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

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

This Nate Silver forecast post for Iowa is a good read for thinking about how to forecast, although a bit out of date in those fast-changin’ Hawkeye polls.

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

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

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

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

What does Santa’s workload profile look like?

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

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

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

How drunk can you get at your office Christmas party?

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

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

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

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

Anyway, the full article appears below. Enjoy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: What the hell did you just say?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: So are these waivers common?

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

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

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

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

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

Q: So what does a rule look like?

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

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

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

Q: So all of this supersedes the chamber rules?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: Does that really happen?

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

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

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

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

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

Q: All of this sounds nothing like the Senate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the transcript of Saturday night’s GOP debate:

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

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

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

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

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

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

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

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

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

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

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

Nate Silver on why Cain fell.

Ryan Avent looking through the Economist in 1931.

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

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

The baby boomers control Christmas.

I liked this article on how doctors die.

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

It takes a village to make a cheeseburger.

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

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

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

Tyler Cowen piece on the effects of the Moneyball revolution.

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

The science of temper tantrums.

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

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

A nice visual illustration of the correlation/causation distinction.

Three quick thoughts on the payroll tax:

1. Here’s President Obama, Wednesday:

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

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

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

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

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

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

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

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

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

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

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

This leaves a bunch of problems:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

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.

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.

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. 

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.

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.

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**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.

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.

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.

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.

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).

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.

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.

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

• Baseball is changing in the post-season. Ben Morris had what I thought was the most interesting take on the new system. See also Jon Bernstein on what the system won’t fix, and Christina Kahrl and Jayson Stark from espn for some other insta-reactions.

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.

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.

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.

/venting.

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.

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.

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.

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.

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.

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?

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.