literature regarding roll-off suggests three causes: voter fatigue from long ballots, the structure of the ballot itself, and rational voter abstention. Voter fatigue is unlikely to have had a large effect last night in Fairfax County; not only was the ballot a short three pages, but the school bond referendum, which received the third-most total votes cast, was on the last page. Therefore, a maximum of 5.1% of all roll-off can be attributed to fatigued voters not completing their ballots. But wait! The Board of Supervisor Chair was on the first page, meaning it’s highly unlikely that any of the 4.7% of that roll-off was fatigue. Which suggests that voter fatigue was no more than 0.4% of the roll-off.

    The structure of the ballot may have contributed to the roll-off last night. Fairfax county uses a “pure office block” arrangement of the ballot, in which the offices are listed sequentially with the candidates listed under each office. This structure has been shown to produce more roll-off than the main alternative, the “party column” ballot, in which the offices are listed down the side of the ballot and each party has a column running across the top of the ballot, allowing voters to easily vote a straight party line, and sometimes even including an automated mechanism to do so. Another potential factor is multi-candidate races; last night in Fairfax the ballot for both the School Board At-Large race and the Soil and Water Conservation Board race asked voters to elect three candidates from a list. Some voters may have been confused and only selected one candidate, although voters who used the touch-screens would have been reminded at least once that they had not made all possible choices. And this, of course, raises the final structural issue: there is some evidence that the electronic voting machines reduce roll-off, in part because they can do things like remind you that you didn’t fill out all races.

    The most likely culprit for the roll-off last night, however, is rational voter abstention, which includes several things. The most obvious is uncontested elections; voters have little incentive to vote in a race that only features one candidate. The only completely uncontested race last night in Fairfax was for Commonwealth Attorney, and it featured a 25% roll-off. Three other races featured were partially uncontested: the school board  (3 of 9 districts uncontested), the Board of Supervisors (3 of 9 districts uncontested), and the state House of Delegates (6 of 17 districts uncontested). The second reason for a voter to abstain is if they have no information about an election; if they have not been exposed to any candidate information and/or have no knowledge of the responsibilities of an office, it’s not hard to see why they might leave a voting choice blank. And information about local races is almost always less available than information about state races, which in turn is less available than information about federal races. But the most frustrating problem is that…

    4) Non-partisan elections are bad democracy. I cannot emphasize this enough. The ballots in Fairfax County do not list the partisan affiliations of the candidates for local offices. The candidates for state offices have party affiliation listed right next to their name, as required by state law. But not local candidates. I can’t determine whether state law proscribes it for local elections or if it is county discretion – the state law seems to imply no party labels (“for elections for federal, statewide, and General Assembly offices only“), but it’s not clear. The crazy thing in Fairfax County is that most of the local officials are running as partisans, in that they are nominated in partisan primary elections. Only the school board elections and the soil and water board elections are deemed “non-partisan” and the candidates all run as independents. In any case, there is no excuse for this; in my mind, it’s a basic injustice against democracy.

    As I’ve written before and others routinely blog about, party cues are not only the best available quick information for low-information voters, but they are damn good pieces of information as well. If voters could just see a D or R next to the names of local office candidates, not only would roll-off go down due to otherwise ignorant voters having all the information they need to make an informed choice, but many voters who did not roll-off would be given more information. The political parties do an admirable job of trying to hand out sample ballots to voters at the precincts that list their nominees and their endorsements for non-partisan races, but that can only accomplish so much. Putting the affiliations on the ballot would be a simple way to improve the quality of the voter signal in our elections.

    5) Why are we even electing the soil and water conservation board? Not 1 in 10 people in the county even know what they do, I would bet, and no one has any clue how to judge the candidates, because they’ve never heard of them and don’t have any party cues to go on. It would be a lot easier to just have the Board of Supervisors appoint the whole board.


    Bullock and Dunn. 1996. “Election Roll-Off: A Test of Three Explanations.” Urban Affairs Review, 32(1): 71-86.

    Matthew J. Streb, Brian Frederick, and Casey LaFrance. “Voter Roll-off in a Low-Information Context: Evidence from Intermediate Appellate Court Elections,” American Politics Research, vol. 37,  no. 49 (2009).

    Nichols, Stephen M. and Gregory A. Strizek. 1995. “Electronic Voting Machines and Ballot Roll-Off.” American Politics Quarterly 23(3): 300-318.

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    Twelve minutes of popular sovereignty

    November 8, 2011

    5:55am: I close the door to my car and pull out onto the street. It’s chilly and dark. I don’t turn on the radio, because it’s only a two-minute drive. I always go to the polls in the early morning. To beat the crowds, I would say. But also because I like going alone. Sure, it’s fun to take kids into a voting booth and all that jazz. But it’s not the same. Ever sit in a pew in an empty church and stare at the stained glass? Or stand on a deserted football field after dark and look up at the posts?

    5:56am: I pull up at the one four-way stop on the trip. I don’t know why and I guess it’s kind of awkward to admit this, but I always get mild butterflies in my stomach when I’m on my way to vote. Not like climbing the lift-hill on a roller coaster butterflies or 10 seconds before the whistle blows to start a rugby game butterflies; there’s nothing unknown about to happen. I think it’s more the connection to the process, the idea that I’m about to do something real and consequential. Something that will tie me to the past and tie me to the future.

    5:57am: I pull into the parking lot and park the car. I live in the Nottaway precinct of the Providence District of Fairfax County in the state of Virginia in the United States of America.  Impassioned revolutions overthrow monarchs and tyrants, both then and now. But the alternative system, the democratic system, is held together by solving a logistical nightmare. And so this is where I vote: an old house on a couple acres of cleared land in a park. There are about a dozen cars in the parking lot.

    5:58am: I walk past the party people. Virginia law does not allow any electioneering within 40 feet of the polling place, but 40 feet is not very far, and both parties are already stationed at their usual spots, at the edge of the parking lot in front of the sidewalk up to the front door of the house. Each side offers me a ballot, pre-marked with the party-endorsed candidates to serve as a guide in the booth. It brings to mind what I’ve read of 19th century elections, prior to the Australian ballot, when you voted with your own ticket and often got it from a party representative outside the polling place. I take one of each.

    5:59am: I get in line. This is not like the 19th century. It’s dead quiet. No bands, no liquor, no fights. As Richard Bensel conveys in his majestic survey of voting in the 1800s, it’s safer and less corrupt now, but it’s also a lot less exciting and a lot less fun. There are four people ahead of me. No one says a word. Inside the house, we can see poll workers scrambling with final preparations. This is either the most exciting dullness or the most dull excitement in the world. At any rate, it’s some combination of those two words.

    6:00am: A woman opens the doors. “Alright everyone, the polls are open!” And we shuffle into the house. Just past the vestibule I enter a small room, probably once a study, and proceed to the table labled “A – K.” Two older women are sitting at the table, one holding a thick book of names, the other a piece of paper covered in numbers and a stack of green cards. They will repeat their tasks 500 times or more today. But for now it’s fresh and exciting. Both of them are eating donuts and drinking coffee, the universal poll-worker compensation.

    6:01am: I tell them my name. They look it up in the thick book, and then verify my address with me verbally. I can see my wife’s name just below mine. With both kids in tow for a mid-day vote, she will not have the same experience as me. The second woman calls out “Voter number 3” and crosses off the three on her piece of paper. Looks up at me and smiles. Then she hands me a green card. It’s says “Fairfax County Voter Card — Do Not Remove From Polling Place.” On the back are some instructions. Unlike most of the signage in the polling place, it is written in English only. By the end of the day it will be worn and wrinkled. But right now it’s pristine.

    6:02am: I walk down the hall to the polling room. It’s not like the polling setups of my childhood in upstate New York, with the heavy metal stand-up voting machines and metal levers and huge handle that closes the curtain behind you. It’s both more old and more new than that. The actual voting “booths” are just tall desks, each with a small table-top touch-screen voting machine, almost like the old pictures you see of people dropping slips of paper into actual boxes. Not much privacy. But high-tech to the max. There’s an optical-scan option, but no one is taking it.

    6:03am: I hand my green card to a poll worker. She directs me to a touch-screen, follows me over, and puts a keycard in the machine. I look around the polling room and at the three other touch-screen booths set up. At one is an older African-American man, holding a sample ballot from one of the parties and dutifully marking his choices. At another is a younger woman being assisted by a poll worker, her computer evidently malfunctioning. The third is empty, one voter having left and another yet to arrive.

    6:04am: I mark each of my votes. The touch-screen is silent. No mechanical click like the lever supstate. No sound of graphite rubbing like the paper ballots. I take my time. Board of Supervisors. State Senate. County Sheriff.  At the end, the final screen includes a large flashing box that says “Click here to cast your VOTE.” I click and I cast. I walk away from the touch-screen. A poll worker hands me a sticker featuring an American flag and the words “I voted.” I put it on.

    6:05am: I walk out of the voting room. There’s a door that leads through a screened-porch and out to the front yard. The line of voters has grown longer, but it’s still silent. A small garbage can stands ready to collect party sample ballot. I drop both of mine in.  I walk past the party tables, but they don’t even see me; all their attention is focused on those still-yet to vote.

    6:06am: I climb in my car and look back up at the house.It’s still dark outside. All the lights are on in the house, and I can see people through the illuminated windows: reporting their names, being handed green cards, standing in the voting room. I turn the ignition, pull out of the parking lot and turn onto the access road. A long line of headlights streams my way. More voters. More citizens.


    Close enough for government work

    November 7, 2011

    The postal-employees union (APWU) is up on the air today with a new political ad. The  second-to-last  line of the narration is:

    “Tell your Representative to vote ‘No’ on House Resolution 2309.”

    As soon as I heard it, I knew someone had messed up:

    1. There’s no way 2309 resolutions have already been introduced this Congress (it turns out only 460 have); and, more importantly,

    2. There’s no way the APWU would be spending television ad money to fight a House resolution.

    The problem, as I’m sure most Congress-jocks have already noticed, is that the APWU has seemingly confused the concepts of a bill and a resolution.  And indeed, that’s what has happened: the APWU is almost certainly concerned with proposed bill H.R. 2309, the Postal Reform Act.

    My guess is that someone involved with the production of the ad thought the “H.R.” in “H.R. 2309” stood for “House Resolution” rather than “House of Representatives.” That’s a minor slip up, but it’s pretty sloppy and it’s pretty  important: a bill and a resolution are completely different things legislatively. Bills change laws. Resolutions do not. It doesn’t matter in the big-picture, but it doesn’t speak particularly well of the APWU’s legislative affairs acumen. (In the APWU defense, they do call it “a bill” in another part of the ad.)

    It does, however, give us a good reason to review the different types of measures introduced in Congress:

    Bills are proposed measures that will become law if passed in identical form by both chambers and not vetoed by the president (or signed over his veto). They are numbered with either an S. or H.R. prefix, depending on the chamber of origination.

    Joint Resolutions, which are designated as H.J.Res. or S.J.Res. depending on chamber of origin, are identical to bills, but are only used for certain specific purposes, including proposing constitutional amendments, declaring war, and temporarily extended appropriations (known as a “continuing resolution” or CR).

    Simple Resolutions, which are designated as H.Res. or S.Res. depending on chamber of origin, are not used to make laws. Instead, they tend to deal with internal chamber housekeeping, or non-binding public policy statements. As such, they do not require the concurrence of the other chamber. Examples of the uses of resolutions include: special rules from the Rules Committee in the House, commemorative legislation, creation of special or select committees, funding resolutions for committees, electing chamber officers, treaty ratifications in the Senate, and “sense of the House” or “sense of the Senate” legislation.

    Concurrent Resolutions, which are designated as H.Con.Res. or S.Con.Res. depending on chamber of origin, also do not make law. They are otherwise like simple resolutions, except they address matters of the internal affairs of both chambers. Examples include annual budget resolutions and resolutions providing for the adjournment of Congress.

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    Monday APD Blogging: Civil War and Western Politcial Development

    November 7, 2011

    [condensed from an academic piece I’m working on…]

    Historians and political scientists have long viewed the civil war and its aftermath as a formative period of American political development. Across numerous dimensions of political life, the United States was radically altered between the beginning of secession in 1861 and the end of Reconstruction in 1876. Rights of citizenship, the structure and role of the military, the relative power of the presidency, taxation policies, and the structure of the party system were all strongly affected by the war. And decisive answers were obtained for two pressing questions of the first half of the 19th century: what was the future of slavery and does the ultimate authority within the federal system lay with the federal government or the individual states.[1]

    There is also a sense  that wars, in general, are likely to have dramatic effects on the development of politics within a nation.[2] Throughout American history, wars have served as distinct moments of political change, as simultaneously the power relations of the federal and state government have shifted to address the necessities of war, while the wars themselves have altered the landscape underneath the feet of citizens and political actors.[3]

    Here I discuss the development of the political structure of the western United States – the creation of new states, as well as the territories that would become these new states – during the civil war and Reconstruction. Although the civil war Congresses are best known for their attempts to deal with the secession crisis and their management of the war, the tenures of the 36th-39th Congresses are also marked by the most rapid and consequential alterations to the political structure of the burgeoning proto-states of the American west: the creation of new territories, the geographic alteration of existing territories, and the admission of these territories as states to the union.

    When South Carolina left the union on December 20, 1860, the American west consisted of two states (Oregon and California) and 5 large territories, all of whose boundaries would be unrecognizable to a modern observer (see Figure 1). By the close of 1868 – prior to the readmission of most of the southern states – the political geography of the American west had largely been transformed into its modern (and thus final) form: Nevada, Kansas, and Nebraska had been admitted to the union, and the remaining 11 (new) territories would undergo virtually no serious political alterations prior to admission to the union over the next 40 years, save for the division of Dakota territory in 1889. For all intents and purposes, by the time of Grant’s election in 1868, the underlying political structure of the continental United States was complete (see Figure 2).

    Figure 1. The United States of America in 1860, by legal land status

    Figure 2. The continental United States of America in 1868, by legal land status


    Why did the war affect western political development at all? Fundamentally, the answer lies in the the structure of the statehood process in the Constitution. Among the various plans discussed between 1776 and 1787, the one that appears in the Constitution is by far the most radical — it provides for total congressional control, without any specific mandated guidelines such as population thresholds and square mileage requirements. Virtually every other proposed plan, including 19th century plans to reform the system, included such mandates. As a consequence, the constitutional structure made the process inherently and fully political, subjecting the long-term process of new state creation to the short-term push and pull of day-to-day politics. Issues and events that had a strong impact on the polity necessarily had a strong impact on western state development. The civil war – being perhaps the single most consequential event in American history – is no exception.

    The secession of the south from the union in 1860-61, the military conflict from 1861-1865, and the Reconstructive period that took place from 1865-1876 are all examples of the contingent strand of politics that affected the formation and construction of new states in the west. Although it is not possible to conclusively determine the exact effects of secession, war, and reconstruction on the development of the west – we would need to know the contemporary political geography of the west sans civil war – we can identify through the historical record the actions which were made because of the war, and thus were unlikely to happen without the war. This sort of counterfactual thinking requires a certain degree of structure.

    We can organize our thinking about these changes by asking a few questions: first, would the institutional change have occurred at all if it were not for the contingent event? A “no” answer to this question would result in the strongest claim that we could make about an institutional changes relationship to the contingent event. A good example from our list of changes made in the 1860’s is the admission of West Virginia to the union. Clearly, without Virginia’s secession from the union, this institutional change would never have occurred.

    A second-degree question: would the institutional change have taken place in the identical form if it were not for the contingent event? A “no” answer to this question implies something like this supposition: the New Mexico territory of 1850 was likely to be divided at least once at some point prior to its becoming a state (or states).  However, the decision to divide it with a north-south meridian instead of an east-west parallel was contingent on the civil war. Finally, would the institutional change have taken place at the time it did if it were not for the contingent event? This is the weakest claim, but not a trivial one, since the timing and sequence of these institutional changes are constitutive of the underlying structure of democratic aggregation in the United States, as well as highly consequential for the development of other future states and territories.

    Again, although we can never be certain about any of these claims of contingency, one might expect that an event like secession and civil war would be most influential in the third class of effects (timing), somewhat influential in the second class (form), and least influential in the first class (direct consequence). And that appears to be the case with the 12 institutional changes that occurred in the 1860’s. Only West Virginia’s admission to the union can confidently be declared a direct consequence of the war that would not have happened otherwise. One additional change – the creation of Arizona – can confidently be said to be dependent in form on the war. And seven of the changes – the admission of Kansas, Nevada, and Nebraska, as well as the creation of Colorado, Nevada, Arizona, and Dakota territories – would not have happened when they did had it not been for the war. Only the creation of Montana, the redefining of Nevada, and the creation of Wyoming and Idaho seem relatively unrelated to the war.

    We can classify the mechanism by which secession and war affected these institutional changes into three general groups: the secession of the south, worries about the secession of the west, and the desire to reinforce electoral victory in 1864 for the Republican party.


    Ideological divisions over slavery had helped structure the politics of admissions to the union since almost the first days of the nation, and during the period from 1848 to 1860, slavery came to increasingly structure the politics of altering the territorial structure of the west.[4] After 1852, the political parties in the United States began to quickly drift toward an increasingly perfect correlation with the sectional division. By the 1857 fight over the Lecompton Constitution in Kansas, the deadlock in Congress over the alteration of the political structure of the west had become severe. Although two states (Minnesota and Oregon) were admitted to the union between 1857 and the beginning of southern secession, both of these institutional changes were aided by very precise political circumstances in the prospective state that led to barely-sustainable compromises to achieve their success. In the 35th and 36th Congresses (1857-1861), bills to organize new western territories were proposed and routinely defeated, both in and out of committee, by southern members of Congress and their (increasingly fewer) allies in the north.

    Beginning December 20th, 1860 with the secession of South Carolina, the southern ideological wing of Congress slowly left Washington, D.C. By February 1st, 1861, they had lost a sizeable portion (and the most radical wing) of their voting power in the national government. In terms of policy output, this was the equivalent of an exogenous shock: although none of the existing preferences had changed about the organization of the west, only one side of a two-sided debate remained in the democratic assembly. Without opposition, they were free to act. And act they did. The Republicans in Congress enacted four major alterations to the west as quickly as they possibly could in the 2nd session of the 36th Congress.[5] In just over a month, they admitted Kansas to the union and created the Colorado, Nevada, and Dakota territories. None of these alterations would have been possible without the secession of the south.[6]

    Fears of Western Rebellion

    The second mechanism by which the war affected the process of institutional change in the west was through the general fear of a western rebellion and secession from the union. Although the exact nature of the relationship between the states and the federal government had been up for debate for almost two generations, the reality of the southern secession in 1860-61 quickly turned all of the theoretical arguments of the past 70 years into questions of immediate and concrete reality, including questions that had not been fully contemplated over the years: if the south was free to leave the union, was the west? If the south (free or not) did leave the union, did they have any claim over the western territories? If the north made peaceful disunion with the south, did that affirm the concept that peaceful separation from the union was both legal and attainable for other states, or for western territories? It is easy to see how these ideas made northern leaders, trying to hold the union together, quite nervous.

    Of greatest concern to the union, however, was the competition with the south for the territories. There was no compelling reason to believe that the western territories, particularly political communities in the west that had been denied territorial status over the past decade, would side with the union in the war. The combination of these fears – the rebellion of the west into its own nation and the competition with the south for the allegiance and control of the territories – and the reality of watching their fears realized, spurred Congress into action during the war.

    The creation of the Arizona territory is a good example.  After the New Mexico territory was created as part of the compromise of 1850 (the Gadsden Purchase was added in 1853), there was a period of about 5 years where there was very little local or national voice for further division of the territory. Staring in 1856, however, residents of the southwestern portion of the territory living in Tucson began to petition Congress to divide the state along an east-west line. From 1857 until 1859, residents of Tucson annually sent a delegate to Washington from their proposed territory, but Congress refused to seat him. There were sympathetic politicians in Washington, particularly southerners eager to see the creation of new plausibly pro-slavery states, and bills were introduced in both chambers of Congress for the creation of Arizona annually from 1857 to 1860. Northern Republicans had little interest in creating a new southern-leaning territory, however, and correctly pointed out that the 1860 census revealed that Arizona county (the western portion of New Mexico territory) had only 6,482 residents, far too small a population to merit a territorial government. With the northerners firmly in control of the national government after the 1860 election, the prospects for Arizona territory looked slim.

    The secession of the south, paradoxically, was just what Arizona needed. With the southern portion of the New Mexico territory largely a pro-confederacy population, territorial secession conventions took place at both Tucson and Mesilla in March of 1861. The conventions seceded the territory from the union, created a provisional territorial government, and sent out a petition to the Confederacy for admission.[7] By January, 1862, the Confederate States of America had passed legislation organizing the territory of Arizona, and had accepted a delegate from the territory to their Congress. Arizona was officially a political institution of governance, only it was now in the Confederacy.

    The union did not wait to act. Lincoln dispatched the Army to occupy Tucson, and Congress prepared legislation in March to create the United States territory of Arizona. The decision was made to split the old New Mexico territory along a north-south line, in order to reduce the influence of southern-sympathizers in both the new territory as well as the (new) New Mexico territory, as well as to avoid the appearance of rewarding rebel communities in the west who might seek to organize future territories by seceding from the union. The legislation for the territory stalled for a bit in Congress, and Arizona territory was not officially created until February 24, 1863, long after the Union Army had retaken control of the area.

    Manipulating the 1864 Election

    The third mechanism that contingently affected western institutional change during the civil war era was the desire of the controlling pro-war Republicans to ensure electoral victory in the 1864 election. This contingency has been well-documented.[8] By the spring of 1864, disillusionment in the North with the progress of the war had emboldened the Democrats to support a platform of peaceful settlement with the south, and they had nominated a candidate, General George McClellan, who was committed to ending the war. The Radical Republicans in control of Congress saw the reelection of Lincoln as absolutely vital to preserving the war effort.

    Admitting additional western states to the union prior to the 1864 election could potentially put Lincoln over the top if the election were close. Although any newly admitted state would likely have a low population, the new state would have at least the guaranteed minimum of three electoral votes, and that could make the difference in a close election. The admission of Nevada to the union is relatively well-known as the best example of a short-term electoral incentive shaping a state admission to the union.[9] Nevada’s population in 1864 was a paltry 6,857, far fewer people than any of the other existing western territories save Dakota. Still, Nevada would stand to be the most reliably Republican state of any of the territories if it were admitted to the union prior to the 1864 election. In addition, the Republicans saw other advantages in the admission of Nevada: it might increase their chances of holding onto the Senate, and it also would add another state inclined to vote for passage of the 13th amendment.[10]


    At the time of the final readmission of the southern states to Congress in 1870, the political structure of the American west looked completely different than it had just 10 years earlier. The rapid pace of western institutional change, combined with the utterly contingent nature of many of the changes, had created a continental political structure whose details could hardly have been fathomed by even the most creative political thinkers of the 1850’s. Even more startling, from the perspective of national politics, was that the entire political role of the territories for the previous 25 years – as the explosive sideshow setting where the factions of the national slave debate could engage each other – had ceased to exist with the military defeat of the Confederacy and the passage of the 13th amendment barring slavery. Whatever the civil war did to change the nation, its final resolution profoundly closed one chapter of American territorial history, without anyone clearly seeing what was to come.

    Numerous historians of the American west have noted that the contours and features of the territorial system in the first half of the 19th century were dramatically different than the features of the system after the civil war.[11] The disappearance of the slavery issue, the rise of the west as a section with a distinct political interest, and the hegemony of the Republican Party’s control of the national government all served to radically alter the place of western institutional development within the national political context. For the average citizen, the disappearance of the slavery issue had rendered the importance of the territories near nil. To the national politicians of both parties, the prospect of using new western state admissions to bolster their partisan numbers had to be tempered against the ideological cleavages that pitted westerners against the interests of both the northern Republicans and Southern Democrats. Without the stability of the slavery issue (as discussed in chapter 6), use of the territories as sectional leverage became much more risky; the signal had become noisy. And to the ruling Republican Party of the late 19th century, the western territories seemed more useful as sources of patronage than as prospective states.

    One consequence of this that could not have been foreseen during the rapid developments of the 1860’s was the sheer finality of the enterprise. After 1870, there were virtually no adjustments to the boundaries of the existing territories, and no territories were created, save the division of the Dakota territory into North and South just prior to statehood.[12] Over the next 43 years, these territories were admitted to the union as states. But their final boundaries – indeed, the final contours of the American federation – were the ones drawn in the middle of the civil war. The exogenous shock of the war led to a highly contingent development of the western political structure, and the cataclysmic changes that the end of the war brought upon American national politics served to solidify those changes into place.

    A second consequence of these rapid and contingent changes made to the western political structure was a certain amount of buyer’s remorse, both locally in the territories and also among national politicians. The Republican Party, prior to the war, had long sought to encourage western migration and the political development of the western territories, as these types of things both naturally fit with their free labor, free soil ideology while simultaneously creating more Republican voters and new Republican states. The push to create the new territories that began and the late 1850’s and succeeded after the secession of the southerners was driven in part by a desire to enlarge a coalition that, by 1870, had in many ways ceased to exist. Without the anti-slavery narrative, it became more obvious that western Republicanism was differentiable from Northern Republicanism on a number of key issues, notably silver.[4]

    The emergence of a third economic section of the country presented a new wrinkle to the statehood politics of a two-party system. The addition of a new western state to the union was far less palatable to the existing states when the benefit was reduced from a permanent vote against slavery to a partisan agreement on the speaker, but certain differences on economic policy. Republican enthusiasm in Congress for the admission of new states, even Republican-leaning states, waned in the wake of the civil war. The prospect of further dividing the existing territories, and thus creating even more potential western states, was unpleasant, if not unthinkable. Indeed, bills put forth in Congress in the 1870’s were just as likely to suggest shrinking the number of western territories – through the abolition of one or more and the expansion of the others – as they were to propose the division of territories into new potential states.

    In the territories themselves, the buyer’s remorse evidenced itself somewhat differently. Here, the politics was local, and the rush to create territories in the previous 15 years in what had been relatively unpopulated areas led to a somewhat incongruent set of political communities. This was exacerbated by the unwillingness of Congress to alter the territories during the late 19th century. This is not to say that efforts weren’t taking place to alter the structure of western government. To the contrary, the House and Senate committees on Territories were kept busy with a steady stream of petitions arrived at Congress between 1865 and 1880 asking for either the division of a territory, the rearrangement of territorial boundaries, or the admission of territories as states to the union.[13]


    [1] Eric Foner and American Historical Association., Slavery, the Civil War, and Reconstruction ([Washington, D.C.]: American Historical Association, 1997), David Morris Potter and Don Edward Fehrenbacher, The Impending Crisis, 1848-1861, 1st ed., The New American Nation Series (New York: Harper & Row, 1976).

    [2]David R. Mayhew, “Wars and American Politics,” Perspectives on Politics 3, no. 4 (2005).

    [3] See Bruce A. Ackerman, We the People (Cambridge, Mass.: Belknap Press of Harvard University Press, 1991), Akhil Reed Amar, The Bill of Rights : Creation and Reconstruction (New Haven ; London: Yale University Press, 1998), Louis Fisher, Presidential War Power, 2nd ed. (Lawrence, Kan.: University Press of Kansas, 2004).

    [4] See John Ashworth, Slavery, Capitalism, and Politics in the Antebellum Republic (Cambridge [England] ; New York: Cambridge University Press, 1995), Eugene H. Berwanger, The Frontier against Slavery; Western Anti-Negro Prejudice and the Slavery Extension Controversy (Urbana,: University of Illinois Press, 1967), Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861; a Study in Political Thought (Gloucester, Mass.,: P. Smith, 1963), Arthur Charles Cole, The Irrepressible Conflict, 1850-1865 (New York: The Macmillan Company, 1934), Richard Patrick McCormick, The Second American Party System; Party Formation in the Jacksonian Era (Chapel Hill,: University of North Carolina Press, 1966), Roy F. Nichols, The Disruption of American Democracy (New York,: Collier, 1962), Potter and Fehrenbacher, The Impending Crisis, 1848-1861.

    [5] The legislation was done quickly for a number of reasons, not the least of which was that the political environment was a great unknown, and it was not out of the question that a settlement of the secession crisis might happen prior to the end of the 36th Congress and the southern members of Congress might return to the chamber, and recommence their obstruction of western political development.

    [6] And in one sense, they were a concession toward the south. The territories were all admitted without reference to slavery, a sticking point that had kept the north and south deadlocked for the previous 5 years.

    [7] Paul L. Allen and Peter M. Pegnam, Arizona Territory, Baptism in Blood (Tucson, Ariz.: Tucson Citizen Pub. Co., 1990), Arizona. Legislative Assembly. and Anson Peasley Keeler Safford, The Territory of Arizona : A Brief History and Summary of the Territory’s Acquisition, Organization, and Mineral, Agricultural and Grazing Resources : Embracing a Review of Its Indian Tribes, Their Depredations and Subjugation : And Showing in Brief the Present Condition and Prospects of the Territory ([Arizona: The Legislative Assembly], 1874), H. C. Stinson, Arizona : A Comprehensive Review of Its History, Counties, Principal Cities, Resources and Prospects, Together with Notices of the Business Men and Firms Who Have Made the Territory ([Los Angeles: s.n.],, 1891), Microform.

    [8] See Lauriston, “Abraham Lincoln and the Statehood of Nevada..”, Pomeroy, The Pacific Slope; a History of California, Oregon, Washington, Idaho, Utah, and Nevada, Charles Stewart and Barry R. Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development,” Studies in American Political Development 6 (1992).

    [9] Stewart and Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development.”

    [10] Earl S. Pomeroy, “Lincoln, the 13th Amendment, and the Admission of Nevada,” Pacific Historical Review 112 (1943).

    [11] See John Porter Bloom, The American Territorial System; [Papers] (Athens,: Ohio University Press, 1973), Jack Ericson Eblen, The First and Second United States Empires; Governors and Territorial Government, 1784-1912 ([Pittsburgh]: University of Pittsburgh Press, 1968), Edmund Steele Joy, “The Right of the Territories to Become States of the Union” (Thesis Ph. D. –Columbia college., Advertiser printing house,, 1892), Lamar, Dakota Territory, 1861-1889: A Study of Frontier Politics, Gary Lawson and Guy Seidman, The Constitution of Empire : Territorial Expansion and American Legal History (New Haven: Yale University Press, 2004), Earl S. Pomeroy, The Territories and the United States, 1861-1890; Studies in Colonial Administration (Seattle,: University of Washington Press, 1969).

    [12] Even state admissions were not common. Referring back to figure 2, one can see that alterations to the political system were few and far between in the late 19th century. Between the 1868 and 1889, only one change was made – the admission of Colorado as a state in 1876. No other 20 year period in American history had seen fewer than 8 changes or fewer than 3 state admissions. Territorial politics continued in the territories, but the collective will in Congress seemed uninterested in any further development.

    [13] For an excellent comparison of old and new state Republican views on Silver, See Stewart and Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development.”

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    November 6, 2011

    As election week begins, let me point you to the work of Sarah Anzia, who has written some excellent papers on both the causes and consequences of holding local elections in off-years from the federal and (in many cases) state elections. Well worth the read.

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    Shoe Leather

    November 5, 2011

    One of my earliest memories of politics is walking door-to-door with my father when I was about five years old, talking to voters and handing out palm cards with him when he was running for local office. Every night after he got home from work, we’d quickly eat dinner, make sure the trunk of the car was loaded with literature and lawn signs, and head off to some neighborhood in town that we hadn’t been to yet, ringing doorbells until 7:30pm, the universal time in our neck of the woods at which political cold-calls were deemed to be acceptable.

    From my point of view as a child, this was the essence of campaigning. We got so many local and state-level candidates knocking on our door that I just assumed this was how you campaigned: you personally talked to as many people as possible, and tried to convince them to vote for you. Of course, this is not how contemporary federal election campaigns work; instead, mass media — and particularly television ads — is the heart of campaign strategies in the modern age. Still, door-to-door campaigning is still the essence of local campaign activity in many places. And in the all the campaigns I’ve worked on in my life, it is always my favorite part.

    Four related thoughts about door-to-door campaigns and local elections:

    (1) Flying blind and poor. Local elections are really the last place left in electoral politics that public opinion polling is not part of the equation at all. There’s no polling of the issues, and there’s no polling of the horse-race. And if you have some money to spend, it’s never enough to get on the airwaves. The upshot is that local races tend to resemble 19th century campaigns, both descriptively and strategically. Candidates try to spread their name and a very basic message through free media, personal contact, and palm cards. They judge how they are doing on intuition and non-random opinion samples.

    As such, the races can be both more exciting and tougher to approach strategically: you never know if your plans are effective, and you really don’t know what is going to happen until the votes are counted. Consequently, pretty much all strategy revolves around some version of pushing your name and face out there on the cheap. Which means hitting the shoe leather. The irony, of course, is that door-to-door campaigning is way more effective than mailers or phone callers or other forms of mass campaigning.

    (2) A different shamelessness. Local politics has a different personality screen than national politics. If you want to run for Congress, you usually have to be able and willing to beg total strangers for money, over and over again. If you want to run for a local office, you usually have to be willing to knock on people’s doors, interrupt their dinner, and ask them to vote for you. These are very different personal attributes. Some people, of course, have both. Some have neither. But there are many people like my father, who would never have been able to beg people for money, but was able to at least stomach interrupting dinner and the occasional door slammed in his face.

    Sometimes this isn’t the case. A local election can be so locked-down by a party that you don’t even really have to campaign after you get the nomination, and getting the nomination might be more about inside politics among local leaders than any actual campaigning. And some towns are so small that you can know, or at least know of, most of the voters. But those are the exceptions, and unless you have an uncontested race, the lock-down situation is never such a shoe in that you can kick back.

    (3) The fieldcraft of shoe-leather campaigning. There are all sorts of theories about what you are best off doing when you go door-to-door. Some people think it’s best to treat it as GOTV activity; just hit the neighborhoods that are solidly in your partisan camp, and encourage them to go to the polls. Other people think you want to go right to the swing districts and hit the independents.  At any rate, the name of the game is approaches per hour and memorable contact, but mostly the former. There are some things you can do to increase approaches per hour without any costs: these include running (literally) from house to house; concentrating on dense population neighborhoods, and working public events. It’s no surprise that town Halloween parades are filled with local candidates; the greet/hour rate is incredible.

    But often, approaches/hour is at direct war with memorable contact; if you want to get to more people, you’ve got to spend less time with each of them. Which raises the obvious question: what are you actually trying to accomplish when you ring the doorbell, and what’s the most effective way to do it? There’s virtually no political science literature on this question, but there are generally accepted maxims: first and foremost, you aren’t there to debate policy. There’s a fantasy in many candidates’ heads that they will convince someone about something on a front porch, and that person will not only vote for them but become a cult follower and volunteer extraordinaire. Actually, it’s just a complete waste of time. On the other hand, however, if you can get someone to ask you a question that you have an easy and surefire answer for, you probably just collected a vote. So most candidates use a basic formula: say your name and what office you are running for, tell them one reason you are running, and then offer them a piece of literature and ask if they have any questions.

    My dad preferred a more personal/GOTV strategy, which I still think is a good one, and definitely a  more efficient one. He simply gathered the names of the residents, and then calmly introduced himself by using both his and their first name, and tried to shake their hands. “Bill, I’m Dave. I’m running for county judge. [hold out hand] I hope you’ll vote for me, but either way I want to remind you to vote next month. Here’s a pamphlet about me.” If they said anything, great. If not, he added a “We’ll see you at the polls” and left. There’s no way my dad ever read Home Style, but his door-to-door strategy tracked right into Fenno’s Member A anecdote: you will never lose a vote from someone on a first-name basis with you. This strategy, however, only works for the candidate himself; campaign workers going door-to-door have to stick to pretty basic lit-drop scripts.

    Besides the approach rate and the contact style, one other key aspect of shoe-leather fieldcraft is how you handle getting the door slammed in your face, both figuratively and literally. One way to deal with this is to find some ways to preempt it; that was certainly one value to having a 5-year old tag along with you while you walked the neighborhoods. People just don;t seem to be as mean if there are children around, either their own or yours. But you are still going to get a high percentage of people who refuse to engage at even the most basic level; this problem leads a lot of door-to-door campaigners to believe that you are almost better off with the people not being home, so you can just lit-drop (always with a personal scribble on it!) and be done with it. I don’t think that’s quite right, but I do think it’s the right impulse; there’s only a very narrow band of people you are trying to reach by door-to-door’ing — people who weren’t going to vote or weren’t going to vote for you, who now will show up and vote for you. The probability of those people being among the percentage who slam the door in your face is so small as to not be worth dealing with. And the golden rule, of course, is don’t create a negative memorable moment. So don’t fight for a contact. Just drop the palm-card and be done with it.

    (4) Turning the tables. The flip side of door-to-door is what you do when a candidate knocks on your door. I see so many people completely freeze up when they run into a politician standing outside the grocery store or subway station, like it’s rude or something to talk to them when they approach you. Whenever candidates knock on my door, I always ask them the same question: what got you into politics? It’s a good question for two reasons. First, many local candidates don’t have a stock prepared answer to it. If you ask them why you should vote for them or how they feel about policy X, you’ll get some robotic nonsense.  Second, it tells you a lot about who you are dealing with. Not substantively; I don’t really care why people got into politics. But it’s pretty darn easy to gauge a person’s honestly and sincerity when they have to answer that question on the spot. Some people go into some bullshit about helping people and quickly shift to one of their key policy ideas. Others tell a story about a particular event. And some just stare blankly and then come up with something really lame. But no matter what they say, you can usually see right through it and figure out if it’s the kind of person you want running the town council.

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    Voter prep for local elections (plus my VA endorsements!)

    November 4, 2011

    On Tuesday, Virginia will hold it’s biennial state and local elections. As I’ve written about before, I don’t think there’s any doubt that the preponderance of important government decisions made by your elected officials each year are concentrated at the local or state level. If you have kids, I’m positive this is true: unless there is a depression or conscription, the school board, local government, and state government decisions over the public schools will be the most important for you and your family.

    The problem, of course, is threefold: first, many people either don’t realize how important local government is, or they flat out disagree about its importance. Second, it’s more difficult to be even minimally knowledgeable about local politics than national politics in the run-up to an election, because it’s often not something you can pick up through osmosis in the last few frenzied weeks. Finally, there’s much less social pressure to vote in the local elections, so even people who vote religiously in the federal elections sometimes don’t pay attention to the local campaigns or issues.

    All of this results in some people consciously deciding not to vote because “they don’t know anything about the candidates,” or “it’s not that important.” (This is further complicated in Virginia, because we have our state and local elections in the odd-numbered years. That’s theoretically good because the federal elections don’t overshadow the state elections, but it’s bad because turnout goes way down and the social pressure to vote evaporates.) I think it is a mistake to decline to vote for these reasons. And I think a lot of people overestimate how much time they will need to spend in order to cast a meaningful vote in a local election.

    So if you weren’t planning to vote because you feel like you don’t know anything about the state or local issues in your area, let me offer you this: by the time you finish reading this first bullet point on this blog post, you’ll be more than ready to go vote, even if you don’t do any further research. And if you’re willing to read the rest of the blog post and then invest another 60 minutes of effort, I promise you’ll feel nearly as comfortable voting in the local elections as you do in the federal elections.

    Let’s start with the fundamental tip:

    1) It’s perfectly fine to use party affiliation as 100% of your knowledge. A lot of observers and intellectuals deride partisan voting, but if you don’t know much about the politics of an election it is absolutely the best shortcut available. That’s true for the federal elections, and it’s also true for the state and local elections. Yes, not ever person affiliated with a party agrees with the party all the time. And yes, state and local parties don’t perfectly match their national counterparts. But it’s close enough often enough that if you prefer one national party to another, it’s worth voting that way in state and local elections. And if you don’t even know what national party you like, just ask yourself this: would you prefer somewhat more (or somewhat better quality) public services in exchange for slightly higher taxes, or would you prefer somewhat fewer  (or somewhat worse quality) public services in exchange for slightly lower taxes. If it’s the former, vote for Democrats. If it’s the latter, vote for Republicans. That sounds absurdly simple. but it’s a close enough proxy most of the time in a local election to make your vote credible.

    You now have no excuse: go to the polling place, pick all the candidates affiliated with your party, skip all the races that are contested non-partisan (more on that in a minute), read the bond issues and decide on the spot, and pat yourself on the back as you leave.

    You can stop right now if you want. But here are four (ok, four and a half) more tips that take less than hour to implement and will really improve your confidence about local voting:

    2) Understand the basic structure of  your governments. Where I live in Virginia — Fairfax county — we have a county Board of Supervisors that consists of 9 district representatives and a chairman elected by the whole county. The terms are four years and collectively appoint the county chief executive. We also have two elected executives — a commonwealth attorney and a sheriff, both elected county-wide on four-year terms. Finally, we have a school board, which has a representative from each of the same 9 districts, plus three at-large members elected county wide. All terms are four years. This is a pretty standard local structure: you either have a town or county board, plus a town or county executive, plus a school board and a few other elected executive officials.

    As with many states, Virginia has a legislature with an assembly on a 2-year term and a Senate on a 4-year term, plus a governor, lieutenant governor, and an attorney general on 4-year terms. I learned all of this in less than 2 minutes by going to my county government website, where you can also learn the responsibilities of each office.

    2a) Learn what offices are up for election this year. This information will usually be available on the same website that gives you the structural information about the local government. All you really need is the offices that are up and the list of candidates for each. In my case, the whole school board, the whole board of supervisors, both county elected executives, and the state assembly and senate offices are up this year.

    3) If there’s a burning issue in your local community, figure out how you feel about it. If one exists, it will usually be pretty obvious. It might be property tax rates, it might be road conditions, it might be commercial zoning issues. It could really be anything. In northern Virginia, it’s traffic congestion. Once you’ve identified the issue, talk to a few people, think about how you feel about it, and then decide (a) if anything can be done about it; and (b) what that should be. And really pay attention to (a). Everyone from the dogcatcher on up to the governor says they are concerned about traffic in northern Virginia, but only some people can do anything about it. Everyone else is just selling you a bill of goods. Similarly, if there is a bond issue or other referendum on the ballot, read it ahead of time and, if you don’t have a strong opinion, consider looking into it.

    4) Check out some party and candidate websites. Once upon a time, it might have been difficult to find out about local candidates. Not anymore. Here are my two candidates for Board of Supervisors: Chris Grisafe and Linda Symth. They have websites similar to candidates for Congress. Same thing for the local political parties in my county. If you want to get into the nitty-gritty of policy positions, that’s great. But when you check out the candidate websites, you might be better off (hold your breath, elitist intellectuals!) looking over their biography pages. There’s a perfectly reasonable case for gyroscopic representation; that is, voting for someone because you think they have a similar background or lifestyle or outlook as you, and not worrying about their specific policy positions, but instead trusting that they will reason the same way you do. It’s also noteworthy that some offices are non-partisan, like school board in Fairfax County. That means you can’t use the party shorthand in the voting booth. So make sure you check out those candidates in particular.

    5) Gather some endorsements, preferably from a source you trust — like a friend or a newspaper. This is the final step. Now that you have some intuition about the candidates, run a diagnostic by getting some independent opinion. For instance, I was able to check my intuition  for school board against the Washington Post endorsements. If your friend or the newspaper confirms what you already thought, then you’re done. If they don’t, think through their argument for 10 minutes and see if you change your mind. If so, great. If not, also great. But don’t belabor it.

    Once you’ve done all of those steps, run a self-check on where you stand. You may have determined that you prefer one party or the other. Great! Just write down who you like in any non-partisan race and vote for all the partisan candidates in the other races. If you like candidates across the parties, download a sample ballot (again, often available at the county website), mark your choices, and bring it with you to the polling place. It’s also ok to skip races if you really have no opinion. Nothing wrong with that!

    It’s that easy. And I can’t help but reiterate: you don’t need to do very much, or really any, research to be a credible voter in local elections. The party cue will usually get you 95% of the way there, and a bit more research will do the rest.

    And in case you’re reading in Providence district of Fairfax County in Virginia, here are my specific endorsements for Tuesday (I have only endorsed races where I have a clear preference):

    State Senate (district 34) — Chap Peterson (D)

    Providence District Rep to Board of Supervisors — Linda Q. Smyth (D)

    School Board At-large (pick 3): Theodore Velkoff, Ilyrong Moon, and Lolita Smoak


    Rank’em: Constitutional amendment edition

    November 3, 2011

    When I was a kid, my family used to spend a lot of time on our screened porch, mostly playing cards but sometimes playing old-school parlor games. Often, that meant rank’em, which entailed the following: a question that forced you to rank some set of things on some scale, a set of ground rules to guide you, 20 minutes for each person to come up with their answer, and then a discussion among the participants, hopefully heavy on the merits and light on the mocking/fights.

    So here we go…rank’em!


    If you were forced to repeal an unspecified number of amendments to the U.S. Constitution, in what order would you rank them, #1 being the one you’d jettison first and #27 being the one you’d only give up after all the others were already gone?

    Ground rules:

    A. The game is played in present-day America.

    B. Repealing an amendment does not go back and change history. You are merely setting the terms for a new Constitution that will apply starting today  (i.e. repealing the 13th amendment does not reinstall slavery in Kentucky, it just opens up the possibility of a state adopting slavery; likewise, repealing the 26th amendment does not end the right of 18-year-olds to vote, just ends the prohibition on states having higher voting ages).

    C. No future amendments are allowed. Nothing can be re-enacted.

    D. No assumptions about SCOTUS decisions are allowed (i.e. you aren’t allowed to repeal the 15th and 19th amendment on the grounds that the modern court would read those voting rights into the 14th amendment); nor are future SCOTUS decisions allowed to impact things.

    E. Do not rank the Prohibition amendments (18 and 21); that’s a paradox we don’t need to deal with here.

    So go ahead, rank’em.

    Here is my annotated answer, 1 to 25. They are grouped in categories for intellectual purposes. To me, the key to this rank’em is trying to imagine what the effect of removing the amendment would be today, while setting aside the importance of the amendment historically. As it turns out, I think, many of the most important amendments historically are more or less functionally inert today, because of changing norms. It’s also important to weigh the impact of an amendment; many of the amendments that are still fully functionally have trivial outcomes for the polity.

    Amendments that are more or less trivial

    1. The 27th Amendment – Precludes adjustments in the pay of Members of Congress from taking effect prior to the next congressional election. It serves little purpose: Members are loathe to raise their own pay in any case, and the Ethics Reform Act of 1989 sets up an automatic adjustment system which renders the entire prohibition academic. Even if it was fully functional, it’s just not a very big deal. I don’t think there’s any doubt that this is the first one you’d want to jettison, unless you have a specific beef with another amendment.

    Amendments rendered mostly trivial in the modern age

    2. The 9th Amendment –  Conveys that rights of the people exist beyond those enumerated in the Constitution. This may have been an open question in 1791, but I don’t think it is now. In theory it may convey that certain specific rights exists (such as those found in the Declaration of Independence), but in practice it merely suggests something to keep in mind when interpreting the rest of the Constitution.

    3. The 3rd Amendment – Prevents forced quartering of troops in private homes during peacetime.  A concern that has never materialized since the American Revolution. Now, that could be because of the existence of the amendment. But somehow I doubt it.

    4. The 13th Amendment – Prohibits slavery. I can’t see any possible way that, absent this amendment, slavery returns. And if such a situation did arise, it would probably be precipitated by crises that had already left most of the Constitution in tatters.

    5. The 15th Amendment – Guaranteed suffrage regardless of race. This is a tricky one because while the general principle is very well ingrained in our society and enshrined in state constitutions, there are continual worries about racial discrimination in voting access and such. Still, I can’t see any states enacting measures that fundamentally cross the basic principle of voting equality.

    6. The 19th Amendment – Guaranteed suffrage regardless of gender. Like slavery and racial restrictions on voting, shouldn’t be a problem going forward in the absence of the amendment, especially because women form a voting majority or near-majority in every jurisdiction. I rank it below the 13th and 15th, however, because I can imagine some future zany state system in which women and men had different legal voting arrangements (like different age requirements or something). However unlikely that would be, it’s even more unlikely along racial lines.

    Minimally Consequential Amendments

    7. The 10th Amendment – Powers not delegated to the federal government or prohibited to the States, are reserved to the States or to the people. More or less an implied truism of the Constitution, and described as such by SCOUTS in 1931. Very rarely comes into play, but on occasion the Courts will use it to strike down federal laws forcing state actors to implement federal programs.  And no, I don’t think it will come into play in the health care rulings.

    8. The 11th Amendment – guarantees states sovereign immunity from suits brought against it in federal court. I suppose I don’t know enough about the jurisprudence to judge its importance, but my sense is that, while it might trigger a flood of federal lawsuits against states, the substantive outcomes would not have massive ramifications. But I reserve all rights to be dead wrong about this, and I’m open to contrary arguments.

    9. The 24th Amendment – Bars poll taxes. Poll taxes were already on their way out in 1964; at the time of adoption, only five states (Virginia, Alabama, Texas, Arkansas, and Mississippi) still had them, whereas all the states of the former Confederacy had them in 1920. This is the first amendment on the lis, however,t that I think might stand a reasonable chance of actually shaping a core democratic function; I could imagine a state implementing a poll tax today if it were repealed.

    Consequential but not inherently important

    1o. The 12th Amendment – Revamping of the presidential selection system. It’s an improvement on the old system — in which each elector got two votes and the second place finisher became VP — but the old system could have been lived with. The party system was what broke it in the 1790s, but also would have made it work had they stuck it out. The debacle in 1800 was a mistake, and I think parties would have figured out a way to ensure that no future Burr got all the second elector-votes that created the tie with Jefferson.

    11. The 26th Amendment – Lowers the voting age. Or more precisely, bars states and the federal government from setting the voting age higher than 18. I’m quite sure that, absent the amendment, at least a few states would have a voting age of 21. Although I disagree with that policy (and mostly agree with Jon Bernstein), I don’t see it as particularly consequential as a substantive matter, and I’d be fine with a federalism approach to voting ages. Most of the benefits of a lower voting age are related to participatory democracy, not substantive policy outcomes.

    12. The 22nd Amendment – Term limits for the President. This is the first amendment on the list that I think a sizeable number of people might want to kill. And I can definitely see the argument. But I’m no fan of the presidency, and I don’t like the idea of one person monopolizing it for someone’s entire childhood. Perhaps a three-term limit would have been better, but I’m definitely of the mind that a two-term limit is preferable to no limit.

    13. The 23rd Amendment – DC voting rights for President. As far as symbolic amendments go, this is a good one. But without voting rights in the House, it’s a halfway measure that has never had any substantive consequence. Still, we are talking about the right to vote here. So I’d need a strong reason to move it further up the list and jettison it sooner.

    14. The 20th Amendment – Adjusting the start date of terms of the Members of Congress and the President. I’ve written an extensive blog post on this, which hopefully will convince you that I haven’t given it too much priority here.

    15. The 25th Amendment – Makes provisions for the replacement of the Vice President if he leaves office and provides for the situation of the incapacitation of the President. One of the amendments that’s almost never important, but could be strikingly important. I wrote an offshoot about this a few weeks ago.

    16. The 7th Amendment – Trial by jury in civil cases. I do not have a good feel for just how important this is. On the one hand, my sense is that a large percentage of Americans will never be involved in a serious civil case. On the other, it’s probably a pretty strong bulwark against crony capitalism to have juries punishing corporate malpractice. But I honestly don’t have a great feel for how its repeal would condition state law, etc.

    Important but not foundational amendments

    17. The 8th Amendment – Bars excessive bail and cruel and unusual punishments. I consider this the least important of the criminal defendants’ rights in modern times. Most states have constitutional or statutory defendants’ rights that go beyond the basic federal Constitutional rights, and the range of acceptable punishments in the modern era are certainly narrower than in the late 18th century.

    18. The 16th Amendment – Empowers Congress to impose graduated income tax.  Pollock v. Farmers’ Loan & Trust had declared income taxes on non-wage income (such as investment or rent income) to be unconstitutional non-apportioned direct taxes. Whether an income tax on wages could be structured successfully without creating massive tax havens, disproportionately favoring the wealthy, or creating other economic problems, I do not know. But I’m guessing the answer is that it could not be. Therefore, pretty important amendment given the structure of modern revenue-raising in the United States.

    19. The 2nd Amendment – Right to bear arms. I don’t own any guns, and I’m not a huge gun-rights guy, especially for a libertarian. For instance, I have no problem with background checks and purchase limits and other non-fundamental restrictions.  But when you watch how state-sponsored thugs in Iran or elsewhere assault private citizens on their own property with total fearlessness and impunity, it makes me 100% in favor of  the Heller decision. I’m sure many people would jettison this much sooner.

    20. The 17th Amendment – Direct election of Senators. I’ve written an extensive blog post on this amendment as well, specifically dealing with the idea of repeal. In the modern environment, malapportionment and the filibuster already create tremendous public angst about the Senate; returning to the old selection system would only increase that angst.

    Uniquely important, but not foundational

    21. The 14th Amendment – Much of the 14th amendment — the implicit setting of the maximum voting age at 21, the barring of former rebels from federal office, the validity of the public debt (ed: well maybe not that one!) — is irrelevant now. But the relevant parts — the citizenship clause, the due process clause, and the equal protection clause — form the basis of the modern constitutional structure and the relationship between the States and the Constitution. It’s very easy to imagine a democratic republic without the 14th amendment. But there’s a decent chance it would be a very different republic.

    Foundational Amendments

    22. The 5th  Amendment – Right to jury indictment; due process; no double jeopardy; no self-incrimination; no government takings of property.

    23. The 6th Amendment – Right to a speedy public trial by jury in criminal cases; right to legal counsel.

    These can be grouped together in my mind. Highly important defendants’ rights. I place the 6th amendment as higher priority than the 5th, because of the way the two amendments work in concert. Absent the right to a speedy public trial by jury, the 5th amendment ceases to protect you in a meaningful way. But (I think) the opposite is not quite as true: even without protections against double jeopardy and self-incrimination, a requirement of a speedy public trial by jury assisted by counsel should still afford the defendant a decent situation.

    Essential Elements of a Modern Liberal Democratic Society

    24. The 4th Amendment – Prohibition on unreasonable search and seizure. I’ve written a blog post on my recent personal experience with this amendment, and another on the Patriot Act. There’s a non-crazy argument, in my mind, that you’d want to get rid of the 1st amendment before this; the norms of the 1st amendment are probably more embedded in society than the norms of the 4th amendment. But in any case, this has to be at least second-to-last. The natural impulse of state power in a democracy is to chip away at this right. Ditching it would open the floodgates to a less free society. And while it’s true that most states have the equivalent amendment in their constitutions, the federal government is of a main concern here, which (I think) is less so in the case of the 5th and 6th amendments.

    25. The 1st Amendment – Freedom of speech, press, and religion. Again, I’m not 100% sure this is more important than the 4th amendment on a day-to-day basis in contemporary America. But it’s definitely more important in theory, since it affects the policy outputs of the democratic process so much more directly. It’s true that the basic norms of the amendment are well ingrained in the United States. But it’s also true that the limits of the boundaries on these norms are constantly tested by both state and, to a lesser degree, federal law. So I think it has to be the foundation of any constitution, and therefore it’s the last amendment I’d dump.

    Feel free to bicker with me in the comments.


    On figuring out what’s important

    November 2, 2011

    Yesterday, Jonathan Bernstein posed a good question:

    If my twitter feed is any indication, everyone is still focused on the Joint Select (Super) Committee, which is still unlikely to do anything, which will in turn trigger something that won’t happen for another year, except by then it won’t happen.

    Meanwhile, as far as I can tell the real budget news continues to be the likely shutdown showdown over FY 2012 appropriations, coming later this month…

    …I’m entirely baffled by the whole thing; it just seems to me that the press has this entirely backwards … As far as I can tell, the JSC just isn’t a very big deal, while the other track — FY2012 appropriations — is a real and serious battle. That’s what I’ve been saying, and I think Stan Collender has been mostly saying the same thing, but everyone else seems to be fixated on the wrong thing. Anyone have a good explanation?

    Let me take a crack at this. Five general points:

    1. The Joint Committee is potentially a huge deal. First, I should say that I’m with Bernstein in thinking that the JSC, as structured and incentivized, is highly unlikely to lead to much in the way of substantial legislation. As such, I think the action on the FY12 appropriations will probably be more consequential. But the theoretical significance of the JSC process is massive; its capacity for change (again, in theory) is far greater than the likely path of the annual appropriations process. And that means that even if the probability of the JSC process producing anything is tiny, the ramifications of that small chance might make it worth focusing on. Put it this way: if there’s a 2% chance that the JSC process produces (1) major alterations to entitlement spending; (2) sweeping tax reform; and (3) huge cuts to defense spending, then that 49-to-1 bet might be more worth focusing on than an annual appropriations process that is 3-to-1 to crash into a shutdown. And it will be imperatively more worth focusing on if you are singularly concerned about a policy potentially in the JSC crosshairs (i.e. AARP re: Medicare).

    2. Even if the JSC process fails, how it fails is of potentially huge political significance. Even if the JSC process does nothing as a matter of policy, it’s going to have a political effect, and a potentially large one. Therefore, political actors have a large incentive to attempt to manage that failure and maximize the benefits (or minimize the damage) from it. Bernstein seems to think it’s unlikely the committee will do anything. I think that’s possible, maybe even likely, but I think it’s also plausible that the failure will come on the chamber floors. If the JSC is to a large degree just a proxy for the four-corners  leadership, and those leaders think either that a deal is actually possible or they all think that they can win the politics of floor failure, then you might see something crash at a later stage. That would be intensely politically consequential. But no matter where this fails, it will need to be managed. Lack of output does not equal lack of winners and losers. And the groundwork for not losing  is making sure that the JSC was a high-focus, high-priority item for each party, lest they be open to the charge of never giving it a chance.

    3. Many political actors have incentives to be optimistic about JSC, but not Approps. This follows somewhat from the last point. The BCA was created by Congress to solve a problem; they probably need to believe it can work, or at least not completely crash. There are at least some negative political ramifications if its fails, at least for one party or the other, and maybe for both. Even if they don’t actually believe it can work, the JSC-process is probably a huge lobbying and fundraising winner, so there are reasons to keep up appearances. As Bernstein notes, however, a failure by the JSC process isn’t particularly substantively damning in the short run; it will potentially create political winners and losers, but mostly will set sail a new politics of sequester-avoidance. The clock is ticking, but it’s a long clock.

    Appropriations, on the other hand, is structured exactly the opposite: there’s a short clock with concrete ramifications waiting just around the corner, built into a process that neither side specifically created and, in fact, most agree is at least half-broken. This encourages a focus on the doom-and-gloom, for two reasons: first, all the bargaining leverage is in convincing the other side that a shutdown will hurt them more, and hurt them immediately. Second, the external gains from lobbying/fundraising/etc are, unlike the JSC situation, drawn from pretending that the process will fail. So, in the end, you have a world where the political actors overstate the probability of JSC success and understate the possibility of appropriations success.

    4. A shutdown might look relatively benign these days, and less likely. Relatively-speaking, that is. After battling out the debt limit earlier this year, and standing in the face of fiscal collapse in Europe, the prospect of the funding gap for a few days in the federal government probably doesn’t seem nearly as high-stakes as it did in, say, 1995. I don’t think that’s true at all; a shutdown is pretty catastrophic. But I can see why it looks more and more like small beer to a lot of people. Plus, the appropriations process is not completely stalled right now. It’s actually moving in the Senate. In and of itself, that doesn’t make it any more likely to not trigger a shutdown. But it helps frame the viewpoint of observers that are used to very few bills moving through the Senate.

    5. There are institutional media factors driving JSC-process coverage. The JSC is both easy to cover, and sexy to cover. It’s new, it’s different, and it’s promising a lot. The appropriations process, on the other hand, is complex to cover, old, and anything but sexy. Even if it succeeds, it doesn’t do anything that will light the newsstands on fire. That can’t possibly compete with something dubbed the “supercommitte.”

    So where does this leave me in regard to Bernstein’s question — why are people fixated on the supercommitee?

    Well, I think the answer is a mix of two things: first, the JSC-process is probably somewhat more  important than he suggests, especially in that it’s failure will be important politics. This is, of course, something a self-fulfilling prophecy; the extended media coverage has helped create the public illusion of greater probable success, which in turn will intensify the politics of failure. Conversely, I think the appropriations process is somewhat less important, mostly because I rate the probability of shutdown somewhat lower than Jonathan. And that’s in part because of the existence of the JSC; it strikes me that a shutdown now would have cross-contamination politically. The loser of the shutdown might very well be blamed for the failure of the JSC. And that raises the brinksmanship, which in turn I think increases the possibility someone caves. So that’s a substantive reason.

    Second, I think a lot of observers are largely ignorant of the true probabilities and true consequences of success and failure in both cases. At the voter/observer level, people want to believe in big solutions to big problems and the basic ability of democratic governance to, if not solve all problems, at least avoid all disasters. I know I have to fight that urge constantly.  At the political actor level, there are a myriad of incentives for either a genuine or strategic optimism that feeds this public belief, and in any case there are self-interested incentives to prioritize and promote the special device developed to solve the big problem. I’m not a big fan of traditional arguments about press incentives, but they certainly exist too. Besides all the ones mentioned above, the press can’t ignore, day after day, everything the political actors say. And the political actors are certainly rating the JSC chances much better than Bernstein, Stan, or I do.

    So, I guess I’m less baffled about the press/observer focus than Jonathan, but that doesn’t make me any less worried. I still don’t see a lot of hope for the JSC process. The whole thing reminds me of how Potter described Buchanan’s plan to solve the secession crisis in his final annual address in December 1860 — that in proposing a constitutional amendment, he had raised the stakes and elevated the process, but had done nothing to change the underlying dynamics of the situation.

    No Comments


    November 1, 2011

    We took Anna (3.5 years old, Minnie Mouse) and Abby (1.5, Bumble Bee) trick-or-treating last night with a rather large group of their neighborhood friends. After we arrived home, we let them each have one piece of self-selected candy (Tootsie Roll Pop for each), and then we put them to bed and got down to the fun stuff: statistical analysis of the haul!

    The loot analysis is limited to Anna’s trick-or-treating, since Abigail’s haul has a selection bias due to skipping some houses that had steep steps and/or scary decorations.

    Logistical Efficiency

    Total homes approached: 51

    Total time trick or treating: 70 minutes

    Approaches/Hour: 51/70*60 = 43.7

    Comments: We live in a townhouse neighborhood, so even with a dozen pre-schoolers and toddlers in our posse, we are able to cover a lot of ground quickly. In addition, our neighborhood uses a pretty standard system of porch lights and glowing pumpkins to indicate whether the door will be answered, so some strategic skipping (after cursory checks for stoop jars of candy) was employed by the older children, with the younger ones following along. We lost some time due to mildly-enforced rules that all children say “thank you.”

    Binary Success Rate

    Subtotal, doors answered: 29

    Subtotal, candy jars on steps: 6

    Total, homes delivering candy: 35

    Success rate: 35/51 = 68.6%

    Comments: Given the housing stock, demographically our neighborhood has a disproportionate number of young families and couples-soon-to-be-families. This depresses the success rate because (a) many of the young families do not leave someone home to hand out candy; and (b) many of the young couples without kids are out attending adult Halloween parties. The jars-on-steps are probably higher than other neighborhoods, because we get virtually no unaccompanied older children who are likely candidates to completely clean you out in one approach.

    Loot Gathering Efficiency

    Total pieces of candy: 80

    Yield/Approach: 80/51 = 1.6 pieces/approach

    Yield/Delivery: 80/35 = 2.3 pieces/delivery

    Pieces/Hour: 80/70*60 = 68.6

    Comments: Yield and rate figures are sub-optimal because we reminded Anna to only take one piece from jars on steps, and attempted to limit multi-piece grabs from bowls, even when offered by distributors. There was some visible shirking of these rules. Counts were made post-bedtime, and reflect one authorized consumption and no observed illegal consumptions.

    Descriptive Loot Analysis

    Complete list of all pieces of candy (all “fun” size where applicable, unless otherwise noted): seven Kit-Kat, four Skittles, six Laffy Taffy, two pixie stix, one Hot Tamales, four full-size single Reese’s Peanut Butter Cups, one miniature Reese’s Peanut Butter Cup, one Three Musketeers, one Dots, two sour patch kids bags, one apple head, seven Bottle Caps, one sour punch twist, one Scooby Doo fruit snacks pouch, two sweet tarts, four boxes of Nerds, two Smarties, three Tootsie Roll Pops, one Dum Dum Pop, one bag of Gobstoppers, one bag of pretzels, two bags of Peanut M&Ms,  three Twix, three Krackel, two Almond Joy, eight Starburst, one Butterfinger, two Hershey bars, two Cowtails, Two Snickers, and two Crunch bars.

    Standard metric of candy value:

    10: Reese’s Peanut Butter Cup

    9: miniature Reese’ Peanut Butter Cup

    8: Excellent chocolate bars (Twix, Kit Kat, Crunch Bar, Krackel, Butterfinger, etc.)

    7: Good chocolate bars plus M&Ms (Snickers, 3 Musketeers, Hershey bar, M&Ms, Almond Joy, etc.)

    6: Pops and chocolate sweets (Tootsie Rolls, Tootsie Roll Pops, Dum Dum Pop)

    5: taffy-life creations plus Skittles (Laffy Taffy, Starburst, Skittles, etc.)

    4: All other Wonka-style candy (Nerds, Bottlecaps, Gobstoppers, sweet tarts, smarties, Pixie Stix etc.)

    3: psuedo-candy and sour candy (fruit snacks, sour patch kids, etc.)

    2: non-candy (pretzels, apples, etc.)

    1: trade-value-to-suckers only (Dots, Cowtails, Hot Tamales, apple heads, etc.)

    0: non-food items; items that must be chucked for unsafe packaging.

    Bonuses: +25 for each full-size candy bar.

    Comments: The standard metric is not debateble, except for whether a Hershey’s Kiss comes in unsafe packaging. If not, it’s a 6.

    Statistical Loot Analysis

    Total Haul Value: 445

    Mean Piece Value: 5.56

    Standard Deviation: 2.24

    Median Piece Value: 5

    Number of non-food or unsafe items: 0

    Number of full-size candy bars: 0

    Comments: I thought this was a pretty mediocre haul. Way, way too much Wonka crap, and it’s not like we’re talking about Wacky Wafers or Runts here, just your pedestrian sweet tarts and  Nerds. The high-end was also very unrepresented. Four regular peanut-butter cups? Yikes. No full-size bars? That’s unlucky. I’m still in search of a repeat of the holy grail of successful deliveries: October 31, 1989, last house on Primrose Drive, Loudonville NY, which featured full-size Crunch Bars and two-pack Reese’s Peanut Butter Cups in a candy jar on the steps!

    Outlook for Anna and Abby

    Pieces allowed per day: 1

    Theoretical last day of Halloween candy: January 17th, 2012.

    Estimated adult pilferage rate: 1 piece/day/adult

    Estimated “forgot” rate/week: 3

    Estimated illegal consumption by children: 0

    Realistic last day: December 2nd, 2011.

    Comments: My strong working assumption is that 3 year-olds will neither notice missing candy, nor treat themselves to illegal candy. But we’ll find out.