I will be in Chicago for the rest of the week, attending the Midwest Political Science Association conference. Therefore, blogging might be lighter in the next few days. Or heavier. We’ll see.
I would also like to take this opportunity to once again call bullshit on both the MPSA and the Chicago Cubs. If you guys could coordinate your schedules a little better in the future, I would really appreciate it. Ok?
Yesterday, over at The Monkey Cage, Andrew Gellman reprinted an email from a Daily Beast journalist who was asking what one thing social scientists wished most that the average voter understood. Here’s part of the email:
So I’m curious: What is the one insight from political science, psychology, or behavioral economics that you most wish the hypothetical “median American voter” knew, that would most contribute to his or her ability to swim safely through the torrent of nonsense about to be unleashed?
I didn’t email the journalist, but I knew my answer in less than 5 seconds. If there were one thing I wished the average person understood, it would be the concept of the marginal effect of an individual independent variable, and the broader idea of multiple independent variables in causal models. Hell, if I could magically get the DC press corp to understand it, I think my life would be complete. But I feel like a lot of people do not understand it, and a fair number of people who do understand it deliberately ignore it for the purpose of partisan argument.
Here’s the example I currently use when I’m trying to explain all this to my crazy uncles at the dinner table. There are two pretty common opinions about government intervention in the economy that you hear floating around these days:
1) People who says “the Obama stimulus failed because unemployment didn’t go down.”
2) Bruce Bartlett, writing a while back:
It’s axiomatic among Republicans that taxes on the rich are the single most important factor determining economic growth. If that were true, then the period from 1988 to 1990, when the top rate was just 28 percent, should have been the most prosperous in recent American history. During that time we had the lowest top rate since 1931. But although 1988 started out okay with a real GDP growth rate of 4.1 percent, it fell to 3.6 percent in 1989 and just 1.9 percent in 1990.
To both of these, I say, in a word: no.
NO!
NOOOOOOOOOOOOOOO!
There are probably no two individual variables in the economic world that operate in a purely bivariate relationship. Trust me, life would be a lot easier if there were. Instead, you have to think about things as having marginal effects and being embedded in a multivariate model. That is, what is the independent effect of the stimulus, or of a change in the tax rate for the rich. And that requires either a strong counter-factual, or some good statistical estimation work, based on the principles of causal inference and multivariate control. Neither of these are easy.
But first, reason it out. Why is it silly to say the stimulus failed because unemployment went up? Well, just ask any Democrat: the stimulus actually worked like a charm because if we didn’t have it, unemployment would be 20%!
Well, maybe.
We don’t have any proof of that sitting in this blog post. But it illustrates the concept: the marginal effect of the stimulus on unemployment — that is, the real-world state of current unemployment vs. the real-world state of current unemployment had their been no stimulus — is the only thing that matters. If unemployment would have been the same without the stimulus, it failed. Badly. But if it would have been 20% without the stimulus, it was a miraculous success. Even though unemployment went up during the stimulus.
Same with the tax rate and GDP. If GDP would have been negative between 1988 and 1990, then the lower tax rate for the rich was a massive success. If it would have not been any different, then it was not a success. Again, marginal effect, with all other variables accounted and controlled for.
But there’s the rub: the counter-factuals are tough to estimate. Really tough.
So while it’s completely ridiculous to say the stimulus failed simply because unemployment went up, it’s just as crazy to assert that unemployment would have been X% higher without it, unless you have some data. Same with the tax rate/GDP issue.
Bad news: the data is hard to interpret, and subject to a lot of massaging. It’s as much art as science. So yes, we have theoretical reasons to believe that a stimulus has a marginal positive effect on unemployment. But how much that translates into hard numbers is an open question. Same with taxes and GDP. We just don’t know. And that makes it really hard to evaluate the value of public policies. Is a $800 billion stimulus worth it? Maybe, but it depends a lot on what the marginal effect of it is on unemployment. Good luck.
There are billions of applications of this, of course, because so many bivariate relationships are tormented by lurking variables. And it solves a lot of curious puzzles. Everyone knows that African Americans are less likely to vote than white Americans. But isn’t it odd that a multi-decade fight for the right to vote and the emphasis on its importance in the black community didn’t result in African-Americans voting at a higher rate than whites?
Well, surprise, it did! But the disproportionate number of African Americans who are poor and uneducated masks the result in a bivariate analysis, since income and education level are strongly important variable in predicting voter turnout at the individual level. Once you control for income and education, however, African Americans vote at a significantly higher rate than whites. Rich, educated African Americans vote at a higher rate than rich, educated whites, and poor uneducated African Americans vote at a higher rate than poor uneducated whites. Just as we might suspect given the history of the 20th century civil rights movement.
And that’s the point here: marginal effects are the only thing that are truly important. Bivariate causal relationships should always be suspect on first glance. And probably on last glance too.
Politics makes us stupid. This is one of my recurring themes. This is the principal reason I refuse to be a partisan or ideological team player. People call me libertarian but I don’t in part because I’m not one, but mostly because I suspect that accepting any such label dings my IQ about 15 points.
And Will again, following up:
Let me tell a little story. Up until the weeks before I parted ways with Cato, I never felt any overt pressure to toe any sort of party line. But almost as soon as I left, I found that I was noticeably less reflexively defensive about anti-libertarian arguments. I found it easier to the see merit it in them! I feel sure that much of this has to do with the fact that at some level I had recognized that my livelihood depended on staying within the broad bounds of the libertarian reservation, and that this recognition had been exerting a subtle unconscious pressure on my thought.
Once I became an independent operator, much of that pressure lifted. And as soon as that pressure lifted, I began to feel much less attached to the libertarian label. And as that sense of attachment waned, I became even less reflexively defensive about anti-libertarian arguments. It became hard for me to avoid the conclusion that my political self-conception had been interfering with my ability to evaluate arguments objectively. I had been letting people on my team get away with bad arguments, and I had been failing to acknowledge the force of arguments against my team’s tenets. The fact that everybody else does this, too, doesn’t make me feel any better about my own sins against Truth.
These thoughts fit into a larger discussion that includes Tyler Cowen, Bryan Caplan, and the Andrew Sullivan crew. I largely agree with Wilkenson as far as my own experience with political intelligence. When I stopped trying to have an ideology, and stopped trying to understand the world and human behavior as fitting into some unified system that could then produce easy normative prescriptions and teleological goals, things became much clearer. Yeah, I still call myself a whig and a libertarian, but I do that just as shorthand for people, and I end up qualifying it so much that it might not even be worth it.
But that brings me to my main point. This discussion seems geared almost exclusively to the chattering class. It’s easy enough (and i think correct!) to say that political identities end up having the corrosive effects that Will suggest when they are taken up by people who spend a lot of time thinking about politics and policy and government and how Mitt Ronmey is going to attract moderate women between now and the first Tuesday after the first Monday in November. But that’s a very small number of people. The vast majority of people living in a democracy aren’t political junkies, or even very much interested in day-to-day politics. And they definitely aren’t ideologues.
And that’s fine! People are busy with their lives, and if you don’t work in or around politics or live in DC, you can’t really spend your day thinking about these things. And you probably have better things to do with your free time. Again, there’s nothing wrong with that. Most Americans start paying attention to national politics when the elections get close, and maybe they go vote in a primary but probably not, and when it’s time to elect new Representatives and Senators and a President they will study the information made available to them and make a reasonably informed choice. It’s sometimes amazing that democracy works, but it does, in fact, work.
But there’s the rub: while the political labels may dumb down your average DC chattering class political writer who used to work at a think tank, the labels and identities are essential shortcuts for the average citizen participating in electoral politics. You can bemoan the partisan hearts and minds of the electorate, but no one has yet devised a better system of signals that allow low-information voters to make election choices that reflect their political beliefs and interest priorities. It’s amazing but true: even the flimsiest notion that your interests and political priorities are better served by one party than by the other can guide you to informed choice up and down the ballot on election day.
And so my guess is that political identities and labels have an attenuating effect in society. Yes, they might dumb-down the chattering class by giving people tribal identities that become constitutive components of their political being and thus lead them to irrational defenses of their own “team,” but at the same time they take the vast majority of voters — those with less information about candidates, policies, and government — and provide them with the key to meaningful participation in a republic. To strip away the political identities that such citizens use as voting cues would not free them from their mental chains, but instead unmoor them from their participatory political lifeline. And such theories tend, in my view, to collapse into the kind of hopeless elitism that is either pessimistic about the quality of the voters, or about democracy in general.
Now, you can bemoan this state of affairs, and we can all normatively desire that everyone spent their recreational time studying policy and politics and informing themselves on an issue-by-issue basis. But that’s dreamworld. And it’s why I find almost all general attacks on the party system more or less not credible. Whatever pain the party system brings to elites — including the problems Wilkenson identifies — and whatever distortions it causes by preying on the general public ignorance about the details of politics, policy, and procedure, it provides the fundamental linkage between the population, their basic political interests, and the government. And it does this by providing those citizens with, yes, a political identity in the form of a political label.
Andrew Gellman argues that political scientists are too skeptical about institutional reforms:
I resist what I see as the occasional habit of political scientists to report a null effect and imply from that the conclusion that various reforms don’t matter or shouldn’t be done. This comes up here with term limits for judges and has also come up regarding ideas for campaign finance reform, nonpartisan primaries, and nonpartisan redistricting. I resist anti-reform arguments for two reasons:
1. There’s no reason to believe that whatever happens to be the current rule in the U.S. is actually an optimal policy or anything close to it. Reforms proposed for the U.S. are often close to existing policies in other countries.
2. Outcomes are multidimensional. I discuss various potential outcomes of term limits on judges here and here.
3. Much of the research essentially compares of the current system to the past. There were long-serving elderly judges in the past, just as there are today, so why worry?
Jon Bernstein counters, arguing that the phenomena might just be optics:
My guess is that the reason political scientists sometimes appear to be reform-averse is that there are a lot of very goofy reforms out there that can’t pass those tests. My guess is that I have something like a 50/1 ratio of reforms that I’ve read that I reject to those which I support…but that still leaves me supporting quite a few reforms.
I obviously can’t speak for others, but I suspect that you would find the same thing — a very large ratio of rejected to embraced reforms, but still quite a few reforms that they support.
I guess overall, I think that if someone makes a strong case for reform, many, and perhaps most, political scientists are open to listening. It’s just that we’ve often heard this turn before, and we know how it goes. Which, I’m sure, can make some of us (myself certainly included) seem dismissive at times, and that’s not a good thing at all. But an overall bias against reform? I’m just not sure it exists.
I’m willing to take on Andrew’s position directly: the vast, vast majority of proposed reforms are worthy of our disdain and — more to the point — reforms that do not have obvious, limited, and easy-to-measure consequences should be treated with the utmost skepticism, rather than as harmless alternatives that might be worth trying out. To argue for less skepticism of reform is, I think, logically the equivalent of arguing that more reform, on balance, would be good (or perhaps that most individual reforms, on balance, are good); and consequently also that the required threshold of consensus in order to enact reform should be lower. I disagree with each of those ideas, for both micro and macro reasons.
On the micro side, I agree with Bernstein’s point that most proposed reforms deserve our skepticism because most proposed reforms have massive and obvious flaws. Because they won’t have the intended effect, or because the intended effect is bad idea, or because they will have nasty unintended consequences. There are precious few reforms that dominate (i.e. are better in all respects) the existing arrangements; when such reforms arise, they are often quickly adopted. Everything else, to some degree, becomes a clash of assumptions, axioms, or values. And that’s the sad truth of most reforms: even when they improve things, they often do so by making very marginal improvements that are just net positives in a cost-benefit analysis, but still full of costs. And with high risk-to-return ratios.
On the macro side, I think there are distinct benefits to the existing institutional rules qua the existing rules. And while they may be far from perfect, I think they deserve some priority. I don’t disagree with Andrew or Jon when they say that neither the existing institutions nor the Founders have any particular claim on normative superiority of institutional design. But I think a strong Burkean conservatism is the safest and most effective disposition from which to evaluate proposed reform. For a few reasons.
First, unintended and/or dimly foreseen consequences are a bug, not a feature, of reform. Andrew appears to be hinting at the opposite view, arguing that even if we have a null analytical result on one primary dimension for a reform, it may have advantages on other dimensions, perhaps even ones we haven’t thought about. This is probably true, but, on balance, I think it’s an argument against most reforms; complexity of consequences should make us more skeptical, not more willing to tinker. For one, there’s a long-tail of unlikely but horrible consequences of any reform, up to and including systemic failure. We may not love current arrangements, but they are almost certainly better than the French Revolution. Even if it’s only a very, very small chance.
Of course, not every proposed reform carries systemic risk. But virtually all carry the risk of the unforeseen, and unless there is little or no worry about spillover effects (ex. your reform is to lower or raise the voting age by 1 or 2 years), these seem to me to be of primary concern. This to me is one of the clear lessons of institutional political science: there’s a butterfly effect for institutional change that seeps into everything. Adjust campaign fundraising laws and you have consequences for the centralization of power in the House and Senate. Limit the terms of legislators and you have consequences for the power of committees. Rationalize the annual budget/appropriations process and you empower the president and tighten his grip on the executive departments. And so on and so on. When combined with a political structure that makes reversing course quite difficult, the end result is that net-negative institutional reforms are sticky. Or more plainly: they are costly mistakes.
Second, political institutions rarely change in accordance with normative philosophical debates. Particularly in a democracy, both institutional design and institutional change are driven as much by short-term partisan or ideological benefit as they are by normative vision. Political actors tend to want to alter institutions instrumentally, not under the veil of ignorance. And so the normative arguments are almost always reduced to mere rationalizations for the short-term outcome positions held by existing interests. Any reform currently being peddled is likely backed as much by interests seeking outcome utility as by normative philosophy seeking improved systemic function or pareto-optimal equilibrium.
Finally, I think there’s something to be said for the stability of existing institutions and a slow pace of change. To not give priority to the existing arrangements is basically to ask to speed up the current pace of reform. But I do not see what good that accomplishes, and so I’ll take a status quo bias — institutional or cognitive — every day of the week. The existing rules, regardless of flaws, allow political actors, interests, and citizens to plan their strategies for political fights on an even playing field; under a system that is open to, and characterized by, more rapid institutional reform, you are likely to encounter a different bias, toward those who can quickly adapt, rapidly mobilize, and easily adjust to new institutional structures and rules. In effect: existing, entrenched, monied interests.
Now, this is not to say that institutional change is inherently bad, or should never happen, or even that it should be as hard as it currently is to reform political institutions. I’m perfectly willing to take an agnostic view of the merits of the existing institutions vs. any particular reform. But the idea that the burden of proof should not lie with the reformer strikes me as counter to the basic market-test of institutional design: make me something better and we’ll talk. But for now, the existing widget beats your unproven idea. In the world of invention, no one pays anything for great ideas. They want prototypes that work. Such should be our attitude toward institutional design and reform.
Nothing — and I mean nothing — better captures the DC chattering class at its speculative worst than the Veepstakes. And that’s saying something. It’s not just that most of the speculation is baseless. And it’s not that most of it is utterly inane. It’s that, from an electoral standpoint, it just doesn’t matter. As I’ve mused about before, it’s entirely possible that the effects of VP selection on the election outcome is normally zero, except in cases of extreme blunder. As is the case with so many things like this, the best places to read about the Veepstakes are at the political science blogs, where the Veepstakes-type articles are set aside (or at least toned down) and people are thinking about this institutionally. Andrew Gellman had a nice quick post the other day; Jon Bernstein has been making a series of smart points on the topic. Here’s what I’d add to the discussion, which I promise is devoid of Veepstakes conjecture.
People tend to forget that both sides get to pick a vice-presidential candidate, and therefore the potential advantage gained is not an absolute, but instead a net, number. If I can get Henry Clay below me on my ticket, that’s pretty awesome. But not if you have Ulysses S. Grant on yours. And so while you obviously want to maximize the marginal positive effect of your candidate, you have to accept that the actual overall effect is going to be highly dependent on a choice over which you have no control. So most of the time you are best off just picking someone ultra safe and vetted, and hoping that your opponent makes a major mistake. But don’t get your hopes up. Yes, your opponent can screw up (i.e. Palin 2008), but it takes a pretty darn egregious vetting error. There are just far too many people who pass the “bad choice, poor candidate, but not enough voters care to make the net advantage a marginal difference in the election” test. It’s just really tough to make the direct electoral value-added argument when you are talking about a few percentage points — at most — in one or two states. And again, that’s as a net effect balanced against the few percentage points in some other state that your opponent is grabbing.
In fact, I don’t think it’s crazy to suggest that VP selection has never altered the binary outcome of the presidential election in the United States. This isn’t to say that picks haven’t been made with the thought that they might cover the difference. (The GOP in 1864 comes instantly to mind, when they replaced a moderate but absolutely orthodox anti-slavery Republican from Maine, Hannibal Hamlin, with a War Democrat from Tennessee, Andrew Johnson.) The point is that the marginal net effect of [the winning VP candidate minus the losing VP candidate] has probably never put a ticket over the top. Or at least there’s no proof it has. As it turned out, Lincoln didn’t need a War Democrat on the ticket to get over the top in ’64. And everyone likes to say that LBJ delivered the South in 1960, but it’s not an obvious case: Kennedy did worse in the South than Stevenson had done in ’56, so the logic only holds if you can demonstrate that either LBJ radically minimized the segregationist/anti-catholic flight to Byrd or that Nixon was poised to win electoral votes the deep south ex ante in ’60. I’m more than happy to listen, but I’m skeptical on both counts.
Of course, there are other, indirect considerations that might make the choice important. VP candidates could be awesome fundraisers. Or come with great organizational setups and connections. Or be incredible persuasive when assembling interest coalitions. But there’s no reason to think anyone has all that much of a comparative advantage on any of these dimensions, regardless of the absolute magnitude of the effect such advantages might convey on their own (which, I think, is quite small anyway). And, yes, there are clear secondary electoral reasons, too: VP candidates can satisfy wings of a party that are disgruntled with the presidential nominee, or they can play to ethnicity or race or gender or other ascriptive vote-getting techniques. And, of course, they can fill in policy or background voids of the candidate at the top of the ticket. But again, there’s no reason to believe these things add much, if anything, to the electoral strength of the ticket.
Still, there’s one situation in which a VP candidate can have a huge effect: if the President ends up dead. I don’t mean that as a joke. We’re in the 56th presidential term in the history of our nation. Eight out of the previous 55 have resulted in dead president (WHH, Taylor, Lincoln, Garfield, McKinley, Harding, FDR, Kennedy). That’s just under 15%. Over 16% if you add in Nixon’s resignation as a 9th instance (which, I think, is probably slightly different since the President’s decision to resign might be somewhat endogenous to the VP heir, but nonetheless completely defensible to include). The resulting Presidencies of those VP’s, I think, were mostly unlikely to occur on their own. There’s just no imaginable way that Andrew Johnson was going to end up President on his own accord, and I think that’s probably also true of Tyler, Arthur, Coolidge, and Truman. TR, LBJ, and Fillmore were certainly players in the game, but even they were far from likely future Presidents. And short of circumstance, Jerry Ford would have died a respected but mostly-forgotten Congressman from Michigan.
And, like all Presidents, those 9 men left their mark on the office and on the country. And to varying degrees, those marks were different than the marks that would have been left by a completed regular term of the dead president and the subsequent next few regular elections. In some cases vastly so. And thus to say that the selection of the VP is irrelevant, while certainly true in the instant electoral sense, is just plainly not true in the broader sense. Again, ask the Civil War Republicans. How many of them wish they had just sucked it up, taken the risk, and renominated the moderate, but strongly anti-slavery and definitely Republican, Hannibal Hamlin? I’ll tell you the answer: every last one of them. I’m pretty sure the Radicals would have taken Bill Buckley’s random draw from the Boston phone book over Johnson.
And this points us to a blind spot that political parties, I think, have in these circumstances: they overvalue the relative importance of the short-term electoral benefits from VP selection in contrast to the potential impact of the vice-president on the fortune of the party in the case of a dead president. There’s certainly merit in doing every last thing you can to maximize your chance of winning the next presidential election, but when taken to the extreme, you can end up in the Andrew Johnson situation. Granted, those were desperate times, an extreme example, and perhaps a justifiable move under circumstance. But the same rationale can be applied to any election. Unless you honestly believe that 2 percentage points in one state is going to make or break the election, you are probably better off picking a nominee who fits squarely into your ideological vision and whom you can see yourself backing in the next election. (This holds for a party and its activists, at least; I’m less certain about this from the point of view of an individual presidential candidate, although I think it still holds.)
Now, most current VP candidates fulfill this need. The GOP tends to pick VP candidates from the mainstream of their party, and the Democrats do likewise. But I think the typical party (and chattering class) goals — pick a person who “balances” the ticket, or adds some geographic pull, or shakes up the narrative — are wrongly prioritized over the more basic idea of picking someone who would be a competent President and a compelling leader for the party and its ideological goals if they were at the top of the ticket. Because there’s a serious chance — much higher than most people assign at any rate — of them actually being the President at some point in the following eight years. It seems to me the biggest VP selection mistakes are made precisely when the decision deviates from the dimension of “best president if it came to that.”
And that’s also why I try to never make “warm bucket of piss”*** jokes about the vice-presidency. It’s less apt than it appears. Unless you are a serious first-flight contender not in your virgin go-around, being vice-president is probably a more likely route to the Presidency than entering the party primaries. Which sort of explains why everyone makes fun of the vice-presidency, but people rarely turn down nomination to it.
***I refuse to use the sanitized “warm bucket of spit” line, since I think the evidence is clear than Garner said, and meant, “piss.” And the original is way funnier. This is politics, not children’s television, folks.
SCOTUS
Antonin Scalia, 4/4/12
John Roberts, 3/30/12
Clarence Thomas, 3/29/12
GOP CANDIDATES
Michele Bachmann, 12/22/11
Newt Gingrich , 12/19/11
Jon Huntsman, Jr., 12/20/11Up
Willard Mitt Romney, 12/21/11
Rick Perry, 12/23/11
Herman Cain, 12/25/11
Rick Santorum, 12/28/11
Ron Paul, 12/31/11
One thing I didn’t delve into too deeply in my post reviewing the committee funding process was how committees spend their money. Let’s do that quickly right now.
First off, you don’t have to leave your computer to check it out for yourself. You might recall that the Committee on House Administration (CHA) has jurisdiction and oversight responsibilities for funding to the House standing committee (with the exception of the Committee on Appropriations.) Consequently, CHA also has the power to regulate use of committee funds, and such regulations are published in the Committee Handbook. One of the regulations placed on the standing committees is a monthly reporting requirement:
Monthly Reports
Each committee must submit to the Committee on House Administration, by the 18th of each month, an original and two copies of a report signed by the Committee Chair on the activities of the committee during the preceding month.
- Summary of the progress of the specific investigations and studies for which funds were approved.
- Statement of expenses for the month and year to date. Committees must reconcile their figures with the Monthly Financial Statement prior to submitting the monthly reports.
- Report of travel performed.
- List of committee employees, job titles and gross monthly salaries (a copy of the monthly Payroll Certification Form is acceptable).
- Certification by the Chair of the reporting committee that the report is available to Members of the committee for examination.
Monthly reports for each committee will be available for public inspection at the Committee on House Administration.
Best part: they were always available for public inspection at CHA, but as of the 112th Congress, they are now all available online. Second best part: the expenditures information is both thorough and easy to understand. (I’m leaving aside the other stuff in the reports, but that can be interesting too). If you are trying to get a feel for the committee system on the Hill, a 15-minute browse through the monthly reports of 1 or 2 committees is a good way to do it.
Let’s take the Agriculture Committee as an example. If we look at their December 2011 report, we can not only get a snapshot of how they spent their money for the month, but we’ll also get to see the entire 2011 expenditure picture. What do we see?
1. The total balance sheet (pg. 2). The Committee was authorized $6,189,494 for calendar year 2011 under the primary expense resolution (H.Res.147), but spent only $4,933,201.89 of that as of the December report, leaving a balance of $1,256,292.11 for the year (although some obligations such as equipment purchases may not be disbursed until the following year, so it’s not as much left over as you might think). December spending was similar to other months, with $456,366.26 spent.
2. The monthly and YTD breakdown (pg. 3). This shows expenditures by category: Personnel Compensation, Travel, Communications/Utilities, Printing and Reproduction, Other Services, Supplies and Materials, and Equipment. You can see that in December, the Ag Committee spent $432,083.66 on staff pay, or 95% of its expenditures, which is similar to its 94% rate for the entire year. The Committee spent only $107k on communications, $103k on services, $56k on materials, and $15k on travel in 2011. The equipment total of just under $5k is somewhat misleading; many committees don’t end up paying for their equipment purchases until the following year, due to the acquisition and billing cycles.
3. Franked mail expenditures (pg. 5-6). Like all the other committees, Ag is authorized $5,000 in franked mailings. And like almost all the other committees, it uses virtually none. In December, it spent $1.72 on franked mail. This money comes out of the official mail allowance account of the House, not out of the committees funding authorization.
4. Expenditures off of last year’s authorization (pg. 7-9). These will almost always be equipment and services, since nothing little else — and virtually no pay (except in January of the new year) could be obligated off of old funds but not disbursed for months and months.
5. Majority Staff Payroll Certification. (pg. 11-13). Here we get to see every majority employee of the committee, their annual salary, and what they got paid in December. On the summary sheet, we can see that ther are 34 majority staffers, who made a total of $269,637 in December. We can also see the job descriptions of the staff, and that they are generally well-paid, in comparison to personal office staff. The average majority annual salary is north of $85k, with 16 of the staffers making over $100k, and the staff assistants making $38k.
6. Minority Staff Payroll Certification (pg. 14-15). Same snapshot, but for the minority. Twelve staffers total, receiving a total of $162,446 in December. We can also see that the minority staff is paid very well; by keeping a relatively small staff, every minority staffer is making over $150k.
What can we learn from all this, big picture? A few quick thoughts. One, it illustrates some of the differences between the Member offices and the committees. The committees have both more money to spend, and less need to spend it on things like travel and franked mail. Therefore, they have more resources to expend on staff, which translates not only into more staffers, but generally better paid staff. Second, the consequences that flow from this are quite obvious: with more and better-paid staff but less constituent-oriented responsibilities, the committees are in much better position to generate policy. When combined with their rules-based advantage as gatekeepers against bills developed within their jurisdiction by outsiders, the incentive structure of the House strongly tilts against the writing of large or substantial bills in the Member personal offices.
SCOTUS
John Roberts, 3/30/12
Clarence Thomas, 3/29/12
GOP CANDIDATES
Michele Bachmann, 12/22/11
Newt Gingrich , 12/19/11
Jon Huntsman, Jr., 12/20/11Up
Willard Mitt Romney, 12/21/11
Rick Perry, 12/23/11
Herman Cain, 12/25/11
Rick Santorum, 12/28/11
Ron Paul, 12/31/11
Yesterday, I discussed the explosion of inbound email to Congress, and some of its possible impacts, particularly the way it alters a congressional office’s representational relationship with citizens and potentially has a nationalizing effect on politics, because of the difficulty of filtering out constituents from non-constituents. I don’t want to make too much of this, however, for a few reasons. First, it would be vastly overstating the case to say that email is nationalizing congressional politics. If it is having an effect — which we don’t really know, after all we’re just theorizing here based on some aggregate statistics and anecdotal evidence — the effect is a marginal one, and almost certainly pales in comparison to other nationalizing forces in congressional politics.
Second, I kind of (purposefully) set up of a strawman yesterday when I said there isn’t a sorting algorithm for constituent email. As most interns on the Hill know (and as several emailed to remind me yesterday!), there are techniques for filtering out non-constituent email. A little background: almost every congressional office uses a Correspondence Management System (CMS) to process constituent communications, the most popular being Intranet Quorum (IQ). The CMS has a database of all district constituents, and allows you to input all aspects of a constituent mailing — date, subject category, opinion, response, etc. — for the purpose of tracking both individual and district-wide communications data.
So one way to filter the emails — which almost all offices try to do now — is to force constituents to fill out a web form when sending an email to the office that includes their address. That way, you can cross-check it with the CMS and determine whether the sender is a constituent. Of course, there are problems with this. First, it doesn’t work when people skip the web form and directly email staffers by finding out the email address of the LA on their topic of interest. Second, it requires the web form, which may dissuade actual constituents from writing. Third, it can be beaten relatively easily by anyone who really wants to flood Congress with opinion mail; whereas the old postal sorting system could only be beaten by postmarking stuff from each district, a strategic emailer needs only harvest an address from a district.
The end result is that a lot of the representational promise of email from the mid-90′s has not been borne out. At the outset of the email explosion, many people thought it might be a possible source of data for an office, one that could provide a good guide to district opinion. But at this point, it has largely become something that needs to be managed. The low cost of sending an email has resulted not in more useful communication from constituents, but just more work for interns and staff assistants to make sure that every constituent gets a timely response to their inquiry. And so the largest effect of the inbound email explosion has been on the structuring of the congressional offices: more low-level staffers than ever are assigned to correspondence work, but paradoxically the correspondence itself is of less value to the office.
Now, some will say this was always true of the postal mail. That its value to the office was entirely negative, it only created work in making sure that constituents got timely responses, and that the ideal point for any office was to receive zero constituent mail. Undoubtedly, in many cases that was (and is) true. If you are a solid pro-choice Representative, the only thing that pro-life mail does is generate staff work and resource costs in logging the CMS, printing out the form response for “pro-life constituent position inquiry,” and paying the postage to mail the response.
But I can also clearly remember instances of the mail being used to measure the balance of intense district opinion over hot issues. I worked for a conservative Democrat in 1998, who was very torn on impeachment. We tracked every district letter we received for three weeks leading up to the vote, and the fact that they were 70/30 against impeachment made a strong impression on the staff and my boss.And that’s something that I don’t think is possible with the email. Or at least not as possible as it used to be. And so ffices are left in an odd situation: many of them like to “see what the mail says” when they are thinking about hot legislative decisions, but the mail (and the phone calls in the age of cell phones and free long distance) is less representative of the constituency than it used to be.
But leave all this aside, because what I want to talk about today is the other side of the email explosion — the email and other electronic communications sent out of the congressional offices. I don’t think there’s any question that this side of the equation is not only fundamentally changing how congressional offices think about their constituent communication strategies, but also having a marginal effect on the nationalization of congressional politics, by offering Members the capacity to reach a national constituency that did not previously exist. And in the right circumstances, many Members might find strong incentives to seek such national constituency. Now, we don’t want to go to far with this thinking; Members still get elected in districts by local constituents, and that’s always going to create an overwhelming incentive to focus on the geographic district first.
So with that caveat in mind, here are five points:
1. Electronic communications are different than old-school mail in three important ways. First, they have very low marginal costs. Sending franked mail to the district not only incurs a fixed marginal cost per letter, but also comes directly out of the Representative’s MRA in the House; any time you send a sizeable mass mailing to your district, it eats into the budget that could be used for staff or other resources. Electronic communications — be it email, social media, tele-townhalls, web advertisements, etc. — tend to have fixed capital or startup costs, but are then largely free on the margin.
Second, congressional offices are not limited as to who they can contact with electronic communications. Following a federal court action (Coalition to End the Permanent Government v. Marvin T. Runyon, et al., 979 F.2d 219 (D.C.Cir. 1992)), the Rules of the House were amended to restrict Members from sending franked mail outside of their districts. So it’s not even possible to reach a wider-than-district audience with postal mail. Electronic communications, however, are not so limited. Members can build email subscriber lists — many offer such subscriptions immediately upon entering their website — and the use of social media tools like Facebook, Twitter, and YouTube allow Members to broadcast and interact with a potential constituency far wider than their geographic district, if they want.
Finally, electronic communications are fast. This is obvious, but it has important ramifications for how congressional offices choose to use it and how it shapes their communications strategy. Once upon a time, if you wanted to send out a tick-tock on the movement of a policy of interest through the floor, the only outlet was more or less to fax a press release to any newspaper that might listen, which invariably meant the local newspapers in your district. There was no point in trying to send postal mail directly to constituents at that speed. Now, however, you can tick-tock floor activity or other business to subscribed email lists or social media instantly, and if you want to send unsolicited mass communications to non-subscribed citizens, the lack of printing time and postal costs let you move them quickly through the franking commission and out the door.
2. The use of franked mail is at record-lows; the use of electronic communications has skyrocketed. The above is all great in theory, but what’s actually happening on the ground? Well, for one, the total cost franked mail coming out of Congress (adjusted for inflation) is at its lowest point since Congress began reimbursing the Post Office for congressional mail costs in fiscal year 1954. In nominal dollars, franked mail costs are down to $12.8 million in FY2011, from a high of over $113 million in FY1988.
Now, the steep decline in mail costs between the late 80′s and the mid 90′s was due mostly to two reforms: public disclosure of mail costs for individual Members, and direct charging of Members’ budgets for the cost of mail they send, instead of allowing unlimited mailings from a common funding source. But there’s a more telling decrease in mail costs in the last eight years, which is somehwhat masked in the chart. Here are the odd-year mail costs from FY2003 to FY 2011:
FY2003: $19.3 million
FY2005: $17.5 million
FY2007: $17.5 million
FY2009: $16.8 million
FY2011: $12.8 million
That’s a 33% drop in just five cycles. And comes during a period when the price of a stamp (which is a rough measure of postal cost inflation) went from 37 cents to 44 cents, more than a 20% increase.
(As an aside, the pattern persists of more mail being spent in even-numbered fiscal years than in odd-numbered years. While many observers have attributed this to the increase in mail sent prior to the elections, the truth is actually more complicated than that. The single month with the most mail sent during any Congress is almost always the December of the first year, as many Members send out end-of-session newsletters. By quirk of the fiscal calendar, which start in October, that means that the two peak months of franked mailing — December of the odd-year and the more modest increase in the two months before the pre-election cutoff in the even-number year (June and July) — happen to fall in the same fiscal year, distorting the stats. If you go by calendar year, there is almost no difference between election-year and non-election year mail totals, as the two peaks cancel each other out. I will do a full blog post on this someday.)
Well, how about the other side of the coin – what has happened to electronic communications coming out of Congress? We don’t have quite as fine-grained data as we do on the postal side, but we have a good proxy: the volume of “mass communications” (defined by the House as “unsolicited communication of substantially identical content to 500 or more persons in a session of Congress” which includes things like mass unsolicited emails, web or print advertisements, radio spots, newspaper inserts, etc. the House has been tracking this data since FY2009. Basically anything you send unsolicited to a whole bunch of people. The chart below shows the volume of quarterly mass postal mailings in the House from 1997 to 2008, and then the quarterly volume of all mass communications (which include postal mailing) from 2009 to 2011.
This graph should be striking. Mass postal mail volumes follow a familiar pattern of peaking in the last quarter of the first year of each Congress (from the December newsletters) and then again in the period preceding the election, and then drop off in the prohibited period (late 3rd quarter and early 4th quarter of election years) and the lame duck 4th quarter of a Congress as well as the 1st quarter of a new Congress. In the first Congress in which mass communications were tracked — the 111th, 2009-2010, a similar pattern was observed, albeit at a naturally greater scale (since mass communications are inclusive of mass mailings). But then in 2011, in the first session of the 112th Congress, the mass communications simply explode, to something like approaching 10 times the volume of mas communications sent in the first quarter of 2009.
My instincts tell me this isn’t due to radically-increased use of mass faxes or mass newspaper inserts. This is almost certainly electronic communications of the internet age, taking off for real out of congressional offices. I have not examined the data carefully yet at the individual level, but I think there’s good theoretical reasons to believe that a lot of it can be attributed to two things: first, the influx of 90+ new House Members, most of whom have come to politics in the information age. Second, and related, is the effect of the 2010 election, in which social media and electronic communication played a large role in both campaign information dissemination and fundraising strategies. Freshmen Members are arriving in Congress already electronically plugged-in to large networks of constituents and non-constituents through email lists, Facebook accounts, Twitter feeds, and other media. In short, times are changing and young replacement Members are most savvy to it. That would be my guess, at least.
Anyway, with the outbound data trends out of the way, let’s get back to the more speculative talk about the impact this might be having representation:
3. The opportunities for surrogate representation have seemingly incrased. In her excellent APSR article, Jane Mansbridge defines surrogate representation as happening when Members represent constituents outside their district. In the traditional formulation, this often happens around specific issues with dispersed national constituencies: Dennis Kucinich representing anti-war advocates, Barney Frank representing gay rights advocates, and so forth. My sense is that, twenty years ago, very few Members were engaged in such surrogate activities. They simply did not have the resource capacity. Members were (and still are) of course barred from sending franked postal mail outside of their districts. The only way to get a national audience was to get on TV — which usually meant having at least the power of a committee chair, or doing something extraordinarily provocative. And it would have been crazy to suggest spending any significant portion of campaign money on outside-the-district activities.
Today, the entire playing field has been rearranged. Even backbench Members can seek a national followings with relative ease, and at virtually no cost. The Internet, and in particular the social media application like Twitter, Youtube, and Facebook, have zero marginal cost. One can stake out an issue, make a concerted effort to become a national leader on the issue, and have some chance of success, all without expending pretty much any marginal resources. The upside is clear: national leadership on issue means a higher political profile both inside and outside the House, more campaign fundraising opportunities, and (lest we forget) greater opportunity to influence public policy. My sense is that Members are beginning to alter their representational strategies around these facts: connecting themselves to national movements, inserting themselves into national policy debates more often, and modifying their fundraising strategies to more optimistically look for out-of-district money. And the more that Members engage in surrogate representation, the less they engage in traditional district representation.
4. There may be electoral pressure to nationalize representation. But it goes deeper than this. Electoral challengers may be nationalizing their representation, too. Why wouldn’t they? If a Twitter townhall focused on a national issue or a viral youtube clip can expand your potential fundraising base, get your name in faraway papers, and maybe get you invited onto a cable news show, there’s almost no incentive not to do it. Add on that nationalizing a challenger campaign can create an army of pseudo-activists to target the incumbent and its a no-brainer. And thus Members choosing not to undertake a new media strategy might at a serious disadvantage. And pretty much any new media strategy is inherently a nationalized strategy from a infrastructure perspective.
5. Such trends would be in conflict with the basic electoral logic and Fenno-esque model of constituent relations. Certain things have not changed. The most important, of course, is that only people in the district can vote. But there are other important things too: district offices have to be in the district, franked mail still can only go to the district, and so forth. So the electoral connection, and most of the resources available to maintain it, are still tied squarely to the district. And this means that Members will always be tied, first and foremost, to the district. The largest Fenno constituency that the Member has — the geographic constituency — still rules. But it may not be the largest constituency the Member sees anymore when he looks bak home from Washington. The national constituency may now enter his or her thinking — whether he wants it or not; whether he knows it or not — in a way that fundamentally rearranges the lens through which he sees his district.
This has potential implications. The most important thing that comes to mind is that the Member may greater incentives now than ever to try and shape his district in a more national mold. This would be akin to Mansbridge’s idea of “educating” the constituency under an anticipatory representation model. But it might just be a Member choosing to frame issues in the district in a national way, or choosing to emphasize national over local issues when communicating to the district.
6. But the constituents themselves may be nationalizing. Nationalizing their representational profile, of course, is also potentially dangerous from a Member perspective. As Mayhew writes in The Electoral Connection, Members treat national partisan or ideological swings as acts of god that they can’t control; they instead focus on what they can control, mostly district-related things. To tie one’s fortunes to the national party is to place one’s future in someone else’s hands. But this may dovetail with what is happening to constituents: it’s not crazy to suggest that voters themselves are nationalizing as well. And if that’s the case, then Members may be forced into a national representational context, one that affords them less safety from trends they cannot control.
Now, again, we don’t want to go overboard here. The electronic communications are at best having a marginal effect on nationalization of politics or transformation of Member offices, and the effect is almost certainly indirect if anything: by increasing the capacity of Members to nationalize, it offers a greater strategic menu of options to Members who might want to go that route. But working in concert with other nationalizing forces — the centralization of party power in Congress, the nationalization of fundraising, the breakdown of local and regional media structures, etc. — I think it may be playing a bigger role than is currently appreciated.
[This is part 1 of a two part post; for part 2 click here]
It’s no secret that the Internet has radically transformed the practice of legislative politics on Capitol Hill. Information is everywhere, and moves like lightning. And so I’m going to spend a few days writing some quick posts about one dimension of the change — changes to constituent communication — which is exemplary of the bigger picture of technological changes on the Hill.
Despite the somewhat obvious nature of the basic thesis — the information explosion has altered many aspects of legislative politics — people sometimes underestimate the magnitude of the change. After all, some of the trappings of the Hill give off the appearance of an institution and a culture that strongly defies technological change. Official politics still takes place face to face, both on the floor and in committee, in their office; Members still physically walk from their offices to the floor in order to debate and cast votes; and heck, the Senate still votes by calling the roll, no different than they did in the 18th century. The visible practice of politics, as seen on C-SPAN or gleaned from walking around the Hill, is hardly different than it was in 1960. Or 1860, for that matter.
But below the surface, things have radically changed. Members no longer seek information so much as look for better ways to sort and filter it. Staffers are no longer chained to their desks and their hard-line telephones. And, perhaps most importantly, the relay of information from the Hill to the rest of the country (and vice-versa) has been reduced, time-wise, to basically zero. As soon as it happens here, it’s known everywhere. And not only is the information relay faster after something happens, but the outside, non-Hill world feels closer to the policy-making process before anything happens. And that has consequences.
And the most basic consequence is that which corresponds to the most basic feature of a legislature: the representation of a body of constituents by an elected individual, and the communicative relationship between the constituents, the representative, the election, and the political and policy decisions the representative makes. To which I present figure 1, which plots incoming mail to the House and Senate since 1996, as a function of delivery medium. The top line (black) is incoming emails, the bottom line (red) incoming postal mail.
At least that’s my recollection from 1998, when I was a lowly intern in the House and spent much of my day opening it. And so it makes me shudder to think that, back then, the postal mail was still the majority of mail that came to Congress. Since then, of course, it has fallen (about 16% less postal mail incoming to the House since 1998, down from about 15 million pieces to about 12 million pieces). But it’s been replaced by three hundred million emails. In fact, postal mail is now just 7% of all mail coming to the Hill. And that 7% is actually 100% of the mail that was coming in 1994. Terrifying.
A few things worth discussing:
1. First, some technical details. Email was first available and used on the Hill in late 1994 or 1995. No hard data exists on total usage prior to 1996, and data for 1996 and 1997 are only estimates. Second, incoming postal mail does not include mail sent to district offices, just mail sent to the Capitol complex in Washington; email volumes include all mail sent to House or Senate email addresses, regardless of end-user location.
2. More technical stuff. The email numbers are post-spam filters (i.e. only mail that actually reached end-users). This makes them slightly difficult to compare year to year, since the spam filters (as well as the spam senders) have gotten dramatically better over the years. In fact, the large peak in 2007 and the drop-off following it are almost certainly do to the explosion of more intelligent spam and the corresponding adoption of powerful new and improved spam filters in both chambers that year. The lesson, as always, is that these numbers represent a trend, not precise reflections of reality, and should be treated with that in mind. Especially since the spam filter for postal mail — an intern throwing the junk mail in the garbage can — has not changed during the period.
3. With postal mail, it was always easy to know if you were being written to by a constituent or by someone from outside your district. The rule of thumb for sorting such mail is typically something like this: if it’s a constituent or interest group from our district, put it in the pile for things that we will promptly respond to; if it’s a constituent from outside our district, put it in another pile for things that we will promptly deliver to the correct office; if it’s a interest group from outside our district, look through it quickly and see if it’s personal or a form letter / mass spamming. If it’s the former, consider responding. If it’s the latter, definitely trash it.
The problem with email, though, is that you can’t tell if the sender is from the district or not. And there are quite obvious incentives to not exclude anyone who might be a constituent. And so the incoming email has a tendency to nationalize the constituent communications techniques used in most Member offices; there’s just isn’t a sorting algorithm that lets you separate your constituents from other citizens.*** Which means that the information context Members are facing in their offices is much more national in scope, even after they’ve tried to filter it. This has consequences. For one, it forces a complete rethinking of an office communications strategy. But it also distorts one’s perspective of district opinion, and tends to orient Members toward national public policy; people from outside the district are much more likely to communicate about policy issues than distributive politics such as grants or earmarks. More on this tomorrow.
4. From an institutional point of view, one key consequence of this explosion is the pressure it puts on congressional staff. Constituent and/or interest group service and communications is an important aspect of what goes on in Members’ personal office, but it is far from the only thing that goes on. To the degree that more staffers need to be allocated to the collection, processing, and responding tasks associated with incoming communications, the less staff time that there can be allocated to policy or other work, or the longer hours staffers need to put in. And while the number of staffers working in personal offices has increased modestly in the last generation (about 6% increase in Representatives’ offices since 1982), the prospects for a significant future increase — namely the proposition of a substantial increase in the Representatives’ MRAs or the Senators’ SOPOEA — seem quite dim.
*** This was (somewhat) sloppy writing, to make a point. I probably should have said “definitively lets you separate,” since there are certainly methods to filter out some non-constituents, the most popular being the IQ CMS software. I address the pros/cons of IQ in my followup post. The most important problem is that while IQ easily filters out people who weren’t trying to send you non-constituent mail, it is easily and routinely beaten by those who are strategically and purposefully sending mail disguised as constituent mail.
Previous Venn Diagrams
SCOTUS
Clarence Thomas, 3/29/12
GOP CANDIDATES
Michele Bachmann, 12/22/11
Newt Gingrich , 12/19/11
Jon Huntsman, Jr., 12/20/11Up
Willard Mitt Romney, 12/21/11
Rick Perry, 12/23/11
Herman Cain, 12/25/11
Rick Santorum, 12/28/11
Ron Paul, 12/31/11
Michele Bachmann, 12/22/11
Newt Gingrich , 12/19/11
Jon Huntsman, Jr., 12/20/11Up
Willard Mitt Romney, 12/21/11
Rick Perry, 12/23/11
Herman Cain, 12/25/11
Rick Santorum, 12/28/11
Ron Paul, 12/31/11
[updated to reflect first comment]
There’s not a week that goes by in which I don’t end up debunking some urban legend about congressional perks. That Members don’t pay social security. Or that they get free tax advice. Or that they get free health care. Or whatever. Virtually none of it is true, as we will see below.
Well, at least not true anymore. Once upon a time, there were a fair number of things that could be classified as Member perks. Right through the 1980s, in fact. But in the wake of the House Banking Scandal, the House Post Office Scandal, and the 1992 election — perhaps the only true anti-incumbent congressional election ever, save 1854 — the perks were more or less eliminated. In fact, for all the solid, institution professionalizing reforms that the GOP instituted in 1995 (which I still believe is their most important positive legacy), the period between 1990 and 1995 was also a highwater mark for reform efforts, particularly those aimed at cleaning up the image of the institution.
And I’m reminded of a story former Speaker Carl Albert tells in his 1990 autobiography, which so perfectly captures the old-school mindset about these sorts of perks. The story is about 32-year Representative Tom Steed (D-OK). Steed was confronted by the local paper in Oklahoma about his taking of congressional perks, including flying first-class back and forth from his district to DC. Steed supposedly responded, “What the hell, I’m a first-class Congressman.” And in the autobiography, Speaker Albert doesn’t knock Steed. Quite to the contrary, he applauds him. “He was a first-class Congressman.” And so times change.
Here are some common perk questions I get asked, and the answers to them:
Do Members pay Social Security?
Yes. Prior to 1984, federal civil service employees didn’t pay social security, nor did they receive social security benefits. Instead, they had a separate retirement plan, the Civil Service Retirement System (CSRS). Under P.L. 98-21, federal employees hired after 1983 had to pay social security, and all Members (regardless of when first elected) have to pay social security. Since CSRS wasn’t designed to interact with Social Security, federal employees (including Members) who began service after 1984 were eligible for a new retirement system, the Federal Employee Retirement System (FERS).
Do Members receive free or reduced rate health care while serving?
Incumbent and retired Members are eligible for the Federal Employees Health Benefits Program (FEHBP) under the same terms as other federal employees. The cost of the premiums are split between the employees and the federal government. The current formula comes from the Balanced Budget Act of 1997 (P.L. 105-33), which sets the government contribution at 72% of the average premium of all plans but no more than 75% of the premium of any individual plan. By comparison, according to the Department of Labor, private sector employers’ share for coverage is 81% for individual coverage and 71% for family coverage.
Do Members receive reduced rates for services of the attending physician? Do Members receive reduced rate prescription drugs?
For an annual fee ($503 in 2010), Members can get basic health services from the Office of the Attending Physician in the U.S. Capitol and five other Capitol Hill locations. Dependent care is not included, nor is surgery, maternity care, dental care, or eyeglasses. Prescriptions may be written, but not filled, except for starter doses and emergencies. In the past, Members were eligible for services, including prescriptions, of the attending physician at no charge. In 1992, both the House and Senate eliminated the prescription benefit and instituted annual fees for the services.
Do retired Members get reduced-rate medical care?
No. They receive the same benefits as other federal employees: a one-time election to continue in FEHBP as a retiree, assuming they have been in it for five years and are eligible for an annuity.
Do retired Members get special pensions?
Sort of. Members can participate, as do other federal workers, in either the CSRS (if they were elected prior to 1984) or the Federal Employee Retirement System (FERS). The only difference between Members and other federal workers is that Members (as well as congressional staffers) have slightly higher contributions to the retirement systems, but are eligible for slightly higher benefits at slightly lower ages, with somewhat shorter vesting requirements. The rationale behind this is that congressional employees — be it Members or staffers — have somewhat less job security and therefore less certainty about their tenure.
Do Members receive reduced rate life insurance?
Members can participate in the Federal Employees’ Group Life Insurance Program (FEGLI) under the same terms as other federal employees.
Do Members receive reduced rates for use of the Capitol gym or other athletic facilities?
Both the House and Senate maintain a private gym for Members’ use. The annual fee for Members is about $250.
Can Members obtain free tax help from the IRS?
Until the 1990s, both the House and Senate opened temporary tax assistance offices to answer questions regarding tax return preparation. These offices were open to the general public and available for anyone to use, although by dint of their location, the services naturally were enjoyed mostly by Members and congressional staff. In 1994, the House discontinued the practice. The Senate discontinued the practice a year later.
Do Members receive reduced rates for use of Capitol restaurants, dry cleaning services, or barber/beauty shops?
Capitol restaurants, dry-cleaning vendors, and beauty/barber shops provide services at prices comparable to market rates. Some services — such as the House barber shop and beauty salon — have been privatized; others remain publicly run. Prior to changes made between 1992 and 1994, these services were often available at reduced rates. Members, however, have never received official rates that differed from staffers or from the general public.
Do Members have the option of buying furnishings from their House or Senate offices when they cease being Members of Congress?
In the House, departing Members can buy a standard Member desk and chair from their Washington, DC, office. The cost of the desk is approximately $1,000 and the chair $500. Under House Administration Committee regulations, Members-elect may choose to acquire any furnishings and equipment currently located and in use in their predecessors’ district offices. Any furniture and equipment not selected and retained for use by them, may be purchased by outgoing Members.
In the Senate, departing Senators may purchase office equipment located in their Washington, DC, or state offices, subject to certain restrictions. They may purchase only one of each type of equipment, and it must have reached the end of its expected useful life and been declared surplus to the needs of the Senate by the Sergeant at Arms at least 30 days prior to the end of a Senator’s tenure. A departing Senator may also purchase his or her Senate chamber chair. Within 30 days of leaving office, a departing Senator has the option to purchase any furnishings provided by the General Services Administration (GSA) in one home state office. The purchase shall be at depreciated fair market value prices and in accordance with regulations prescribed by GSA.
Do Members receive special parking privileges at Reagan National Airport or Dulles International Airport?
Members have received free parking in preferred lots at Reagan Washington National Airport and Dulles International Airport since the facilities opened in 1941 and 1962, respectively. However, this benefit is not specified in statute; the parking spaces are provided as a courtesy by the Metropolitan Washington Airports Authority. A legislative attempt to explicitly deny the benefit was defeated in the Senate in 1994 (S. Amdt. 1632 to S. 540, 103rd Cong., 2nd sess., Apr. 20, 1994).
Are there really free ice deliveries to Member offices on Capitol Hill?
Not anymore. It was discontinued in 1995.
Can you get a free or really cheap carwash in the Capitol Hill parking garages?
Not anymore. They were discontinued in the Senate in 1991 and in the House the following year.
Isn’t Congress exempt from civil rights and labor laws and such?
Nope. The 1995 Congressional Accountability Act applies 13 major workplace safety and other occupational laws to Congress, which previously did not apply to the legislative branch. One exception is the Freedom of Information Act. Of course, there’s a good reason for that: it may very well be unconstitutional to apply it; the speech and debate clause may prohibit it.
Do Members get to send constituent mail, and drive in fancy cars, and fly around the country, all for free?
Not really, and certainly not compared to how they used to. Once upon a time, Member travel and constituent mail costs were paid for in more or less unlimited amounts by the House. Members were given a certain number of trips they could take home to their district, but the cost of individual trips wasn’t really limited. Constituent mail was regulated as to what Members could send under the frank, but not how much. Even more to the point, Members did not have personal limits on how much mail they could send, nor did they have to disclose publicly how much they personally sent. It all came out of a general collective House account.
Contrast that with the system that emerged after a series of reforms were put in place between 1986 and 1998. Members may now travel to their district as often as they want, and they can still send as much franked mail as they want, but there are two general rules. First, all expenditures are now public. So every penny that Members spend on travel and/or franked mail is disclosed. Second, Members now have personal accounts (under the MRA system) from which all of their expenses are drawn. You can view the allowed and prohibited uses of the MRA here.
By formula, Members get roughly $1.4 million dollars each year in this account, which is used to pay their staff, buy office supplies, rent a district office, send mail, and travel. The upshot is that, unlike in the past, Members now have economic choices to make about franked mail and travel: every time you send franked mail or travel back to your district, you have less money to hire staff. The results of these reforms have been stunning: total franked mail expenditures in the House have decreased from over $77 million dollars in FY1988 under the old system, to just over $11 million in FY2011.
In effect, the combination of public disclosure and the market reform of fitting franked mail into the Members’ budgets has effectively incentivized more conservative budgetary behavior of Members. The larger point is that, yes, Members can still rent cars to use for official purposes, but the expenses for those rentals are now not only publicly disclosed, but also come at the cost of other possible uses of the money. Those two things won’t stop a determined Member from leasing a luxury car for official business if they really want to, but it does greatly disincentivize it. And I think it does take it out of the realm of perks.
Later this week, the House is scheduled to consider H.Con.Res. 112, the FY2013 Budget Resolution.
Well then. Congressional budgeting.
I’d like to discuss one particular institutional feature of the appropriations process — the 302(b) allocations of the Appropriations Committee — but in order to understand that, you need at least something like a bare-bones understanding of the overall congressional budget process, which is as complicated as anything else that occurs in the House and Senate. So let me take two paragraphs and try to succinctly lay out how it all works. If people are interested, perhaps I’ll do a Q & A style post later in the week on the overall process.
Ok. Bare-bones basic federal budget process in five sentences. At the beginning of a fiscal year, the agencies of the federal government begin developing their budgetary plans for the following fiscal year, which are aggregated and vetted by OMB and others in the President’s administration. Under law, the President is required to submit to Congress by early February a comprehensive Budget of the United States for the fiscal year that begins the following October 1. The budget includes proposals and an accounting of incoming collections (revenue and offsetting) and spending (authority, obligations, and outlays), following standardized government accounting practices that have developed over the years. Under the Constitution, no money may be drawn from the Treasury except by appropriation made by law, and therefore Congress must either pass annual, multi-year, or obligation-creating laws that provide the budget authority requested by the President, or ignore the President, make their own budgetary judgements, and provide that amount of budget authority. In addition, Congress must provide either a mechanism for revenue or other collections to cover the spending, or an authorization for the United States to incur debt.
Got it? Good. Bare-bones basic congressional budget process in five sentences. Beginning in 1974, Congress has enacted a series of laws and chamber rules that require legislators to adopt a resolution that sets for the aggregate levels of revenue, spending, deficit, and debt limit. Under law, the Budget Committee reports — and the chambers approve — a concurrent resolution that provides these budgetary projections or the upcoming fiscal year and future out-years, as well as mechanisms to constrain both direct spending (i.e. entitlement spending) and discretionary spending. Direct spending is controlled through the process of reconciliation instructions, which may instruct the standing committees that have jurisdiction over various direct spending to report changes to those programs. Discretionary spending is constrained by providing an allocation (known as a 302(a) after the Budget Act of 1974 section it comes from) to the Appropriations committees, which sets a maximum amount of budget authority that the committee may report to the floor and provides points of order against consideration of bills which exceed the limit.
Got it? Good. Now here’s where it gets interesting. What effect does the existence of the 302(a) allocation have on the House Appropriations Committee?
A huge impact. And lots to discuss.
First, what actually happens when the Appropriations Committee gets the 302(a) allocation from the approved budget resolution? Under law, they are required to divide it up among the subcommittees, into what is know as 302(b) allocations, which they then approve and forward to the floor. (Here’s an example). These 302(b) allocations are the maximum amounts which each subcommittee may report to the floor in their bills, and are enforced by points of order on the floor. If you step back for a second and give it some thought, you might arrive at a logical institutional conclusion: under the 302(a) and 302(b) system, individual subcommittees of the Appropriations Committee are not particularly capable of reducing spending, since they are set in competition for part of what is ultimately a fixed-size pie. And, indeed, that is what you often see with the subcommittees; absent an ability to constrain aggregate spending by reducing their own consumption, the subcommittees instead jockey and lobby for larger shares of the already-decided whole pie.
This arrangement has consequences big and small. From a macro point of view, the very existence of the 302(a) pushes the bulk of the labor to restrain spending off of the Appropriations Committee and onto the Budget Committee, both intellectually and functionally. Prior to the existence of the 302(a) allocations, the Appropriations Committee was front in center if federal spending created huge deficits or was otherwise seen as too high. And consequently, the committee was regularly stocked by somewhat more fiscally conservative Representatives and led by fiscally conservative chairmen, who often saw their primary job as oversight, not appropriations. Under the modern system, on the other hand, the Appropriations Committee cannot exceed the 302(a) allocation both chambers of Congress have just approved. And thus the duty to constrain spending falls on the Budget Committee, rather than the Appropriations Committee.
As described above, at the micro-level this has serious consequences for how the subcommittees operate. Imagine you are a subcommittee clerk working with a subcommittee chair. Even if you care about restraining aggregate spending, you can’t really do that. You can certainly restrain your own subcommittees spending, but that shouldn’t be mistaken for restraining aggregate spending. For if you deliver a bill that comes in below your 302(b) allocation, the portion of your allocation that you didn’t use can simply be transferred for use on another bill coming out of another subcommittee. In fact, the Appropriations Committee is authorized to, and routinely does, reserve a portion of the 302(a) allocation to the full committee, which it can then use as needed if unforeseen budgetary situations arise between April and when the bills are finished later in the summer.
This points to another strategic dynamic: it’s not the worst thing in the world to be one of the last bills the committee reports out to the floor, because there’s often a bunch of money left over in the 302(a), either because the full committee’s reserve has not been used, or because spending was cut through amendments on the House floor. That’s right, when floor amendments cut spending, the equivalent spending isn’t taken out of the 302(a) allocation, and therefore it’s quite difficult to constrain aggregate federal spending by using floor amendments to cut an individual bill. Even worse, an amendment could be offered behind you to put the money back in to a different part of the bill.
Both of these concerns are somewhat mitigated by the “spending reduction accounts” created under rule in each bill at the beginning of the 112th Congress, which traps money cut by floor amendment in a functionally-fictitious account within the bill, theoretically blocking attempts to reinstate the money or to transfer it out of the bill. Even this, however, is far from airtight, since it doesn’t actually adjust the 302(a) allocation, and therefore doesn’t preclude use of reduction funds at a future stage, such as during consideration of a conference report. And in the House, the leadership can usually resort to a special rule to block points of order, if necessary, so long as they can get their caucus to support the rule.
In a very tight fiscal climate, of course, none of this really matters. When each appropriations subcommittee is facing the possibility of a net cut in funds relative to the previous fiscal year, there are very few Members or clerks seeking to further reduce funding beyond their 302(b) allocation. And consequently, it truly becomes a question of trying to get as large of a piece as possible from the divided pie. It’s not an exaggeration to say that the 302(b) allocation is the key piece of information that the subcommittee is waiting all Spring to receive. What are they doing in the meantime? Well, mostly working with the agencies under their jurisdiction to understand and conduct oversight of the agency budget requests and justifications, holding related hearings on those requests and justifications, and doing both formal and informal budget drills. But sometimes, eventually, just waiting around for the number.
The budget drills — which are nothing more than producing proposed numbers for your bill and seeing how it adds up — are in some ways key. It’s common for the full committee front office to request that the subcommittees do formal drills at different allocation levels (say, flat, 1% increase over last year, 2%, and 3%), and report back their findings to the front office. Such exercise are both instructive practice and strategic opportunities for the subcommittees, who are of course jockey and lobbying for their 302(b) allocations. They allow the subcommittee staff to see how short they are against competing agency requests and therefore begin to plan priorities, but they also allow them to highlight to the front office how bad a low-end allocation might be for items in their jurisdiction. And so the strategic incentives are often to report budget drill numbers that are the equivalent of agency threats to close the Washington Monument; it’s helpful to spot drill shortfalls in highly visible locations. Double helpful if you are in a zero-sum competitive environment and every other subcommittee has the same incentive.
Now, I’ve barely scratched the surface here. There’s a lot more that can be said. But my bottom line is that observes often overlook how the modern congressional budget process has affected the appropriations process. The reality is that it has fundamentally transformed it, both formally and in the practices and strategies employed by the subcommittee staff and chairs. Not necessarily for better or worse, but definitely for sure. And while there have been lots of changes to the practice of appropriations in the last few decades — most notably the larger role of the leadership in developing the subcommittee bills, the increased use of special rules to block floor amendments to the bills, the increased power of the full committee over the subcommittees, and the proliferation (but eventually shut off) of the earmarking within the bills — it’s my hunch that a lot of the changes are, at root, connected to the existence of the Budget Act and the constraints of the 302(a)-302(b) system.
So I walked over to the Supreme Court this morning, around 11:50am, after day 1 of oral argument ended in HHS vs. Florida, aka Is Obamacare Constitutional?
Every time I see or go near a public political protest, I’m reminded of something my dad — who was no stranger to a good Vietnam anti-war demonstration — used to always say: the only rational reason to go to a street protest is to meet girls. Period.
But, then again, he brought some of his liberal elitist’s narrow mindset to the term rational. Street protest certainly seems not only appropriate, but almost necessary for those shut out of the normal democratic process (i.e. African-Americans denied the right to vote; people under 21 who were being drafted pre-26th amendment; etc.). Not that any of that applies in this case. But as a libertarian, I’m willing to let a thousand flowers bloom; neither the means nor ends of others’ peaceful political activities need be rational in our own eyes. And the very practice of political activity, no matter how irrational or wacky, probably has some significant civil society benefits.
Anyway, here are some photos I took. I have a few thoughts — none addressing the constitutionality or soundness of Obamacare, you have ten thousand better source options than me for that today— below the pictures.
An anti-ACA protester, with Court in background. Hmmm... I do prefer declared wars to undeclared ones.
A news conference and a protest, with the Capitol in the background
This picture shows the crowd. I took it from the steps of the Court plaza
Here are three things I was thinking about as I walked down 1st Street NE:
1. The scene in front of the Court was not particularly memorable. Pretty weak showing by the demonstrators today. Maybe that was because no one cares about the Anti-Injunction Act and everyone is saving their big guns for tomorrow. Maybe it was because this is just another stop on a multi-year protesting circuit around this issue. It certainly wasn’t the weather: a windy but otherwise beautiful March day in Washington, with flowers in bloom and barely a cloud in the sky. By the time I got there, the grassroots protesters were easily outnumbered by the suits and media and, well, people like me, down there to take it all in and gawk. There was very little animosity; I saw a handful of cross-ideological chats going on. No slogans being shouted. Pretty serene, actually. Nothing compared to the major right-to-life protests, which are easily 100 or 500 times as large.
Now, this is not to say that I was disappointed. I think everyone should take a walk by the Supreme Court at least once in their life as a major case is being decided. It’s a very small-r republican feeling. And an instructive one too. The Court building itself is an iconic backdrop; you are directly across the street from the Capitol. The attorneys and interest groups hold dueling news conferences, like trial-lawyers from the movies. Reporters and photographers have massive setups, which serve to remind you that so much of this is staged, and so much of the television coverage scripted. And, most importantly, there’s a sense when you stand among the protesters that you are at the very interface of citizen and government in a republic. Also, markets in everything: if you went there today, you got to see the people being paid to wait in line for entry into tomorrow’s oral arguments.
2. There’s no way around the fact that protesting at the Court is logically awkward. Despite what my father says, I understand the motivations of grassroots demonstrators and protest lobbyist. As I’ve written about before in the congressional context, they believe (probably correctly) that they are influencing policy in some way. But standing outside Capitol South Metro trying to influence staffers is quite different than standing outside the Court, because, well, the Court simply isn’t beholden to public opinion the way legislators are. Now, that’s not to say the Court isn’t influenced by public opinion, just that it’s exceedingly unlikely Anthony Kennedy is looking out his chambers’ window and being shaped by protesters standing on the plaza. If anyone in the government is insulated from public pressure, it’s the Court.
But I think everyone kind of knows this. Even the protesters. And that’s why it’s so odd to go to a protest at the Court plaza: no one there is really trying to influence the Court, at least not directly. The whole game, as with most protests, is to try to influence the national media, who can then file stories that influence public opinion or legislative opinion, or both. Every time I go to a protest at the Court, I always think the protesters are facing the wrong direction: standing there on 1st street, they all have their eyes up on the columns of the courthouse (odd to call it that, isn’t it?), and their backs facing the United States Senate. But try to explain to some intelligent alien what is going on, and his eventual question would almost have to be: why aren’t they standing on the steps of the Senate, or at least looking that direction?
Now, people will claim this is the case with street protests over congressional policy. That the whole point is to influence the media, either to distort public opinion as it is seen by legislators or to change actual public opinion on an issue. That’s true in many cases, but it’s not always true in Washington. The protests and demonstrations at Capitol South metro are there specifically to try to directly influence Congress, without the media middle man. Which sort of reinforces the underlying point: protests at the Court are inherently media events; there’s no other reason to be standing in that particular spot. You aren’t trying for direct influence, and you don’t need to be in Washington. So it strikes me as mostly a coordination game among the protesters or, perhaps more likely, a convenience factor for the press, since they have to be there anyway. I’m not saying it’s not the logical place to conduct the protest. It is.
But even a cursory logical inquiry into it makes you realize the protests are more about the 2012 election that about the court case at hand.
3. The Court protests can’t take advantage of the space. The Supreme Court plaza is really one of the great physical structures for holding a protest. Just a massive flat area at the base of the steps to the Court, all raised up about 10 steps from the street. It’s almost as if they built it with protests in mind. Of course, you can’t really hold your protests on the plaza, because 40 U.S.C. 6135 allows the Court police to keep people off of the plaza. Consequently, all of the protest really takes place on the sidewalk in front of the plaza on 1st Street NE, and the no-man’s land between the 1st street sidewalk and the steps up to the plaza. Functionally, this is understandable. But it really takes what could be an awesome venue and reduces it to squarely mediocre.
We’re closing on our new house tomorrow and then moving in on Friday. So blogging for the rest of the week may be lighter. Or heavier. We’ll see.
Every Twelve Seconds.
That’s the title of the horrifying — but also absolutely wonderful — new political science book by Tim Pachirat.
I went to graduate school with Tim, and I can vividly remember the first time he told me about his dissertation plans. We were standing on Prospect St. in New Haven, next to the bike rack outside of Brewster Hall, killing time in the way that graduate students are so good at on sunny days. I was babbling on about an idea I had to write some ridiculous thesis about anti-party thought in 19th century America. When I finally came up for air, I turned the question to Tim. What grand plans did he have in mind? I will never forget his response:
“I’m going to go work in a slaughterhouse in Nebraska.”
I didn’t even know how to respond. This was a crazy idea. Double crazy for someone allegedly interested in political theory. Triple crazy for a vegetarian allegedly interested in political theory. And quadruple crazy for a vegetarian allegedly interested in political theory who was living in the married student housing ghetto at Yale with a wife and young children.
But sane enough to eventually become one of the best books I’ve read in years. Not best dissertations. Not best academic books. Just best books. Period.
Every Twelve Seconds is about industrial slaughterhouses and what Tim calls the “politics of sight.” The title refers to how often a cow is slaughtered in the factory Tim worked, about 2500 over the course of a day. As he reminds us in the introduction, however, it is not a book about animal rights. It is about violence and society. In Tim’s words, it provides “a firsthand, contemporary account of industrialized slaughter, and does so to provoke reflection on how distance and concealment operate as mechanisms of power in modern society.” But I think that sells the book short. It’s part The Jungle. It’s part Fast Food Nation. It’s part Dominion. It’s part a how-to guide for ethnographic research. And it’s part a golden roadmap for how to write relevant and engaging contemporary political theory.
But mostly, it’s a brilliant narrative that recounts not only the industrial process of turning cattle into packaged meat and the political and social structures of the world in which that occurs, but also what it feels like to be a human cog within that world. A world where men must necessarily come face-to-face with endless violence, at all times. And how, in response, that world must be designed. And so while the language of the slaughterhouse requires the cattle to be only known as “beef” during the endless march up the chute to the knocking gun and the killing floor, the men who perform these tasks — mostly poor, most unskilled, mostly immigrants, all working at-will for meager wages and in constant fear of being fired — must also come to be seen as just raw materials by their supervisors, with job titles like Tongue Trimmer or Tail Harvester or Spinal Cord Remover.
The narrative leaves nothing to the imagination, either technical or emotional. From the 19th-century-like imagery of standing around the factory gates in hopes of being selected for a job to the visceral experience of spending a 10-hour day doing nothing but ripping still-warm cow livers off of conveyor-belted hooks to the numbing bureaucratic cops-and-robbers game that the quality-control team plays against the USDA-inspectors on a minute-by-minute basis over clean knives and hand-washing and the trimming of feces off meat in the cooler, you don’t just read about the world of slaughter, but you actually experience it. And that includes the evolution of your own thought: as with the author, you are initially horrified by the sights, sounds, and smells of the slaughterhouse when confronted with the reality that is hidden in plain sight at the grocery store. This is where our steaks come from? But through the course of the book, the reader develops much of the desensitization that the slaughterhouse worker uses as a coping mechanism. Your revulsion toward the killing floor eerily dissipates as you move through the book.
Outside of the narrative, two analytical highlights of the book stand out. The first is the maps of the slaughterhouse, and the woven-in micro-description of the geographic slaughter process. So well protected are slaughterhouses by walls and state regulations, that it is difficult to get good information on even how they are actually organized. Tim recreates visual floorplans of the entire factory, with detailed information on where each worker stands, every USDA inspector patrols, and the jobs that occur second-by-second as the beef moves through the slaughterhouse. This brings to life various aspects of the narrative: for instance, the sheer duality of the operation, which is simultaneously a well-thought out and masterfully-executed engineering marvel of assembly-line efficiency, while also a disgustingly and surprisingly medieval operation: there is blood everywhere, the temperature is absurdly hot on the kill side and absurdly cold on in the cooler, the weapon of choice is the knife, and workers joke around by throwing animal fat at each other.
The second highlight of the book is the chapter on the bureaucratic oversight of the USDA. Much to my surprise, it turns out that a slaughterhouse has numerous USDA officials working full-time to monitor the production. One might think that this results in a high quality of meat (which it undoubtedly does relative to, say, 19th century industrialized slaughter), but the implication of Tim’s experience is that regulatory structure has become so routinized as to cease to be external to the process; instead, the regulations — or, more precisely, the skirting of the regulations — are the process. And so a cat-and-mouse game ensues between the quality control team of the factory and the full-time USDA inspectors, with the incentives offered to each of them veering so far from their underlying goals (profit and safe meat, respectively) that they appear to exist in an alternative world, where their jobs cease to reflect food production but strangely appear to symbiotically rely on each other’s existence. Not exactly a sideshow to the operation, but not not a sideshow, either.
There are those who may shy away from this book because it engages political theory. That would be a mistake. I hate contemporary political theory. I could no more finish a book by Foucault than I could write one. But this book neither drifts into that world nor relies on it, and the occasional forays that direction are not only tolerable but (surprisingly) very enjoyable. It all comes back to the human narrative, and the meticulous technical and emotional detail brought to it. You will never read a political science dissertation quite like this, because I don’t think one has ever been written. As Tim writes in his introduction, “the detailed accounts that follow are not merely incidental to or illustrative of a more theoretical argument about how distance and concealment operate as mechanisms of power in contemporary society. They are the argument.”
And a masterful argument at that. You will probably attempt to blind yourself to this book. It is much easier not to read it. But that, in itself, is kind of the point. As a meat consumer, it is debatable as to whether you are responsible for what goes on in the slaughterhouse, in reference to the animals or to the humans. And it is also debatable whether or not what goes on there is morally sound in a civilized liberal democracy. But anytime you seek to shield yourself from information because the very knowing of the facts might make you uncomfortable, well, that’s a strong sign that you are afraid of what your moral sense might find.
I’m somewhat hesitant to write about the ACA (aka: the health care law, Obamacare, etc.), because: (1) it’s not something I know a whole lot about at the political level; (2) it’s something I know absolutely nothing about at the policy-details level; (3) it’s not a policy I feel very strongly about one way or another; (4) discussions of it very quickly drift into partisan and ideological fights; and (5) there’s a serious possibility of not saying anything new and/or interesting. So not an exacta, not a trifecta, not even a superfecta, but the rare quint-fecta of dangerous commentary waters!
This could get ugly. But let’s get it on.
I’m much more interested in the constitutionality of the ACA than I am in the actual policy. And not because I care all that much about the constitutionality of the ACA per se; what I’m interested in is the effect that it will have on the future of congressional/federal power, as well as how it will fit into our understanding of the post-Lopez walkback from the psuedo-plenary commerce clause power of Congress that was more or less presumed at a practical level by the late 20th century.
Via a post by Jonathan Cohn this morning, comes Richard Primus’s theory that the Lopez decision will give the Supreme Court the room to declare the individual mandate constitutional:
As part of their socialization into the world of American constitutional law, lawyers learn the maxim that the federal government is one of limited and enumerated powers … [c]onstitutional law has tolerated tremendous expansions of federal power in practice, as the logic of modern life has directed. But it has proved easier to tolerate those expansions while continuing to pay homage to the maxim than to repudiate the maxim openly. A piece of our identity is invested in the maxim: articulating it reminds us of a part of who we are, or of a story in which we locate ourselves … Lopez was decided as it was partly because a majority of the Court felt that it could not uphold the Gun-Free School Zones Act and still utter the maxim. At oral argument in the case, the Solicitor General of the United States was asked to identify a law that the federal government could not make if the statute at issue were upheld. He could not provide an example.
…
That said, the maxim does not demand that the Supreme Court constantly strike down federal laws. It demands only evidence that it is taken seriously. Lopez and Morrison insulate the Court against charges of heresy on the point-not perfectly, but considerably more than would be the case had those decisions not been rendered. In later cases, the Court can uphold far-reaching exercises of the commerce power without laying itself as open to the claim that it has let the maxim come to nothing. When it upholds other federal statutes, the Court can identify concrete examples of laws that are beyond the commerce power, laws with respect to which it has exercised its solemn duty to police the boundaries of federal legislative power.So when it upholds other laws as within the commerce power, it can adduce evidence that it has not left the maxim empty.
This, to me, is a very-well stated description of what is actually on trial next week, and I think it is the crux of the issue with the ACA. It is fundamentally not a question of whether the individual mandate itself can be defended as Constitutional. Oh, there’s lots of debate on that, for sure. But the real issue has always been the one raised by Primus: if the commerce clause allows Congress to legislative the individual mandate, is there a hypothetical congressional Act that we can imagine that would not be constitutional? If there is not such a hypothetical law, must we then either accept that Congress does indeed possess plenary power and that the widely-held maxim of limited and enumerated powers is indeed dead and gone, or, if do not, then must we unwind the logic and accept that the individual mandate is not constitutional.
This is worth pondering, because from my point of view, at the heart of the debate over the individual mandate are two competing views of the Constitution, both of which can plausibly claim the mantle of “common sense.” The first point of view is the historical one: the text of the Constitution plainly limits the power of the federal government, and to read the document and decide otherwise is more or less absurd. To reject this premise out of hand is to willfully blind one’s self to even the most cursory analysis of the document. The competing point of view, of course, is the developmental one: over the course of 200+ years, the give and take of politics and court jurisprudence has unintentionally handed us what is more or less a common-law Constitution under which it is plainly recognized that the federal legislature is restrained only by specific textually prohibitions, and the will of the voters. Any other reading is absurd.
Now, the crazy part is not that these two competing views exist; the crazy part is that many people — including me — are instinctively drawn to both of them. This comes back to the common sense test. I’m not a huge fan of the ACA (based on what I know of it, which, again, is pretty chattering-class pedestrian), but I don’t find it the least bit unreasonable that the federal government would be allowed to regulate it. On the other hand, I don’t think the “broccoli test” — lampooned by many liberals as an absurd hypothetical — can be dismissed in one short stroke; I do not believe in a national legislature that has the ability to regulate all aspects of my private life down to what cereal I eat, held in check only by the will of the transient (super)majority. And I think that’s common sense, too.
And look, I’m not saying common sense is everything when it comes to SCOTUS decisions. But I think it matters. It matters to the justices — as the famous question asked of the government in Lopez indicates — and more importantly, I think it matters to the popular legitimacy of an upheld law. While the Court has never shied away from a decision simply because they went against common sense, many of the most popularly-detested decisions were hated precisely because they went against common sense. Dred being at the top of the list; it was just not a plausible understanding of America to implicitly or explicitly assert that the natural condition of all the territory in the United States was slavery, up until a state specifically prohibited it. Seventy years of common sense has said the opposite was true.
And so, to me, the chief job of the government next week at oral argument is going to be to find a way to square these two realms of common sense, that Congress can impose and enforce individual mandates on citizens to participate in private economic activity, but that there still exists a limitation on congressional power such that laws may be articulated that Congress cannot legally enact. To say that Congress never would enact such laws is not good enough. As with Lopez, I think the Court will not look fondly upon a government that meekly concedes no limitation on Congress. The alternative option, of course, is to proudly defend the plenary power of the national legislature under the commerce caluse. High risk, and incredibly unlikely. For no matter how much that has become the normative view of mainstream progressive thought, it woefully ignores the positive implications for the current Court.
Now, Primus and Cohn present a clever idea that threads the needle here and satisfies the common sense concerns. When Justice Scalia asks the government to identify a law that the federal government could not make if the individual mandate were upheld, the government will simply respond, “Lopez.” That is, even under the theory that the individual mandate is constitutional, the original 1990 Gun Free School Act would still be unconstitutional. And voila!, problem solved: we can uphold the individual mandate and continue to live in a world where the powers are Congress are, at some level, still not plenary. Not only will this be true at a factual level — Lopez, and the congressional limtis therein, will still be the law of the land — but more importantly, at a cognitive level. So long as the solicitor general can easily point out, and the Justices and the chattering class can easily take in, that there are still places Congress cannot go, we can all continue to sleep on the idea of an enumerated, limited federal government.
This is an interesting and important argument. But I’m not sure that it holds. It rests on the assumption that the Lopez decision will not be implicitly overruled by an upholding of the individual mandate. That’s certainly possible: the distinction at hand — and that was further articulated in Raich v. Gonzalez — is that the Gun Free Schools Act simply had no connection to interstate commerce. Trying to link gun possession at schools to hypothetical increases in violence and then to hypothetical increases in insurance rates and thus the economy — as was one of the government’s principle arguments — was just a bridge too far. Fair enough. But read that last sentence again: in Lopez, the government specifically linked gun possession to insurance costs. I don’t know if that sends chills down your spine, but it sure as hell should get you sitting up in your seat.
Because the very argument made in favor of the mandate now is that Congress has the power to regulate the health insurance market, and the individual mandate is legitimate simply as a “necessary and proper” non-commerce means to an end that can plainly be regulated under the commerce clause. It’s a clean, straightforward argument. It’s the one Primus makes, and I think it’s the winning argument for the first half of the challenge facing the government. But it’s also potentially the fatal flaw in regard to the common sense problem. To wit: if the individual mandate is necessary and proper to the regulation of the health insurance market, what then stands in they way of the government barring possession of guns at schools as a means to regulate that same insurance market? Because while the Gun Free Schools Act didn’t pass the commerce clause test on its own, as a non-commerical component of a broad scheme regulating health insurance, it seems to fall directly into a Raich-esque sphere of legitimacy. At least plausibly.
In effect, it does not strike me as at all unrealistic to think that the upholding of the individual mandate is logically the death knell of Lopez. That is, if we are to accept the individual mandate, we are probably going to have to accept the dissenting view in Lopez, or something quite similar to it. And if Lopez comes crumbling down, all of a sudden the solicitor general may once again be standing in front of the Court, trying but failing to articulate a limit on congressional power. Of course, I’m no lawyer, much less any sort of commerce clause legal expert. And sure, it’s a bit gimmicky to note that the government’s defense in Lopez articulated an insurance theory as the connection between gun possession and the economy. But that doesn’t make it any less real.
There are excellent policy arguments in favor of Congress regulating and providing for health insurance. And, as I have stated, it’s almost common sense that Congress should have the power to regulate and provide for health insurance more or less as they see fit. But as of yet, I have not seen an answer to the key meta-question at hand, which is “If we uphold this statute, what can Congress not do?” My guess is that a convincing response will be forthcoming if the law is upheld, since I can only assume that the Justices will not be able to uphold the law without articulating one. But I have not heard it yet. And I do not think that Lopez gets you there.
Last week, in response to Pascal-Emmanuel Gobry’s suggestion that we increase Members’ staff and office budgets, I wrote a primer on how the Member’s Representational Allowance works in the House. Today, my goal is to offer the companion primer, on how committee funding works in the House. I’ll do it Q&A style, since it’s a bit complicated. (As with the MRA, I will focus on the House; the Senate process is slightly different, but operates on the same principles.) For background, you might want to start with my post on the basic staffing structure in the legislative branch if you are totally unfamiliar with the terrain.
Q. How do House committees get money to pay for staff?
A. More or less the same way as Members do in their personal office: appropriations made under law in the Legislative Branch Appropriations, paired with authorizations that provide spending limits.
Q. So the Committee on House Administration Committee sets the spending limits?
A. Not exactly. They have jurisdiction over the policy area, but under Rule X, clause 6 of the Rules of the House of Representatives, the House Administration Committee reports a “primary expense resolution” to the floor that authorizes the expenses for each standing and select committee in the House (except for Appropriations). The resolution is then passed (or not) by the chamber on the floor. For instance, in the 112th Congress, the House Administration Committee report H.Res.147 to the floor, which was agreed to on March 17, 2011. Under Rule X, they are also required to submit a committee report (in this case, H.Rpt. 112-130) detailing the total funding and other information.
Q. Why doesn’t the Appropriations Committee get an authorization?
A. Under the 1946 Legislative Reorganization Act, the House Appropriations Committee is authorized to appropriate its own funds, separate from the funds for the other standing committees. So while the rest of the standing committees draw their funding from a single Treasury account (and therefore need individual limits on how much they can draw), the appropriations committee has its own Treasury account. From a practical politics point of view, it’s a reminder of the power of the Appropriations Committee; they need not submit to a funding process that puts their own funding in someone else’s control.
Q. Wait, the individual committees don’t have their own Treasury accounts?
A. Nope. And this is one of the most common misconceptions about how funding works in the Legislative Branch. Just as individual Members do not have separate Treasury account for their MRAs, neither do the standings committees. Instead, the appropriation for House committees is in two pieces in the Legislative Branch Act — one lump of money for all the committees except Appropriations, and a separate account for Appropriations. This is part of the reason that the House Administration Committee needs to report, and the House needs to agree to, authorized limits each committee; everyone is pulling their money out of the same general account.
Q. How much is appropriated?
A. In FY2012, just under $126 million for all the committees except for Appropriations, and $26.6 million for the Appropriations Committee.
Q. Wait, the appropriation is for a fiscal year? I thought you said the authorization was agreed to in March?
A. It was. There are two totally different timelines here. The funding for the committees is appropriated — as like most federal appropriations — annually on the October 1 – September 30 calendar. The authorizations, however, are for calendar years (actually session-years, January 3 to January 2).
Q. I don’t get it?
A. Don’t worry, it’s confusing. Think of it this way: there’s a big garbage full of money. Every year we have to refill it with more money, because on October 1st, we can no longer use the money that’s in there. So we agree on how much to refill it with on October 1. Meanwhile, we want to let 20 different people take money out of the bag when they need it. So we set a limit for how much each of them can take out in any given year. That the limit we put on them runs on a different calendar than the the scheduled refilling of the bag doesn’t actually matter, so long as we keep refilling the bag and makes sure the limits we set for the 20 people don’t exceed the amount in the bag. That those people end up taking out money from two different fiscal years on one limit doesn’t make a difference. It’s the same bag.
Q. Why don’t we just authorize limits for fiscal years?
A. Because then the 2nd year’s authorizations in any Congress would run through the following Congress’s first session. And that’s not efficient because if there’s a change in power, there might be a desire for a substantial change in the allocation of funding across committees. It makes the most sense to authorize committee funds for each session, because that way, you know the priorities of the majority and they are (relatively) stable.
Q. But you said they do this in March?
A. Yup. The trade-off for having the authorizations not run across two different Congresses is that you can’t get the authorizations done for the first session prior to that session getting underway. It takes some time for the committees to develop their budgets, for the House Administration Committee to sort out how much money it has and where it should go, and for the primary expense resolution to be agreed to on the House floor.
Q. So how do committees pay for anything between January 3 and March?
A.Remember, it’s not an issue of the money not being appropriated. That runs on a fiscal year basis, so the bag is full of useable funds. The issue is that there’s no authorization at the outset of a Congress. So House Rules X, clause 7 provides for interim funding authorizations: the committees can spend up to 9 percent of their total 2-year authorization from the previous Congress. Any spending is then charged against their eventual 1st session authorization after the primary expense resolution is agreed to.
Q. Today is March 19. I follow congressional news. Why am I not hearing about this right now?
A. Because the contemporary process is for the primary expense resolution to be biennial, meaning that in March of the 1st session of a Congress, committee funding authorizations are provided for both the 1st and 2nd session of the Congress. Each committee is given a total authorization, as well as sub-authorizations for each session.
Q. Do they ever adjust the numbers later on within a Congress?
A. Sure. They did this year. H.Res. 496 reduced 2nd session funding for all standing committees (aside from House Appropriations).
Q. What’s the formula for determining how much each committee gets?
A. Unlike the MRA, there’s no neutral formula for determining committee funding. Instead, each committee develops its own budget request, which it submits to House Administration. Often, these requests are formalized into legislative resolution that are introduced in the House (see, for example, H.Res.107, which is the funding request for the Education Committee in the 112th Congress). House Administration then holds hearings prior to developing the primary expense resolution. Typically at these hearing, the chair and ranking member of each committee testify as to their budget request.
Q. Wait, Members of Congress testify at the hearing of another committee?
A. Yup. It’s one of the few places where that happens routinely (the other is, of course, at the Rules Committee when Members must testify on behalf of amendments they would like included in a special rule).
Q. What determines how much each committee gets?
A. At one level, it’s just politics. There’s a certain amount of money, each committee tries to justify how much they need within the context of how much is available via the appropriation. Lots of things come into play: the priorities of the House Administration Committee, the priorities of the majority leadership, the priorities of the majority caucus, the priorities of the chamber, the input of the appropriators, and so forth. There’s a certain level of professionalization to it as well — it would be very unusual to see, say, half the committees get a 20% increase over last year and half of them get a 20% decrease. The point being that’s there’s a certain amount of distributional comity. Nevertheless, the priorities of the majority party certainly matter. If some committees are clearly going to be busy, they will usually see more funding.
Q. What do committees spend the money on?
A. Mostly staff. As with the MRA, the funding for committees pays for more or less all expenses: staff, consulting services, office expenses, and travel. Unlike Members, or course, the committees do not have district offices and typically do not send very much franked mail.
Q. Who decides on how to spend committee funds?
A. Technically, the chairman has total control over the budget. Under the House Rules, committee funds are spent on vouchers signed by the chairman.
Q. Does the minority get any funds?
A. Yes. Well, sort of. There is a long-standing debate in the House over how the staff and resource funding should be divided for the committees. Currently, the Committee on House Administration promotes the idea that the minority should get 1/3 of the funding, and they look fondly upon committees that present that as their arrangement in the funding hearings. There is relatively widespread consensus that this should be the policy for staff funding, and it is something of a weak norm. (It should be noted, however, that the Chairmen still control and are still responsible for the entire budget). So most committees follow that norm. There are, however, occasional squabbles over whether non-staff resources should also be divided 2/3 and 1/3. Many, if not most, committees now follow the 2/3 and 1/3 distribution for all committee funds.
Q. So how many staffers work for the committees?
A. About 1500 right now. That’s down from from a high of about 2200 in the early 90′s. Below is a chart of House leadership and House Committee staffing levels, from 1982 to 2010, scaled on separate axes. The dotted line is committee staff. Note the large drop in 1995, when committee staff was cut across the board by 1/3. During this time period, committee staff decreased roughly 18%. Over the same period, Member personal staff increased by 6%, and core leadership staff increased by 233%.
Q. What do the staffers do?
A. Well, whatever the committee wants them to do. Mostly that falls into the nebulous world of policy analysis, policy creation, and policy oversight: evaluating existing laws and bills to change them, developing original legislation to change law, and conducting oversight of existing policy, usually in response to the priorities of the full committee and sub-committee chairmen.
Q. Yeah, but what do the staffers actually do?
A. Mostly four things. First, listening and negotiating with the stakeholders and policymakers who are seeking to alter current law. This can be everything from the chairman (often) to other Members (both on the committee and off), to stakeholders both inside and outside the government, public and private. Second, preparing legislative proposals in response to the concerns of these stakeholders, by actually drafting potential language. Third, preparing hearings and committee markups on the legislation, which runs the complete range from choosing witnesses and preparing questions, all the way down to physically assembling briefing books for the Members. Fourth, conducting oversight of existing policy, which can range from phone calls to stakeholders to oversight hearings of executive branch officials.
Q. Are committee staff paid similarly to Member offices staff?
A. Broadly speaking, yes. Committees have staff assistants who make very little money and they have senior professional staffers who often make the maximum committee staff salary under the Speaker’s Pay Order, which outlines several tiers of maximum pay for various number of individuals, all tiers being in the $160-170k range. It’s hard to generalize, but the committee system tends to have, on average, better paid staff, typically because they come to the job with more experience or education, and tend to stay in the job longer, in comparison to Member office staff.
Q. Do we need more committee staffers?
A. Completely depends on who you ask. And ultimately, like the MRA, it depends on your axiomatic values. There are really three concerns. First, are more or less committee staffers optimal on an absolute level? That is, would a different number of committee staff help offset the reliance of Members on information sources like lobbyists. Second, are more or less committee staffers optimal on a relative level, either in reference to the executive branch or in reference to other legislative branch entities, such as the leadership or the Member personal offices. Like lobbyists, both the President and the leadership can use their vast resources to produce and disseminate information as a political weapon. Whether you believe a better balance needs to exist will largely inform your opinion about committee staffing.
Of course, staffing also needs to be properly matched to authority. If you don’t believe in a strong committee system — that is, if you would prefer a greater centralization of policy-making power in the House — then it hardly would make sense to want to increase committee staff. And vice-versa. There’s some evidence that the committee system simply isn’t being used for the same purposes as it was a generation ago; the overall number of hearings and markups is down, and a higher percentage of major policy seems to be coming directly from the leaderhsip. That’s neither inherently good or bad, but it does, again, inform the question of committee staff. There’s not a lot of reason to beef up a congressional sub-institution with resources, if it’s formal and informal authority is purposefully being waned.\
Q. Aside from the separate funding stream, is the Appropriations Committee different?
A. Very much so. One really important difference is that there’s no flurry of bills coming at the Appropriations Committee, and very few surprises in their agenda. On a typical committee, you never really know what is coming next; not only do current events play a role in the agenda, but the legislative priorities of various Members and the leadership also dictate things. On Appropriations, each subcommittee more or less has one bill that they deal with every year, and they more or less know what is in it and what the calendar looks like for consideration of it. Yes, there are supplementals and other non-routine items, but the basic budget calendar (budget justification hearings starting in late winter; bill and report production in the Spring; markup in the late Spring; floor consideration in the summer; and oversight year-round) makes for a rhythm that is more regular than other committees.
Previous “Q&A” style posts
March 16, 2012 — Increase the MRA in the House?
March 5, 2012 — Democratic Appropriations Subcommittee Assignment in the House.
March 2, 2012 — Filling the tree in the Senate.
December 15, 2011 — Rule Layover Waivers in the House.
December 5, 2011 — How a bill becomes a law. Literally.
November 29, 2011 — The other caucuses. The ones in Congress.
Under many plausible scenarios for American politics circa 2013, the sequestration provided for in the Budget Control Act will not come to pass, nor will the required cuts. That’s just sort of how things work, and you can kinda see it coming in the way people are talking. For example, this.
BREAKING: It’s really hard to pass and implement policies with long-term benefits but short-term costs.
I’m not a fan of people who talk about how America’s fiscal problems are a “failure of the political class.” You hear this all the time among the pundit class, David Brooks writes some variation of it every other week in the back of the New York Times, and half of the Washington journalistic corp not only buys into the idea, but all of them seem to think they invented the concept because they were the last ones to write about it. It’s complete nonsense. Whatever shortcomings you might ascribe to American democracy, that the Members of Congress are ignoring a massive pubic outcry is not one of them. As if somehow the problem is that all the people want nice balanced budgets and a reduced public debt, it’s just that the politicians won’t deliver it to them. Please.
The real problem is that fiscal policy in an indebted democracy resides on a J-Cuvre. Which is nothing more than to say that the only way to achieve long-term positive results is to incur short-term negative pain. Thus the “J” in the curve. It’s just another way of explaining one of the fundamental problems democratic systems face: they are not good at long-term planning. But it’s particularly problematic when the long-term planning requires short-term pain. In many ways, the J-Cuvre is just a longitudinal collective action problem (long-term good vs. short-term good), as opposed to the cross-sectional version (common good vs. individual good) that one might be more familiar with. It’s not crazy to say that these two problems are the heart of the institutional dilemma for any democracy.
The classic example is moving the former Soviet bloc economies in eastern Europe to capitalism. There was no doubt that capitalistic economics would produce much better long-term growth, but the only way to get there was to set the markets free, which caused all shorts of short-term pain at the bottom of the curve. Which led many voters to reject the ruling parties and reverse the liberalization. That’s a problem. In Washington (and other stable democracies) it translates to the classic political axiom: don’t produce policies that have short-term costs and long-term benefits. In fact, tend to do the opposite. So there you go.
But back to America’s political class. You constantly hear people bemoan the state of affairs that “no one in Washington will talk about raising taxes” or “no one in Washington will talk about cutting entitlements.” This is partly true, but it’s not for the reason people think, some “failure” of the political class. It is because to talk about those things, in many cases, is to not find yourself in Washington the following Congress. It’s basic natural selection. And it’s roots are with the voters, not the politicians. No one calls tax cuts without spending cuts a “failure of the political class,” and no one calls new unfunded entitlements a “failure of the political class.” More often we celebrate those things. But somehow their sum becomes a failure of the political class. In reality, it’s all just the political class reflecting the (short-term) interests of their constituencies.
The trick, of course, in any J-curve situation is to find a way to get past the bottom of the curve without the democratic electorate either (a) punishing the long-term looking politicians and/or (b) electing new politicians to reverse the policies and/or (c) both. You need to both convince the existing political class that they will not be punished, and then have it actually turn out that they are not punished. This, as you might surmise, is why autocratic states do not face significant J-curve problems the way democracies do; when there is no mechanism for reversing short-term public pain, it’s quite simple to ride out the curve until you get to the high side. You just do it.
In democracies, its’s a lot trickier. Some clever mechanism have been produced in the past: establishment of things like the federal reserve to set interest rates in an environment insulated from popular election and public sentiment; placing implementation of decisions in the hands of elected officials with longer time-horizions (like the President) or no time horizon (think Supreme Court settlement of the territorial question in the 1850′s or the segregation question in the 1950′s). But for most economic issues, Congress just has to deal with it. And it’s very, very hard to deal with an economic J-Curve when you have a 2-year term.
And this often leads to attempts by Congress to bind itself to a long-term policy, or more precisely, to bind a future Congress to a current policy. Everyone knows that’s really tough, and we all have a basic answer for why: a future Congress will just undo it. But that answer sort of begs the question. Why is it tough? And that’s what really interests me: the micro-level reasons that this is so difficult for a legislature. I see five dimensions to this:
1. Legislatures can only make one type of law. This consistently bedevils legislators and staffers who would like to constrain future statutory action via … statute! But it simply can’t be done; any law that attempt to constrain what a future law can do is immediately rendered moot by any future law. You can constrain a lot of governmental actions with federal law, just not future federal laws. A classic example of this is the Commemorative Works Act, which requires that memorials in certain parts of DC be authorized by law (fine; that prevents non-statutes from authorizing the memorials), but then goes on to circumscribe what Congress can or cannot authorize in those laws. Useless!
For example, the law says, “A commemorative work solely commemorating a limited military engagement or a unit of an armed force may not be authorized.” But Congress can, and does, simply bypass such requirements by authorizing whatever the heck they want when they decide to authorize a new memorial. And lest you think this is only a problem for trivial issues, remember that it caught the Founders flat-footed; after they left the Northwest Ordinance out of the Constitution, they were forced to pass it as federal law in the first Congress. Subsequently, Congress routinely ignored it when organizing, dividing, and admitting new territories as states in the union. There are no “super-laws.” Next time you find yourself suggesting one — this will happen to you sooner than you think — remember that they are worthless. Period.
2. If statutory binds don’t work, you have resort to either macro or micro restraints. Given that you can’t use federal law to structure constraints on future federal laws, what can you do? Well, there are basically two options: bind from the top or bind from the bottom. Either constitutional amendment or procedural barricade in the chambers, particularly the Senate. Both of these solutions are plausibly great. A constitutional amendment adjusting the powers of Congress as a legislature will certainly accomplish your goal. And a procedural blockade in the House or Senate that prevents certain types of federal laws from getting out of the chamber is theoretically equally effective. Unfortunately, both strategies have drawbacks.
3. The macro-restraint of a Constitutional amendment just isn’t practical. It’s not for lack of trying that the Constitutional amendment route doesn’t work. Despite being the most popular proposed constitutional amendment of the last few decades, the Balanced Budget Amendment stills seems to be on the express train to nowhere-ville. Even if you set aside the many substantive concerns people have about the BBA, the process itself of producing a BBA is just a nightmare. Congress can’t do it on its own. The portion Congress can do takes a massive supermajority. And it just takes a long time even when you are successful. The latter issue is a massive problem for the BBA: supports grows for it periodically when there is a recession or an explosion of spending, but that immediate cause ceases to be a factor long before the BBA can get off the ground. And then interest has been lost. And the BBA just doesn’t seem like the type of amendment that could be passed in 100 days, 26th-amendment style.
4. And the micro restraints of procedural hurdles are often too far in the weeds. In theory, procedural restrains on the production of laws is a great solution. In the Senate, it’s (relatively) easy. You amend the rules (either the traditional way or via statutory rulemaking) creating a point of order on the floor against any legislation that you want to proscribe. Then individual Senators can block potential laws even if they have supermajority popular support in the chamber. This is more or less how non-statutory PAYGO is enforced in the Senate. In the House it’s a bit tougher, because the majority can write special rules that circumvent your point of order, but in theory you could at least make it a procedural pain in the ass to get around such a point of order (by specifying that the Rules Committee doesn’t have the power to introduce a privileged resolution that kills the point of order, the same way that the motion to recommit is protected), and it could be held together by a norm.
The problem with all of these types of procedural blockades is twofold: first, they are low on the public visibility/understanding scale. If future Members of Congress seek to reverse them, it’s so far in the weeds that it may not raise the public ire enough to dissuade such reversals. But more importantly, procedural points of order are passive restraints on congressional action; they only are enforced if someone demands they be enforced. So just as a quorum is assumed to be in the chamber unless someone suggests it is not, regardless of whether there are only a handful of Members present, so too with points of order. And that has a huge consequences: Members can bypass the points of order without a trace of evidence. There’s no record of something not being enforced on the House or Senate floor; you are looking for an absence of evidence. So not only is it not public that the point of order has been effectively rendered moot, but no individual Member is on the hook for not enforcing it.
5. Consequently, the “best” solution requires reducing legislative power. And so the most common way to bind legislative action is to remove the power altogether, and hand it to the executive branch. This is easy: write a positive law authorizing someone else to take control of a policy, preferably someone more insulated from democratic electoral politics, like the President, or an agency head, or the federal reserve. But this strategy comes with two problems. First, Members don’t love giving up power to the executive branch. And, more importantly, when Members do give up power to the executive branch, that’s an inherent loss of power for the legislature. But you already know how I feel about that.
Pivoting off Ezra Klein’s review of two new books about lobbying and Congress, Pascal-Emmanuel Gobry suggests that the way to combat the legislature subsidy of lobbying is to pay congressional staff higher salaries:
What if every member of Congress had a, say, $20 million staff-and-research budget? What if a congressional chief of staff made $1 million per year, and what if each congressman had an army of staffers to research policy and draft bills, as opposed to a skeleton staff? The legislative subsidy would just become irrelevant. Or at least, congresspeople would be on equal footing vis-à-vis well-funded lobbyists. And the cost would be a drop in the bucket compared to the federal budget — and even less compared to the social and economic cost of carveouts and tax breaks.
This raises two immediate questions:
I’ve written a bit before about the basic staffing structure in the legislative branch, so check that out if you need the lay of the land. Here I’m going to answer the two questions above. I’ll do it Q&A style, since it’s a bit complicated. I will focus on the House; the Senate is slightly different, but operates on the same principles.
Q. How do Representatives get the money to pay for staff?
A. Under law, the Member’s Representational Allowance (MRA) — a lump-sum of money that Members can spend as they see fit — is authorized and regulated by the House Committee on House Administration, as well as by law and chamber rules.
Q. How much money is in each Member’s MRA?
A. It varies. The formula for calculating an individual Member’s MRA is a lump-sum that everyone gets, plus a variable amount based on three variables: how far the Member’s district is from Washington (to scale travel costs), the cost of living in the Member’s district (to scale district-office rental costs), and the number of non-business postal addresses in the Member’s district (to scale constituent mail costs). If you would like to see the actual formula, you can find it on page 2371 of the current Statement of Disbursements of the House. That document also provides the total amount given to each Member, as well as the itemized breakdown of all expenditures by each Member in the previous quarter.
Q. So…how much money does each Member get?
A. For calendar year 2010 (technically session-year, which runs from January 3 to January 2), the median amount was about $1.5 million. At the start of the 112th Congress, H.Res.22 reduced the authorized amount by 5% for 2011 and 2012 as part of a general reduction in expense funding for House leadership, committees, and Members. So while I haven’t run the numbers for this year, it’s about in the $1.4 million range.
Q. What can the MRA be spent on?
A. In general, four categories of expenses: staff, travel, office expenses, and mail. The general guidelines is that the MRA can only be spent on official representational business. If you want the full details, check out the Members’ handbook issued by the Committee on House Administration.
Q. What proportion do Members typically spend in each category?
A. Mostly staff. Typically, you’ll see about 65-70% of the MRA spent on Washington and district staff. (Representatives are limited to 18 full-time and 4 part-time staff or interns). After that, it varies: some Members send a lot of mail to their constituents, others travel back to their district a lot. A number of studies have examined the publicly-available data if you would like precise numbers. Here’s a recent one. And on average, about 10% of the MRA goes unspent.
Q. Unspent? I thought Representatives were underfunded and staff underpaid?
A. They may well be, but there are two issues. The first is basic accounting: Members can’t borrow money against the next session or the next Congress if they run out of their MRA, so they have to budget in a buffer. More importantly, however, there is a strong downward democratic pressure on Members to be thrifty. Constituents do not like seeing Members spend money unnecessarily, and one way to look penny-wise is to not use all the money given to you.
Q. How much do the staffers make?
A. Again, it varies. Entry level staff assistants may make less than $30k annually. The maximum staff salary in the House under the 2009 Speaker’s Pay Order is $168,411 annually. The 2010 House Compensation Study provides a good survey of different salaries for different positions in a Member’s office. For a primer on who’s who in the Member’s office, see my old post.
Q. Maximum salary? I thought Member’s could spend the MRA as they see fit?
A. Not exactly. In addition to the regulations issued by House Administration, there are other guidelines under statute and regulation. Most of them are common sense or common ethics rules: restrictions on hiring your relatives, requirements that people you pay actually do work commensurate with the pay, and so forth. Under law, the Speaker is also authorized to issue guidelines setting maximum salaries for various positions.
Q. But wait, how can all this money be spent without an appropriation? I thought the Constitution required that?
A. It does. And there is. The money authorized for the MRA by the Committee on House Administration is just that, an authorization. The actual funding is appropriated in the annual Legislative Branch Appropriations Act.
Q. How much is appropriated for the MRA?
A. In FY2012, it was $573.9 million, in P.L. 112-74, the FY12 Consolidated Appropriations Act.
Q. And that covers all staff and resource expenses?
A. For Representatives’ personal offices, yes (well, mostly; see below). But that figure doesn’t include committee funding, leadership funding, or funding for administrative support offices (such as the Clerk’s Office). Nor does it include any of the funding for the Senate staff (personal or otherwise), or any of the other offices of the legislative branch (such as CBO, the Library of Congress, CRS, Capitol Police, etc.). The entire Legislative Branch Appropriations Act is about $4.3 billion annually, which sounds like a lot, until you remember that total federal outlays are about 1000 times that.
Q. So the total cost of maintaining Representatives’ personal offices is about half a billion?
A. It’s a little more than that, actually. Because that total MRA appropriation doesn’t include the government’s portion of the contributions to employee pensions and benefits. Those are appropriated separately in the Legislative Branch bill. There are also other expenses — such as the maintenance and upkeep of the physical offices in Washington — that are picked up in appropriations to other Legislative branch entities, such as the Architect of the Capitol. And it also doesn’t include the salaries of the actual Members, which runs about $76 million total (441 Members and Delegates X $174,000 annual salary + a bit more for leaders), or the government side of their pension and benefit contributions.
Q. So are staff underpaid?
A. That’s an open question. Many staffers certainly think they are. And the House Appropriations Subcommittee on the Legislative Branch has regularly worried in committee reports accompanying the Legislative Branch Appropriations bill about losing staff to the private sector, and the need to pay staff more in order to remain competitive. Most Members certainly wish they had more staff, and more ability to pay their existing staff. On the other hand, there are plenty of people who think that congressional staff are overpaid or, in some cases, completely unnecessary. Governor Perry, for instance.
Q. So it looks like it would take about 10 or 15 times as much money to get to Gobry’s $20m/Member budget level. Thoughts?
A. First impression is that it’s political impossible. For the House alone — and again, we’re just talking about the personal office staff, not the committees or the leadership or anything else — you are talking about $8 billion. That’s almost double what we’re spending on the entire legislative branch right now.
Q. But like you said, it’s a drop in the bucket relative to total federal spending?
A. True. But it’s very, very hard to increase spending — even marginally — in the Legislative Branch.
Q. How come?
A. As noted above, constituents tend not to look kindly upon Members who vote to increase stuff that is perceived to be “for them.” This is most directly felt on Member pay. But it affects virtually all spending in the House and Senate. Members have a very difficult time casting votes to increase money that goes to themselves or their staff. Even the upkeep of the Capitol building and the surrounding complex can raise the political ire of some constituents.
Q. But the Legislative Branch bill gets passed each year, no?
A. Indeed, it does. But it also has historically come to the floor under a closed rule, in order to prevent amendments being offered that would slash things like staff pay. (In recent years, almost all appropriations bills have come to the floor under closed rules. That, however, is a new trend. Twenty years ago, typically on the Leg Branch bill would come to the floor closed). The basic rule of thumb is this: if a vote is going to be taken on the floor that seeks to cut Member pay, or Hill staff salaries, that vote is going to pass. Regardless of personal feelings, Members just feel that they cannot cast votes against those kinds of amendments. And there are always plenty of Members with strong incentives to propose such amendments. Thus, a closed rule is the only safe way to go.
Q. So how do they ever increase Member or staff pay?
A. Two ways, typically. One is the way mentioned above: keep increases in the overall spending and the staff spending in the Legislative Branch bill very modest — often lower than most or all other appropriations bills — and then bring it to the floor under a closed rule to prevent any amendments that seek to cut pay. The other way is the method used with Member pay: put in place a system of cost-of-living increases — increases that can never be higher than the increases for general federal workers — which automatically go into effect unless they are specifically denied. Then prevent denial votes or amendments from coming to the floor, except in cases when there is genuine consensus to deny.
Q. So what are the prospects for an increase in Member staff resources?
A. I don’t like to make strong predictions of this sort, but I’d say in the near term: zero.
Q. But is it a good idea in theory?
A. Well, again, that depends on your axiomatic values. Personally, I’d like to see legislative branch staffing beefed up a bit, but that’s mostly because I see it not only as a general good for a legislature, but also as a relative good for a legislature vis a vis the executive. As I’ve written before (here and here), information production and dissemination is a serious weapon the branches can use against each other in political battles, and in my view, the legislature could use a more even balance with the President right now.
Q. What other considerations are there?
A. One is how you feel about where to distribute resources in the House. Right now, Member offices spend a lot of their resources dealing with constituent casework. If resources for Member offices were expanded, Members could arguably assign more staff to policy work, which might be beneficial if you believe the Member offices should be carrying a larger load of the policy development. But institutionally, the rules of the House and the allocation of resources right now all point toward the committee system having the lion’s share of the load for policy development. So it might make more sense to strengthen the resources of the committees. In any case, from a political point of view, a move to double or ten-fold increase the resources of the Members’ offices would likely consider increasing the resources of the committees as well, I would think.
Another issue is the leadership. Unlike Member or committee resources, leadership resources have grown dramatically over the past 20 years, and have altered the balance of informational power between backbenchers and leaders. That’s one thing that isn’t raised by Ezra’s review of lobbying; the leadership has many of the same incentives for legislative subsidy that lobbyist do: they provide information to assist backbenchers, and backbenchers employ that information on issues that they can’t spend their valuable time or resources for independent research. So increasing the staff and research budgets of the Members’ offices theoretically weakens the leadership’s ability to dominate backbenchers via information control. Which obviously muddies the politics.
Q. You mentioned committee funds. How does that work?
A. Oh, geez. Maybe next week.
Previous “Q&A” style posts
March 5, 2012 — Democratic Appropriations Subcommittee Assignment in the House.
March 2, 2012 — Filling the tree in the Senate.
December 15, 2011 — Rule Layover Waivers in the House.
December 5, 2011 — How a bill becomes a law. Literally.
November 29, 2011 — The other caucuses. The ones in Congress.
Kevin Drum wondered last night if the conventional wisdom about California in the GOP primaries might be wrong:
One thing to keep in mind if you’re not from California is that our Republicans are not like, say, Maine Republicans: kind of moderate because they live in a basically liberal state. California Republicans are fire-breathing, take-no-prisoners, down-with-the-ship Republicans. I live in Orange County, which most people think of as ground zero for conservatism in the Golden State, and it’s true that we’re pretty conservative here. Our county board of directors routinely turns down federal money if it’s sullied in any way with connections to Obamacare. Still, as near as I can tell, OC Republicans are pussycats compared to Central Valley Republicans. I don’t know if the Central Valley Rs are more conservative than Alabama Republicans, but they’d sure give them a run for their money.
I don’t know very much about California state politics, but I do know that there’s some indirect evidence that might help us assess the last question, regarding the relative conservatism of California Republicans vs. Alabama Republicans. We can look at the voting records of their respective Representatives in the House.
Below is a plot of the average DW-Nominate scores of various partisan congressional delegations from the 111th Congress. The number next to each state is the state’s ranking among co-partisan delegations as to its tendency toward moderation (i.e. NY was the 5th most liberal GOP delegation; Idaho was the most conservative Dem delegation). Aside from California and Alabama, the states on the plot were not chosen by any algorithm; they are just there to give you the lay of the land.
More generally, I think the narrow takeaway point here is that there are a lot of surprises when you try to deduce the leanings of the primary electorate of a state based on that states general liberal-conservative reputations. For instance, it’s almost certainly wrong to assume that because California is a generally liberal state, it’s conservatives will be less conservative than those in a state that is generally more conservative. Another good example of this is Wisconsin, which I think we can fairly say is thought of as a liberal or liberal-moderate state overall. Indeed, its Dem delegation in the House was the 41st most conservative (i.e. 6th most liberal), on average, in the 11th Congress. But it’s GOP delegation was the 39th most liberal (i.e. the 3rd most conservative).
Now, for the caveats. Let’s start with the methodological ones. This is indirect evidence, at best. All sorts of disconnects exist between the DW-Nominate scores of Representatives from the 111th Congress and the ideology of the GOP primary voters in a state. To name just five: Reps are a small sample; Reps come from gerrymandered districts, not states, and those districts may be more/less polarized across states; conversely, GOP primary voters also exist in Dem districts; this was two years ago; and Member-district ideologies can diverge. The point is that you shouldn’t take this is some sort of smokin’ gun about primary voter preferences in California. It’s a lot closer to meaningless than it is to that. Just to highlight what I mean, Romney cleaned up in Arizona’s closed primary, which was the most conservative GOP delegation in the House in the 111th Congress.
Of course, this only begs a more important caveat: does the DW-Nominate scores of the House delegation sort along the same measure of ideology that is separating GOP primary voters between Romney and not-Romney? I haven’t looked into this enough to say, but my instinct is that it may very well not. Romney, Santorum, and Gingrich are all laying down pretty conservative policy positions, so the differences between them may have as much to do with style or messaging as they have to do with the actual policy differences of the type that could be picked up by something like a DW-Nominate score in the minds of voters. And so even if it’s true that California Republicans are more conservative than Alabama Republicans, it may also be the case that certain frames (such as an anti-Massachusetts attitude) are much more prevalent in Alabama than in California.
And yet, none of this is the main caveat, which undoubtedly remains the same as it has been for months: voter ideology, or voters in general for that matter, may have little left to independently say in the primary. This is because a fair amount of GOP primary voter belief (or any primary voter belief ) is really a coordination game being driven by party actors and party media outlets, who seem less and less likely to show any enthusiasm for the toppling of Romney in favor of Santorum. Which, of course, simply reiterates the fundamental truth of what is going on: California may matter this year, in the sense that Romney may not have the delegates to put him over the top by then, but the nomination in my view has been sewn up (save for Act of God type external shocks) for quite some time.
This is from Brad Turner and Steve Czaban and includes the game times, locations, announcers, TV listings, Vegas line, and info on each time like RPI and SoS. Here’s the .pdf file so you can print it out.
It’s March madness. Alright.
I love college basketball. Always have. My parents’ house is walking distance from Siena College, which has one of the best mid-major fan bases in the country, so I grew up rooting for them and, as with pretty much everyone else upstate, Syracuse. Needless to say, I think the NCAA tournament is the greatest sporting event of the year.
Still, I don’t love it as much as I used to. It’s pretty obvious to me that the contemporary sport has significant flaws, and those flaws have gotten worse over the past 5-10 years. Here are the three biggest problems I see facing the game right now.
The one-year-and-done policy for superstars. The fiat from the NBA that you can’t play in the league until a full year after you finish high school has possibly wrecked more havoc on college basketball than anything else. The teams have no continuity of success; you don’t know half the kids staring in the NCAA tournament, and the student-athlete ideal has been degraded to a new low.
The NCCA tournament behemoth. The tourney has become so important that regular season games seem meaningless, and the conference championship — both regular season and tournament — has ceased to be interesting in the BCS conferences.
The fouling at the end of games. This isn’t a new problem, of course. And the steps they took in the 80′s to fix it certainly took care of the part of the problem that was literally ruining the game. But it still remains unsatisfactory. Not only does every close college basketball game become a free-throw shooting contest, but it also takes forever to finish a game. Which is great for the TV networks, but not so great for the fans. As someone who played rugby and loves watching college hockey, the difference could not be more stark: close games in those sports reach a frantic peak as you approach the finish. In college hoops, unless the difference in score is 3 or less, the ending grinds to a halt.
None of this comes close to ruining the NCAA tournament as a spectator sport; it’s still the greatest show on Earth for my money. But the combination of the three things has altered how fans approach the tournament, and how the NCAA sells it. In 1990, I could probably have named the star player or players on most of the BCS conference teams that made the tourney; they were usually juniors or seniors, and I had seen them play for several years. Not the case anymore. I think this changes how we look at the tournament. It definitely disrupts the multi-year storyline. Will it ever be the case again that a single game has the history of the Duke-UNLV rematch in ’91? Highly unlikely.
Anyway, here are three ideas for improving college basketball:
1. Make scholarship offers four-year commitments, regardless of whether the player leaves early. Right now, all of the best teams have incentives to offer scholarships to the one-year-and-done players, since they don’t have to personally eat the externalities. Think about it: Kentucky can recruit four consecutive one-and-done players, and get them for the equivalent of a single scholarship over four years. Meanwhile, the fans have to eat all of the negatives associated with the system when all the best schools use that same strategy. And a collective action problem sets in: no BCS team can afford to not pursue the best talent while all the others do so.
Solution: make all scholarship offers 4-year slots, and 4-year commitments on the part of the schools. You recruited John Wall and he left after one year? Guess what — you’re down a scholarship for the next three years, while his slot sits empty. Under this system, the schools pay part of the price for the externality. In theory, a new market would be created in which the one-and-done player is no longer such a hot commodity, and recruiting a series of them is especially unappealing. My sense is that this would bring things to a better (but not perfect) equilibrium. Would schools still take one-and-done players? Sure. But not as quickly as they do now. Things like transfers and career-ending injuries could easily be accounted for with a few simple rule tweaks.
Are there potential downsides here? Yes. The biggest problem is that the schools’ interests and the interests of the top players’ might diverge more than ever. It wouldn’t be a great situation if the school and the coaches were giving top players misinformation or other bad advice related to decisions about staying in school or leaving school. But it’s a trade I’m willing to make; the one-and-done system is killing the BCS leagues. And this solution is much better, I think, than other proposals, which are either pipe dreams (return to the days of no-freshmen allowed to play) or perhaps cures worse than the disease (raise the NBA minimum-age to 21).
2. Make all stationary fouls in the last two minutes automatically intentional. A generation ago, the twin problems of stalling by winning teams and fouling by trailing teams had gotten so out of hand that the NCAA took two drastic steps: they put in a shot clock, and later they added a double-bonus, so that most of the fouling at the end of the game did not results in 1-and-1 free throw trips, but instead in 2-shot trips. The shot clock solved the problem of the teams holding the ball for minutes at a time, which was absolutely killing the game in the early 80′s. Think back to the 1983 title game, when Houston got the ball, what, one time in the last two and a half minutes of a single-possession game? That’s not even basketball. And it also allowed teams to not start fouling so early, since in a 1-point game with a minute left, they were definitely going to get the ball back. The double-bonus made for a nice counter-point to this; when teams did start to foul (which is inevitable once the shot clock is turned off), there was not as much of a reward for doing so. It is much harder to come back under the double-bonus rules than under the old endless 1-and-1 rules.
But it’ss time to face facts: as well as the shot clock and double bonus have worked, the end of a close college basketball game is as awful as often as it is exciting. Unless the game is a 1-possession game right to the very last buzzer, you end up watching a whole lot of intentional fouls, court walking by tired players, timeouts, and commercials. When you are actually at the arena, all the energy of the game deflates. And note that this is often a problem even in the games that have great finishes. Because in order to mount the comeback that leads to the game-winning 3-pointer, teams often start fouling with 90 seconds or more to go, when they are down 6 or 7 points. It’s annoying, to say the least.
Now, I’m not knocking the strategy. Teams are almost certainly correct to start fouling early. What needs to happen is that we need to reduce all incentives for doing so. The truth is that we’ll never stop the fouls once the shot clock is turned off; no matter how stiff the penalty for fouling, if the alternative is watching the other team run out the clock, the incentive will always be to foul. So what needs to be minimized is all the intentional fouling that occurs before the shot clock is turned off. If we could get the game in a situation in which teams didn’t start fouling in earnest until there were less than 35 seconds left, that’d be a major improvement.
But to get there, the refs have to start calling intentional fouls. Not flagrant fouls. Intentional fouls. The problem at the end of the game is that everyone is intentionally fouling, but the refs don’t call intentional fouls. So let’s force them to. How about this: any foul in the last three minutes in which the offensive player is simply holding the ball and standing there is an intentional foul. Ditto if he’s dribbling without attempting to attack the basket. Furthermore, any foul in the offensive backcourt after possession is gained is an intentional foul. This won’t reduce fouling to zero — there will always be logic to foul when the shot clock is off — but it will punish teams so severely that it is barely worth it.
3. Restructure the NCAA tournament to give first-round byes to the conference champions. This is my most radical suggestion, but I don’t see any way around it. If we agree that the NCAA tournament has begun to overshadow the regular season in both BCS league and smaller leagues, and has more or less destroyed the importance of the conference tournaments in the power conferences, then the only possible way to reverse the situation is to make the NCAA tournament more responsive to teams doing well in the conference regular seasons.
Now, there’s a history here. Once upon a time, only the conference champions were allowed to play in the NCAA tournament. You’re damn right the regular season mattered back then. And, because of that, most conferences didn’t hold conference tournaments at the end of the year to decide who would receive their one bid to the tournament (the ACC was an exception). But then the one-bid-per-conference rule was discarded in favor of expanding the tournament, and at that point all incentive was lost to not hold a conference tournament, since they are potentially very profitable for the conferences, and then you end up where we are today: everyone but the Ivy League gives their automatic bid to the conference tournament winner.
Now, the most obvious solution is to just go back to the one-bid-per-conference rule. But that’s obviously not going to happen. A second option would be to ban the conference tournament. Also not going to happen, and has the added problem of not solving anything at the BCS level, since all those conferences have multiple teams as locks for the NCAA tournament before the conference tournament even begins. What you need is a way to revitalize the regular season in the big and small conferences, without killing the conference tournaments.
Solution: automatic bids, and automatic first-round byes for regular-seasons conference champions. You heard me. Give both the Big East champ and the America East champ a first round bye in the NCAA tournament. Before we address the issue of small-conference champs getting byes, let’s talk about the math. It’s ridiculously simple. Right now you have 31 conferences with an automatic bid, and 37 at large bids, for a 68 team field. All you’d do here is give out 31 bids/byes to the regular season champs, 31 bids to the conference tourney champs, and 34 at-large bids. If a team won both the regular season and conference tourney title, then that’s one less conference tourney bid and one more at large bid (see below for the problems this creates.) Then you have 32 byes (for the regular season champs plus, say, the single-best non-champ), and a first round that features all the at-large bids and all the conference tourney champs that didn’t win their regular season.
Positives: a renewed emphasis on the regular season, in both small and big conferences. An expanded tournament tournament, but one that doesn’t favor the BCS schools. Continued meaning for the conference tournaments, and thus the possibilities for teams that were not good during the regular season. Negatives: an expanded tournament, which many do not like. First round byes for obviously inferior teams. Weird incentives for conferences to either get numerically smaller, or to rig their conference tournaments.
It’s the last point I want to take up here, because I know someone will bring it up if I don’t. Syracuse won the Big East. Under this system, isn’t it in the Big East’s interest to have them not win the conference tournament? Yes, but that’s already the case. We don’t see conferences tanking their tournaments to get an extra team in the NCAA tournament that otherwise would not have made it, do we? No we do not. Now, this could potentially be a problem in the lower conferences, since it could mean the difference between one bid and two bids every single time. A remedy for this might be to preference teams who win both their regular-season and conference tournament with seeding consideration.
Another objection might be that we’re biasing the system toward the smaller conferences. In effect, we’re giving regular season champs in the small conferences byes, while making the at-large teams from the bigger conferences play an extra round. To which I say: that’s a fair trade in my book. If all the BCS at-large teams have to play a small conference tournament champ, or another at-large team in the first round, that’s a very small contribution to be made in order to fix the entire regular season of college basketball. Think about it: when was the last time anyone really cared what happened on the last weekend of the regular season? Unless you follow Ivy League hoops, you probably can’t think of it. This would change all that. And it would be a change for the better.
Some things I enjoyed from this week:
1. First things first: if this doesn’t leave you crying with laughter, I’m not sure we can be friends. A children’s song featuring an inspired performance by Brian Johnson of AC/DC.
2. Seth Masket, John Sides, Brendan Nyhan, and friends have a new academic article out with more evidence that the ACA vote hurt Democrats in the 2010 election. Condensed discussion on Seth’s blog and on John’s blog. As I’ve written about in the past, I think it’s important to remember that, although no individual Member wants to lose, sometimes trading seats for policies is definitely in the best interest of a party.
3. Adam Serwer on AG Holder’s explanation of when the U.S. government can kill you. I actually care a lot more about the issue of indefinite detention than I do about targeted assassination of U.S. citizens abroad, but that’s kinda like saying I care a lot more about my kids than my nieces and nephews. Ugh. “Trust us.” Never.
5. What I would give to be 14 years old in the age of advanced sports metrics. I could read and think about this stuff all day. And I might as well plug the blog of an old Yale friend of mine, Ben Morris’ Skeptical Sports, which I think is some of the best independent work going in the genre.
6. Jamelle Bouie has been tearing it up on his new blog over at The American Prospect. Fellow libertarians should give him a try, he’s a smart liberal who brings a libertarian sensibility to a lot of issues. In that sense, I really liked this piece, because it reminded everyone that technology changes culture, culture is prior to the state, and that’s both good and right.
7. Ezra Klein and Seth Masket make a similar point: Romney is not some underfed bird with a clipped wing, so everyone in the MSM stop pretending he is. In related thinking, read Jon Bernstein’s post predicting this fall.
8. I have not read Matt Yglesias’ new book yet, but I will soon. I don’t always agree with Matt, but I’m more or less of the mind that he’s the best blogger in the world; I am just constantly amazed at the quantity of super-high-quality writing that he gets done every single day. I can only assume that it’s just as good or better when he has time to sit down and really think about it.
9. I decided (rightly or wrongly at the time) months ago that Romney had this thing wrapped up. So I just can’t get all jazzed about Super Tuesday or the upcoming states. But I did like Nate Silver’s assessment of Santorum’s chances if Gingrich drops out.
10. Here’s my two cents on the Kevin Drum-inspired debate over what the best Star Wars movie is: I like Episode IV the best. I just can’t find a single (more than minor) flaw with it. There’s just nothing that bothers me about it. And that’s not true of any of the other films. My problem with the consensus pick (Empire Strikes Back) is two-fold: first, too much psuedo-humor. I just don’t like the hyperdrive breakdown storyline. Second, I think the whole Hoth/Wampa sequence is weak. (In fact, I’m with Bernstein (and against Masket) on the merits of the Jabba sequence in ROTJ: this was always the single-best 15 minutes of the Star Wars saga for me. It’s certainly the one I wore out our VCR tape re-watching over and over again in when I was 6.) And, of course, Drum’s attempt to minimize the Ewoks is absurd.
Earlier this week, Rick Hansen wrote a piece arguing that Congress should legislatively end the caucus nominating system. Jon Bernstein wrote a great piece in response, arguing against further regulation of party nomination. I wrote a piece two days ago both endorsing and going further than Bernstein: in theory, I don’t believe there should be any public regulation of — or even public recognition of the existence of — the political parties. And certainly not any state favoritism accorded them on a preferential basis.
Shortly after I wrote that, Scott Lemieux reacted to Bernstein’s piece, and came down on the side of at least the status quo, but leery about the possibility of unequal access to the nomination process if the parties were allowed to simply do their own thing:
Primaries, as the Supreme Court noted when it struck down the Texas Democratic Party’s all-white primary, have always been subject to state regulation and intertwined with the general election process. Given that we have an electoral structure that limits voters to at most two viable choices in most elections, primary and general elections cannot be neatly separated. Barring a greatly accelerated economic recovery, any nominee chosen by the Republican Party has a reasonable chance of being president of the United States. For many House and some Senate elections, the process of candidate selection is the only practically meaningful election given the ideological makeup of some states. Thus, the government has an interest in ensuring some level of fairness in the candidate selection process, and, in general, the electoral system would benefit from more uniform federal regulations rather than more decentralization.
Bernstein has since responded, clarifying his point of view about the ok-ness of current regulations:
In my reading, not only are political parties necessary for democracies, but parties must be both permeable and internally democratic for a polity to be truly democratic. So, contrary to Glassman, I do think there’s an important state interest in limiting the extent to which parties are conspiracies of some against the whole … [b]ut “internally democratic” can cover a very wide range of practices, and I’d want to see a very light regulatory hand.
So: if parties design procedures which give activists (and other party actors) more influence and voters-as-just-voters less, that’s fine with me as long as those voters can, if they choose, become activists. But I’d have a very big problem with anything that says that some groups can’t become active party members, whether explicitly or implicitly, and I’d be okay with the state stepping in to prevent that.
I should clarify my position, because I actually don’t think I disagree all that much with Bernstein or Lemieux, at least not in how current practice is structure. I’d make three points:
1. If the state is going to control the ballot access, then the White Primary has to be barred by law. I don’t think there’s any question that the White Primary cases were correctly decided by the Supreme Court. By the time they took place in the 1940′s, the state had long been deeply involved in the inner workings of primary elections: they controlled the ballots, the ballot access, had laws governing corruption in primary election, and — most importantly — the bar on blacks participating in the primary was state law. That’s ridiculous. Therefore, I find it perfectly reasonable that the parties should be subject to, at the least, regulations necessary to ensure that individual citizens have the opportunity to participate on an equal basis. Once the state is involved — and especially when they take actions that diminish the market forces that incentivize a private party system to behave optimally on its own — then state-mandated open participation makes complete sense. On this, I think I agree with Bernstein and Lemieux.
2. That said, I think equal opportunity is a very, very low threshold. The only thing I would require of the parties in regard to equal opportunity would be non-discrimination among individuals in regard to participation. I would still leave it up to them to determine what “participation” actually meant. I’m fine if parties want to have primaries. I’m fine if they want to have non-discriminatory caucuses. But I’d be fine with stuff a lot more restrictive than that: if a party only wanted to allow people who had been registered members of the party for 5 years or more to vote in a primary, I’m all for allowing it (although I wouldn’t personally be in favor of it). If they wanted to restrict primary participation to people who attended a monthly county meeting, same thing. Ditto if they required a certain amount of canvassing on behalf of the party to participate. Again, so long as these things were applied equally, I’d be ok with it in the modern environment.
3. Furthermore, I don’t think the state inherently needs be involved with the parties. As I said, under the current arrangements, it would be crazy to reverse the White Primary decision. But the current situation — in which the state regulates the ballot access — is what freezes us into the two-party system we have. The Democrats and the Republicans are not going anywhere, and it’s directly because of state-given advantages they have. It’s like two businesses that have effectively used the government to create an oligopoly. In theory, the role of the state in regard to parties should be the same as the role of the state in regard to business: encourage open competition, and ameliorate situations in which market failures occur. Remember, the market is not beloved by the players. Just as individual businesses have no incentive to encourage market competition (but instead have strong incentives to stifle it), political parties have every incentive to discourage party competition.
And thus what you have in the current environment is exactly what the two existing parties want: permanent existence as state-run institutions. There’s no chance of replacement by a third party. But people get the reason wrong all the time for why that is the case. It’s not because no one can seem to organize a third-party outside of the existing parties. It’s because there’s no way for insiders within the party to effectively bolt and get on the ballot. That solves a lot of problems for the parties: minority dissenting opinion doesn’t really have to be taken too seriously, disgruntled losing candidates don’t need to be mollified, and shutting people completely out of the process only stands to lose votes, rather than threatening your long-term existence.
And that’s the real danger of things like the White Primary; with the ballot access locked up by the state, the market has no ability to react, and the entrenched status quo is easily perpetuated. The parties certainly respond to market forces in regard to gaining voters; but they have little incentive right now from market forces that threaten their own existence, and thus their own internal regulations tend to be created in response to things other than basic market forces.
Now, none of this is not to say that market failures don’t exist. Even an utterly private party system in Texas in 1940 might not have been able to save African-Americans who wanted to participate. They were perhaps too small a minority operating in a one-party system. Even if the state didn’t control the ballot access, it’s not clear they could have achieved meaningful participation. So the state may have had to step in anyway.
But I’m less sure of that than most, and I’m dubious about whether it would be a problem today under an utterly private party system. In much of the south, there was no Republican party to vote for in the general election. But that had nothing to do with market forces; it was directly the result of the state itself destroying the market, quite purposefully. Not only was the state explicitly trying to keep African-Americans from voting, but the threat of private and/or state violence was discouraging African-Americans and their white allies from even trying to form a Republican party to compete with the one-party white democrats. You could imagine that in a situation where there were zero ballot access hurdles (i.e. print up your tickets and hand them out to your friends) and the state was ensuring everyone’s right to vote in the general election, African-Americans and their white allies could have easily put together a Republican party that was not only competitive, but very quickly the majority in many district across the South.
And if that happened, the Democratic party would have, by necessity, needed to respond to market forces and start trying to attract African-American votes. And presumably that would have eventually led to ditching the White primary. The point being that we shouldn’t assume the problem was inherently with the party system, given that the entire state apparatus of the South was conspiring to prevent African-Americans from voting in the general election. Which was clearly out of bounds, both legally and under any normative theory of voting and parties. So I’m disinclined to learn that the lesson of the White Primary is that no private party system can create equal opportunity because you are bound to get things like racial discrimination. I’m just not sure it follows.
But, of course, it did. The White Primary was real, and not only African-Americans but also aggregate public choice suffered from its existence. So we have to be wary of it. But I’d be less wary of it today than 70 years ago. If we completely privatized the party system now — and I mean completely — I have a hard time imagining we’d see very much in the way of systematic racial discrimination. Mostly because of the reasons stated above: the state generally has a commitment to universally protect the right to vote in the general election, and if it could do that at an acceptable level (I know many people think it currently does not), then I think market forces under an privatized ballot system would almost certainly destroy the possibility of a White Primary cropping up.
In fact, I think discrimination would be the least of our worries about private parties. Although I support the idea of deregulating the party system, I worry a lot about corruption. If you truly want to privatize the parties, you need to get rid of all laws punishing corruption in party activities or primaries. You have to force the parties to hold their own elections, in private dwellings, and count the ballots on their own. In effect, you have to make them do it privately. And that could result in a real mess, and it’s the main reason I retain some skepticism about deregulation; I think the possibility of vote buying and election fraud and the like would almost certainly raise the appearance of impropriety over the parties, if not an actual massive problem. And don’t think this wasn’t an issue in the 19th century, it was. The parties tended to use the caucus/convention system for just this reason; organizing a state-wide private vote without the help of the government is really hard.
Which is probably an odd way of saying that while I think normatively there should be no relationship between parties and the state, in practice I think we should simply move toward a system that lets parties behave more like, well, parties. And the first thing I’d do on that count is get rid of all open primaries. They go against the very spirit of a party system, and I can’t think of any legitimate purpose that they serve, except to weaken the control of the co-partisans over the nomination, in favor of mass participation. But that mass participation only serves to render the parties something more like an extra layer of elections, rather than a coherent group of like-minded political actors.
[Two rocking chars sit on a front porch. In one, there's an older man, maybe sixty. In the other, a young boy of about 12. Both are drinking lemonade. It's still afternoon, but the July sun is starting to set.]
BOY: Grandpa, tell me about the [election of 1860 / GOP nomination of 2012].
GRANDPA: Oh, geez, big guy. That was quite some time ago. I wasn’t much more than your age back in those days. But what a contest! What do you want to know?
BOY: Well, nothing in particular, I guess. Just what happened.
GRANDPA: Well, let me see. There were four major candidates by the time we got around to serious votin’. Other names had been tossed around, including some bigger names. A Senator. A Governor or two. But none of them panned out. Never made it to the dog days. [see here, and here]
BOY: Who were the four candidates?
GRANDPA: The strongest one of them, the fella who ended up winning, he wasn’t really a politician by trade. A politico, yes. But not really a career elected official. He had held a high office for one term, but didn’t stand for re-election. Now, don’t get me wrong, he had been in and around national politics for years, but just not as a candidate. Oh wait, let me see … scratch that, he also lost a Senate election at one point too. [see here, and here]
BOY: How’d he end up win—
GRANDPA: Hold on. Slow down. We’ll get to that. You see, it’s not usually the case that we have four candidates. Most of the time, it’s just two. But that year was special. People couldn’t decide who they wanted to support. Many of them — heck, more than half of them — knew they didn’t want the fella who ended up winning. But that didn’t add up to them being able to settle on one of the other men.
BOY: Wait, the fella that won — he didn’t get more than half the votes?
GRANDPA: Ha. No he did not. Not even close. Across the nation, he got something like 40% of the vote. He lost a lot of states, and even in the states he won, he didn’t always get half the votes. [see here, and here]
BOY: Well, then how did he win?
GRANDPA: Because getting half the votes — that’s not the way the system works!
BOY: It isn’t? I thought this was a democracy. Doesn’t the majority rule?
GRANDPA: No! In many cases, the plurality rules. A majority against you — so long is it is divided — often isn’t enough to stop you. Trust me, more than a few people messed this up at the time. All ranting and raving about how this fella couldn’t attract the majority of the national electorate to back him, how he couldn’t win in certain parts of the country, especially down south. None of it mattered, because politics is a numbers game, and the numbers that matter are not votes, but electors. [see here, and here]
BOY: Electors?
GRANDPA: Yeah, you know. Electors. Delegates. The men who really make the decision. They are the key. Every state got a handful of them, roughly in proportion to their popular strength. And those states got to hand them out in whatever way they saw fit. Under law, of course. [see here, and here]
BOY: And different states did it differently?
GRANDPA: That’s right. They could hold an election. They could have the elected officials decide. Whatever they wanted. But more importantly, they could also hand out the electors by any formula they wanted. Back that year, some states gave the electors out proportionally. But a lot of states just gave all their electors to whoever got the most votes. [see here, see here]
BOY: Even if they didn’t get the majority of the votes?
GRANDPA: That’s right! And that was the key. The fella that won, he didn’t sweat not having a majority of the vote in most of the states, because he knew — just as his opponents knew — that so long as he got a plurality in a lot of those winner-take-all states, he was gonna get all the electors. And that meant that 40% of the national vote could easily translate into a landslide among the electors.
BOY: That’s funny math.
GRANDPA: Well, it cut both ways, the winner-take-all system. In a multi-candidate field, 40% of the national vote could turn into a landslide victory if you spread it around right. But it can also turn into a landslide loss if you didn’t spread it around right.
BOY: Huh?
GRANDPA: Think about it. If you lost those winner-take-all states by a very slim number of votes, you got nothing. So your 40% in a state might have translated into 25 delegates, while my 39.99% translated into zero.
BOY: Did that really happen?
GRANDPA: You bet it did. The fella who ran second in the national vote, he ran into that problem in a bunch of places. In some places the fella that won got 35% of the vote and he got 32%. One state in particular — I can’t remember what it was — he lost by less than 1% of the vote. And neither of them got close to 50% of the votes in that state — the other candidates ran fairly strong. [see here, and here]
BOY: But if all the other candidates were opposed to the winner, why didn’t they organize together and run one candidate against him?
GRANDPA: That’s a good question. And there are a bunch of answers. For one, it might not have mattered. Because the voters who supported the other candidates weren’t exactly 100% united against the guy who won. A fair number of them thought of him as their second-choice. So if one of the opponents had dropped out, a lot of his voters would have drifted toward the winner. It’s just wasn’t necessarily the case that any individual opponent could have beaten him. A lot of people have been fooled by this over the years — thinking that any single opponent could have won — but that’s not true.
Second, some of other candidates thought they could win. Couldn’t blame them for trying! Although the math of the election was pretty obvious, in retrospect, from the get-go, a lot of people thought it was a wide open field. Including the other candidates. So none of them really wanted to give up until it was clear they were beaten, and by that point they were all beaten.
It was also probably the case that at least one, and maybe all, of the candidates weren’t even trying to win, just trying to keep the main fella from getting a majority of the delegates. To get the vote into a brokering situation, where they thought they might have more leverage. And in that case, it sometimes would be correct for everyone to keep running in opposition. You know, you beat him in that state, I’ll beat him in this one, and so forth.
BOY: But that still doesn’t explain the situation. There aren’t usually 4 candidates. What happened?
GRANDPA: Well, it was a crazy time. Tension had been building within the system for a while. You see a war had occurred about a decade earlier, and it left an incredible political mess in its wake. A pretty strong cleavage had developed within the electorate, and there was a somewhat radical movement afoot that threatened to shake up the traditional political alliances. So you had this new radical grassroots element threatening to capture things, and the traditionalists and the old guard trying to resist it. [see here, and here]
BOY: So it was a gradual thing?
GRANDPA: Kinda. And it was definitely coming to a head that year. But a few events actually created the long, drawn-out, multi-candidate race. You see, the Supreme Court had just a few years prior issued a decision, and that decision had really opened up the floodgates. Totally rearranged the playing field and the candidates’ calculus. [see here, and here]
BOY: Must have been some decision.
GRANDPA: Indeed. But that’s not all. Two of the opposition candidates, as well as their respective followers, really hated each other. And again, this is another reason they couldn’t simply combine. They had been part of the same movement years before, but the events of the decade, as well as their personal animosity for each other and respective egos, had driven them apart. [see here/here, and here/here]
BOY: Wow, they must have really hated each other.
GRANDPA: Yup. One of them was strongest in the South, the other ran well in the old west, east of the Mississippi. What some call the Midwest now. And while some people deny it, it was pretty clear that the one fella took that Supreme Court decision and more or less used it as a sledgehammer to try to destroy the other fella.
BOY: What about the fourth candidate, you haven’t said anything about him?
GRANDPA: Well, he was never really considered a serious contender. He had a base of support among a very narrow strip of the electorate, but it really wasn’t enough to make much difference. And his platform was also really orthogonal to the rest of the candidates. Sure, it dealt with the pressing issues of the day, but not in a way too many voters were considering them at that point. He only got about 10% of the vote. [see here, and here]
BOY: Why didn’t people gravitate toward the guy who won? What didn’t voters like about him?
GRANDPA: Well, it was partially an artifact of the 4-way race. More choice just reduces your percentage. Still, I appreciate your question. It was largely two things. As with all candidates, some voters just didn’t like him. But a lot of the voters who were on the fence, voters who might have voted for him, simply didn’t trust him. He had been kinda late to his positions, I guess, and that made him somewhat unpalatable to those who might have been his base, and slippery to everyone. But mostly people were searching for something that simply wasn’t available. All our political heroes of the previous generation — the men who had held the disparate strands together in the past — had died. But their shadows loomed large over the election. [see here, and here]
BOY: I see. So the stakes were pretty high?
GRANDPA: They were. The nation was more or less deadlocked over some fundamental issues, and whoever won the election was going to have a pretty big hand shaping the future.
BOY: I would have loved to see the campaign!
GRANDPA: Honestly, that was the strange part. The campaign seemed utterly detached from reality. There was a lot of debate, of course. And everyone was saying things related to the keys issues. But it didn’t seem like anyone wanted to wrestle with the fundamental problems at hand. In a lot of ways, it felt like the same old song and dance. The confetti came out, the rallies were held, and the past allegiances determined the outcome. Some people saw that we were on a precipice, but mostly it was just politics as usual.
BOY: Who’d you vote for?
GRANDPA: Wasn’t old enough to vote, but great-grandpa voted for the guy who came in fourth. Ha! [But, then again, maybe he cared about the union first and foremost? -ed]
BOY: So it was pretty memorable, I guess, grandpa.
GRANDPA: Yes. It was one hell of a contest, not one I’ll soon forget. Quite different than anything I ever read about that came before it, in form if not in substance, at least. And boy was it consequential. Wow.
BOY: Why, what happened after the election?
GRANDPA: A lot. But that’s a story for another time…
I have not yet voted today in the Virginia primary, and I’m really on the fence about whether I should.
This may surprise some of my regular readers, since I’m generally an unabashed romantic about election day. But I’m also a firm believer that the structure of the presidential primary election system in Virginia (and elsewhere) is fundamentally flawed, in at least two ways:
1. It is oppressively difficult for candidates to get on the ballot; and
2. Citizens who are not registered members of the party are allowed to vote in the party primary.
Let’s take the second concern first, since it’s as symptom of a more general problem. I’m a believer that the political parties are private entities, not public utilities. As Jonathan Bernstein wrote in an excellent piece this morning, party nominations are fundamentally different from general elections, and should not be regulated or held to the same standard:
But party nominations are different. They are how parties govern themselves, and the parties should be trusted to know what works best for themselves. Hasen writes, for example, that caucuses are poor organizational tools for the parties. That may be true—but shouldn’t it be up to the party to decide? It should be up to the parties to decide whether they would prefer a relatively high-turnout delegate selection scheme that would put more influence with mass electorates or a system that empowers smaller, more dedicated groups of party activists. The parties are also best positioned to figure out which influences they prefer (including second-order influences; mass electorates give more power to the media, which parties might not like). More to the point, it’s the parties who have everything at stake here, so they should be the ones to choose.
I could not agree with this more, and I’ll even go further: normatively, there should be no relationship between the parties and the state. As far as I’m concerned, the political parties do not, and should not, exist in any public sense. They are simply private tools of political organization, and the state should neither preference nor malign — or even acknowledge in any way — their existence. In a perfect world, I’d get rid of it all. No public money to parties, no access rules, no requirement to hold a primary, no Ds and Rs next to their names on official congressional documents, and so forth.
And I’d start by scrapping the Australian ballot: getting the state out of the business of printing ballots, out of the business setting deadlines for running for office, and out of the business of controlling ballot access. Just a free market sphere outside of the formal political system. Parties can have primaries, can have caucuses, can have neither. Just figure out your candidates (or not) however you want, print up some ballots, get them to your supporters, and have them come drop them in the box. Most votes wins the office. The state is not involved until they collect the privately-produced tickets.
Still, I understand that we’re working in a second-best situation. Breaking: we don’t live in a perfect world. Corruption was part of the reason the states took control of the ballots. (However, I think it’s been fairly well shown that the parties themselves were complicit in this: the state ballot solved the problem of party bolting for them, minimizing the risk that third-party candidates could arise or win elections.) And things like the Democratic white primary are really creepy. (Although I’d be fine with a party that, say, restricted primary participation to people over 21, at their own peril). But, theoretically, I think those downsides are outweighed by the downsides of the state having control of the ballots. If you can’t hold your party together, you don’t deserve the artificial hand of the state helping you suppress the dissenters. And if you want to bolt a party and start printing your own ballots a week before the election, that strikes me as fundamentally much closer to the democratic ideal.
But here I am. The state of Virginia allows anyone to vote in the primary. While much of the talk is about whether outsiders (i.e. independents and Democrats) will affect the outcome, I don’t personally feel comfortable voting in a party election in which I’m not part of the party in any meaningful way, and in which I almost certainly wouldn’t be eligible to participate if the state did not have control of the ballots. I’m not part of the Republican Party. My ability to directly influence their nomination system is, in my mind, not legitimate. Now, there’s a very good practical counter-argument: the rules are what they are, and even if I disagree with them, I’m still allowed to play by them. No different than opponents of Super PACs setting up their own this election cycle. Or of any reformers taking advantage of current rules, as is. My influence on national politics is enhanced if I participate, and my ability to change the system is not enhanced by not participating. Therefore, I should vote in the primary.
So I’m torn. Except that there is another issue: the ballot access requirements. And this just gets my blood boiling.
The only people on the Virginia GOP ballot today are Romney and Paul, because the absurdly high threshold required to qualify for the ballot was not met by Gingrich, Santorum, or any of the other candidates:
Virginia law requires that any person appearing on a party’s presidential primary ballot receive signatures from at least 10,000 Virginians who are duly registered to vote with a minimum of 400 signatures required from each of Virginia’s 11 congressional districts. The Virginia State Board of Elections (SBE) required that these signatures be placed on official petitions which were circulated by Virginia residents, and that these petitions be filed with SBE by December 22, 2011. The political parties in Virginia are responsible for the counting of those petition signatures and the state Republican Party certified to SBE that only two candidates met the requirements for ballot access: Ron Paul and Mitt Romney.
That’s more or less the definition of unfair. I get that the state has to limit ballot access in some sense — otherwise we’d have hundreds of people on the ballot — but any system in which a well-funded major national candidate struggles to get on the ballot is more or less bankrupt. Oh, and before you mention it, there’s no write-in possibility:
Virginia election law (§ 24.2-529) does not permit write-in votes for primary elections. No ballot issued during the Republican Primary on March 6, 2012 will contain an area where a write-in name may be included. In the case of electronic voting equipment, the option for a write-in vote has been disabled. In the case of paper ballots, if a name is written in a blank area on a ballot, or a name is scratched through and another is inserted, it will not register as a vote. In no way will defacement of an official ballot be tallied as a vote for any person other than those candidates currently listed.
And in this case, I do feel like not voting has an impact on possibly changing the law: if voter turnout is pathetically low today — in what is (at least popularly believe to be) still an undecided nomination process, then maybe the state legislature will consider rethinking the ballot access requirements for the presidential primary. Because today, for all intents and purposes, the election in Virginia is more reminiscent of some banana republic than a centuries-old democracy. And don’t start in with any civic duty nonsense today. I don’t see any way in which it’s my civic duty to participate in a primary for a party I’m not a member with a nomination slate choice that is not reflective of the existing candidates.
Still, I’m quite up in the air about this. My instinct is to still go vote. So I’ll leave it up to the readers. Should I vote today?
Representative Donald Payne (NJ-10) died this morning, after a short bout with cancer. Rep. Payne was the first African-American to represent New Jersey in Congress. He was 77.
From an institutional standpoint, what happens when a Representative passes away while in office? A few things:
1. The Clerk of the House assumes responsibility for the Member’s office. Representative Payne’s office will be renamed “Office of the 10th District of New Jersey.” Under House Rule II, clause 2(i)(1), the staff of the office may continue to be paid for performing their duties, under the supervision of the Clerk, until an election fills the office with a new Member.
While these staff responsibilities no longer include advising on roll call votes, developing legislation, or taking policy positions, there is still the normal amount of constituent casework to be handled, as well as the process of closing the office and organizing the files and records of the Member, which under House rule are the property of the Member.
Many staff, of course, leave their jobs to pursue other employment opportunities. The Clerk is authorized to hire and terminate staff, as necessary, in order to maintain the functioning of the office. In typical practice, only a small number of staff are necessary.
2. The Member’s next of kin receive a benefit. Under law (2 U.S.C. 38a), the remainder of the Member’s salary is paid to the Member’s specified beneficiary or heirs. It has also been long-standing practice for Congress to include a death gratuity, usually in the sum of one year’s salary, payable to the deceased Member’s widow or widower, or children, in the next annual Legislative Branch Appropriations Act.
3. The whole number of the House of Representatives is adjusted. The death of a Member triggers clause 5(d) of House Rule XX, which instructs the Speaker to announce that the whole number of the House has been adjusted. This is important for determining any numerical threshold that relies on a fraction of the total Membership of the House, such as the Constitutional quorum to do business. Since January 25, the House has had a whole number of 434 (due to the vacancy of the 8th district of Arizona). With Representative Payne’s death, the number will be reduced to 433.
4. An election is triggered. The Constitution provides for the filling of vacancies in the House, which can occur by death, resignation, expulsion, declination, or the House declaring a vacancy. Under typical practice, Governor Christie of New Jersey will declare the vacancy to exist in the 10th district, and then will issue writs of election to fill Representative Payne’s seat, under the protocols of New Jersey law.
5. Various memorials are traditionally provided for by the House. The death of Representative Payne will almost certainly be officially acknowledged on the floor of the House, and that recognition may be followed by a moment of silence. At some point, either immediately or in the following days, a resolution of condolences is usually brought up on the floor, and Members of both parties are given an opportunity to speak in memory of the Member. On occasion, a similar resolution may be offered in the Senate.
Unless the family of the Member is having a private funeral, statute provides that the House will pay for a congressional delegation to attend the Member’s funeral, and under law (2 U.S.C. 124), the House is authorized to defray to expenses of the funeral. If the Member is to be buried at the so-called Congressional Cemetary, the House is authorized by law to pay for the monument.
At the end of a Congress in which a sitting Member passed away, a tribute book is also produced by GPO, which includes the record of the memorials held in Congress, as well as tributes or eulogies entered into the Congressional Record by other Members.
Godspeed, Representative Payne. May you rest in peace.
Representative Norm Dicks is retiring after 18 terms in the House.
Dicks was the Ranking Member (i.e. top Democrat) on the House Appropriations Committee and also the Ranking Member of the Committee’s Subcommittee on Defense. Consequently, his retirement announcement has led to significant speculation about who will become the top Democrat on the Appropriations committee, as well as what effect his retirement (and the announced retirements of two other high-ranking Committee Democrats, Reps. Olver and Hinchey) will have on the top spots on the subcommittees. This seems like as good a time as any to review the way the Democrats choose subcommittee chairs on House Appropriations, because not only is it a unique process among all congressional committees, but it’s also an absolutely fascinating institutional design.
I cannot emphasize this enough: gaming out the strategic implications of the Democratic Appropriations subcommittee selection process is mind-bending, almost begging for some SABRmetric-style clarity. It simultaneously resembles a professional sports draft, a strategy-based board game, and a missing-information game like poker. It’s awesome. It’s also ripe pickings for anyone looking to write an interesting political science paper (it’s on my list, but feel free to beat me to it; this blog post will give you the roadmap.)
Let’s do this Q&A-style, since it gets a little complicated. But bear with me, it’s worth it. We’ll start from the beginning — general selection of committee chairs — and work our way down from there.
Q. I thought there was a seniority system for committees? Isn’t determining the full committee Ranking simply a matter of looking at the seniority list of the Committee Democrats, and seeing that Rep. Kaptur is the most senior Democrat after Rep. Dicks?
A. Nope. Under the rules of the Democratic Caucus, the caucus nominates the chair/ranking of the committee, and seniority is only one factor taken into consideration. There are a bunch of other factors written into the rules, and of course there are politics involved as well. The GOP does it a similar way.
These party rules are different from the Rules of the House of Representatives, which are chamber rules approved by a majority of Representatives. The party rules are approved by the caucus/conference, and deal with internal party issues, although in some ways they end up structuring the House of Representatives much like the Rules of the House.
BTW, if you want to learn more about the caucuses and caucus rules in general, check out my old post on them.
Q. What do you mean “nominates”?
A. Under House Rule X, clause 5, most committee assignments are actually made by various House resolutions at the beginning of each Congress (for example, H.Res. 31 from the 112th Congress), based on nominations submitted by the caucus. This is pro forma, but illustrates the way the formal actions of the floor are intertwined with the off-floor actions of the caucus/conference.
Q. So how, specifically, are the committee chairs nominated in the Democratic caucus?
A. In the House Democratic Caucus, all standing committee chairmen except Rules, Budget, and House Administration are nominated by the Democratic Steering and Policy Committee (DSPC) from among the Members of the Standing Committee, and the nomination is submitted to the caucus for a vote. The DSPC is instructed by the rules to consider merit, length of service on the committee, commitment to the Democratic agenda, and the diversity of the caucus in making its nomination. If they nominate the Member of the standing committee with the most seniority, then by rule the caucus votes only on approval or disapproval of the nomination. If the DSPC nominates someone other than the most senior Member of the standing committee, then alternative nominations can be made within the caucus and, following debate, a secret-ballot election is held within the caucus for the nomination.
Q. Who’s on the DSPC?
A. The party leader (Speaker/minority leader) and other leadership Members, caucus leadership Members, and a number of others set by rule: a freshmen Member, 12 regional representatives, the Chair/Ranking of several committees, and up to 15 at-large Members chosen by the party leader.
Q. You mentioned that a standing committee Chair/Ranking was nominated by the DSPC from among the Members of the standing committee. How are they chosen?
A. Much the same way. The DSPC recommends Members for committees, and the nominated slates are ratified by the caucus. There are specific rules that guarantee all Members at least one assignment, and that prohibit Members from holding multiple high-value committee slots.
Q. Great. And that’s the same for Appropriations as the other committees?
A. Yes, except as noted above, there’s an alternate provisions for Rules, Budget, and House Administration, which give the leadership more power relative to the caucus as a whole in the case of Rules and House Administration, and less power in the case of Budget.
Q. So how do the House Democrats select subcommittee chairs/rankings?
A. For all committees except Appropriations, the rules specify that at the initial committee caucus organizing meeting, all Members of the committee caucus have the right to bid, in order of seniority on the full committee, for the chair/ranking of the subcommittees. So they more or less call the roll at the meeting, and Members pick what they want. Three of the committees — Energy and Commerce, Financial Services, and Ways and Means — are also required to have the winning bidders submitted to the DSPC and the full caucus for approval. The other committees do not require approval.
Q. What about the rest of the subcommittee Members?
A. After the chairs/rankings are decided for all subcommittees, the bidding process at the committee caucus continues. Everyone who hasn’t won a subcommittee chair/ranking gets to then, in order of full committee seniority, either “protect” a subcommittee they were on in the previous Congress, or to “pitch it in.” Once all Members of the committee have announced either what they are protecting or that they are pitching it in, then bids are made for subcommittee slots, based on (A) how many assignments you already have (either 1 or none, depending on whether you protected something) and then (B) your full committee seniority. The bidding continues until all subcommittees are filled. So if you were on the Subcommittee on Baseball last Congress, but you also want to get on the Subcommittee on Football this year, you have a choice: protect Baseball and hope that Football is still available in the second round of the draft, or pitch Baseball in, get a first round pick to use on Football, and then hope Baseball is still around in the second round. (Obviously, if there aren’t enough subcommittee seats for people to hold more than one, you have to choose Baseball or Football right out of the gate.)
In effect, the first round of picks ends up going like this: existing Members who pitched in by seniority, followed by new committee Members by seniority (since none of them have anything to pitch). The second round (if it exists) ends up going like this: the subcommittee chairs/ranking (they already had a round 1 assignment), followed by existing Members by seniority (which now includes all Members who protected), followed by new committee Members. So if you are a low ranking existing committee Member, pitching in your opportunity to protect an assignment can move you very far up the list in an effort toward getting a new subcommittee: you can often go from late in the 2nd round to early in the first.
All of this is governed by the Democratic Caucus rules. The GOP system is less centralized, but most committees using a similar bidding system.
Q. Ok. That sounds kind of fun. How is it different on Appropriations?
A. Three simple differences: first, the subcommittee chairs are not chosen by full committee seniority, but instead by subcommittee seniority. In other words, there’s no draft for subcommittee chairs/rankings. It just automatically goes to the most senior Member of the subcommittee who protects that committee (or chooses it first if no one protected it). Second, you can protect up to 2 existing subcommittee assignments when it’s time to protect or pitch in. Third, by House Rules, Appropriations can have more subcommittees (there are currently 12), and therefore, most Members are on there subcommittees when their party is in the majority.
If you brain has not started to spin, the ramifications probably haven’t clicked in yet. If they have, you probably have a huge smile on your face. Either way, read on.
Q. I’m not seeing it?
A. Well, the use of subcommittee seniority instead of full committee seniority has three massive strategic implications. First, there’s a lot of value in staying on a less popular or less desirable subcommittee; less-senior Members of the full committee can quickly get subcommittee seniority. Second, there’s a trade-off that has to be weighed between being a chair/ranking of a lesser subcommittee and being a junior Member of a powerful subcommittee. Would you rather be the chair of the Legislative Branch Subcommittee, or a junior Member of the Defense Subcommittee? Finally, the subcommittee seniority system makes it dangerous to test the waters at the selection process. As soon as you pitch in a subcommittee, you lose all seniority on that subcommittee — even if you get back on it by picking it in a later round of bidding. And picking a subcommittee earlier than someone else in the same draft gives you the seniority.
These issues simply don’t present themselves on the other committees: to become a subcommittee chair, you just have to wait until you have the full committee seniority, you can’t gain advantage by squatting. Nor can you lose it. As we will see, it also turns out that we can use the unique appropriations committee process to empirically estimate the perceived value of different subcommittees. But we have to solve a logic puzzle first. (more on that later.)
Q. Ok. I’m still not sure I see it. Walk me through it.
A. Ok. It’s the committee caucus meeting. When the Democrats are in the majority, most returning Members will have three existing subcommittee assignments.We call the roll in full committee seniority order. Each Member can protect up to two of the existing assignments, or pitch any number of them in. New committee Members will obviously have nothing to pitch in.
Once we get through the whole roll, we’ll have two things: a board that shows what slots have been protected on each subcommittee and how many additional slots are available, as well as a three-round draft order. The draft order will look like this:
Round 1: Everyone who either pitched in two assignments, or is new to the committee, in order of seniority
Round 2: Everyone from round one, plus everyone who pitched in one assignment, in order of seniority
Round 3: Everyone on the whole committee, in order of seniority
Q. Ok. I think I get it. But why is it fascinating?
A. Mostly because Members are put in the position of having to make very important strategic choices with very little time to consider the implications. All information about pitching in and protecting is public, but it’s not made public until the very moment it happens, meaning you might not have a full understanding of the draft order ahead of you until seconds before you have to choose whether to pitch in both of your assignments. Nor will you ever know for certain the priorities of those ahead of you, or the actions that will be taken behind you in the draft. And those pieces of information are vital if you want to maximize your protections and picks. I’m convinced that many Members do not maximize their utility in the draft.
Here’s a simple example: say we’re having an approps assignment draft, and the only changes to the membership of the committee is that two members have retired: a Member of the Defense Subcommittee and a Member of the State-Foreign Ops Subcommittee. Two new Members have been added to the committee. You are currently chair of Legislative Branch, but you’d really like to get on Defense, and you are willing to give up the gavel on Leg Branch for it, but you really don’t want to give up the Leg Branch gavel and not get the Defense slot. And you really don’t care about State-Foreign Ops.
When it’s time to pitch in, everyone more senior than you protects 2 assignments (meaning they don’t have a first round pick), except for one person, who pitches both of their assignments, meaning they can have Defense if they want it. But you think they want State-Foreign Ops. But when you asked about it before the meeting, they were coy. And you know they are really good friends with the person directly behind you in seniority, and you know that Member wants Defense.
It’s now your turn. Do you pitch in both assignments, knowing that once you do, you can’t get back the chair on Leg Branch? But what if you don’t pitch them in, and then the person ahead of you takes SFO, leaving Defense to pass you by?
It’s a dilemma.
Q. Neat. Is that all?
A. Not by a longshot. Remember, the whole process cascades. If you pitch in Leg Branch, that means that whoever was second in seniority on Leg will now be the chair if they protect it, which obviously affects their strategic calculations. And possibly their lobbying efforts for what you should do. And dare we say their information sharing? Furthermore, openings in committees that you have no interest in can severely affect your fortunes, since they can strongly affect the cascade if seats open up on popular committees, and mid-range committees are left with only the chair protecting them, which is often the case in a full-draft at the beginning of a Congress. And yes, Members and staffers do think about these things.
Q. So that’s kind of cool, but is that all?
A. Nope. Because once we (as observers) have the draft order and the picks, all sorts of interesting things can be observed. First, it gives us a great measure of the relative desirability of the subcommittees, since we can see what draft picks were used to get what slots. Second, it lets you understand some of the individual Member politics, since you can observe Members using high picks to lock-up slots that ex ante don’t seem that desirable. And finally, it lets you see if Members made mistakes, or at least bad value plays like the Oakland Raiders make in the NFL draft. For instance, if a Member uses a first round pick to get a slot (say, third most senior Member of Subcommittee X, which has five slots), and that exact slot is still available when the Member makes their second-round pick, it’s pretty obvious that the first-round pick was either super risk-averse (since there was plenty of buffer to just get on the subcommittee) or a lot of wasted value.
Q. So, where can we look at the old drafts?
A. You can’t. The drafts are held closed-door, and neither the pitch list or draft order is released. Just the final results of the selection process.
Q. Oh, come on.
A. Don’t worry: there’s a way to recreate the drafts, using nothing more than basic logic. If you examine the subcommittee rosters before and after a draft, you can deduce certain things using two principles:
1. Among senior subcommittee Members, when the seniority order does not change from before to after a draft, that implies (but doesn’t prove) a protected slot.
2. When a less-senior (by full-committee) Member appears ahead of a more senior Member, it proves the selection was made in a previous round of bidding.
These two principles allow us to often be able to recreate the full draft. Here’s a quick example, using a hypothetical subcommittee in which the Democrats are going from 5 to 8 seats, because they have reclaimed the majority:
Here’s how you back-out information about the draft order. We can see that Buchanan and Lincoln pitched this subcommittee. We can also see that Roosevelt must have pitched it too (only to get back on later), since otherwise he would be at least ahead of Carter, Bush, and Clinton, as they weren’t previously on the subcommittee. We can also be almost certain that Adams and Jefferson both protected the subcommittee, because if Adams didn’t, then Jefferson could have become chair simply by protecting it; likewise, if Jefferson didn’t, Buchanan would have had the same opportunity, as would have Roosevelt. Since that didn’t happen, it’s almost a lock that what did happen was that Adams protected it and so did Jefferson. We also know that Ford picked the subcommittee in a later round than Carter, Bush, and Clinton, since he has a higher full committee seniority but a lower seniority on the subcommittee.
Doing this kind of logic puzzle across all subcommittees will eventually yield the protected subcommittees, the draft order, and the actually draft picks of all Members. It takes a few minutes and you definitely need pencil and paper, but it’s actually kind of fun. I suppose it’s theoretically possible that a situation could arise in which some information can’t be known for certain, but I’ve done a handful of them and each of them has been fully solvable.
Q. What do the draft picks tell us about the committee?
A. Below is an example draft from the past, with the protections and draft-order picks (but not the third item we could generate: a 3-round draft order with Member names attached). This is from a year that the number of subcommittee seats was greatly increased, due to power transfer. Using the technique above, I backed-out the protections, the draft order, and the draft picks.
In this draft, there were 35 Members of the full committee (24 returning and 11 committee freshmen). Thirteen returning Members protected two seats, five protected one seat, and six protected no seats. So picks #1-17 were first round picks (the five no-protects plus the freshmen), picks #18-39 were second round picks (the 11 no or one-protects plus the freshmen), and picks #40-68 were third round picks (everyone, except there not quite enough seats for all to have a third subcommittee).
| Defense (9 slots) | [P] | [P] | [P] | [P] | [P] | 2 | 4 | 5 | 6 | |||
| Labor/H (11) | [P] | [P] | [P] | [P] | [P] | [P] | 7 | 8 | 10 | 11 | 13 | |
| Energy and Water (9) | [P] | [P] | [P] | [P] | 25 | 34 | 35 | 45 | 48 | |||
| Transportation (8) | [P] | [P] | 17 | 18 | 20 | 21 | 22 | 28 | ||||
| State / Foreign-Ops (8) | [P] | [P] | 9 | 12 | 15 | 26 | 29 | 33 | ||||
| CJS(8) | [P] | [P] | [P] | 14 | 31 | 32 | 46 | 50 | ||||
| Interior (8) | [P] | [P] | [P] | [P] | [P] | 30 | 37 | 49 | ||||
| Agriculture (8) | [P] | [P] | [P] | 24 | 27 | 42 | 57 | 61 | ||||
| Homeland (9) | [P] | 19 | 23 | 38 | 44 | 51 | 55 | 56 | 60 | |||
| Military Construction (8) | [P] | [P] | 40 | 41 | 53 | 59 | 62 | 63 | ||||
| Financial (8) | 1 | 3 | 36 | 38 | 43 | 52 | 54 | 66 | ||||
| Leg Branch (6) | 16 | 64 | 65 | 67 | 68 | 69 | ||||||
A few things to note about this:
1. I’ve divided the subcommittees into three groups, based on how popular they were to protect, and how high their open seats went in the draft. It’s pretty clear that, from this draft, Defense and Labor/H were the most popular subcommittees among Democrats, and Financial Services and Leg Branch were the least popular. You can see that Defense and Labor/H were the most protected and the earliest picked; in fact, every returning Member of those two subcommittees protected their seats, all the other picks are for new seats. After the first pick took the chair of Financial Services, 9 of the next 11 picks went to Defense or Labor/H.
Conversely, Financial Services and Legislative Branch were not protected by anybody. That’s right: every existing Member of those subcommittees could have been the chair, but opted not to be. Now, in some cases the Member might have already been the chair of another subcommittee (you can only hold one), but in many cases this is not the case — people simply value a back-bench seat on Defense, Labor/H, or SFO more than a gavel on Leg Branch. That allowed the 16th pick to get the chair, and the 16th pick in the first round will always be quite far down the full committee seniority list, since protecting even one slot means you don’t have a first round pick. The only people who can pick in the first round are those who have pitched in everything, and the committee freshmen.
2. There appears to be one very strange pick, and that’s the #3 pick taking Financial Services. It’s odd because the pick could have been used elsewhere and the same seat been had during the second round (the Member with pick #3 also had second-round pick #23).
Q. Why are the subcommittee chairmanships so valuable?
A. Influence over policy, which leads to influence over politics. And also resources (staff, offices, etc.). In the world of subcommittees, the chairs tend to dominate. It’s really their show. And they are called cardinals, ahem.
Q. Are there external factors that influence how people pick and how the draft goes?
A. Sure. One issue is the size of the subcommittees. The number of seats can obviously vary, and the majority party has strong control over the number. Therefore, accommodations can theoretically be made if more Members are interested in a subcommittee than there are available seats. It’s not clear how common this is.
Second, the party chamber leadership almost certainly has an interest in who chairs the subcommittees, and may wield that influence prior to the draft. In any case, they have a strong say, because the subcommittee chairs are subject to approval by the DSPC and the caucus.
Q. They are?
A. Yes, just as with the Energy and Commerce, Financial Services, and Ways and Means committees, the subcommittee chairs of Appropriations are subject to a vote in the DSPC and the caucus. It is not at all common for them to be rejected by either body.
Q. So no one else does it this way?
A. Nope. The GOP uses a less-formal system in general for subcommittee assignment, and they don’t differentiate betweeen Appropriations and other committees. Ditto with the Senate. The House Dems are the only ones who use a formal subcomittee-seniority system.
Q. When does all this go down?
A. Not until after the election and the start of the new Congress. The committee caucus can’t meet until the Members of the Committee are chosen, and they can’t be chosen until the election tells us who’s in Congress. Both parties usually convene in the weeks after the November congressional elections to hold the initial caucus meeting, at which they usually adopt rules and select leaders and work such things out. If there’s a sudden opening due to resignation or death, then a draft is held mid-session, after the new Member of the committee is named. But those drafts are less interesting, because there are, naturally, only a few open slots on subcommittees.
Previous “Q&A” style posts
March 2, 2012 — Filling the tree in the Senate.
December 15, 2011 — Rule Layover Waivers in the House.
December 5, 2011 — How a bill becomes a law. Literally.
November 29, 2011 — The other caucuses. The ones in Congress.
Yesterday, in making a point about the filibuster, I mentioned that one fundamental difference between the House and Senate is the relative ease by which the partisan House majority can block minority amendments, even if those amendments have the support of the (numerical) majority of the chamber. As I’ve written about before, this has pretty big consequences for the deliberative nature of the chambers:
If deliberation is to mean anything in legislative politics, it needs to mean this: when one person proposes an idea, if someone else has a better idea that more people will like, the better idea should win the day. In effect, if you have a bill you want to pass, but I have an amendment that the majority thinks would make the bill better, then my amendment should be incorporated into the bill. That, in legislative life, is deliberation: a new idea having the chance to be voted on to replace an old idea, and actually replacing the old idea if the majority likes the new idea better. Normatively, this is what we want: people continually propose modifications to law, and the legislative output iteratively develops to ultimately match the will of the majority.
And when you come around to that version of deliberation — rather than one based on people listening when other people speak — all of a sudden the Senate does begin to resemble the world’s most deliberative body. Generally speaking, amendments cannot be restricted on the floor without unanimous consent; anyone who thinks they have a better idea is guaranteed a vote on that idea to see if the majority agrees with them. No one can get their own idea passed into law without the possibility of a better idea replacing it. This is the essence of the Senate at its best — there’s no way to lock the place down and ram through your ideas, if the majority wants a different idea.
But wait, in what sort of oddball legislature would they allow the opposite — ideas getting passed into law that a majority wants to, but can’t, amend with better ideas? Oh wait, that’s the United States House of Representatives! In the House, the majority can write restrictive rules of debate for individual bills, rules which state what amendments are and are not allowed to be voted on. The majority leadership routinely uses special rules, held together by partisanship and punishment for dissenters, to eliminate the possibility of popular amendments altering the leadership’s ideas in any way.
This isn’t an occasional thing, either — the vast, vast majority of important legislation goes through the House under a special rule, and a fair percentage of the time there is a plausible amendment out there which would have majority support in the chamber, but cannot be proposed because the leadership has excluded it from the special rule, and has held together the majority party on the special rule vote through carrot and stick tactics with the backbenchers. And this has been a recent development. Even as recently as 30 years ago, most important bills came to the floor under open rules, or at least allowed a wide variety of amendments. Now it is virtually zero.
I say this all because the general public consensus is that the Senate is broken. But if your concern is democratic deliberation, in the true legislative output sense of the word, the House might be your real worry.
All that said, there is a procedural way for the majority leader to at least partially shut-off undesired amendments in the Senate, known as “filling the tree.” This procedural tactic, although still relatively rare, has come into greater use in recent Congresses. And from a deliberative point of view, it is not unrelated to the value of the filibuster: if minority-offered amendments can be eliminated procedurally, then one of the key arguments in favor of the filibuster is undercut. For if the filibuster cannot be used to secure the right of minority amendments, then it is largely reduced to just an up/down supermajority hurdle on the passage of legislation, which is a much weaker (albeit, still defensible) justification for its existence.
So let’s talk through filling the tree in the Senate. It’s a nice way to do a basic refresher on some Senate amendment procedures, too. There’s a ton to talk about here, so let’s do it Q&A style.
Q: What prevents House-style special rules from being written in the Senate to restrict amendments?
A: Unlike under the House rules, the Senate rules do not allow a bare majority to change the rules at will. So while the partisan majority in the House can (and routinely do) write temporary rules to structure debate and limit amendments, in practice the Senate can only do so by unanimous consent. Which they do, all the time. But if they can’t come to a unanimous consent agreement to structure the debate on a bill, then they have to go by regular order.
Q: What does “regular order” entail?
A: It just means that they have to go by the actual Senate rules, rather than whatever they would make up in a unanimous consent agreement. For this discussion, there are two key features of regular order:
1) Unlimited debate. It is well-known that under normal Senate rules, debate on certain motions cannot be stopped against the will of a Senator without a supermajority for cloture.
2) No restrictions on germaneness of amendments. The normal Senate rules (unlike the House) allow a Senator, in most situations, to offer an amendment on any topic at any time.
Q: Wait, non-germane amendments are allowed in the Senate?
A: Yes. This can often lead to debate on a bill ceasing to be about the bill itself; instead, the entire debate shifts to debate over an amendment. The minority is quick to take advantage of this — the democrats were famous for offering minimum-wage amendments to everything under the sun in the late 90’s Republican-controlled Senate. Just yesterday, the Blunt amendment regarding health care coverage of contraception was a non-germane amendment to the Highway reauthorization bill.
Q: So any Senator can offer any amendment on any topic at pretty much any time?
A: In theory, yes. And this is what makes the Senate so different from the House. You can take an entire bill — one that the majority has no intention of ever bringing up, or even letting out of committee — and put it into an amendment and then attached to any piece of legislation. There are four major exceptions, in which amendments must be germane: appropriations bills; legislation raised under the Budget Act or other laws that specifically require germaneness; amendments made after cloture has been invoked; and, of course, when a unanimous consent agreement has been reached that restricts non-germane amendments.
Q: So Senators can just keep adding amendments to a bill, forever?
A: Yes, but not exactly. Absent a unanimous consent agreement and short of getting cloture, debate on any bill or amendment cannot be limited. However, the amendment process is still structured. That is, under regular order, only a certain amount of amendments are allowed at once, and they must be disposed of before further amendments can be offered. In addition, there is a limited number of opportunities to amend the same piece of text in a bill. So there’s no cap on the number of amendments, but you do have a process that both eventually runs out of room for amending, and also limits the number of amendments that can be pending at one time. And this is the key to filling the tree.
Q: Why is it called “filling the tree?” What’s the tree?
A: The amendment process in the Senate is quite complicated. In order to simplify it, a set of charts have been developed by the parliamentarian to make it easier to understand when and what type of amendments may be offered. These charts are known as the “amendment trees,” due to their likeness to a tree trunk and branches. “Filling the tree” is the term for using up all the available amendment branches.
Q: How is the amendment process structured?
A: It depends on what form the underlying legislation comes to the floor, as well as what kind of amendment is first offered. I’ll use the most simple example here, a motion to insert text into a bill. Here’s what the amendment tree looks like:
Q: Huh?
A: It’s not as complicated as it sounds. Say we have a bill that “requires all school lunches to include fruit.” I offer a 1st degree amendment to insert “and vegetables.” Someone else then offers a 2nd degree substitute to my amendment that says “and whole grains,” which would have the effect if adopted of removing the “and vegetables” and replacing it with “and whole grains.” Finally, someone offers a 2nd degree perfecting amendment to my amendment that inserts “green” before “vegetables,” which would have the effect of making the amendment “and green vegetables.” There you go. One important issue is the order of voting. In the case of a 1st degree amendment to insert, the vote order is 2nd degree perfecting, 2nd degree substitute, then 1st degree insert (as labeled 1,2,3 in the chart). And that has all sorts of strategic consequences. For instance, if the perfecting 2nd degree amendment that inserts “green” is popular, then the original 1st degree amendment (for just inserting “vegetables”) will never get a vote, since once it comes up for a vote, it will read “green vegetables.”
Q: But if there are limited amendments allowed, how come there are often dozens of amendments pending in the Senate?
A: Two reasons. First, that’s just the most simple amendment tree. In other scenarios (for instance, when the original 1st degree amendment is not an amendment to insert), you could have up to 11 1st and 2nd degree amendments pending. But more importantly, amendments can be laid aside in the Senate by unanimous consent, meaning that multiple first degree amendments to insert could be pending if everyone agrees to it. In fact, once you fill the tree, you have to make sure to object to any unanimous consent request to allow further 1st degree amendments, since that would of course make them available.
Q: So how do you fill the tree?
A: It’s easy: you just offer amendments on all possible branches, until no more amendments are allowed. At that point, no further amendments can be made until your amendments are disposed of.
Q: When do those amendments come to vote?
A: Unknown. Remember, there is unlimited debate in the Senate under regular order. Once the 2nd degree perfecting amendment is pending, no further amendments are allowed, and the vote on the 2nd degree perfecting amendment will not occur until debate has ended.
Q: But won’t those votes eventually happen?
A: Yes, but if you keep debating, the votes might not happen until after cloture is invoked on the underlying bill.
Q: Why does that matter?
A: Because, as we discussed above, after cloture is achieved, only germane amendments are allowed. So any non-germane amendment that a Senator had hoped to offer prior to cloture is no longer eligible.
Q: And therefore, the majority can limit the amendment process to germane amendments?
A: That’s right. And they can theoretically do more than that. Since there’s a finite amount of debate time allowed post-cloture, the majority could fill the tree, get cloture on the underlying bill, and then run out the clock post-cloture debating the existing amendments, never letting any other amendments be called up. And they could make all the amendments trivial, such that the vote on them doesn’t even matter, since it won’t change the underlying bill.
Q: But couldn’t minority Senators do the same thing, and fill the tree with friendly amendments?
A: No, for two reasons. First, amendments can be disposed of negatively prior to the end of debate; it’s called tabling. Anyone who gains the floor may make a motion to table an amendment, even if debate on the amendment is not complete. And the motion to table is itself non-debatable. Therefore, unpopular amendments can be quickly disposed of. This, of course, makes logical sense: there is good reason to allow extended debate on something the (numerical) majority is trying to pass; there’s not a lot of reason to allow extended debate on something a (numerical) majority opposes and doesn’t want to talk about.
Second, by practice and precedent, the majority leader has the first right of recognition on the Senate floor if multiple Senators are seeking recognition to offer amendments. Under Senate rules, a Senator who offers an amendment not only loses the floor after offering it, but also may not offer a 2nd degree amendment to the amendment until action has been taken on it. Now, the latter problem could be solved by asking for the yeas and nays (which doesn’t relinquish the floor), but it still requires gaining recognition multiple times in a row. Only the majority leader can realistically hope to achieve that, since he can block any attempt by another Senator to do so (as could the minority leader, or bill managers, who have priority after the majority leader.)
Q: But why do that. Why not just table the non-germane amendments you are trying to keep out?
A: Three reasons. First, you might not have the votes. If the Senate is closely is divided, say your majority has a 52-48 advantage, then your caucus might be against a policy by a 49-3 margin, but unable to prevent passage of the amendment. So, just like in the House, you might prefer to never have to deal with it. You can use various bargaining tools to persuade your 3 supporters not to bring it up, and those same tools might work on the minority, but if they don’t then filling the tree might be your best way around having to include the amendment. And no, you can’t really filibuster the amendment, since that will stop your underlying bill dead in its tracks, which is probably just fine with the minority.
You also might be facing a killer amendment (also known as a “poison pill”). Killer amendments are simple: they are minority amendments that split the majority into two camps: one group that can’t possibly vote against the amendment, and a second group that can’t possibly vote for the underlying bill if the amendment is included. The minority then votes strategically: they vote with the first group to pass the amendment, and then they vote with the second group to kill the bill. Example: gun control. Say there are 48 Republicans, all who support a gun rights amendment. And say there are 15 Democrats who also support it, and must vote for it. But there are also 15 Democrats who can’t ever vote for a bill that includes strong gun rights. The GOP offers the amendment, it passes with 63 votes, and then the bill fails when the GOP aligns with the other 15 Democrats to vote against it. Filling the tree can theoretically avoid this situation.
The third reason is that, even if you have the votes to table an amendment, you might not want to take the vote. Minority amendments are often raised in an effort to put the majority on the record either supporting or opposing particular policies, and in many cases the majority would simply prefer to not go on the record, at least not in bill language chosen by the minority at a particular point in time.
Q: So how does this actually work, in practice?
A: Typically, it’s a move of last resort. The majority almost always prefers to call up bills and structure the debate and amendments under a unanimous consent agreement if they can get one that satisfies them. It’s just faster and more predictable. But short of that, the majority leader will get the bill on the floor (perhaps by securing a cloture vote on the motion to proceed), and then offer the necessary amendments, intervening between each to ask for the yeas and nays, until the tree is full. As an example, here’s Majority Leader Dole on May 3, 1996, filling a tree to avoid a non-germane amendment on the minimum wage [text is truncated by removing clerk readings, UC's to dispense with amendment readings, and seconds for the yeas and nays]:
There being no objection, the Senate proceeded to consider the bill.
Mr. DOLE. I send a substitute amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3952.
Mr. DOLE. Mr. President, I ask for the yeas and nays
The yeas and nays were ordered
Mr. DOLE. Mr. President, I send an amendment to the desk to the substitute.
The PRESIDING OFFICER. The clerk will report.
The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3953 to amendment No. 3952.
Mr. DOLE. Mr. President, I ask for the yeas and nays.
The yeas and nays were ordered.
Mr. DOLE. I now send a second-degree amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3954 to amendment No. 3953.
And the tree is full. No more amendments allowed. Dole then explained his actions:
Let me also indicate, it is necessary to go through this procedure of filling up the tree so we can take action on this bill without having nongermane amendments offered to it. I would indicate we have made a proposal to the Democratic leadership with reference to minimum wage. I have asked Senator Lott to try to resolve that with Senator Daschle and others … if we want to change general policy, I suggest we do it through the process of hearings in the appropriate committee.
Q: Are there any loopholes?
A: Yes. The minority could offer a motion to recommit the bill to a committee with instructions to report back forthwith, which would be functionally the equivalent of an amendment. In order to avoid that, the majority leader would need to himself make a motion to recommit, and then fill that motion’s tree (which includes a first degree amendment and a 2nd degree amendment to the amendment). Senator Dole did this in the example above.
Q: Is it common to fill the tree?
A: Not particularly, but it’s more common than it used to be. During the 111th Congress, the tactic was used about 15 times. In comparison, it was only used twice in the 105th Congress.
Q: How does the minority feel about the tree being filled?
A: Um, they don’t like it. Not at all.
Q: What recourse does the minority have to the tree being filled?
A: Procedurally, very little. Of course, the Senate is run on a lot more than procedure, and the minority can retaliate against perceived norm violations in all sorts of manners, ranging from withdrawal of support for some aspects of the bill at hand, to cross-issue retaliation, such as putting holds on other legislation or filibustering a nomination. And, of course, the minority can always escalate things by taking drastic actions, such as refusing to dispense with routine items by unanimous consent, such as the reading of amendments or even morning hour procedures such as the reading of yesterday’s journal. In effect, the recourse is largely political.
Q: Are there downsides to filling the tree.
A: Yes. When you shut off amendments, you shut off all amendments, including ones that your side might like to make. Now, that can be overcome in part by including those amendments as part of filling the tree, but that requires both forward knowledge as well as off-floor negotiation. And while that’s by no means impossible, it does highlight that filling the tree doesn’t simply preclude minority rights to amendments, it precludes everyone’s right to amendments.
Q: Are there other reasons to fill the tree besides avoiding non-germane amendments?
A: Sure. It can give the majority better control over the substance of amendments and the order in which they are voted upon. As noted above, the order of the amendment votes can alter which underlying ideas actually get a vote, as well as the pair-wise comparison that is being made in any given vote. Also, the majority can fill the tree as negotiating leverage if they are working with the minority on a UC agreement regarding debate or individual amendments.
Q: Is filling the tree a problem?
A: Only if you think it is. But if so, then yes. As I discussed yesterday and earlier in this post, any legislature needs to draw a balance between the ability of the majority to quickly move its preferred legislation, against the rights of the minority and the individual to extended debate and deliberative amending of legislation. In the end, these are both axiomatic sets of values, and your answer to the question of the propriety of filling the tree almost certainly depends on what underlying values you bring to the table. What filling the tree can accomplish — shutting off non-germane amendments, and in some cases all amendments — is hardly beyond the pale for a legislature; after all, the former is written right into the rules in the House, and the latter is accomplished in the House on a daily basis. But, while perfectly legitimate procedurally, it certainly is not in the spirit of the traditional Senate rules.
Previous “Q&A” style posts
December 15, 2011 — Rule Layover Waivers in the House.
December 5, 2011 — How a bill becomes a law. Literally.
November 29, 2011 — The other caucuses. The ones in Congress.
I recommend reading Ezra Klein’s two recent pieces on polarization and the filibuster, here and here, which focus on the important idea of how institutions filter preferences:
Snowe’s retirement will have many lamenting the endangered moderate and wondering how we can turn back the clock. But we can’t. About that, Snowe is right. Polarization is with us now and will be with us for the foreseeable future. The question is whether we will permit it to paralyze our political system and undermine our country or whether we will accept it and make the necessary accommodations.
Doing so would require taking on cherished, consensus-promoting features of the old system, like the filibuster. But in today’s girdlocked world, those features no longer promote consensus. They simply promote gridlock.
…
The filibuster, of course, is what permits a united minority to kill bills. As such, it radically increases the value of holding the opposition together in a “block everything” strategy, and thus radically increases the pressure on minority senators to resist the allure of compromise. In its absence, it would both be worth less for individual minority senators to resist compromise, and worth less for their leadership to pressure them to resist compromise. Thus, compromise would become easier.
It’s also important to note that the filibuster is mainly an issue in times when one party controls the House, the Senate, and the White House. That’s not an unknown state of affairs, obviously, but it is relatively rare: In the last 30 years, there have only been eight years of unified government — four for Democrats, and four for Republicans. That’s because, in our system, with its staggered elections, a party usually has to win a few subsequent elections to achieve unified control of the government. When they do that, it tends to mean they have an unusually strong mandate from the public.
So the question isn’t whether the majority party should be able to work its will all of the time, as is true in, say, the British system. It’s whether the majority party should be able to work its will during the few times when the public has decisively put it in charge of the government. And it seems to me that given the nature of our problems, it would be productive if the two parties had more opportunities to govern effectively and then be judged upon their results.
This is a fair argument, but it doesn’t hold water for me. Mostly because it’s at odds with itself: you can’t simultaneously achieve “more compromise’ and “more opportunities [for the parties] to govern effectively and then be judged upon their results.” Those are basically opposite: you either have a majoritiarian system in which the minority is effectively shut out from policy making, or you have a system in which minority participation is required to pass policy, and compromise is therefore necessary. Given the realities of polarization, you really can’t have both.
Four related general points, not all of them directed at Ezra’s columns:
1. This concern — the majoritarian one — is much wider than the filibuster. The American system is just chock full of anti-majoritarian features. That is, if the comparison is to the British system or some other single-chamber sovereign legislature that attempts to singularly replicate the will of the people, the filibuster is really far down the list of anti-majoritarian features. Here’s a short list: bicameralism, staggered Senate elections, the independent Presidency, the veto, the supermajority requirements to ratify treaties, the committee system, the bar on non-germane amendments in the House, constitutional federalism, and so on. It’s endless.
Our system is not majoritarian. On purpose. And there’s nothing inherently wrong with that. Or, to put it better, it’s not obvious to me that making a system more majoritarian necessarily improves the overall legislative output or the overall health or happiness of a limited-government republic. There are plenty of things in life that absolutely shouldn’t be majoritarian — like criminal jury deliberations — and the burden of proof, I think, is on those who believe our federal government would be better served with fewer anti-majoritarian institutional features. Simply asserting — as many people reflexively do — is definitely not good enough.
Which I think Ezra agrees with. But I also don’t think it’s good enough to point out how one exogenous change (polarization) is amplified by an existing anti-majoritarian institutional feature (filibuster). That’s true for almost all exogenous changes and all institutional rules. Things change. The practice of politics is dynamic, both across institutions and over time. Within the broad understanding of representative democracy, there’s virtually no arrangement of institutions that, ex ante, is superior to any other. It depends what your axiomatic priorities are. And so for each argument you make against the anti-majoritarian features, there’s pretty much an equivalent argument in favor of them. It reduces, usually, to a clash of axiomatic values.
Still, there are consequences to the majoritarian impulse in the contemporary political environment. One important one is that…
2. The filibuster is under attack, I think, for quite the wrong reasons. I’m of the mind that the filibuster is probably the most overrated of all the anti-majoritarian devices. Not because it’s not important or consequential, but because many commentators view it as the difference between hell and utopia. But as Ezra notes, it’s often not even a huge systemic factor unless there is unified control of the government. Does it alter policy outcomes? Of course. Are there places I’d like to see it reformed? Absolutely (judicial nominations). Is it more important than the veto, or bicameralism, or the staggered terms in the Senate, as far as anti-majoritarianism goes? Color me skeptical.
The reason the filibuster gets so much attention is threefold: first, high visibility. It’s pretty tough to see how the committee system works it’s anti-majoritarian ways, but the filibuster is often on bright display. Now, that’s not always the case — tons of legislation is buried by the filibuster before it ever gets to the floor, making filibusters ridiculously hard to count up — but it’s definitely in the limelight a disproportionate amount of time. Second, the filibuster as currently practiced is new. That is, plenty of people can easily remember when lots of legislation passed the Senate that would, under today’s conditions, be killed by a filibuster. Finally, the filibuster is, relatively speaking, easy to change. Unlike bicameralism or the veto, here is an anti-majoritarian institutions that could theoretically be removed by a few quick votes in the Senate.
But all of this sums to looking for your lost keys under the street lamp. Regardless of the fate of the filibuster, the policy outputs of our system are not going to respond to bare majoritarian wishes. Period. If you’d like them to be somewhat more responsive to bare majoritarian wishes, then by all means promote the ending of the filibuster. But I don’t think it’s fair to say to that ending the filibuster would somehow have massive consequence for the anti-majoritarian character of the institutional structure. We had policy gridlock at many points in the (pre 60-vote Senate) 80′s and, conversely, a sizeable amount of important legislation has been passed in the last 10 years, despite the Senate rarely having an effective 60-vote coalition. And so while I understand that the filibuster changes policy outputs, I’m less inclined to believe it actually regularly stops major policy dead in its tracks. At any rate, even total reform is unlikely to result in huge consequential policy changes. And it certainly wouldn’t make our system more just in any sort of normative sense. In fact, it might just make it less just, because…
3. The conventional non-filibuster counterfactual is pretty weak. I’ve always thought that there’s a strange nostalgia for the Washington politics of the 60′s among those who dislike the filibuster and/or polarization. It doesn’t really wash. Yes, on civil rights the northern Democrats and the Republicans teamed up and the bill was written in the minority leaders’ office and, in general, the parties weren’t quite so ready to vilify each other because there were conservative Democrats and liberal Republicans and a fair number of cross-partisan coalitions. But if the animosity wasn’t so partisan, it was certainly just as real. And I can’t imagine contemporary Democrats would be all the happier if they could just get a dozen of the more conservative Republicans to switch party labels.
But the main point here is that when you look back a generation or two and see (1) less polarization and (2) less use of the filibuster, it doesn’t at all follow that if you institutionally replicate the second point (by ending the filibuster), you somehow move closer to the first. Now, I know Ezra wasn’t exactly asserting that, but I think a lot of people seem to believe it — that if we just get rid of the filibuster, we can achieve the sort of bipartisanship of yesterday. Nonsense. What you will achieve, at best, is the party politics 1870s’. And while that’s not something that bothers me — I’m fine with strong responsible parties — it does fly in the face of what a lot of people think of when they think of killing the filibuster. Things like deliberation and compromise.
I just don’t see it. Killing the filibuster in its entirety in the contemporary climate would almost inexorably lead to a foreclosure on the ability to raise amendments on the floor, in effect removing the one clearly deliberative aspect of the Senate. Generally speaking (and tree-filling aside), amendments cannot be restricted on the Senate floor without unanimous consent; anyone who thinks they have a better idea can get a vote on that idea to see if the majority agrees with them. In effect, no one can get their own idea passed into law without the possibility of a better idea replacing it. This is the essence of the Senate at its best — there’s no way to lock the place down and ram through your ideas, if the majority (numerical, not partisan) wants a different idea.
But wait, in what radical legislature would they allow the opposite — bills getting passed into law that a (numerical) majority wants to — but can’t — further amend with better ideas? Oh wait, that’s the United States House of Representatives! In the House, the (partisan) majority can write restrictive rules of debate for individual bills, rules which state what amendments are and are not allowed to be voted on. The majority leadership routinely uses special rules, held together by partisanship and punishment for dissenters, to eliminate the possibility of popular amendments altering the leadership’s ideas in any way.
This isn’t an occasional thing, either — the vast, vast majority of important legislation goes through the House under a special rule, and a large percentage of the time there is a plausible amendment out there which would have majority support in the chamber, but cannot be proposed because the leadership has excluded it from the special rule, and has held together the majority party on the special rule vote through carrot and stick tactics with the backbenchers. And this has been a recent development. Even as recently as 30 years ago, most important bills came to the floor under open rules, or at least allowed a wide variety of amendments. Now it is virtually zero.
The true tension in all of this is that you can’t have it both ways. You either have the House — where the leadership of a partisan majority can effectively lock out legislation that has majority support — or you have the Senate, where the minority can block legislation that has majority support. Threading the needle requires either strangely weak parties or unrealistically benevolent leaders. But my bottom line, one that you don’t hear too often outside the Capitol, is that we probably don’t want two chambers that suffer from the same problem, and that having iron-fisted leadership rule in the House and minority power in the Senate is preferable to having two of either, and probably better than having the converse. Scratch that, definitely better than having the converse.
Kill the filibuster and get more compromise? It’s just not a likely result.
4. A majoritarian Senate might not even be a normative improvement. I’ve said it before, but at the micro-level, the main problem with filibuster reform is that you aren’t unleashing majoritarianism in the Senate as we normally think of it in the contemporary world, you are unleashing majoritarianism of the states, which may or may not correspond to popular majoritarianism at any one time. People constantly bemoan the state of the world when the Senate rejects an idea that seems popular in public opinion. But one simple explanation is often forgotten: the Senate is malapportioned!
Yes, everyone “knows” that, but a lot of times people seem to overlook one of the basic consequences: a Senate vote will often not match aggregate public opinion, even if every single Senator is explicitly following the public opinion of his/her constituents. Unlike the House, which at least theoretically is weighted like a public opinion poll, the structure of the Senate makes no pretense to being a reflection of national public opinion. (Of course, the House can suffer the same problem; any aggregation of district preferences — no matter how perfectly apportioned — could stray from national preferences. But it’s much more pronounced in the Senate).
Now, you can ask Senators to take a Burkean trustee view of representation and vote the national good. That may or may not be warranted in any individual case. But I think it’s a fallacy to imply in such situations that at least some Senators must be inherently doing something against the wishes of their constituents if national public opinion goes one way and the Senate goes another. The institution, for better or worse, is simply not built that way. And because it’s not built that way, we have to be careful about adjusting Senate rules in search of majoritarianism. For it isn’t there to be found, in any real sense. Any bare Senate majority might reflect an underlying 40% of the nation, or an underlying 60%. And that would be just as true post-reform as it is now. It’s a reminder that the Senate can be just as anti-majoritarian without the filibuster as it is with it. For it is not, and was not meant to be, a popular institution.
And look, I’m not a huge fan of the filibuster. I think it allows for unhelpful ambiguity in Senator position taking, unnecessarily slows things down, and gives perhaps too much leverage into individuals. But all of that sums to much less than the whole of the contemporary complaint. A federal government without the filibuster is just a government with one less anti-majoritarian feature. For every policy the filibuster buried, there are probably 50 that were buried by non-filibuster anti-majoritarian features of the system. And for every policy you like that got buried by the filibuster, there’s probably one you don’t like that saw the same fate.
Now, I don’t want to say this is all much ado about nothing. The filibuster shapes policy, and in some areas (like judicial nominations) it is having a serious impact. But I think it gets way more attention than it deserves. The filibuster is far from the only institutional veto player, it is usually not the decisive institutional veto player, and its reform will come with some costs. Reformers should correspondingly temper their expectations about the world after success.
In response to my post from yesterday about brokered conventions and dark horses, Jonathan Bernstein makes the case that I’m underestimating the possibility of a factional bolt if the (highly unlikely) deadlock came to pass:
I’m going to stick up for my argument a bit. The thing is: Matt’s objections are also objections to getting to a deadlocked convention in the first place. So if they really reach Tampa with no resolution, then that means that the party didn’t unify around one candidate during the primaries and caucuses, and they didn’t work something out during the two months between Utah and Tampa, and they didn’t work out anything in the first days of the convention. If all that happens, then either the rules and norms of the game are somehow getting in the way of cooperation (contrary to what I and some others believe, which is that the rules and norms of the game facilitate cooperation), or that there really is some sort of serious schism either predating the nomination battle or caused by it.
So basically, if we grant the implausible premise of a deadlocked convention…I’m going to say that all bets are off, and lots of chaotic outcomes are very possible. Including the possibility that some of the actors involved may not behave very rationally at all. For two reasons: one is the emotions of the moment, but another is that a lot of the delegates are probably not very sophisticated or experienced political actors at all.
You should take anything Bernstein says very seriously (I certainly do), and the point he makes here is a good one. I agree that the possibility of chaos increases dramatically if a delegate deadlock from the primary season is not settled prior to the 1st ballot vote at the convention. That’s definitely a signal (beyond simply the voters indecision) that the party itself is seriously split on the nomination decision. And I think it’s also a really good point that emotion can lead to irrational behavior among delegates, and that this can precipitate a bolt. Hell, that’s basically the story of Charleston, 1860: the southerners worked themselves into a frenzy in the convention hall after they lost the platform fight over Dred and the territories, and then walked out basically on impulse. Once they had bolted, however, most of them sat around Charleston either sulking or giving fiery speeches, but mostly wondering when they would be invited back to join the convention. Emotional and irrational indeed.
So I would say Jon’s argument convinces me that a bolt is at least plausible under a deadlock. But I still think there are serious structural forces working against it, even if we did get to the 1st ballot undecided. First, I think there’s a big difference between a party being closely divided and one being deeply divided. The Democrats in 1860 were deeply divided, but not really closely divided: the schism over slavery was (obviously) about to come to physical sectional conflict, but within the Democratic convention (where at the time delegates were assigned by state population proportion, regardless of party strength within the state), it wasn’t really closely: the northern view basically predominated. In the GOP right now, we kind of have the reverse: a deadlock would show a very closely divided party — perhaps split almost exactly 50/50 between Santorum and Romney — but it doesn’t seem to me to be a deep division. It’s more like Hillary and Obama. Sure, each faction has its preferred candidate, but it’s not like either faction would consider moving their support to the Democrats given the nomination of their non-preferred candidate. In 1860, that was exactly the situation.
Second, I don’t think a split aggregate judgement of the voters necessarily implies a schism among delegates, or among the competing candidates. The voters aren’t purposely choosing schism; they are only acting collectively by aggregation, over a series of months. The delegates, on the other hand, would have to take a dramatic step while everyone was watching in order to create a bolt. It would not simply be a ratification of the voter indecision; it would itself be a wholly new decision. Now, part of this is mitigated by Jonathan’s point: if the party can’t get this together between the end of the voting and the start of the convention, that’s evidence that something is wrong. But it’s still not the positive step of fracturing the party. That seems to me to be another purposeful action, at another level of seriousness, in and of itself. And I don’t think it would occur until after many ballots had been taken. In fact, I think the possibility of a dark horse — itself a radical longshot and a completely untenable idea in practice — is probably more likely than a bolt. But maybe I’m just agreeing with Bernstein now: this is so highly unlikely at two levels (first the deadlock, second the inability to solve the deadlock prior to, or subsequent to, the first ballot), that once those two unlikely scenarios have come to pass, a bolt becomes an actual possibility.
[updated; see below]
Greetings from Austin, TX! For those of you who missed it, last time I was here (September) I took a fabulous tour of the state capitol building, which inspired this post on legislative security, or the lack thereof. Austin is, of course, named for Stephen F. Austin, who managed to make it into one of my GOP Candidate Venn Diagrams back in December. I’m sure by Wednesday my thoughts will have marinated in the warm Texas air long enough to inspire further Texas-blogging. But it hasn’t happened yet. Or maybe you’re just lucky that I’m resisting the urge to do some air-travel complaint-blogging (is there any sharper contrast than taking off in idyllic DCA and then having a layover in Dallas-Ft. Worth?). I did cross paths with a weary-looking Speaker Gingrich at DCA around 7am, but aside from reporting that he got no special treatment at security, there’s not much there.
What’s actually on my mind is all the talk about deadlocked conventions, specifically the prospect of the upcoming GOP convention being so. This seems to be all the rage these days on the blogs. Here’s Sullivan. Here’s Ezra. Here’s Mickey. Here’s Jamelle. Here’s Nate. Here’s Sean Trende. Etc. Etc. I should start by saying that Jonathan Bernstein and Josh Putnam have already done the yoeman’s work of bringing some solid political science analysis to the table, and getting the odds and required conditions of a deadlocked convention in proper perspective (see Jonathan’s writing here on the basic idea, here on the odds, here talking different definitions, here talking some nuts and bolts if the unthinkable came to pass, today talking about it again, search his blog for more; Josh’s writing here and then here on the myth of proportionality in the GOP rules changes; here talking about how the calendar has ruled out a late “straight” entry; search his blog for more). The bottom line is that a deadlock is (1) highly unlikely; (2) isn’t somehow magically more possible due to the GOP primary rules changes this year; and (3) also should not be referred to as a “brokered” convention, because the so-called brokers of yesterday simply do not have control of the delegates in the modern environment.
What I’d add to all of this is three things:
1. People are confusing the related historical ideas of a “brokered” convention and a “dark horse” candidate. These are two separate ideas, and they should be kept separate for analytical purposes. A “brokered” convention in the 19th century was one in which no candidate had enough delegates committed coming into the convention to simply take the nomination on the first ballot without any bargaining. Since the primaries weren’t universal prior to 1972, this often ended up being the case, especially on the Democratic side, where the 2/3 rule was in force between 1832 and 1936, requiring a candidate to get 2/3 of the delegates for nomination. In any case, it was often the situation in the 19th century that the convention opened with half a dozen or more candidates, each with some support among the various state bosses who controlled the delegates, but without anyone even close to majority support. The nomination would be settled after the campaigns bargained for the support of the brokers’ delegates, often by making policy promises or horse-trading patronage or other goodies.
This, however, has nothing to do with the idea of a dark horse. A dark horse was a nominee who emerged victorious at a convention despite have little or no delegate support coming in, and perhaps not even being on the radar screen as a candidate prior to the convention. The two most famous dark horse candidates are probably Franklin Pierce in 1852 and William Jennings Bryan in 1896. The ’52 Democratic convention opened with four major candidates — Douglas, Cass, Marcy, and Buchanan — but on the first 34 ballots, none of them could get a bare majority, nevermind the 2/3 necessary to win. On the 35th ballot, Pierce was introduced as a compromise candidate, and although he never got more than about 1/6 of the votes on the next 14 ballots, a deal was struck prior the 49th ballot and he was nominated almost unanimously. Bryan came into the 1896 convention unmentioned among about 8 possible candidates, but was so inspiring to the Silver faction during his cross of gold speech that he quickly became a contender, and won on the 5th ballot. The point is that a dark horse is the result when the brokering process completely stalls or when some unforseen event dramatically alters the convention; it’s not the essence of the brokering process itself. You could have a brokered convention in the 19th century without a dark horse (they were more or less routine); conversely, you could theoretically have a dark horse that emerged victoriously on the first ballot (although it never happened).
These two ideas are being conflated right now in regard to the GOP convention deadlock talk. A lot of people seem to think that a deadlock heading into the convention somehow strongly suggests a dark horse. But if the situation were to arise that no one had enough delegates to win on the first ballot coming into the convention, the initial bargaining would probably not include dark horse candidates, such as Jeb Bush or John Thune or Chris Christie or Mitch Daniels or Sarah Palin or whoever, but instead would involve bargaining between delegate groups among the existing candidates, in an attempt to resolve the deadlock in favor of one of them. Much like the 19th century, a turn toward a dark horse would probably only occur after the initial bargaining yielded no fruit. Now, this is not airtight: as Bernstein and others have pointed out, without the party bosses who could effectively bind and deliver voting blocs, who the hell knows how such bargaining would be organized. But I have a hunch that in the most likely of the unlikely situations — one in which at least one candidate is very close to having enough delegates — it would not be hard for him to bargain his way to an additional 100 or 200 if that’s what it took. And so I think the upshot is that those looking to deny Romney (or whoever) a bare majority going in are unlikely to see it result in a dark horse; much more likely is that Romney buys up the Ron Paul delegates with some platform or patronage or other promises, and takes the nomination.
2. Dark horse candidates are much, much better suited to the 19th century electoral structure. This is another reason the GOP would be unlikely to move toward a dark horse: the institutional structure of the modern presidential election is completely inhospitable to such a candidate, and the parties know it. And since the parties want to win, they won’t do it. Here’s the problem: in the 19th century, the party was the chief campaign organ; whoever the nominee was for President, they were simply plugged — more or less as a name on a sign — into the electoral apparatus of the party. The candidate didn’t even campaign; he usually just went and sat on his front porch, wrote a few letters about his policy positions (mostly of the type ”I am a regular Whig/Democrat in all respects”), and stayed the hell out of things. The party did the campaigning: they raised the money; they had the federated network of operatives, newspapers, volunteers, and printers; they conducted the parades and speaking tours through their party men and elected federal, state, and local officials; and they set the strategy in each state for promoting their presidential candidate within the context of their entire state ticket. The candidate was important because of who he was, but was not important in respect to what he could do between August and November.
Totally different now. The candidate now runs the electoral machine: raising the money, coordinating the volunteers, doing the polling, organizing the campaign themes, and everything else. He also personally campaigns and takes part in the general election debates. In other words, he is indispensable to the electoral effort of the party between August and November. And so, as many people have pointed out, a dark horse candidate has at least two strikes against him: first, he has not been vetted in the face of a national primary campaign. As someone said last week on Twitter, if Rick Perry hadn’t run in the primaries and been vetted out of the race, he would probably be one of the top dark horse names being mentioned right now. Think about what that line of thinking means to GOP operatives pondering a dark horse. Yikes! On the other hand, Perry is miles in front of a real dark horse, and this is point two: the financial and organziational requirements of a general election campaign seem fundamentally predicated on months, if not years, of advanced preparation. You need national donor and volunteer lists, boots on the ground in every state, media connections, deep polling and social analysis of voters, and so on. No politician who hasn’t been running for President has anything remotely close to this. Even if Jeb Bush had complete access to his brother’s 4-year old organization, it would leave him so far behind as to probably destroy any value-added (and more) that he could bring by not being one of the (evidently) unliked existing candidates.
3. I don’t see factional bolting as a realistic possibility, even contingent on a deadlocked convention. Bernstein raised an interesting possibility that cuts between the two ideas mentioned above: a factional bolting at the convention. In this idea, there would be no successful bargaining between the major candidates, but there would be no dark horse who emerges either. Instead, the convention might fracture, resulting in two conventions that nominate two separate candidates, creating not only an utter mess for the party, but also a legal disaster: unlike the famous Democratic party fracture in 1860, such an event today would require state by state judicial intervention, since the states control the ballot lines and would need to adjudicate who was the rightful holder of the GOP ballot line. A nightmare of intense proportion, and not for just the Republican Party: if one of the major parties was effectively cut off from nationally competing under one candidate, then real choice for voters is short-circuited, and that’s not good for anyone in the short-term.
I don’t see this as a possibility, even conditional on a deadlocked convention. The pro-bolt thinking goes something like this: the social conservatives have their candidate (Santorum), the business conservatives have theirs (Romney), and the libertarians have theirs (Paul), and we’ve come to the point where these groups will no longer play nice under the GOP tent. I don’t buy it. While there is probably intense personal loyalty among committed delegates (the campaigns choose them), I don’t see the schism required in the party to support bolting. When bolting has occurred in the past, it has almost always occurred over a single burning issue — the Southerners walking out of the Democratic convention in 1860 (slavery; or more specifically the defeat of platform support for Dred and a federal slave code for the territories) or 1948 (segregation). And in both of those cases, there’s a fair amount of evidence that the bolters were acting at least plausibly rationally, in an attempt to push the election into the House of Representatives. A bolt at the 2012 GOP convention would plainly not accomplish this, as there would be no visible way for the bolting candidate to get on the ballots.
And so the only reason to bolt would be in an attempt to wrestle the nomination away from the other candidates and for oneself. But this is obviously a high-risk strategy, and one that would probably be net-negative for the successful candidate. Now, net negative could be arguably better than not having the nomination, but party actors — particularly those whose job depends on winning the election — would be uniformly against it. As would the national press, I presume. And therefore, I find it highly unlikely that a candidate would want to try it; to be seen as the first bolter would almost certainly seal one’s fate to losing the election, regardless of the legal fallout as to who got the nomination.
Ok, I cannot believe I just wrote 2000+ words about something that not only isn’t going to happen, but that I’ve been laughing about all the writing that has been done about it already. But I guess that only proves the maxim: political junkies love things like brokered conventions, House-decided presidential elections, and electoral college ties, even if the results of those things actually happening would be almost certainly not good for our republic.
Update (2/28; 2:45pm): Jonathan Bernstein has posted a response to all this that I highly recommend reading. It’s always flattering to have people you respect critique your writing, and that’s certainly how I feel about Jon. I alos have a subsequent response to Bernstein’s thoughts here.
I’m headed down to Austin, TX on business this morning for the next bunch of days. That means blogging could be lighter. Or heavier. We’ll see.
