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

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

Question: Who said it?

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

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

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

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

Later, she reintroduced the issue:

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

Question: What do you make of this?

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

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

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

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

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

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

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

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

• FOX NEWS / SC Republican Party Debate (5/5, transcript here): 0 candidates /0 moderator
• CNN / NH Union Leader (6/13. transcript here): 24/0
• FOX NEWS /Iowa GOP Debate (8/11, transcript here): 14 / 0
• NBC NEWS / Politico Debate (9/7, transcript here): 15 / 0
• CNN / Tea Party Express Debate (9/12, transcript here): 16 / 0
• FOX NEWS / FL GOP Debate (9/22, transcript here): 18/2 (both in reference to a word cloud graphic)
• BLOOMBERG / WaPo Debate (10/11, transcript here): 17/2 (both clarifying what a candidate meant)
• CNN/Western Republican Debate (10/18, transcript here): 18/1 (Anderson Cooper question)

“Speaker Gingrich, you’ve also been very critical of Mitt Romney’s plan, not only on “Obamacare” but his plan to lower the capital gains tax only on those earning under $200,000.”

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

OFFICE State Senate (Aggregate of 9 races )	VOTES 201,044	TURNOUT 28.9%	DECLINED 0	ROLL-OFF N/A
Board of Supervisors Chair	191,510	27.5%	9,534	4.7%
School Bond referendum	188,593	27.1%	12,451	5.1%
Sheriff	188,168	27.0%	12,876	6.4%
House of Delegates (Aggreg. of 17 races)*	182,823	26.3%	18,221	9.1%
School Board (Aggreg. of 9 races)*	178,870	25.7%	22,174	11.0%
Board of Supervisors (Aggreg. of 9 races)*	178,278	25.6%	22,766	11.3%
School Board At-Large (M)	170,991	24.6%	30,053	14.9%
Commonwealth Attorney*	150,851	21.7%	50,193	25.0%
Soil and Water Conservation Board (M)	128,148	18.4%	72,896	36.3%
Total	1,759,276	25.3%	251,164	13.9%

A few comments:

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

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

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

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

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

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

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

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

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[condensed from an academic piece I'm working on...]

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

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

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

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

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

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

Causes

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

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

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

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

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

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

Secession

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

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

Fears of Western Rebellion

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

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

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

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

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

Manipulating the 1864 Election

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

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

Consequences

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

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

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

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

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

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

Notes

---

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let’s start with the fundamental tip:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So here we go…rank’em!

Question

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

Ground rules:

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

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

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

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

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

So go ahead, rank’em.

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

Amendments that are more or less trivial

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

Amendments rendered mostly trivial in the modern age

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

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

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

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

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

Minimally Consequential Amendments

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

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

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

Consequential but not inherently important

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

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

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

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

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

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

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

Important but not foundational amendments

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

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

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

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

Uniquely important, but not foundational

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

Foundational Amendments

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

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

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

Essential Elements of a Modern Liberal Democratic Society

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

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

Feel free to bicker with me in the comments.

Yesterday, Jonathan Bernstein posed a good question:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Logistical Efficiency

Total homes approached: 51

Total time trick or treating: 70 minutes

Approaches/Hour: 51/70*60 = 43.7

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

Binary Success Rate

Subtotal, doors answered: 29

Subtotal, candy jars on steps: 6

Total, homes delivering candy: 35

Success rate: 35/51 = 68.6%

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

Loot Gathering Efficiency

Total pieces of candy: 80

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

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

Pieces/Hour: 80/70*60 = 68.6

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

Descriptive Loot Analysis

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

Standard metric of candy value:

10: Reese’s Peanut Butter Cup

9: miniature Reese’ Peanut Butter Cup

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

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

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

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

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

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

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

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

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

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

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

Statistical Loot Analysis

Total Haul Value: 445

Mean Piece Value: 5.56

Standard Deviation: 2.24

Median Piece Value: 5

Number of non-food or unsafe items: 0

Number of full-size candy bars: 0

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

Outlook for Anna and Abby

Pieces allowed per day: 1

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

Estimated adult pilferage rate: 1 piece/day/adult

Estimated “forgot” rate/week: 3

Estimated illegal consumption by children: 0

Realistic last day: December 2nd, 2011.

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

Comments:

Drew Westen’s piece in the New York Times this weekend might have achieved anti-perfection. John Sides already dismantled it yesterday. And Jon Bernstein piled on this morning. Seth Masket added some more this afternoon.  I was going to write a longer post, but the targets are quickly evaporating, so I’ll just address one so-far-unaddressed paragraph that really bothered me:

It is deeply ironic that the Republican Party, long the party of privilege, has become the party that champions the view that anyone — from an exterminator (Tom DeLay, former House majority leader) to the owner of a pizza joint (Bobby Schilling, freshman congressman from Illinois) — has what it takes to run a country.

This is, I think, an elitist critique of, well, elitism(?). Usually when a group dispatches a remnant of its former ideology of privilege, we clap. Here, we’re knocking the Republican Party for its history of elitism, but then noting that, ahem, not just anyone can run a country. In fact, it’s so illogical that I’ve actually been going back and forth on whether he’s being sarcastic or serious. But it must be sarcasm, the examples are derisive, right?

But those derisive examples are heartbreaking. What the hell is wrong with owning a pizza joint and running for Congress? And unless the point is that exterminators are, as a class, likely to be corrupt, I see no reason to knock DeLay based on his employment background: he was a powerful politician and a reasonably effective majority leader, and a veteran of state legislative politics to boot. Is there something I don’t know about small business owners that makes them particularly unsuited to be community leaders?

Westen is presenting a strain of elitism that absolutely drives me batty. Lodged in the middle of an essay that alleges both parties have a tin ear for what the masses of voters actually want, Westen lets slip that he doesn’t have much patience for people that don’t have a certain pedigree. He’s contemptuous of both the political class and the working class. I have little doubt that he fancies himself a philosopher-king of sorts, and it’s dollars to doughnuts that his ideal candidate/leader fits a very particular mold — probably college followed by law/professional school followed by a job as a political staffer followed by some policy work — and people outside of that mold should stick to pulling voting levers.

But leave that aside: five paragraphs after declaring that a pizza joint owner and the owner of a pest control business aren’t capable of leadership, Westen says that “another quality that distinguishes effective leaders [is] experience,” and then uses running a business as an example. Huh? Who the hell edited this piece?

Even stranger is Westen’s understanding of how the national government works. Does anyone equate serving in Congress to “running the country?” Even uninformed voters make a pretty bright line distinction between the standards they employ when voting for president and when voting for Representative — all sorts of people who would never stand a chance at the presidency are routinely elected to Congress, or even serve as congressional leaders. And with good reason: it doesn’t really matter if the Speaker of the House is a drunk. Or if a freshman in Congress doesn’t have a perfect grasp of policy or politics. Legislative leadership itself is something quite different than national leadership, and I suspect Westen is conflating the two completely.

Herman Cain is under fire for alleged sexual harassment, which his campaign is now flatly denying. What can we say about all of this? Two quick points:

1. Amateur presidential candidates are more likely than career politicians to be tripped up by past indiscretions. This is because they’ve never been vetted politically before. For career politicians, chances are that many of the embarrassing indiscretions of the past have been dug up and aired publicly by opponents in previous campaigns. This is only natural; opposition researchers exist at all levels of politics, and very few campaigns have any misgivings about using what they find if they think it at all effective. And thus when faced with two  presidential candidates, one amateur and one career politician, you are looking at two very different people in relation to scandal. All else equal, the career politician is

(a) less likely to have something in the past that could ruin a career, as there’s a real chance it would already have been found by a previous opponent; and

(b) more likely to have already dealt with and controlled small to medium-sized issues from the past, neutralizing their effectiveness if recycled.

And thus any career politician who becomes a presidential candidate has survived an evolutionary test for scandal; natural selection has not exposed a disqualifying scandal, and has partial-immunized him from many minor allegations that have already surfaced. The unvetted amateur, on the other hand, stands at the first stage of the evolutionary process. Think you’re going to find a silver bullet scandal in president Obama’s past at this point? Not a chance. Think Romney’s groundskeepers-who-employed-illegals is going to make above-the-fold news years after it first came out? Doubtful. Think a random chattering-class amateur-cum-politico has a past indiscretion or two?  You bet.

Now, presidential campaigns expose all candidates to a level of scrutiny and opposition research that is unparalleled, regardless of previous political experience. But that’s kind of the point: it’s all coming out when you submit yourself to the presidential election machinery. For career politicians, that means the last scrapings from the bottom of a well-traveled barrel. For amateurs, it means the same scrapings, plus all the low-hanging fruit. Both can be good sources of fodder. But they are far from the same thing.

2. I’m surprised some people think this won’t hurt Cain. Last night on Twitter, both Ryan Lizza and Rich Lowry indicated that Cain might not be damaged by this story. The theory goes something like this: Cain will effectively spin the story as an example of the high tech lynching he already predicted from the liberal media, and conservatives, in turn, will rush to his defense, making him more popular than ever. And this morning, we do indeed find some conservatives coming to his defense.

It sounds plausible, but there are at least four problems with the theory: first, Cain isn’t competing against the liberals right now. He’s in a primary against other conservatives. Unless the allegations are completely baseless and can be proven as such, it’s going to be tough to sell this as the liberals smearing him. It may be done quietly, but if this story has legs, it will be kept alive by his primary opponents, not the Democrats. More to the point: is it really the case that the Democrats would rather face Romney? That doesn’t pass the smell test.

Second, GOP primary voters aren’t being forced to choose between a flawed Cain and a Democratic candidate;  the political cost of abandoning him is very small, and thus the incentives to rally behind him are very low. It’s one thing to hold your nose and vote for someone with a flawed-character if the cost of abandoning him is a partisan loss in the election. But, if anything, the opposite is true here. And all  just for a chance to stick it to the liberal media? Cain may get a sympathy bump from the right, but it won’t last if the story pans out. For the same reasons, I don’t buy the analogy to Clarence Thomas.

Third, one of Cain’s big selling points right now is his very low negatives among voters. This is bound to affect that, even if it didn’t injure his overall support. Part of his popular appeal, I think, is the public sense that he’s not an ordinary politician. A scandal like this will start to break down that narrative. Even if the allegations don’t reshape how people view him, the campaign’s response to them probably will.

Fourth, I don’t see how this helps Cain’s fundamentals. He still has no endorsements from federal elected officials and very little in the way of fundraising. This will probably solidify those realities. I don’t think party actors were giving him much of a look before, but now they won’t touch him, even if only because they get nervous about what else is hiding in the closet. It’s just more potential risk in a year that the party wants to reduce variance. If Cain can survive a medium-sized scandal and win this nomination, it will definitely be reason to re-assess our understanding of party influence on the presidential nomination process.

Now, I was already on the record believing that Cain had almost no chance at the nomination. In that sense, I guess this strikes me more as a time/place/manner thing that something that actually affected the future. Perhaps the biggest effect, one way or another, will be on book sales and speaking fees. In fact, my first reaction to the breaking of the scandal was that it probably let the observers/pundits who were bullish on Cain off the hook with an excuse for what I see as an inevitable crash.

But part of me thinks that things like this should be built into any estimation model. Everyone has past indiscretions, at least minor ones. Was it really going to be possible for Cain to get through the nomination process without them being dug up? I’m not saying that I thought about this much before yesterday, or that scandal was the likeliest way for Cain to be brought down. But given his unvetted status, it was always a possibility.

As of 7am this morning, Cain is down 36% on Intrade. There’s certainly a chance he could recover from this and reverse those numbers. But this was always a campaign teetering on the brink. My guess is this is the beginning of the end.

Drew Westen’s piece in the New York Times this weekend might have achieved anti-perfection. John Sides has already dismantled it as a factual matter. Tomorrow I’ll have some thoughts of my own on Westen’s understanding of politics.

Update: The post is up, although now that Jon Bernstein and Seth Masket have piled on, I abbreviated it quite severely.

The floor of the House chamber plays a central role in the practice of congressional politics in Washington. In one sense, this centrality is obvious: the floor serves as the physical location of official decision-making and debate. But the importance of the floor to the structure of congressional politics is much wider than this, in a way that is not often appreciated: the rules, norms, and practices that occur on the floor fundamentally shape the structure of legislative and representative practices of Members that occur off the floor in Washington.

Although floor action is the most visibly consequential congressional activity, it is far from the only representational activity that Members undertake in DC; but because of the primacy of the floor, the other activities of Members must play a subjugated role to the demands the floor places on their time and attention. Regardless of the priorities a Member has on any given day, a call to the floor for a vote will have to take precedence, except in the most extreme of circumstances. The demands of the floor, however, can be shaped by the Members through changes to the rules, norms, and practices. And thus we might expect that exogenous changes to the off-floor needs of Members might result in deliberate changes to the structure of floor action to better meet those needs.

Which brings us to clustered voting.

In the 1960s, the practice of voting on the floor of the House was quite different than it is today, and would in many ways be unrecognizable to an observer familiar only with the modern practice. Many of these practices were altered beginning in 1970, and two changes in particular are well-known. First, in the Legislative Reorganization Act of 1970 (P.L. 91-510), the rules of the House were amended to allow recorded votes in the Committee of the Whole. Previously, votes on floor amendments in the Committee of the Whole were usually taken by voice, leaving no trace of how individual Members had voted. The second change, also initiated by the Reorganization Act, was the introduction of the electronic voting system, which was first used in January 1973, several weeks into the 93rd Congress. Prior to its introduction, recorded  votes in the House were usually taken by roll-call, as they are in the modern Senate. In the larger House, however, this was a serious time-consuming process; roll-call votes often took 45 minutes to complete. The introduction of electronic voting significantly shortened the time it took to vote. Under current House rules (Rule XX(2)(a) and Rule XVIII(6)(g)) 15 minutes are allotted for a vote (and in many cases, as discussed below, less). The introduction of “scoreboards” also left, for the first time, a visual record of the vote as it was in progress.

A third change, however, has received less attention: alteration of the rules to allow the postponement and clustering of record votes (found currently at Rule XX(8)). Prior to these changes, votes occurred on the floor in their natural locations; if several motions were expected to be entertained under the suspension of the rules, for example, there would be a vote on each motion at the conclusion of debate on the motion. Beginning in the 93rd Congress (1973-74), the rules were gradually altered to allow the Speaker to postpone and cluster votes together. The first change allowed clustering of suspension votes, as described above. Whereas previously there would have been a vote at the end of debate on each suspension motion (which could range from 0-40 minutes), the Speaker would now be allowed to postpone all of the votes until all of the motions had been debated, and then have one long series of votes at the end.

The ramifications of this for the Members was enormous. Instead of having to come to the floor to vote at a series of unknown random times throughout the suspension calendar on a given day, now only one trip to the floor for the series of votes would be necessary. While under the prior system Members were forced to either continually be called away to the floor or hang around the floor waiting for votes, the postponement rules meant that the leadership could roughly schedule when the votes would take place, and Members would be free to conduct non-floor activities without interruption. This not only allowed for more efficient use of time on and off the floor, but it also enlarged the very scope of things that were possible off the floor. Prior to clustered voting, a meeting on the other side of Washington would be difficult to schedule with six suspension votes likely at random times over the course of an afternoon; under the modern system, those votes can be condensed to one series in the early evening, requiring the Member to be on the floor for only about 40 minutes total, in one block.

Further changes to the rules in subsequent years allowed every vote after the first in a clustered series to be a 5-minute vote, further reducing the total amount of time spent on the floor (first used in the 96th Congress). Rules were also subsequently altered to allow votes to be postponed to the following day, providing even more flexibility in scheduling. And, most importantly, over the following two decades, more and more types of motions were added to the list of things that could be postponed. In the modern House, the vast majority of votes can be postponed, including ordering the previous question (starting in the 95th Congress), adoption of privileged resolutions from the rules committee (95th Congress), final passage on bills and resolutions (96th Congress), agreements on conference reports (96th Congress). Later precedents allowed for the clustering of many of these different types of votes together, with only one 15-minute vote in any series. This gives the majority leadership incredibly flexibility in shaping when floor action demands the attendance of the Members; as such, they can schedule the floor to the utmost convenience of the off-floor needs of the typical Member.

There are potential downsides to this. While the ability to postpone and cluster votes makes the floor schedule both more predictable and more efficient, that very predictability reduces the need of Members to be anywhere near the floor during debate, which theoretically reduces both the informative quality of the debate, as well as the interest of Members in even having a debate. After all, if you have to be hanging around the floor, you might as well discuss things. But if you don’t need to be there, maybe other things are more important than debate. In the contemporary Congress, the chamber is mostly empty during debate. The ability of the leadership to postpone and cluster votes allows the Whips to send out daily notices to the House community, with detailed (and pretty accurate) guesses as to the expected time of the first vote and how long the series will last. Furthermore, if things are going slow, some of the votes can be pushed to the following day. While all of this maximizes efficiency, it also virtually reduces to the bare minimum the amount of time Members actually need to be collectively present in the House chamber.

The combination of clustered votes and reduced times for the latter votes in a clustered series makes the modern House floor utterly different than the floor in the 1960s. Particularly on a day when the only business is suspension motions, the Members are almost perfectly free to ignore the floor until what is usually about 6pm, at which time they can convene together and take all the necessary votes in less than an hour. This frees up the entire day for both official action (such as committee hearings) or other representational functions (such as meeting with constituents or interest group representatives) or off-campus political activity (such as fundraising or campaign matters). Unchained from potential votes, Members need not keep themselves within quick walking distance of the floor; meetings and events can take place all over Washington or even farther away. Even more so, any shortened week House schedule can be even further reduced: the so-called Tuesday-Thursday calendar can include all postponed votes on Tuesday, making Tuesday night the deadline to return, not Tuesday mid-day. Whether the move toward clustered voting was a cause or consequence of the changing patterns of Member off-floor activities is known; mostly likely, it was both.

One final consequence of the clustered votes is perhaps worth mentioning. It makes following the House on C-SPAN much tougher for the uninitiated viewer. Faced with a series of votes that are often completely unrelated and with no intervening debate, it can make the patterns of procedure on the House floor seem even more indecipherable than normal. Even more frustrating to many is that watching a floor debate that does not end in a vote on the matter at hand, but simply postpones the vote and proceeds to a different debate on a different topic. While such concerns are definitely secondary, it is not just C-SPAN viewers who can suffer this problem; without a linear progression of votes, coupled with the ability to ignore the floor most of the day, Members themselves can be unsure about the exact sequence of votes in a clustered series. While this virtually never results in a Member voting incorrectly (it’s easy enough to ask someone on the floor what the current vote is), it does further disconnect the individual Members from the traditional ideal of the floor as a place to debate an issue and then vote on it.

As macro-development, it’s also important to see the linkages between record votes in the Committee of the Whole, electronic voting, and cluster voting. Without electronic voting, record votes in the Committee of the Whole would not have been feasible, given the potential time commitment. Similarly, it would hardly have been worth clustering votes if they couldn’t be taken electronically: part of the benefit is that the subsequent electronic votes can be reduced to five minutes; if each vote took 45 minutes, it would hardly be worth clustering them. (In reality, the only reason the first vote now is 15-minutes is so that people have time to get to the floor; in certain situations, the chair is actually allowed to reduce the vote time to 2-minutes).

Oh, Nelly.

First off, the win-probability fangraph from last night is just ridiculous.

Anyway, less than five minutes after the game ended, a friend of mine texted me the following:

amazing. too bad game 7 will probably be a huge letdown.

In one sense, that’s almost certainly true. It’s hard to imagine tonight’s game topping last night. But the implicit thrust — that game seven would probably be a poor game — didn’t strike me as correct. Thinking back, my intuition was that most of the game sevens I could remember were actually pretty good.

SportsCenter is also running a piece right now talking about how great game 6s have been historically, relatively to game 7s. They show 1975 (carbo homer, fisk homer), 1986 (Schiraldi/Stanley/Buckner), 1991 (Puckett), 1992 (Joe Carter), and of course last night. But game 7 was pretty darn good in 1975 and 1986, and in 1991 game seven was absolutely better than game 6. So the piece struck me as kind of hollow.

Here are all the World Series game sevens since I was old enough to remember them:

1985: Royals 11, Cardinals 0. Not an exciting game. But it does include the ejection of Whitey Herzog, who allegedly told Don Denkinger “We wouldn’t be here if you didn’t fuck up the call last night,” in reference to the possibly-worst missed call of all time in game 6, to which Denkinger allegedly responded,” We wouldn’t be here if your team wasn’t hitting .120.” Awesome.

1986: Mets 8, Red Sox 5. I wasn’t alive for game seven in ’75, but I have to think this was the most highly-anticipated game seven of all-time, especially when you throw in the rain-out day (although that was true in ’75 as well). And it delivered. McNamara going with Hurst instead of Oil Can, followed later by Oil Can being too hungover to pitch in relief when the barn was on fire; the Sox jumping out to a 3-run lead, the Mets pounding Schiraldi again in the 7th; Strawberry’s towering homer (and slow-as-molasses trot around the bases) in the 8th. Great game.

1987: Twins 4, Cardinals 2. Somewhat marred by a pile of missed calls, this was still a very good game. The Cardinals got to Viola early, but he settled down nicely. Vince Coleman threw two Twins out at the plate to keep things close.

1991: Twins 1, Braves 0. Jack Morris refuses to come out and goes 10 innings for the shutout, with Smoltz et. al getting a 9-inning shutout of their own, before Gene Larkin delivered the walk-off hit to win it. Probably the greatest game in my lifetime, and definitely one of the most underrated.

1997: Marlins 3, Indians 2. A fantastic game and a fantastic finish. Alomar cut down at the plate trying to get an insurance run in the top of the 9th. The Marlins get to Mesa in the bottom of the ninth for the tying run. I think the single-most exciting thing that can happen in a baseball game is when the visiting team has to intentionally walk the bases loaded and then bring the infield and outfield in. The Indians had to do that in the 11th inning of game 7 of the world series! They cut a guy down at home for a second out, but then Renteria slaps in the winning run.

2001: Diamondbacks 3, Yankees 2. A classic. Clemens and Schilling locked in a duel for seven innings. Brenley brings in Randy Johnson (who had started game 6) in relief mid-8th. Mariano Rivera, greatest closer of all time, can’t save a 2-1 lead and the Diamondbacks walk off.

2002: Angels 4, Giants 1. Not a great game, but high drama right to the end. Percival put two runners on the 9th, bringing the tying run to the plate. Also, a great outing for a rookie John Lackey.

So that’s a pretty good track record. Not that it can predict anything.

Finally, I still have no idea how Sunday night regular season NFL games draw higher ratings than World Series games. Mind boggling. And I won’t entertain any nonsense about baseball being boring. If that’s your position, you need to: (a) re-evaluate which sport involves more standing around doing nothing; and (b)  drop football and start watching rugby. As I wrote after the last day of the regular season, baseball drama is unlike any other kind of sports drama. And post-season baseball drama is even more unique. It’s not the most heart-stopping (that would be overtime playoff hockey, in my mind), but it’s the most agonizing and the most personal.

Enjoy the game tonight, everyone!

Following a Twitter challenge yesterday, Nate Silver  — whose work I generally very much admire — posted an article in the Times today that strikes me as unusually pedantic:

But I do know what an analyst should not do: he should not use terms like “never” and “no chance” when applied to Mr. Cain’s chances of winning the nomination, as many analysts have.

There is simply no precedent for a candidate like Mr. Cain, one with such strong polling but such weak fundamentals. We do have some basic sense that both categories are important. This evidence is probably persuasive enough to say that Mr. Cain’s chances are much less than implied by his polling alone. They may, in fact, be fairly slim.

But slim (say, positing Mr. Cain’s odds at 50-to-1 against) is much different than none (infinity-to-1 against). We don’t know enough about the way these factors interact, and we can’t be sure enough that the way they’ve interacted in the past will continue on into the future, to say that Mr. Cain has no chance or effectively no chance.

I think there are a few things to say about this. First, Nate is obviously right from a technical standpoint. Cain doesn’t actually have a zero percent chance of winning the nomination. But that’s also true of both Nate and myself, despite the fact that neither of us is old enough to be president, or currently running for the office. So it doesn’t tell you much. More generally, there’s almost no situation in the study of behavioral politics (or social science, for that matter) in which we could makes such a claim. Forever is, as they say, quite a long time. If that is Nate’s point — that people saying that Cain has no chance should actually be saying he has “less than a 1% chance” — well, fine. But in that case it’s just semantics, or maybe a criticism about imprecise writing.

But that’s not what bothers me about the article. The real problem is that Nate seems to more or less agree with the people who think Cain has no chance. He concedes that Cain’s chances might be “slim” and then suggests that “slim” might mean slightly less than two percent. In effect, Nate is doing exactly what he claims the analysts shouldn’t be doing: disregarding the polling numbers and putting the vast preponderance of the explanatory weight on the fundamentals, or their intuition. How else can you get the polling front-runner down to 2%? But if it’s “arrogant to say that the man leading in the polls two months before Iowa has no chance,” then it’s probably pretty arrogant to make him a 50 to 1 longshot.

Nate also wants people to put their money where their mouth is. He offers a silly one-sided bet — will you quit your job if Cain wins? — in an attempt to prove that Cain doesn’t have “no chance.” This goes right back to the semantics. But we can harness the market without betting our livelihood at infinity-to-1 odds. For instance, Cain is currently trading at 7.4% to win the nomination on Intrade.  That’s far below his polling numbers, but I have a hunch it’s still well above Nate’s estimate of the true probability of him winning.

So I’ll throw down a counter-challenge to Nate. I’ll admit that I’ve been guilty of saying Cain has “no chance” of winning the nomination when I actually meant he has less than a 1% chance. I also think that the public opinion polling showing Cain in the lead is basically worthless (not because it’s wrong, just because it has little predictive value relative to the fundamentals). So here’s the bet: if Cain doesn’t win the nomination, Nate, you buy me a happy hour beer next time I’m in New York or you’re in DC. If he does win, I’ll treat you to a very fancy dinner (say, $400/person) next time I’m in the city or, if you prefer, donate the money in your name to the charity of your choice.

That’s roughly 100 to 1 against. If Cain has anything more than “no chance” of winning the nomination, it should be a very attractive bet.

Update: Jonathan Bernstein posted a very nice piece that is both a more complete and much cooler-headed analysis/critique of the situation, and which I highly recommend reading.

Update II: Hans Noel has a nice post up over at the Monkey Cage regarding all of this, and he’s definitely an expert that everyone should listen to. Also highly recommended.

Today, October 26th, is the 10th anniversary of the Patriot Act. I’m pretty surprised that no one seems to care.

Whatever you think of the merits of the law (P.L. 107-56; reauthorizations in P.L. 109-177,  P.L. 109-178, P.L. 111-142, P.L. 112-14), I don’t think there’s any doubt that it’s the symbol of America’s public security response to 9/11 (although I guess if you wanted to argue for TSA, I’d have to at least listen).

What’s a sensible libertarian to think of all this? Three thoughts:

1) As with the “war on terror,” much of the Patriot Act has become utterly normalized. This is absolutely the saddest part of the whole post-9/11 experience for me. The various trade-offs of liberty for increased security was, by all accounts and on all sides of the debate, a temporary measure in response to an acute problem. And I’m no conspiracy theorist or weak-kneed liberal on this; in the post-9/11 environment, I don’t think it was inherently unreasonable to statutorily increase the ability of federal law enforcement to aggressively pursue terrorists. I wasn’t crazy about the law at the time, but I could see the arguments in its favor and I was willing (at the time) to accept that it was necessary in the face of the potential risk.

But I think the basic feedback loop of a democracy doesn’t work well with policies like this one: the vast majority of citizens never have any actual contact with the Patriot Act: virtually none of them ever get detained or are even suspects, and any surveillance of their communications is not something they know about. So, in effect, the entire implementation of the policy is hidden from view. Except when one of its provisions helps law enforcement do its job. Then everyone hears about it. Like many issues of liberty, it’s an abstraction that people can’t viscerally relate to and often don’t want to think about. That is a sub-optimal context for any public policy, and a dangerous one for any trade-off regarding the 4th amendment. It effectively allows the law to ingrain itself as the status quo without a whole lot of public consternation. And it puts the burden of explanation on people who want to repeal it. And then it just becomes something that’s always been there.

Everyone always talks about how kids who were born in the last 15 years will have no memory of how different America was before 9/11. And when they say it, they usually means things like “you could go to the gate at the airport to pick someone up” or “you were carefree in the sense that you never thought about buildings blowing up.” I’m more worried about the things that don’t seem to have changed at all, but have actually changed drastically. Like the idea that someone is sitting in jail in America today, indefinitely detained but without any charges filed against them now or perhaps ever. There’s only two possibilities: 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 laws like the Patriot Act are still predicated on the unknowns of October 2001, perhaps justified at the time, but now surviving in no small part on the inertia of normalization.

2) It’s a good thing much of it was sunset, but even that is a very small escape hatch. Congress was smart to sunset many of the provisions of the Patriot Act, because it’s quite dangerous to statutorily hand unending power to the executive branch. And that’s for two reasons: first, regardless of ideology or party, all presidents prefer to have more power than less power. Even if they have no intention of using statutory powers handed to them by Congress, the last thing they are going to do is hand them back. The second reason is structural: because Congress can hand the executive power by majority vote but can only repeal those powers by supermajority (because of the veto), there’s a ratcheting-up effect. The president can almost always summon 1/3 of Congress to his defense, simply because partisans have less concerns about power under their president and often simply do not want to make their man look bad. And so Congress has trouble ending statutory grants of authority to the president.

Luckily, there’s an easy solution that was implemented with much of the Patriot Act: sunsets. So long as the authority expires, then Congress can always choose to extend or end the statutory power by majority vote. In fact, I think sunsets on presidential power are so important that they should be installed on all grants of power to the executive, and should never last more than a Congress. That way, no Congress can bind a future one into a situation where a clear majority rejects the grant of power, but cannot undo it. It wouldn’t be hard to implement: on the first day or in the first week of each new Congress, a bill could be brought forward that was the “presidential power package,” which would contain all the  presidential powers that were about to expire (the laws could be written to have them expire, say, a month into the new Congress). Congress could then re-pass all the powers they wished the president to statutorily retain (perhaps most, or all, of them), while excluding the ones they wanted to end. And this could all be done by majority vote. Sure, there would be veto-bargaining and filibuster issues, but at least that would get people talking and debating the issues; right now, no one even contemplates undoing some of the presidential powers because it’s simply impossible.

Even with sunsets, statutory executive power is a tough thing to undo. The politics of security almost always play toward conservatism, and with presidents almost always pressing to keep or expand the powers, opponents have an uphill fight. This is, of course, better than no sunsets. But it also speaks to their necessity: without them, it’s not an uphill fight, it’s just game over.

3) I worry that the Obama administration has done for security what Ike did for the New Deal.  People tend to forget, but there was a fair number of Republicans in the late 40′s and early 50′s who were still of the mindset that the New Deal policies of the Roosevelt years could be undone in a favorable political environment. Eisenhower’s disinterest or unwillingness to engage in such policies was not only a disappointment to orthodox conservatives at the time, but it was also the nail in the coffin for their cause (at least for a while…). Such cross-party acceptance of a controversial set of policies is pretty common, I think, and tends to be what fundamentally solidifies policy development in much of American history.

My guess is that the Obama administration has done the same for the enhanced security powers of the executive branch. It was always my conclusion that liberals were deluding themselves in ’08 if they thought that just getting their man into the office would solve the problems of Bushism; as I believed then and still believe now, the problem wasn’t just the president, the problem was the presidency. Of course, we’re unlikely to see a Whig in the White House anytime soon, someone who will just hand back power under a theory of legislative supremacy. But at least that debate seemed plausible under Bush. Sometimes I wonder if the conservatives would have put up a better fight on civil liberties had Gore been president for 9/11. Perhaps, although perhaps the solidification of the new era would have just been that much quicker. But it’s utterly clear to me that the modal liberals are mostly done with the issue, as is the median voter.

Back when I was a lowly intern on the Hill in the 90′s and flat tax proposals were enjoying their second(?) renaissance, I got talking about them to my boss (a conservative Democrat) on a car ride and he said something that always stuck with me. I don’t think it gets more succinctly correct than this:

There’s a simple reason that no flat tax will ever pass, nor should one. First, no matter how you structure it, the richest people will pay less than they do now. That’s a basic consequence of getting off a graduated tax. Any sane plan is going to also have an exemption for the first 20 or 25k of income, to help the poor. So if the tax is good for the rich and good for the poor and still revenue neutral, who does it screw? The middle class.

Second, everyone keeps saying how simple it is, that you can do your taxes on a post card. Nonsense. Simplicity is not inherent to the flat tax any more than it is to the graduated income tax. We could eliminate all deductions and adjustments from the current income tax, and you could do the three-bracket math on a post card too. But more importantly, there’s zero chance a flat tax doesn’t eventually get loaded up with deductions and credits.

All that said, it takes some real effort to come up with a flat tax as bad as the one Rick Perry is now proposing, which would allow people to chose between their current taxes and a 20% flat tax. Everyone from Jon Bernstein to Kevin Drum to Reihan Salam have already eviscerated it this morning, so I won’t go into detail, but here are three quick thoughts:

1. Under Perry’s plan, we wouldn’t get any benefit of reforming the zany current system. Perry’s plan is doomed for a lot of reasons, but this is my favorite. The tax system is completely broken in this country, so we’re going to reform it by letting some people pay less in a really simple way, but some people stick with the old system. So in order to do your taxes in the simple way, you’ll have to do them in the hard way to see if the simple way is better. Awesome. It’s  not even good politics, because it doesn’t let Perry effectively talk about “abolishing the IRS” or “simplifying the tax code.” In effect, we have to keep the entire structure of the current system in place, and dump a new one on top of it. Brilliant. (Sidebar: I wonder how much extra I would pay to do the flat tax and not have to keep any records or do a 1040. I wonder what the aggregate average would be for that question.)

2. I’m pretty sure the only relevant distinction is between zero and one deduction. Every scholarly history of the income tax I’ve seen says the same thing: it started out pretty clean, but over time the carve-outs, deductions, breaks, and all the rest just keep getting piled on. Perry’s plan has mortgage deductions and charitable giving deductions. You think more isn’t coming down the road? You are naive. Once you allow and deductions or breaks or whatever, the flood gates will eventually (and probably pretty soon) open. People love deductions. Makes them feel like they are getting something that others aren’t. My mom — who is a pretty smart lady — once told me that she’d rather keep her mortgage deduction than pay overall less taxes. I could not change her mind. That tells you all you need to know. If you can’t abide by an absolutely no deductions policy, you are probably headed toward the full menu.

3. Why not a graduated income tax that is as simple as a flat tax? If someone proposed this, it might actually get me thinking. Just like my old boss said. Three or four brackets, no deductions or credits. Use the postcard. Make it as progressive as you want. I guarantee this polls better than any flat tax ever has. Still a pipe dream, but now at least it’s a normatively desirable pipe dream.

It appears that President Obama is about to unveil some new initiatives regarding housing and student loans. These may or may not be good policies — I honestly have no idea. But the idea that the president is somehow “sidestepping” Congress in doing this strikes me as just wrong. And yet that’s exactly how the Drudge Report is billing it, and also how Phil Kerpin is describing it in his Fox News opinion piece:

Last month at a gala for the Congressional Hispanic Caucus Institute, President Obama said: “I wish I had a magic wand and could make this all happen on my own…There are times where — until Nancy Pelosi is speaker again, I’d like to work my way around Congress.”

This week, Mr. Obama is moving forward to do precisely that.

He is acting to disregard the bipartisan rejection of his so-called jobs bill – another warmed over stimulus bill like the one that already spectacularly failed – and implement large pieces of it without approval from Congress. The president is simply pretending the bill passed and moving forward, starting with yet another mortgage bailout.

Again, I don’t think this is even close to correct. And I say that as someone who is very skeptical of executive power within the American system. Three points:

1) The president can only act on legal authority.  He’s not a monarch. His authority comes from two places: either under the Constitution or under laws enacted by Congress. To suggest that the president is “sidestepping” Congress is akin to saying he’s violating either the law or the Constitution. Which in some cases is a reasonable position: there are certainly arguments to be made that, in the case of war powers, presidents throughout history have stretched well past the limits of their constitutional bounds. I happen to think that’s true.

But such arguments are much tougher to make about domestic policy; the president doesn’t really have much inherent constitutional authority beyond the general grant to “faithfully execute the laws.” He can’t build an army, he can’t spend money from the Treasury, he can’t raise money for the Treasury, he’s not even entitled to a free house in Washington to live in. And he sure as heck can’t change legislatively-enacted policies regarding federal mortgages or student loans. All of those things are controlled by law, and the laws are made by Congress. Period. Via the veto, the president gains some bargaining leverage as a negative actor in the legislative process, but that just makes him a player, not a unilateral actor.

Are there things in the president’s failed legislative jobs package that would have gone through under law but now might go through under executive order or agency rule-making? Maybe. But none of those things would have been prohibited from going through under executive order prior to the legislative stall-out. If the president has the discretion under law to make executive decisions over certain policies, then he has it, regardless of whether Congress rejected his attempt to make those same decisions by legal enactment. Conversely, there are things the president can never do without congress — first and foremost expend money from the Treasury — and that doesn’t change regardless of circumstance or legislative gridlock.

2) Executive branch discretion in domestic policy is largely a grant of power provided by Congress.  What the president can do is make discretionary decisions when Congress has authorized him to do so, or when the law plainly calls for executive discretion, or at the most when Congress has not prohibited him from doing so. Executive orders aren’t magical tools that allow the president to circumvent the law or decide that when Congress said X they really meant Y; they are mostly consequences of purposeful congressional action, combined with executive and legislative reality. You simply can’t write laws to cover all situations and details. In fact, you wouldn’t even want to try. Congress explicitly and regularly designs the overall policy, but then asks the executive branch — full of people with policy and implementation experience — to fill in the details.

So Congress regularly empowers the executive branch agencies with rule-making authority — think of the dozens and dozens of rules required by the ACA —  and it occasionally grants the president explicit personal statutory discretion (think TARP or the resolution for use of force in Iraq for high-profile examples). But beyond that, some stuff is just inherent discretion. If someone tells you to build a doghouse and writes down your instructions and hands you some money and a deadline, you don’t stop working just because they didn’t specify what type of wood to buy or what shape the door should be. You make a decision. That’s raw executive discretion under law in a nutshell. But a lot of the time it’s even more explicit: your orders for the doghouse plainly state that you should choose the type of wood and shape of the door. Do presidents attempt to stretch this? Sure. But they still have to build the doghouse. They can’t decide to use the lumber for a new deck. Unless Congress says they can.

3) Congress can theoretically reclaim this power whenever it wants. At the highest level, it’s important to remember that, from a legal perspective, Congress owns the executive branch. With the exception of the president himself, pretty much the entire structure of the bureaucracy is a creation of laws made by the legislature. It could theoretically all be torn down in one statute. On a more practical level, it informs a logical consequence: executive orders and rule-making done under congressional-enacted statutes are all subject to reversal by law. Yes, Congress faces a problem that the it can grant the executive branch powers by bare majority but can only reclaim them by supermajority (because of the veto), but the ultimately authority rests with Congress. This is true of virtually everything in the executive branch: if Congress wanted, they could shut off the power at the White House and make the president walk down to the State Department if he wanted to call our allies. They could reduce funding for the president’s staff to zero and move him out of the White House. Obviously, these things are fanciful, but if Congress were to reduce the president to just his constitutional authority, the presidency would look dramatically different.

But we don’t do this. Because it makes perfect sense for a legislature to empower an executive branch to sort out many of the details of policy. There are lots of things for one who believes in congressional supremacy to worry about in the current separation of powers environment.  To build a narrative that executive discretion over federal mortgage and student loans programs is the front line in such a battle is at best alarmist, but mostly just wrong and misleading.

Kerpin did get one thing right in his article:

It is clearly no longer enough for Congress to reject Obama’s bad ideas – they need to step up and actively stop him from working his way around them.

That’s right. If Congress does not like the authority granted to the president under law, they can always change law. And that’s a perfectly sound strategy if you disagree with the president’s actions.

1. The Iraq war is about to end, at least for U.S. armed forces. I don’t care what your partisan alignment is, this is a great thing. Period. I only hope that it will begin a more general policy of reversing the trend of American military presence abroad. And I don’t mean the post-9/11 trend. I mean the post-1945 trend. Could fiscal austerity have the side benefit of turning public opinion against empire? A libertarian can dream, can’t he!

2. I had the day off from work on Friday, and I took my girls down to the National Mall for a picnic. We went to the Lincoln Memorial — by far my favorite of all the memorials. I’m fascinated by the politics of national memory, and the political messages that national memorials reveal. In the case of the Lincoln Memorial, the core message is not about anti-slavery or cvil war, but union. The states names running across the frieze. The choice of speeches  (Gettysburg, 2nd inaugural). The epitaph marking “saved the union” as the reason for the memorial. Never fails to evoke wonderful emotions. This time, it also made me think of Rogan Kersh’s great book on the importance of the idea of union in 19th century America.

3. The Rugby World Cup championship game is on NBC at 3pm EST (actual game will probably start around 3:45). France vs. New Zealand. As I’ve written about before, if you planning on watching some random NFL game, do yourself a favor and watch the rugby game instead.

4. In a similar vein, I agree with Mad Dog Russo that anyone who chooses Saints-Colts over World Series game 4 tonight is crazy. But most people will.

5. Having grown up in northern New York — where each high school was its own school district —  I’m continually amazed at how a county-wide school system works, like the one we have in Fairfax County. Today, the Washington Post issued it’s endorsements for our school board races, which seem more like state legislature races than the school board elections I remember back home. As I’ve written before, I think school board elections are almost certainly the most important political events for any parent, far more important than the congressional elections. So I encourage everyone in Fairfax to read the post editorial and use it as a springboard for doing some research on the races. If you read this blog, you’ll spend countless hours thinking about the ’12 federal elections; do your democracy a favor and spend an hour learning the school board issues.

Some random theorizing I was doing today in the wake of some political discussions.

Two statements that I think are indisputably true:

(1) In any democracy, some small subset of the citizenry will be better informed about politics than the rest of the population. Following Popkin, we could call them high-information and low-information voters. Here I will call them normal and sophisticated voters.

(2) The cost of obtaining political information has shrunk dramatically in the past 15 years. Anyone interested in politics can easily obtain a wealth of official information, news reporting, commentary, and political analysis.

One statement that I believe to be true, but I’m not certain about:

(3) Sophisticated voters are more likely than low-information voters to think strategically about politics. That is, when a normal voter watches a political debate, they are more likely to only think about what the candidates are saying. A sophisticated voter is more likely to think about why they are saying what they are saying.

Three plausibly-testable hypotheses that may follow from the above the statements:

H1. The proportion of sophisticated voters in America is growing.

H2. The relative level of sophistication among even normal voters is growing.

H3. The sum total of political media is increasingly geared toward sophisticated voters.

I propose all of this because I’m finding myself continually to be in conversations with people I would usually consider to be normal voters, who are expressing strategic reactions, rather than face-value reactions, to political events. I was discussing the GOP field of candidates with several such people last week, and I was struck by the degree of strategic analysis they were bringing to bear on the conversation. When I asked them what they thought of the candidates, they didn’t respond by telling me what they liked or disliked about Romney, Perry, or Cain. Instead, they told me what they thought were the causes of Cain’s rise in the polls and how the other candidates should perhaps respond. When I asked about their opinion of the president, they didn’t give me an opinion of him, they gave me a dissection of what variable are going to affect his re-election, and what strategy he should use between now and then.

This, I thought, was remarkable. In essence, they were no longer thinking like common voters; they were thinking like amateur campaign managers. That’s something I would usually associate with sophisticated voters. So what is going on here? Of course, it’s always possible that I’m just seeing this wrong; my supposed former-normal voters were actually always sophisticated. But I don’t think that’s the case. My hunch is that there’s a pretty clear causal chain here: the small but growing number of sophisticated voters are hungry for lots of political information of the strategic variety; the cable news shows and internet content is providing that for them as a market-response; however, this is having an affect on the broader media environment, making it geared more toward sophisticated strategic information than regular old reporting of the facts. As a result, any normal voter who meets a certain baseline (i.e. consumes any political news) is being turned into a sophisticated voters.

A couple of caveats for clarification. I’m not sure that my conception of the “sophisticated” voter necessarily means that voters are getting smarter, or more consistently ideological. I’m not making the case that there are more ideologues. It just strikes me that more people are now in tune with the strategic goals of political debaters, and are evaluating what they see within that frame. I don’t think that has anything to do with political knowledge. Second, I’m not claiming that this is affecting all voters; the large swath of voters who collect almost zero political information on a regular basis shouldn’t be affected by this. Second, I’m not sure how deep this goes: it may just be the case that it’s only happening in DC, or among already-sophisticated voters. But I don’t think that matters. Any expansion on this dimension strikes as both interesting and consequential.

So what are the consequences? One is that I think there is an eventual tipping point at which the theatrical aspect of politics gets worn away, simply because they aren’t enough voters left to fool with it. We seem to already be approaching something like that in the Senate, where an increasing number of voters have a decent-enough grasp of the rules to demand that their representatives take full advantage of them and play hardball. Similarly, I think more and more people are understanding events like debates as strategic opportunities rather than information-distributing events. I don’t think this is a bad thing; wiping away the veneer of political discourse and reducing the game to interests and institutional rules is not inherently a bad thing. It might generate cynicism, but it would be cynicism as the cost of reality. And I’ll take realists over romantics every day of the week for my electorate.

A second consequence that occurs to me is that as a greater percentage of people become sophisticated observers of politics, something strange happens to those who remain normal voters: they may become self-conscious of their position as non-sophisticates, or at least as outside of the political conversation. If everyone with an even passing interest in politics becomes a strategic thinker, and the media increasingly plays to that reality, and the discourse of sophisticated politics becomes a discourse of strategy, I would think that political discourse would become both (a) more noticeable to the normal voter; and (b) simultaneously more distant. It would be like if the number of people in your community who spoke a foreign language suddenly increased substantially, both face-t0-face and in the news. It would have to become noticeable. I have no idea what the upshot of this is, and even less of an idea of whether it’s a good or bad thing.

Anyway, still thinking this through. Any feedback would be appreciated.

References

Samuel Popkin, The Reasoning Voter (University of Chicago Press), 1991.

There are a lot of things in politics that just don’t matter much. That is, they don’t have any independent effect on the political outcome — which candidate wins, what policy passes, etc. This is often true even about things that seem like they should matter a lot, especially in the world of campaigns and elections. Primary debates don’t seem to matter much. Who you choose for your running mate doesn’t seem to matter much. Hell, there’s an entire literature in political science that says campaigns themselves don’t really matter all that much.

One thing that I think gets overlooked, however, is the way in which something doesn’t matter. I know that sounds silly, but hear me out. Some things literally don’t matter; they have zero independent effect on the outcome. On the other hand, some things don’t matter because they don’t generate a comparative advantage in any direction. The former category is filled with things that both theoretically and empirically seem meaningless or utterly unrelated to outcomes. For instance, best I can tell, candidate penmanship has zero effect on election outcomes (God help me if there’s some political science literature out there that says otherwise). The latter category  is filled with things that theoretically and empirically might actually matter a whole lot. Take, for instance, money in presidential general elections. In a vacuum, it could be important. But because both sides can raise a ton of money, there’s a declining marginal utility of money in an election, and no one is really that much better at spending money than anyone else, the end result is that no one can get a comparative advantage. And thus it doesn’t really matter.

I see two important dimensions in the world of things that don’t matter because of comparative advantage problems: differentiation and measurability. Let’s say you are running a campaign and have to make a choice. The choice matters less when there is little difference between the options, and also when you can measure that difference precisely, such that there’s little variance in your estimation of the difference. Let me use a sports analogy to get at this point: football kickers in the NFL.  From the point of view of an individual team, kickers don’t really matter much. No one drafts kickers with their top picks, and no one trades good players for a kicker. The kickers aren’t even paid that much. But there’s no doubt that the kicking game in football matters — it directly affects the outcome of lots and lots of games.

The problem is that no one can really get a comparative advantage with kickers, for two reasons: there’s no variation in ability, and the ability is easy to measure. The top 35 kickers in the world are pretty much equally as good as one another, and the skill they possess is so easily quantifiable that it’s almost impossible to make a bad judgment in acquisition. Yes, the top few are a little better than the pack and the bottom few a little worse, but overall there’s just not much difference, and we can measure and know that precisely. Now, the situation changes dramatically when you switch to high school football (or even college); there is enormous variation in kicker ability there, and thus a comparative advantage can be gained.

Now, is any of this actually important in politics? I’m not sure, but my hunch is that it might be. When we say that something doesn’t matter much, often what we are implicitly saying is that it doesn’t matter much so long as the candidate/campaign is sufficiently skilled in decision-making, because they will make decisions that, while perhaps sub-optimal, are at least good enough to effectively neutralize the possibility of a comparative disadvantage. It’s like when we say a House Member is unbeatable; he’s not actually unbeatable, he’s only unbeatable if he continues to do the things he’s doing with his votes, constituent service, and the like (Mayhew 1974).

And this directly points to the idea of mistakes/miscalculations as well as lack of skill. Two examples: the choice of Palin as running mate by McCain in ’08, and the way the Cain campaign has handled the abortion flap in the past few days. In the abstract, these are things that don’t matter: vice-presidential nominee selection and minor gaffes in soft media interviews. But they did matter, because the campaigns handled both things so poorly that a comparative advantage was derived by any opposing candidate. In the case of McCain, it strikes me as a miscalculation borne of poor measurement; they simply didn’t research Palin enough to realize she wasn’t at the minimum threshold which makes a VP nominee not matter (see political science studies here, here, and here for analysis of the unusually-large-for-a-VP effect Palin had.) In the case of Cain, it just looks like an unskilled choice; there are a lot of ways to handle such a gaffe and yet they somehow managed to choose a way that did not allow a quick escape.

These are rare situations at the national campaign level. So two things emerge: first, we should expect a lot more things to matter in elections as the election becomes more localized and amateur. Second is that things that don’t matter tend not to matter because campaigns tend to be good at avoiding comparative disadvantages in situations where no comparative advantage exists. Which, in turn, I think suggests that campaigns are rightfully risk-averse; managing the downside of things is often the only way to get even a potential advantage — simply minimize your mistakes and hope your opponent makes more. Even among things that don’t matter.

References

David Mayhew, The Electoral Connection, Yale University Press, 1974.

People keep pointing me toward  E.J. Dionne’s op-ed in today’s Post. I’m not all that enthused about it, in part because the analogy is absurdly tortured and the  history is a bit stylized, but mostly because I don’t see how the lesson of Lincoln can be applied here. Let me explain.

Dionne’s pitch is pretty simple: Lincoln was a moderate anti-slavery man, who ran in 1860 with a conciliatory attitude toward the south, and continued that policy not only during the secession crisis, but also after the war began. He carefully worked to hold the center, ever fearful that if perceived as an abolitionist, both he and the cause would be sunk. The conciliation, however, got him nowhere. Meanwhile, public opinion in the north was drifting toward the abolitionists, who believed that ending slavery was the only way to solidify the section and win the war. Lincoln then seized the opportunity by abandoning his centrist position and issuing the Emancipation Proclamation, a year and a half into the war.

Dionne then transfers this analogy to present-day. Obama is situated similarly to Lincoln, facing a hardened opposition that refuses to respond to his centrist overtures, and a growing leftist movement is making inroads with public opinion. As Dionne says, “[b]y following Lincoln’s example and acting against the injustices of our time, Obama could also come to occupy the high ground.”

But here’s the problem: what do you do? Even if you fully accept Dionne’s reading of history — and while I would quibble with a lot of it, it’s certainly not unreasonable — you still have to face up to the biggest shortcoming of the analogy: there’s no equivalent of the Emancipation Proclamation available to president Obama. Part of the simplicity of Lincoln’s situation is that he was able to act  in a way that was both decisive and unilateral. The total sum of the injustice of slavery was not 100% rectified by freeing the slaves, but it was about as complete of a solution as anyone could possibly demand. No one who agreed with the ends was suggesting alternative means, or worried that Lincoln’s means would not achieve the ends. And Lincoln was able to execute the policy via nothing more than an executive order and an expansive-but-perfectly-plausible reading of Article II of the Constitution.

I would respectfully suggest that Obama has no such recourse. It’s telling that Dionne does not make specific suggestions for what the president should do; it’s pretty hard to think of concrete policy actions he can unilaterally take regarding economic inequality and perceived excesses of the financial sector. If we were to reverse the analogy, it would be like demanding Lincoln free the slaves, but require him to do it by legislation and with the southerners allowed to vote. Yes, Occupy Wall Street may be genuinely moving public opinion. But it doesn’t just have to get center-left Democrats like Obama (i.e. the median northern voter in 1862) to take up more aggressively liberal positions, it needs to move at least some right-of-center voters to those positions (i.e. the median national voter in 1860). Obama’s main opposition, unlike Lincoln’s, has yet to exit the democratic process.

More to the point, the one specific that Dionne mentions — higher taxes for the wealthy — has been proposed by Obama time and again since the 2008 election. And in the context of the current debate on the left, it’s small beer. Raising taxes on the runaway wealthy— while certainly noble — is not going to fix the economy, close the deficit, or significantly lower unemployment. And even if that is the sum total of policy necessary to grab the high ground in the face of the abolitionist-like angst, you still have the southerners to deal with. One highly likely outcome is that you are left with a campaign issue and not a policy. Ditto on the jobs package. Ditto on another stimulus. Ditto on pretty much everything.

But, I can hear you thinking, maybe that’s what Dionne is saying! Obama should move his stated preferences to the left and capture the moral high ground in preparation for the 2012 election. In that case, Dionne has not exactly written a new column. And while I know a lot of people think that’s a good strategy, I think it’s dubious. The president has already reshaped some of his policy ideas to conform to an election narrative of GOP obstructionism. If he moves them further left in a way that makes it plain that he’s not interested in policy outcomes right now, the voters are unlikely to cancel out the blame for gridlock. Much more likely is that the President will lose.

Lincoln was a smart politician, who understood his political context and how to modify his policies within it. I’m not convinced his move would be to lurch left right now. And I don’t think Obama’s will be either.

I always cringe when candidates start to riff on U.S. history in debates, but last night, thankfully, wasn’t too bad.

Gingrich, not surprisingly, threw out a couple of historical items that I thought were noteworthy. First, the question was raised by the moderator regarding the relevance of Romney’s Mormon faith and all that jazz.  A few other candidates spoke, and then Gingrich said this:

Well, I think if the question is, does faith matter? Absolutely. How can you have a country which is founded on truths which begins we are endowed by our creator with certain inalienable rights? How can you have the Northwest Ordinance of 1787 which says religion, morality and knowledge being important, education matters. That’s the order: religion, morality and knowledge.

Now, I happen to think that none of us should rush in judgment of others in the way in which they approach God. And I think that all of us up here I believe would agree.

There’s a little to quibble with here — the first truth in the Declaration of Independence is “that all men are created equal,” not “that they are endowed by their Creator with certain inalienable Rights,” which is actually second — but mostly he gets the basic facts more or less right. He also twisted the Northwest Ordinance a little bit. It does indeed say, in Article 3, that religion, morality, and knowledge are necessary to good government and happiness, and therefore schools should be encouraged. But that (was and) is as much an argument for increased state and federal funding of education as it is for (what I take to be) Gingrich’s point about curriculum. But again, nothing too bad here.

A bit more annoyingly, Gingrich also misrepresented the basic thrust of the Northwest Ordinance as it relates to religion, which is unequivocally toleration, and not the promotion of religion in schools. The Ordinance declares “civil and religious liberty” the basis upon which the colonies/states and their laws “are erected.”  And Article 1 reads, “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.” Gingrich could have even mentioned that in making his second point, maybe throwing in a nice quip about Romney being politically molested or something. I don’t have any doubt that Gingrich is broadly committed to religious liberty and not interested in making Mormonism a political issue, so I can’t see how it would have hurt. And it might have helped if people have doubts about Perry’s commitment to the same, post-Jeffress.

Gingrich also brought up the Lincoln-Douglas debates, which regular readers know I have a fair amount of interest in. Here’s Newt:

As the nominee, I will challenge Obama to meet the Lincoln-Douglas standard of seven three-hour debate, — no moderator, only a timekeeper.

Well, that’s certainly factually correct — Lincoln and Douglas debated seven times in 1858 and there was no moderation. (Each candidate spoke for 90 minutes, in a 60-90-30 format, alternating in each debate which candidate went first).

People always ask me if I think a Lincoln-Douglas style debate could work in the modern age. This is really two questions; first, would modern general-election candidates agree to participate in such a debate and, second, would the debate be a positive to our political process relative to the existing presidential debate structure.

On the first, I’m skeptical. Modern campaigns have gotten pretty good at understanding how to deal with the 60 second or 30 second response time to a question (just as politicians have gotten good at the same thing with reporters’ questions), and I’m not sure they’d want to roll the dice on something totally new, given how unknown the results would be. Campaigns in general do not love debates; they are semi-uncontrollable situations, and campaigns tend to dislike the potential volatility. Especially campaigns that are in the lead, or have more resources, or have candidates that aren’t as good at debating. In effect, there’s usually at least one candidate looking at the debate as something to be survived without providing the opponent an opportunity for a powerful, unscripted moment. There’s a general norm right now that holds the presidential debates together, and I think a candidate would suffer some from refusing to participate. But I also think the norm is pretty fragile; it wouldn’t shock me if a candidate sometime in the next handful of cycles refused to debate.

On the second question— would it be helpful — I’m even more skeptical. I don’t think the 60-90-30 format would work at all. That strikes me as a recipe for tuning voters out. Three hours is a long time, and even a half-hour speech is long enough to completely turn people off. Part of this is the changing nature of the purpose of debates: in 1858, the debate served partially as an mechanism of information transmittal in a less information-intensive environment: twelve thousand people showed up in Ottawa for the first Lincoln-Douglas debate in part because they wanted to see what the men looked like and get a feel for who they were as people. Did they look smart? Did they sound smart? Did they conduct themselves well? These are things not readily available on the printed page in 1858, but delivered in sensory overload now. I just don’t think people would watch for that long. So the format would have to be modified. Maybe you could do 10 or 15 minute alternating blocks of time, but I’m not even sure of that.

But what about an unmoderated debate? Again, I’m pretty skeptical. Theoretically, it’s really appealing to me. But my sense is that the campaigns would work hard to suppress the potential fireworks (either through pre-debate agreement on groundrules, or candidate strategy in the actual speeches) and you’d end up with something that looked a lot more like a couple of guys just giving their stump speeches. Even if it worked as well as the Lincoln-Douglas debates, I’m not sure most people would be all that impressed; the fact is that even the best political debates don’t come close to anyone’s good government normative idealized notion of them. Yes, the Lincoln-Douglas debates took on the issue of slavery in a relatively substantive manner, but they also were rife with name-calling, half-truths, distortions, ad hominem attacks, ducking of issues, and everything else you associate with modern debates. Just as a competitive market serves the consumer but not any individual firm, candidates are not necessarily particularly well served by the ideal debate for voters.

I’d be happy to give it a try — I don’t see a lot of harm from having a Lincoln-Douglas debate — but unlike Newt, I don’t see it as much of a benefit to anyone, and certainly not a panacea to anything related to our political/electoral system.

There’s a tendency in popular political culture to assign the Framers a laughably extreme degree of reverence, one way or another. In one popular view, they’re treated as god-like figures who could do no wrong and wrote an infallible Constitution, with neither the men nor the Constitution worthy of anything but complete adulation. In the other view, they’re or a bunch of rich elites who designed a self-serving barely-democratic government, which rigged the system against the common man and completely sidestepped the obvious moral question of the day.

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

Here I want to discuss an often-overlooked error the Framers made — the design of the federal political calendar. Prior to the 20th amendment, the calendar was frustratingly out of sync, with serious consequences. In Article 1, section 4 of the Constitution, the framers wrote that the Congress “shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.” December was chosen, in part, because it was compatible with the agricultural calendar. So far, so good (although it’s always dangerous when legislatively designing an institution to put a hard start date on it).

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

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

So where did the March 4th date come from? The framers did not specify on which date the new government of the United States would begin, in part because it was not known how long the ratification of the Constitution would take in the states. Most likely, they thought the ratification of the Constitution would be complete by spring 1788, such that elections could be held during the summer, followed by the selection of Senators and Presidential electors, all in time for the government to begin on the first Monday of December 1788. That way, the terms of the President and Members would correspond to the constitutional calendar, with the first session of each Congress beginning at the same time .

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

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

So why didn’t they remedy the situation via Constitutional amendment until 1933? There’s a folklore belief that the delay between FDR’s election and the his inauguration was what spurred the amendment into being, but that’s largely urban legend: similar proposed amendments had passed the Senate every Congress since 1923, and the successful amendment was out of Congress well prior to the 1932 election, with specific language that it would not go into effect, even if passed, in time for the 73rd Congress. A more likely candidate for the non-fix was the old Senate: prior to the ratification of the 17th amendment in 1913, action by the state legislature was needed to pick Senators. But virtually all state legislatures held their sessions early in the new year, after later Fall elections. If the federal calendar was adjusted to pull the terms of Members back from March into December, there was a real possibility of a large number of absent Senators in the first session, the state legislatures having not yet met.

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

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

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

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

References

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

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

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

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

Jonathan Bernstein has a post today that I highly recommend, about the problem with the political term ‘establishment:’

Which is why I try to avoid the term “establishment.” It conjures up, to me at least, a monolithic group of insiders who either control or fail to control everyone else. But that’s just not the case in either political party. There certainly are highly influential groups and organizations and even people, but which ones exactly have more influence depends on context and circumstance and changes all the time, as far as I can tell. Dividing off a set of those people as an “establishment” just doesn’t help us understand what’s going on.

That strikes me as both correct and important. Read the whole thing. I’d only add a few tangent thoughts:

The persistence of the term ‘establishment’ — and the idea — is cultural-electoral. There’s a soft populism to which many (if not most) American voters respond well, and a wide range of candidates and causes in both parties try to tap into it by setting up an imaginary elite to serve as the boogeyman, and set themselves up as the saviors against such an establishment. There’s a vaule to being perceived as an insurgent in Amreican politics — both for popular an self-delusion reasons —  and that can’t be done without an “establishment” to n’surge ‘gainst. The narrative frame is almost always conspiratorial populism; that some small elite force is destroying the common man not through legitimate small-d democratic victory, but through unfair financial and/or other  manipulation. Most of the time in a pluralist political society, insurgents aren’t purely the raggedy masses and the establishment isn’t the Wizard of Oz. But that’s the required sales pitch.

As famously described by Hofstader’s essay, the narrative frame is underwritten by the twin emotional responses of paranoia and anger. Over and over again, the “establishment” is nothing more than the perceived object of populist fears. And those fears are, historically, pretty widespread in America: the Jeffersonians in fear of the Federalist/Bristish alliance, jacksonians vs. the Bank, anti-slavery vs. the Slave Power, western silverites vs. Eastern Gold, progressives vs. Big Business, isoloationists vs. Internationalists, the tea party vs. Washington, occupy wall street vs. Corporations.  And it comes as no surprise that the opponents of these populist movements tend to try to undercut the populist nature of them: think of the pro-slavery forces deriding abolition in Kansas as nothing more than a handful of men with lots of Massachusetts money; or OWS/Tea Party being cut down as financial-backed by a few liberal/conservative interests.

It’s also my sense is that populism-fueled insurgencies are hard to hold together, or at least it’s hard to keep the populism in the insurgency once it gets to a politically-viable size.  The process of normalizing true insurgencies into concrete political interests undercuts the emotional/narrative strength of their theses. After all, if you gain enough political power to exact change, have you not simply become the establishment? Strong populist movements, both within parties and between them, tend to fizzle. They either grow so large as to force them to become more pragmatic than any true believer can handle, or they get co-opted and fail to gain the strength required for continued relevent existence. In any case, they almost certainly attenuate as they grow: think of abolition as it expanded into anti-slavery, or 1880s/90s Populism as it became Democratic Bryanism.

I’m in northern New York right now, back to my hometown for the weekend for my nephew’s 1st birthday party. Always a good place to talk politics, and some pretty memorable conversations with the family:

Friday morning, on the plane

Me [talking to my wife]: [something about the Obama administration]

Anna [my 3-year old daughter]: Who’s O-bom-uh? What are you guys talking about?

Me: President Obama.

Anna: Like on our place mats at dinner?

Me: Yes, that’s right. The leader of our country. We might pick a new President next year. What do you think of that?

Anna: When will you be President?

Me: Well, I’m not old enough.

Anna: You’re plenty old, Dad! You should be President next.

Me: Would you vote for me?

Anna: Ummmm. Maybe. I think Abby [my 1-year-old] would.

Friday midday, at my mom’s house

Mom [RFK liberal, mild follower of politics, not thrilled with Obama]: Who’s this Herman Cain clown?

Me: Why do you say ‘clown’?

Mom: Isn’t he just a rich pizza baron? Why do the Republicans like him?

Me: I’m not sure his polling numbers are reflective of deep attachments. He’s probably just…

Mom [interrupting]: I saw him talking about the social security system in Chile. And his 9-9-9 thing seems gimmicky.

Me: Well, he’s not going to win the nomination.

Mom: He just seems like Perot to me. Except black.

Friday evening, at childhood best friend’s house

Me: You been following the GOP debates?

Friend [center-right Republican; very religious Catholic family]: A little. Seems like Romney and a bunch of crazies right now. I can’t really see any of the rest of them as President.

Me: No kidding. I was meaning to ask you and [wife] — how would you feel about a Mormon President?

Friend: Interesting, hadn’t thought of it. Wouldn’t bother me at all, but I could see that being an issue for some. I doubt any Catholics care, but the Baptists might. But geez, the Mormon thing would make great late night fodder. They’d ride that for four years.What do you think?

Me: Not sure. I would think it a small marginal effect, maybe something like the magnitude of people who would have voted for Obama, but didn’t because he was African-American.

Friend: I could see that. On the other hand, Obama being black is about the only thing I like about him!

Me: Ha! What do you mean?

Friend: Makes me feel good about our country that a black man can win the presidency.

Me: I know what you mean. Did you see Perry at the frat house at Dartmouth?

Friend: I heard something about that. Was it like the Sweeney thing at Union?

Me: I wish. He just said that the American Revolution was in the 16th century.

Friend: So Romney’s going to President, I guess.

Me: Yeah.

My sister’s house, Saturday afternoon

My sister’s father-in-law [moderate to conservative, GOP leaner; follows politics]: So what’s going on in Washington?

Me: Gridlock on the Hill, that’s for sure. The election has more or less started.

SFIL: You think it’s going to be Romney?

Me: Yes, and I think he’ll be President in 2013. You?

SFIL: Well, I think Obama is cooked if it’s Romney. If it’s someone else, he’ll have a chance.

Me: I agree. I think he could beat…

SFIL [interrupting]: and I guess if the economy comes back he could beat Romney. But that’s a big if.

Me: Would you vote for Perry against Obama?

SFIL: God. I don’t know. That might be a in-the-booth decision.

Me: What about Cain?

SFIL: No chance.

Me: [joking] Racist!

SFIL: [joking] Oh, yeah. Me and all the segregationists will be forced to go with the half-black dude! [More serious] I just can’t pick a guy to be president who has zero experience. I mean, I don’t even think I could have voted for Ike. Maybe.  But a pizza guy? Come on, that’s just ridiculous.

My mom’s house, Sunday afternoon

My aunt [preacher's daughter and preacher's wife; liberal; mild follower of politics]: So who’s going to be President?

Me: Romney. Maybe not more likely than not, but definitely plurality favorite right now.

Aunt: Don’t you think he’s a little slippery? And [joking] what about the whole Mormon thing? Polygamy ain’t going far.

Me: You mean [husband] didn’t preach it this morning?

Aunt: Oh, yeah right. Might as well have, no one was there.

Me: What did you mean by slippery?

Aunt: He just seems a little slick? You know, like you can’t trust him.

Me: Weren’t you a Hillary supporter?

Aunt: Yeah, but we all knew she was a cold-blooded killer. Romney seems more like an empty suit.

Me: So who do you like?

Aunt: I’ll probably just vote for Obama.

Me: [joking] there you go again, all the Jesus-freaks voting for the socialist. Stop taking the Gospel so seriously.

Aunt: [laughing] you know, [husband] actually pitched that to me as a sermon a few months ago.

Me: Really? Since when does [husband] do political sermons?

Aunt: He doesn’t. I think he was just fed up the whole Republican gay marriage thing. Get over it, right?

Forty-six years ago today — October 15, 1965 — David J. Miller, a 24-year old Christian pacifist of the Catholic Worker Movement, burned his draft card in Manhattan, and became the first person arrested and convicted under P.L. 89-152 (79 Stat. 586; August 31, 1965), which had altered the Selective Service statute by four words and thus made it a crime to knowingly destroy or knowingly mutilate a draft card. Three years later, in United States vs. O’Brien, the Supreme Court upheld the statute as a legitimate exercise of congressional power, and not way a violation of freedom of speech under the 1st amendment. Miller served 22 months in jail.

How should a libertarian think about all of this? Four points:

1) Conscription is fundamentally incompatible with libertarianism. I won’t go as far as to say that libertarianism fundamentally requires a pacifist orientation toward war (although I think it might, and does for me at any rate). But I’m positive it rules out conscription. The cornerstone of all civil liberties is the right to freedom of lawful movement without state interference. Without that, the citizens are nothing more than a resource of the state, their lives subsumed completely to the goal of the nation. That’s completely backwards; when we don’t like something that has that feature, we label it fascism. Any state that has the power to lawfully take complete control of an otherwise law-abiding citizen’s body against his will is, by definition, acting in something like a totalitarian manner.

That such state power is approved by a legitimate democratic legislature is of no matter. If any state, democratic or otherwise, cannot induce its citizens to defend the nation or engage in a war through a market-incentivized volunteer military, such a nation is probably not worthy of defense, or such a war is probably not worth carrying out. I consider the abolition of conscription in the United States to be the singular triumph of libertarianism in the 20th century. Whatever negative side-effects it has caused (the skewing of the military toward the poor; the consequences of war falling more unevenly upon society) are lamentable, but cannot justify a return to a policy that is fundamentally counter to any basic notion of individual freedom.

2) Civil disobedience is a legitimate way to oppose laws. For me, a legitimate act of civil disobedience requires three components: first, the law under protest must be the law that is violated; it’s not civil disobedience to protest an unjust law by throwing bricks through windows, that’s called a riot. Second, the disobedience must be carried out non-violently. This usually follows from the first component, but not always. Think about African Americans protesting segregation by sitting at lunch counters or riding in whites-only seats on buses. Carried out peacefully, this is the essence of civil disobedience; but if sitting at lunch counter requires you to violently force your way to the seat, or results in a fistfight, it will become largely counterproductive. This means, I think, that any practitioner of civil disobedience must be prepared to take a beating without retaliating, as many African Americans nobly did. Third, anyone using civil disobedience must willingly and cheerfully accept the current punishment under the unjust law. Civil disobedience cannot become an excuse for law-breaking. A fourth point is that civil disobedience is at its strongest when it is paired with unjust restrictions on access to the democratic process — think African-Americans protesting segregation or people under 21 protesting conscription prior to the 26th amendment.

3) Burning a draft card is not exactly civil disobedience, per se. Well, that’s not exactly right. If the burning was a protest against the law against burning, then it would be civil disobedience. But the burning of draft cards was a protest against conscription itself, which is kind of like not paying your property tax to protest laws that restrict lawn-watering to certain days; it’s related in a clear way, but it’s not the obvious way to go. Those opposed to conscription who wanted to use civil disobedience should have refused induction into the military, not burnt their draft cards. On the other hand, it’s not clear to me that draft card burners saw them selves as being civil disobedients; most of them challenged the law in court rather then submitting to the punishment, indicating that they did not believe the burnings to be against the law, but instead constitutionally-protected actions. Even more to the point, I’m not sure the anti-war movement in the 60′s was anti-conscription per se; maybe they just thought the Vietnam war was horrible policy that was falling on their shoulders, and that some future war might justify conscription.

4) Burning draft cards in violation of the law was probably bad strategy. No doubt, it was a dumb law. But the point of the burnings was symbolic; a public defiance of an entire system of war-making, in many cases. But such symbolism could be achieved without literal law-breaking; why not just burn your library card and pretend it’s your draft card? Or print up some fake draft cards and burn those? To me, this highlights the emotional aspect of the anti-war movement, the fueling of a political movement by powerful, but irrational, means. If people wanted to go to jail on purpose to highlight and publicize the immorality of the war, I guess that’s a fine strategy. But I think that was a flawed strategy, too. Because it made the protesters the story, rather than the war. Unlike civil rights protesters, anti-war protesters in the 60′s (save Vietnam veterans) were, almost by definition, not the objects of the unjust laws. A sizeable percentage of them were college students exempt from the draft; virtually all of them had not been drafted. That made them good candidates to carry signs and peacefully protest public policy. But to burn a draft card was to insert yourself politically into a fight that you had not yet been drawn into. Incredibly symbolic? For sure. Strategically wise? I doubt it. In fact, I would assume that the draft card burning (as opposed to the street protests) was counterproductive; it probably hardened the opinion of those who were in favor of the war and may have been responsive to simple policy arguments against it.

I’ve been thinking a bit lately about the 25th amendment, which did three things: formally specified that if the President leaves office prior to his term ending, the Vice President becomes President (as opposed to “acting President” or “having the powers of the Presidency devlove to them,” which was ambigous in the original Constitution); put in place a system for replacement of the Vice President in the case of his office being absent, with Presidential nomination and majority confirmation in both chambers of Congress (as opposed to the old system of a vacant Vice-Presidency); and provided a detailed set of instructions for dealing with a temporarily incapacitated President.

The 25th amendment was passed in 1967, and the first two sections of it came into immediate use: Vice-President Agnew resigned in October 1973 in the face of a bribery scandal, was replaced by Nixon’s nomination and Congress’s confirmation of Ford (nominated 10/12/73; Senate confirmed 11/27/73; House confirmed 12/6/73), who in turn became President when Nixon resigned (8/9/74), and the nominated Nelson Rockefellar for VP (8/20/74), who was confirmed by the House and Senate (12/19/1974).

This, of course, raises a question: how would the politics of Watergate differed if the 25th amendment had not been ratified at the time?

First, let’s side aside dynamic thinking and assume everything went as it did: if Agnew and Nixon had both resigned with no 25th amendment in place, Speaker of the House Carl Albert would have been next in line under the Succession Act (which is an authorized power of Congress under Article II and, for President-elect under the 20th amendemnt the Constitution) and would have become Acting President, if he had chosen to resign as Speaker of the House. If he chose not to resign or otherwise declined the office, James Eastland, then president pro tempore of the Senate, would have become Acting President if he chose to resign from the Senate. It’s known that Albert had a strong aversion to becoming Acting President; after Watergate subsided, Albert stated that had he needed to be Acting President in the case where Nixon had resigned prior to Ford’s confirmation as VP, he would have resigned the Presidency as soon as Ford was confirmed, as he did not believe a Democratic Speaker should stand in the way of a national electorate that had chosen the Repubilcan Party.

But it’s more realistic to think about this dynamically. Three questions come to mind:

1) Absent the 25th amendment, would Nixon have resigned? ;

2) Absent the 25th amendment, would the House have impeached Nixon? The Senate convicted?; and

3) Absent the 25th amendment, would Albert have accepted the job of Acting President?

First off, I should say that it’s entirely possible that the absence of the 25th amendment and thus the absence of Vice-President Ford may have had exactly no effect on the political trajectory of Watergate. Maybe the release of the Smoking Gun tapes in the wake of U.S. vs. Nixon completely sealed the President’s fate.

But I’m not so  sure.

Let’s start with the issue of Nixon resigning. I think Nixon would have taken an even more aggressive public stance in the absence of the 25th amendment. At the very least,  Nixon and his congressional allies would have been able to get significant public and DC traction throughout 1973 and 1974 with the argument that the entire scandal was a partisan witchhunt, especially prior to the release of the tapes in earlt August 1974. This might have emboldened House Republicans on the Judiciary Committee to stand more  firmly against impeachment in July 1974. If instead of a 10-7 split against impeachment, the House GOPers on the committee had been unanimous against it, that would have radically changed the narrative heading into August.

After the tapes came out August 5th, all GOP Members of the Judiciary Committee announced they would switch their vote in favor of impeachment. But the GOP Members of the House were invariably following public opinion at some level, and a concerted effort by the White House to show Watergate as a ploy to put Albert in the presidency may have been well received by a segment of the population. And, of course, both GOP House Members and GOP voters would have been reluctant to take steps that would create a Democratic President.

In essence, impeachment became a foregone conclusion, in part, because the policy stakes were so low: Ford was a likeable fellow and a center-right conservative. Why keep a crook in office when the alternative is nothing more than a non-crook with similar views? Totally different story if the man waiting in the wings is a northern Democrat. The non-partisan consequences of impeachment/resignation, therefore, may have affected the entire context of the debate over Watergate.

The only precedent we have for any of this is the Johnson impeachment in 1868, which had been the exact same scenario as the above hypothetical: Lincoln had been shot and Johnson had ascended from the Vice-Presidency. Although he was not technically from the opposition party, it was an ideological/power spat with the Radical Republicans that had led to his impeachment, and they stood to directly benefit from it: the Succession Act of 1792 called for the president pro tempore of the Senate to become Acting President, which would have put Benjamin Wade (R-OH) in the office.

Wade’s strong position in favor of impeachment and conviction have been thought to have been part of Johnson’s acquitall; the seven Republicans who voted against conviction in the Senate were thought to have done sone, in part, because of their personal dislike of Wade and/or their dispproval of Wade’s soft campaign in favor of the removal of Johnson. That’s probably evidence in favor of an argument that a looming Albert presidency would have changed things significantly in 1974. In fact, it may be strong evidence: Wade would have been President for only 10 months, as the trial occurred in May 1868 (under the old March-to-March calender). Albert would have been President from probably two years or more.

And thus, I think Nixon would have tried to ride it out, or at least delayed resignation, perhaps until the House vote on impeachment. A party-line vote on impeachment would have boded will for aquittal in the Senate, and Nixon could always resign after the vote if it was a landslide in the House. I mean, he only resigned in actuality when it became clear that he was not only going to be impeached by a massive supermajority but also convicted. Had there been any shadow of a doubt to that, he may have stuck it out. A looming Albert presidency might have created just that doubt. At least for a while.

Second, would impeachment have happened? Conviction? I think impeachment would have happened. The tapes that came out in August provided clear evidence that Nixon had used the power of his position to cover-up a political break-in, and that he knew CREEP and White House staff were involved. I’m less certain about conviction. With Ford waiting in line, I think conviction was almost certain, and perhaps by a massive (90+) supermajority. But as with resignation, the GOP may have held together in oposition more tightly in the face of an Albert presidency. If a large number of House GOP Members (say 80%+) had voted against impeachment, I think the Senate may have failed to convict.  There were 58 Democrats and 42 Republicans, meaning 9 GOP votes were needed. It’s possible that would not have happened.

Would Albert have accepted Acting President? This is a very tough call. He would have been very reluctant. As noted above, he was not thrilled with the prospect of assuming the office if Nixon had resigned prior to the Ford confirmation. And had his assumption of the office been the result of his own party’s actions in Congress, that would have perhaps made him even more queasy about the possibility. Throw in the fact that Albert was thought to have a drinking problem, and it becomes highly questionable whether he would have taken the office.

On the other hand, one thing that may have made him decide to take Acting President was who was waiting in the wings: the president pro tempore of the Senate was  James Eastland, a southern segregationist and notoriously ferocious opponent of civil rights. The thought of Eastland as Acting President (barring some move by the Senate to replace him prior to a Nixon resignation and Albert waffling they saw coming) may have put enormous pressure on Albert to take the office.

As we continue to adjust the trims on our Who Will Be the Nominee© model, let’s assess Rick Perry’s chances of the GOP nomination, given his track record in the first four debates.

If we go with the traditional political science wisdom that campaigns don’t matter that much (good review of topic here), then  new information we receive is not affecting the outcome so much as  just revealing the true state of the world.

And that means it’s clearly time to whip out some Bayesian analysis! Let’s get right to the priors.

Priors (as of 9/6, before first debate)

Probability (Perry is GOP nominee) = 39% = .39  [estimated from intrade]

Probability (Perry is not GOP nominee (i.e. Loser Perry)) = 61% = .61 [inverse of above]

Probability (Nominee Perry has four mediocre-at-best debates) = 20% = .20 [feels about right]

Probability (Loser Perry has four mediocre-at-best debates ) = 40% = .40 [again, feels about right]

Event

Perry has had four mediocre-at-best-debates.

At the Reagan Library (/7), he failed to impress and looked unprepared on Social Security. At the Tea Party Express debate (9/12), he was hammered on HPV and did not recover well. In Orlando at the Fox debate (9/22), his performance was described by the Weekly Standard as “disqualifying.” At Dartmouth (10/11), he announced he had no jobs plan, gave the impression he had disappeared, and then spent his post-debate meet and greet at Beta Theta Pi riffing on America’s 16th century revolution.

Question

Given this observed event, what is our updated probability that Perry is the GOP nominee?

Solution

Use Bayesian inference.

Probability Perry is GOP nominee given four mediocre-at-best-debates = ((Probability he has four mediocre debates  if he is the nominee)(Probability he is the nominee)) / (((Probability he has four mediocre debates given he is the nominee) (Probability he is the nominee)) + ((Probability he has four mediocre debates if he is not the nominee) (Probability he is not the nominee)))

Written in simple notation:

P(Nom |E₁) = ( P(E ₁| Nom) P(Nom) ) / (( P(E₁ | Nom) P(Nom) ) + (P(E₁ | Loser) P(Loser)))

P(Nom|E1) = (.20)(.39 ) / ((.20) (.39) + (.4) (.61))

P(Nom|E1) = .24

Answer

Updated probability Perry is GOP nominee given four mediocre debate performances = 24%

Discussion

Still viable, confirming some recent wisdom.  But looking a lot less like the GOP nominee than he did six weeks ago. Given that he is currently trading around 11% on Intrade, the above analysis suggests the market might be overreacting, creating an opportunity for some value investing.

Obviously, you can quibble with the estimated priors. Who the hell am I to assign specific percentages to debate-failure probabilities? And that’s the key theoretical question raised by the analysis: what’s the true gap between the probability of the nominee having four bad debates and the probability of a non-nominee having four bad debates. My priors say it’s about twice as likely. Yours may differ, even substantially.

But if you accept the priors as reasonable — that nominee Perry would have about a 1 in 5 chance of four mediocre debates, and Loser Perry about double that chance — then the conclusion is that Perry still has a reasonable likelihood of being the nominee, but the probability has decreased a fair amount.

Someone check my math. Everyone assess my priors.

Below is a chart I made during lunch today that plots the number of public laws passed by October 1 of the first session of Congress vs. the number of laws passed during the remaining 15 months of the Congress. It plots the past 19 Congresses (93rd-111th) and a predicted value for the 112th (labeled in purple). Unified government is labeled in green and divided government is labeled in red (the 107th Congress, when Jeffords switched parties, is labeled as divided). The lot does not differentiate between major and trivial legislatio n; it is strictly limited to the number of public laws.

Four comments :

1) In general, only a small percentage of legislation is passed prior to October 1 of the first session. Over the 20 Congresses in the plot, an average of only 16% of the total legislation in a Congress is passed prior to 10/1 of the first session. This is both surprising and not surprising. It’s not surprising because it takes time to develop legislation and move it through the chambers; committees need to hold hearings, write bills, mark them up, and then jockey for floor time. On the other hand, 16% is still a lot lower than I would have guessed, especially since the second session almost always wraps up its second session work prior to the election in November.

2) There is an unsurprising positive correlation between the two variables. Simply put, Congresses that pass more legislation prior to 10/1 first session tend to pass more legislation post-10/1. Not rocket science. And also not that important, because a huge part of the absolute volume difference is institutional:  we haven’t filtered out trivial commemorative legislation or other non-controversial items, and my guess is that they drive a lot of the result. Prior to the 1995 ban on such legislation, commemoratives were a sizable chunk of all public laws. So a high volume of pre-10/1 legislation is likely to correspond to a high volume of post-10/1 legislation — there were just lots of non-controversial public laws at all times. And that’s the case: all of the highest volume years are pre-1995; all but one of the lowest are post-1995.

3) The 35 public laws passed by the 112th Congress is not a huge X-axis outlier. It’s the second lowest absolute number, but the pre-10/1 output of the 112th is not all that much less than other post-1995 divided Congresses. As mentioned above, comparing the 112th to a pre-1995 Congress raises the issue or the commemorative legislation. I haven’t gone back and filtered that out of the older Congresses, but I suspect it would have a large effect.

4) The outliers (may) tell an odd story. Notice the five biggest outliers from the trendline, circled in red. Those are instances in which either a proportionately large amount of legislation was passed after 10/1 (96th and 106th) or a proportionately small amount of legislation was passed after 10/1 (103rd, 110th, 111th).  What’s odd about those Congresses is that they all preceded changes from either unified to divided government (96th, 103rd, 111th) or from divided government to unified government (106th and 110th — although the Jeffords switch quickly reversed the 106th point). In fact, in the entire sample. on the 94th Congress preceded a change from unified/divided government and did not stray from the trendline.

I don’t know what to make of this. I guess we could make up a story about the coming election tides either locking up Congress or getting it into gear. But the pattern doesn’t match up how we might expect: if that story was true, then we’d expect a unified government to get into gear when they were about to lose control, and a divided government to lock up when one side or the other looked poised for victory. Instead, we get lockup in both the 110th and 111th, one of which created unified government and the other of which created divided government.

So perhaps it’s a spurious finding. But it’s a darn interesting one. If anyone has seen any research on legislative productivity as it relates to perceived coming changes in unified/divided government, let me know.

Over at The Plum Line, Greg Sargent describes the Senate as ‘out of touch’ over its likely vote-down of a jobs bill:

The key provisions in the jobs bill have strong public support. They are backed by majorities of moderates and independents. Unemployment is basically a national emergency. Yet we’re now at the point where we don’t even know if a simple majority of the Senate will support a sensible, balanced measure to deal with that emergency — Dems can probably only afford to lose two or three defectors — that contains ideas that both parties have supported in the past.

People constantly say things like this when the Senate rejects an idea that seems popular in public opinion. But one simple explanation is often forgotten: the Senate is malapportioned!

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

Now, you can ask Senators to take a Burkean trustee view of representation and vote the national good. That may or may not be warranted in any individual case, including this one. But I think it’s a fallacy to imply in these situations that at least some Senators must be inherently doing something against the wishes of their constituents if national public opinion goes one way and the Senate goes another. The institution, for better or worse, is simply not built that way.

That’s the claim Yoni Appelbuam made over the weekend. Over at his excellent blog, Seth Masket rejects the thesis:

I can’t claim to be any sort of an expert on the Gilded Age economy. I’m sure Appelbaum pursues this line of research in greater detail elsewhere, and I really don’t have data to counter him here. But given how little power presidential speeches actually have, I’m skeptical of his argument. Were investors really so skittish and naive as to believe that the claims of a presidential nominee were soon to become law? Even if Bryan were to somehow win (McKinley beat him 51-47), would he be able to get this agenda through Congress? (Republicans held a 246-104 majority in the House at the time Bryan delivered his speech.)

I suppose this is possible. I mean, if Rick Perry were nominated next year and gave a speech at his convention promising to move the U.S. to a monetary system based solely on tungsten, yeah, some folks might panic a bit. But my guess would be that the relationship between Bryan’s 1896 address and American economic problems was one of correlation rather than causation.

I don’t have the economic data (or chops) either, but I think there’s a case to be made for causation. Not causation based on the speech itself, but based on how the speech affected the convention and what the convention revealed to the markets. I guess this puts me somewhere in the middle between Appelbaum and Masket. I don’t think the speech itself could have possibly crashed the economy. But the speech was both reflective of, and constitutive to, the information that the markets were incorporating from the convention. Here’s the story:

Prior to the convention, it was almost certainly known to the markets that the clear majority of delegates were silver men. But it wasn’t obvious that silver was going to win in either the platform or with the nominee. Especially the latter: the 2/3 rule, in place at the Democratic conventions since 1832, required that a candidate get a supermajority for nomination. And from a general election point of view, the Democratic Party in the late 19th century was built on a shaky proposition: combine the solid south with western populism but somehow also win New York and a handful of other northern states. The only successful path to doing this was to subsume the majority silver faction to a pro-gold northerner, and keep the platform either silent or watery on money issues.  Given that such a logic had held in 1892, and there was a pro-gold Democrat in the White House (Cleveland), both the eastern Democratic establishment and their financial friends might have been optimistic going into the convention.

But at the convention, it suddenly became clear that the silver men were no longer interested in compromise. They had the delegates and intended to wield power. The outgoing national party committee, still narrowly in favor of gold, nominated a pro-gold New Yorker for temporary chair of the convention. The silver men defeated him with their own man. When the permanent roll was built, the two contested delegations (Nebraska and Michigan) were both decided in favor of silver. In short, the silver delegates at the convention  announced that, this time, they meant business: they were gathering the seats they needed to ensure 2/3 representation and allow them to nominate their own man.

But it still wasn’t clear if they would take the steps that would truly fracture the party: putting a clear silver plank into the party platform, and nominating a pro-silver candidate. The gold men argued that doing those things would guarantee a GOP victory in November, and also would result in a bolting of pro-gold northeastern Dems from the party. (Both of these things happened, although the Palmer/Buckner National Democratic ticket was not viable or competitive in the campaign). It was during the platform fight that Bryan gave his “cross of gold” speech.  And whether or not the speech had a national impact, it certainly had an impact at the convention, throwing the silver men into a complete frenzy on the floor. A 15 minute parade ensued.

After the parade, the silver plank won. And the next day, Bryan was nominated. As Richard Bensel (2007) has written, this too was a surprise: he was not considered a major candidate going into the convention. Just a two-term former Congressmen, he was only 36 years old and had recently stood for Senate and not won. He was certainly a favorite son in Nebraska and a powerful speaker, but he was not in the top handful of names in 1896 prior to the speech.

So, while I agree with Masket that the speech itself did not independently crash the economy, it was correlated with things that might have had that impact. Going into the convention, the markets knew that the Democratic Party was majority silver delegates, but that in the past the need to hold the party together had resulted in pro-gold candidates and murky non-money platforms, which had successfully won the White House in 1892. At the convention, it was revealed that the silver men were no longer compromising, were going to risk fracturing the party by putting in a strong silver plank, and planned to nominate a 36 year old Nebraskan who more or less came out of nowhere by giving the most powerful pro-silver speech to date. In effect, the Democratic Party had been captured by silver.

I would think that such a development would strongly worry the eastern financial elite. Whether it was enough to re-crash the economy, I don’t know. As I said, I don’t have the economic data (or chops).

Citations:

Bensel, Richard. 2007. A Calculated Enchatment of Passion: Bryan and the “Cross of Gold” in the 1896 Democratic National Convention. In Skowronek, Stephen and Matthew Glassman, ed. Formative Acts: American Politics in the Making (Philadelphia: University of Pennsylvania Press). pp. 77-104.

I had the day off today. It’s Columbus Day. As usual, I got a lot of gruff from my non-federal-employee neighbors who can’t even fathom having Columbus Day off. I’m pretty sure they have a point: Columbus Day is, bar far, the least legitimate federal holiday. What follows is some psuedo social science to back up this claim.

There are ten federal holidays: New Year’s Day, Martin Luther King Jr. Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving, and Christmas. The chart below plots them on two dimensions.

1) To what degree would the event be celebrated/commemorated absent the federal holiday. Was the holiday significant prior to government recognition? Would it be without it? Does the private sector shut down? In essence, is the government holiday just a reflection of private reality, or is the holiday driven by the law.

2) To what degree is the day off itself a cultural event. Do people get together with family or friends? Are there parades? Do you go over and see your neighbors for a barbecue? Do you think/talk about it at your dinner table? In essence, to what degree do you know its a holiday besides the fact that you aren’t going to work.

Here’s an analysis of what I see in the chart.

The big four stand far ahead of the rest. Christmas, New Year’s, Thanksgiving, and Independence day  all rate high on both dimensions. Christmas (10 on the private-reality scale / 10 on the cultural scale) is ahead of everything else on both the private-reality dimension and the cultural significance dimension. Thanksgiving (8/9) is only slightly behind Christmas on the cultural dimension, but a few paces back on the private-reality scale. New Year’s (9/8) is probably the reverse of that: only slightly behind Christmas on the private-reality dimension, but a few paces back on cultural significance. Independence Day (8/8), I think, is a few paces back on both dimensions.

Two secondary holidays were historically more important. Both Veteran’s Day (6/4) and Memorial Day (5/3) were much more important holidays 50 years ago, from what I perceive. You still have the parades and wreath layings, but you also see some things now that would never have happened in the 50s: the public schools in my town are open on Veteran’s Day. In addition, whereas Veteran’s Day would have been an automatic private sector day off 50 years ago, today it is either not a day off or a flex day for many private sector employees.

Labor Day is a complete outlier. I didn’t put a trend line in the chart, but most of the data would have fit it nicely. Not Labor Day (1/6). That’s the one holiday that is an absolute cultural touchstone in America, but very, very few people would observe it in any way if it wasn’t a day off. It really has become a day to play hooky from work with all your neighbors.

I’m not sure how to classify either of the “person” days. Washington’s Birthday (2/1) has been stripped of a lot of meaning now that many people believe the holiday is “President’s Day.” (It’s not, at least at the federal level). They day has some historical significance, but like Veteran’s Day and Memorial Day, it was probably a lot stronger in generations past. I imagine Washington’s Birthday was something of a big deal in the 19th century, even as a private celebratory day. As a contemporary matter, it has no real cultural impact that I can detect.

Martin Luther King Jr. Day (4/1) is an even tougher call. I’m pretty sure there would be strong private celebrations of it if it did not exist, especially in the African-American community (although I’m pretty sure they would be on April 4 — the day he was assassinated — not on a Monday near his birthday (January 15) ). The cultural significance is tough to judge, too. I notice a little bit every year, like speech readings and other academic things, but again, I don’t have a great sense of what goes on in the African-American community. And I suspect there might be a fair amount there.

There’s one fake holiday on both dimensions. And that’s Columbus Day. Everyone always tries to tell me that it’s a big Italian-American thing, but I’ve never seen any evidence of that. I guess the Knights of Columbus must do something, but I’ll be damned if I’ve ever heard of anyone going to something like that. It’s not like the Hibernians on St. Paddy’s Day. In fact, I think the counter-protests to the day (which I saw first hand at Yale) were the only discernible group event I ever saw.