As the Trump impeachment inquiry proceeds, you will hear a lot about its similarities with the Johnson / Nixon / Clinton impeachments. Here I’ll discuss two structural features of the Trump impeachment inquiry that make it unique.

First, control of Congress is divided. In the Johnson, Nixon, and Clinton impeachment inquiries, both chambers of Congress were controlled by the opposition party.*** Currently, Democrats control the House and Republicans the Senate. Three implications:

1. Republicans can use their formal agenda and committee control to influence the inquiry. The House has the sole power of impeachment, but the Senate can conduct (or not) its own inquiry. The Nixon impeachment inquiry was driven, in part, by a Senate Select Committee. The GOP Senate may continue existing oversight investigations of the president and executive branch, but is unlikely to open a new investigation, and may use the committee system to promote an anti-impeachment case. Likewise, a unified GOP Senate majority can structure floor activity to ignore impeachment-related votes, or to hold impeachment-related votes that put pressure on moderate Democrats.

2. A Senate impeachment trial (or lack thereof) will be shaped by the GOP. There’s no constitutional requirement that the Senate consider House articles of impeachment. As Majority Leader McConnell noted yesterday, current Senate rules require them to “take up” impeachment, but a GOP majority could still dispose of it prior to a trial, or prior to a final vote. Republicans could also structure the trial in ways that favor their own political goals.

3. Moderate Senate Republicans have outsized potential power. While it would take 67 votes (and thus at least 20 Republican votes) to convict and remove President Trump, a much smaller number of Republican Senators could leverage the balance of power. If just four Republican Senators decide they want the president removed, they could threaten to abandon the GOP coalition on judicial nominations or other Senate business, effectively raising the cost for those still supporting the president.

Second, Trump is a candidate for re-election. Nixon and Clinton were second-term presidents in the post-22nd amendment era, barred from running for re-election in 1976 and 2000, respectively. Johnson was eligible for the 1868 election, but never a serious consideration. An ascended-president from a unity party that no longer existed, there was no chance the GOP was going to nominate Johnson, and only a smattering of support for him as a Democratic candidate. Trump, of course, is the default GOP nominee for 2020. Two implications:

1. Political strategy during the inquiry may more noticeably reflect election concerns. Impeachment is inherently a political process full of political strategy and calculation, but the prospect of wounding (or solidifying) not just the opposing party, but the actual opposing presidential nominee alters the entire exercise. One semi-serious line of logical thinking is that once Trump is so unpopular that Republicans want to get rid of him, he will be so electorally wounded Democrats will want to keep him around! That’s probably too cute by half, but it exemplifies how much 2020 considerations will be magnified throughout the impeachment inquiry. For example, Democrats may focus more on Trump’s future fitness for office than on the gravity of his past wrongdoings. Likewise, Republicans may focus more on process arguments about letting the election sort things out rather than substantive defenses of the conduct.

2. Everyone will be more sensitive to potential outlier developments. The most likely outcome of this impeachment inquiry is a roughly party-line impeachment and a roughly party-line acquittal in the Senate, with not much public opinion change about the president. But if the early stages of the inquiry prove significantly damaging to the president—imagine his public approval at 32% and a dozen House GOP members voting to impeach him—the looing election could alter the Senate GOP calculus, or draw new primary challengers, or both. Likewise, if the inquiry turns out to be a dud with independent voters or drives up the president’s approval, Democratic candidates for president may wish to see impeachment shelved so they can focus on other critiques of the president.

***Johnson, a Democrat, had run under the National Union party label—a centrist fusion of mainline Republicans and War Democrats—in 1864, as had Lincoln and many Republicans in the House and Senate. During his post-war presidency, however, he was quite obviously a Democrat faced with an opposition Republican Congress.

There’s been some interesting debate in the last week about expanding the size of the House. Lee Drutman has been on the case in favor of this for a while, the New York Times editorialized in favor of it this week, and Jonathan Bernstein made the case against it today. I tend to side with Bernstein in this argument, but there are important and good arguments both ways. I would encourage you to read all three pieces if you are interested in the topic.

What I want to take up here is a much more narrow concern: how much would this cost? In essence, what would be the price tag, per new seat, of increasing the size of the House?

Now, I want to make it perfectly clear up front that (1) the total cost is chump change in the big picture if there are good normative reasons to increase the size of the House; and (2) I’m personally in favor of spending billions more on legislative branch capacity, regardless of whether the size of the House is increased or not.

That said, voters hate when Members of Congress spend money on anything that can be construed to be related to themselves, so it is politically difficult to do things like raise members’ salaries, increase legislative branch staff or pay, or provide for increased funding for legislative support staff. Every member of Congress I’ve ever talked to would love to have more resources on the Hill, but many of them are terrified of taking those votes. So the cost of expanding the House is a relevant political issue.

I bring all this up because the New York Times estimate in their editorial was laughably small:

Nor would growing the House cost too much. Salaries for lawmakers and their staffs would total less than one million dollars per representative — which means a couple hundred representatives could be added for the price of, say, five F-14 fighter jets.

I’m not sure where they got this figure, but it’s either poor estimation or intentional lowballing. The overall cost of adding 158 seats—which the Times suggests—would be much, much higher. Even the F-14 comparison is silly; jets are mostly one-time capital purchases, whereas 158 new members would create annual recurring costs—forever.

Let’s add it up.

Start with the annual, recurring costs. The most basic cost is the salary of the Members. This is currently $174,000 annually. The next cost is the Members Representational Allowance (MRA), which is the money given to each member to pay for staff, mail, travel, district office rent, and officer supplies. It varies slightly depending on how far a Members home district is from DC and how many postal addresses are in their district, but in 2017 the average MRA was $1.32 million.

So on the MRA and Members’ salary alone, we’re already at $1.494 million per additional member, per year, which is 50% higher than the Times estimate. Now the Times estimate does only mention the salaries of Members and staff, not the other aspects of the MRA (or other costs we’ll get to in a moment). But that’s a pretty crappy dodge: if the cost of having an office is more than the salaries (it is), then you should count the total cost of having the office, not just the salaries.

Could the MRA be cut if we expanded the House? In theory, perhaps. Smaller districts have fewer postal addresses, and fewer constituents would mean a decrease in casework for each office. But we’re talking about increasing the house by 36%, not 300%. Each district would go from about 750k residents to about 550k residents. Congressional staff are already horribly overworked, and a fair amount of the work is district-size independent. Maybe the MRA takes a small haircut—to account for the loss of postal addresses—but I really can’t see that.

Next up is the agency contribution costs. The MRA pays the salaries of the staff of Members, but it only covers the base salary, not the benefits side. The government’s side of the retirement, TSP matching, and health costs all come out of a separate account. It’s a $249 million account right now in the legislative branch appropriations bill. Now, that covers all House employees (including committee staff, officer staff, and support staff), so it’s not like we’re looking at 249 x .36 more millions of dollars, but it’s a chunk.

Which brings us to support staff. Would expanding the House require an expansion of non-Member staffing? Almost certainly. More Sergeant-At-Arms staff. More Legislative Counsel staff. More Capitol Police officers. More Architect of the Capitol employees to care for the offices. What about committees? In theory, you could get by with the same committee structure, but my colleague Mark Harkins made the smart point that a 36% bigger House probably creates new committees—divide up Energy and Commerce? Split Financial Services in two?— which probably entails new staff. What about CRS and CBO? A bigger house that didn’t increase the capacity of the support agencies would inherently see diminished service capabilities for each member. So you might see increases there.

So that’s a sizeable annual cost per new member: the Members salary + the MRA + the government contribution for the new Members staff + increased support staffing + possibly new committee staff. There’s simply no way this is anywhere south of $2m/year/member for each additional member. And it’s probably higher. But let’s call it $2m, which means $318 million per year going forward. That’s not too bad as a raw dollar amount, but it is a 7% increase in the total budget for the legislative branch. And it’s a conservative estimate.

But the real headache is the one time fixed cost of doing this: all of these new members and staff need physical space to sit in. There’s already a space crunch on the House side of the Capitol; some committee staff have been annexed out of the Cannon, Longworth, and Rayburn buildings, and now sit down at the Ford and O’Neil buildings. There’s just no way around the fact that 159 new Members would require a new building on the House side. That’s not easy to price out, but we have some guidelines. The Capitol Visitor Center cost $600 million. The Rayburn building cost just under $100 million—in the mid 1960s—which is roughly $800 million in today’s dollars. Given the increased costs of security technology, I don’t see how you are doing a fourth building for less than a billion dollars. In addition, the existing Capitol complex would probably need renovation: the House chamber probably isn’t suitable as is for 600 members, though that’s small beer in the grand scheme of things. A new building is also going to create a sizeable increase in Capitol Police and Architect staff to care and secure it, so there are additional annual costs associated as well.

Anyway, that’s my conservative estimate for increasing the size of the by 159 Members. A billion dollars up front in capital costs, and then ~$318 million in annual recurring costs. Over ten years, we’re looking at something like $4.2 billion, minimum. And those annual costs could be much higher depending on how much support staffing is ramped up out side of the Member offices, but take it as a baseline estimate.

This may be worth it—as I said at the outset, I don’t think these costs are high enough to be, in and of themselves, damning objections to our normative judgements about the proper size of the House—but it’s a big enough price tag that it’s going to weigh heavily on the political calculations about chamber expansion.

My 25-point layman’s guide to getting your politics junkie on tomorrow:

In the morning (6 action items)

1. Do not—under any circumstances—turn on your TV prior to 6pm EST.

This isn’t specific to the morning, but it has to be first, because it’s absolutely crucial. The only thing worse than the election night coverage on the cable news networks is the election day coverage on the cable news networks. And trailing right behind those two things is the douchebag in your office who watched the Today show on election morning and is now repeating the same drivel outside your cubicle. Don’t be that guy.

In case you are tempted at any point in the day, I’ll save you the time by summing up the coverage for you here:

• worthless anecdotes about turnout; anecdotal profiles about who the independents are voting for; analysis of rainy weather forecasts that supposedly affect turnout but actually do not; interviews with senior citizens who voted at 11am in the Midwest; explanations of the “science” of exit-polling and election prediction; questions about why aren’t there more moderates;
• Meta-narratives about the parties probable reactions to a 25-seat swing in the House vs. a 35-seat swing; debates over whether this is 2006 or 2010 or neither; editorials on what the election “means,” whether this is a “change” election, a “wave” election, or a “turnout” election;
• exposés on campaign financing, voter turnout, and enthusiasm; debates over divided government and gridlock; evidence-free polemics on Trump’s base: will they have an impact in DC during the lame-duck, will they have an impact in the 116th Congress, and will they be a force in politics for much longer;
• stories about the parties angling with teams of lawyers to oversee recounts; worries on the right and left about voter fraud and voter suppression; some blair-witch style youtube videos showing something allegedly wrong;

Add to this 35 other things that could be studied with a rigorous methodology but instead will be delivered in the absence (or face) of data, and an equal number of things that should never be studied, period.

This will all be delivered to you at a 4th grade comprehension level. Don’t fall it. Trust me.

2. Learn the Senate landscape cold. Right now, there are 51 Republican and 49 Democratic (or Democratic-aligned) Senators. Of the 35 races for Senate seats this year, there are 13 races that are remotely close enough to be at all in doubt, eight seats currently held by Democrats:

(States link to local news articles about the races, candidates to wikis)

• North Dakota (Heitkamp, challenged by Cramer)
• New Jersey (Menendez, challenged by Hugin )
• Montana (Tester, challenged by Rosendale)
• Missouri (McCaskill, challenged by Hawley)
• Indiana (Donnelly, challenged by Braun)
• Florida (Nelson, challenged by Scott)
• West Virginia (Manchin, challenged by Morrisey)
• Minnesota (Smith, challenged by Housley)

and five seats currently held by Republicans:

• Arizona (OPEN, McSally vs. Sinema)
• Nevada (Heller, challenged by Rosen)
• Tennessee (OPEN, Blackburn vs. Bredensen)
• Texas (Cruz, challenged by O’Rourke)
• Mississippi (Hyde-Smith, challenged by Espy and McDainel).

Look over the candidates and the stakes in each of these. Forget all the rest of the races. Get yourself knowledgeable about when the polls close in those states, review some recent polls, and check out some of the online forecasts to think about different situations. (Here’s a central-repository of a variety of popular forecast sites; here’s 538’s forecasts).

3) Figure out some House bellwethers. Unless you spend your days dealing with the House of Representatives (ahem), it’s hard to be up on all the competitive house races. But it’s a lot more fun to watch returns if you can assess the importance of a given House race result without having to trust Chuck Todd. Throughout the night, there will be a flood of House returns, and if you know that Texas’s 23rd District and California’s 25th district are a lot more important in judging the national result than New York’s 15th and Rhode Island’s 2nd, you’ll be ahead of the game.

In the past, this has been a doable-but-arduous task. These days, there are now a lot of websites that make your job easier. Lean on the great Roll Call / Inside Elections interactive House guide and supplement it with Cook’s race ratings at the New York Times, as well as the RealClearPolitics House map and ratings and Crystal Ball and FiveThirtyEight.

4) Make a prediction of some sort — and maybe a bet — but don’t be the “prediction-guy.” Make your prediction public by emailing it to someone (Or heck, tweet it to me @MattGlassman312). Here’s mine: Democrats picks up a net 34 House seats and control the chamber, while Republicans add a seat to their Senate control, 52-48. O’Rourke creates a close race in Texas, but loses to to Cruz by 4 points, and Kaine beats Stewart in the VA Senate race by 17 points. I also guarantee that either David Gergen or some pundit governor-type (Ed Rendell? Haley Barbour?) will get on my nerves at some point. And yeah, I’ll bet you a drink that I’m closer than you on that House total.

The trap to avoid here is turning the whole night into a test of your prediction ability. Don’t be that guy who’s only interested in the NCAA tournament because he’s got seven brackets going and $1000 on the line, but doesn’t really give a shit about college basketball. So keep the predictions light and modest. Guess some House and Senate totals, and call half a dozen races. Enter the Politico forecasting contest, but don’t go crazy. Face it: you didn’t build (you didn’t build!) your predictions from some proprietary model and a whole bunch of insider information, so your success or failure basically reflects zero on your ability as a forecaster. But your behavior tonight can reflect grandly on your status as a douchebag. So let Nate Silver and the British gambling houses sweat it out; your job isn’t on the line here.

5) “Watercooler” the election. In the last 10 years, I spent a lot of time trying to avoid political discussions—and that was when I worked on the Hill! So I understand your general impulse to stay away from your wackier colleagues on Election Day. But it might be the one day of the year when talking politics at the office can generate some positive returns. Especially if you go beyond contemporary politics and talk to people about democracy.

Obviously, you have to weed out the cynics who want to lecture you on why they didn’t vote and the angry partisans who can’t imagine who would vote for that idiot for Senate and the monologuers who won’t shut up about why Denmark is such a better democracy than ours, but if you can weather those storms, you might strike gold.

You’re not looking for anybody specific here, but I recommend finding two people in particular if you can. First: a veteran. Ask him if he ever voted from a combat zone. Then listen. Second, someone who’s run for local office in the past. Ask them what it was like on election day when they ran and how it changed their view of democracy. Then listen. And, of course, if you work with any African-Americans over the age of 70 or so, by all means talk to them about voting and elections. You’re almost guaranteed to get a story worth hearing.

6) Vote. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some patriotic inspiration, go read my voting story from a few years back.

In the afternoon (6 action items)

7) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like using a panel of “experts” to interview David Axelrod for three minutes about who he thinks is going to win the House. You’ve been warned.

Instead, read Phil Klinkner on the occasional high importance of midterm elections, to put you in the proper context.

8) Figure out who you are going to watch the returns with. People go all sorts of ways with this. I totally respect the people who have to watch alone, in the dark, just them and the TV, like they’re die-hard baseball fans watching game 7 of the world series. But that’s not my scene. Ditto with the election-night-headquarters style parties with you and 200 of your closest friends at a barroom.

I think a home get-together is best, preferably with at least one person who roughly shares your politics and one who at least mildly doesn’t. I don’t recommend getting a ton of people together; think more “friends coming over” than “party” — you want six, not thirty. Usually, I remind people that this isn’t a presidential election and that midterms call for a more refined, thoughtful arrangement. But the intensity and enthusiasm in American politics right now has sort of throw that out the window. Brace yourself for a presidential-election crowd, and then welcome it.

Brining a lot of huge partisans into the mix is a double-edged sword; I prefer having some strong ideologues around who aren’t too attached to party labels. As mentioned above, avoid cynics and Euro-philes at all costs. Face it, democracy is the least-worst alternative, and unemployment in parliamentary-systems on the continent is like 8%. Yeah, the Senate is anti-democratic, but so is the veto. Get over it. I don’t want to hear it tonight. And neither do your guests.

9) Get your snack setup straight. This is tricky. It’s not a college football tailgate. It’s sure as hell not a dinner party. It’s not a BBQ. It’s not having people over for The Game. My suggestion is to go simple and traditional. That means, of course, pizza and beer. Fill in with pretzels or chips. The thing to stay away from is really messy food, since you’re going to want access to your laptop or ipad (see below) regularly. So probably stay away from salsa, or guacamole. And as much as it pains my upstate heart, wings are a big no-no.

You also want a wonkcave configuration that’s amenable to eating and using a computer. You don’t have to go full-blown dork with TV trays and all that jazz, but figure something out ahead of time, so you aren’t sitting on a really deep couch, balancing a plate of pizza on your knees while you smear blue cheese all over your Ipad screen.

10) Learn about a few ballot initiatives. Here’s a comprehensive if somewhat sterile review of the statewide questions voters will face Tuesday. Personally, I’m focused on the following: Michigan Proposition 1 (legalize recreational marijuana); redistricting reform proposals in Colorado, Michigan, Missouri, and Utah; the Florida proposal to remove disenfranchisement from most felons; and a local school bond issue in my county here in Virginia.

11) Forget the governors’ races. Once you’ve studied the Senate races and found your House bellwethers, you might be tempted to start looking into some governor’s races. It’s not worth it (unless your state happens to have a competitive race, such as Ohio or Nevada). Maybe pick one that’s really interesting, but don’t bother trying to master them. Invariably, they won’t affect your life and you won’t think about them again until they start announcing for President in a few years. Put your energy into learning more about the Senate races. It makes for much better viewing.

12) Ponder our democratic republic. The 2016 election and the first two years of the Trump presidency featured a tremendous amount of vitriol, norm-breaking, and outright hostility between parties, candidates, elected officials, and citizens. While we have one of the strongest and longest-standing republics in the world, it is not immune to decay, rot, or even collapse.

Many political scientists, journalists, and other observes have serious concerns that these developments are not just an extreme version of ordinary election name-calling, but canaries in the coal mine for serious cracks in our democracy.

I still really like this Jonathan Rausch article from 2016, and I enjoyed this recent retrospective on Newt Gingrich’s role in how we got here. Here’s a nice recent paper by some academics that put things in comparative perspective. On the other hand, there’s basically no chance this is “the most important election of your lifetime,” especially since people declare that before every election. I still love this David Mayhew editorial from 2012 on what makes an election important (at least in retrospect).

13) Vote if you haven’t yet done so. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some further patriotic inspiration, go read my old State of the Union post. Or check out these excellent Jennifer Victor and Jonathan Bernstein articles on why voting and elections are important, even if the fairy-tale vision of democracy was never true.

In the early evening, before the first polls close (6pm EST) (5 action items)

14) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like making predictions about national turnout levels based on anecdotal interviews at 2 precincts in the midwest. You’ve been warned.

15) Get your laptop setup with the proper tabs open. My setup is going to look like this: a few live-blogs sitting open on the desktop (such as Five Thirty Eight), an ideological spectrum of other blogs available for quick consult ( TalkingPointsMemo, National Review), the tally-maps from a major network or paper (probably New York Times Upshot, especially if they have that crazy needle!), and the Virginia official returns site. Anything more than that, and it becomes unwieldy.

16) Arm yourself with the proper printouts. Some things are just better to have in hard copy. A copy of Cook’s House Race Ratings is the easiest thing to just have sitting on the table. I also recommend getting some scrap paper ready to use as your own tally-sheet for House and Senate pickups.

17) Get yourself setup on Twitter. I cannot emphasize this enough. Nothing has made following political events more fun in the last 10 years than Twitter. It brings just the right mix of seriousness and humor that democratic electoral politics deserves. Get yourself setup on it and get tweeting. Or just reading tweets. You won’t regret it.

Follow some straightfoward news sites (@AP, @CNN, etc.), and the big name forecast-types (@redistrict, @natesilver, @nathangonzalez, @kkondik, @nate_cohn, @ForecasterEnten, @GElliottmorris). But here are a bunch of non-obvious tweeps I recommend following (for all-around reasons of smarts, humor, and likely volume of tweets tomorrow):

• Academic types:@jbview, @julia_azari, @BrendanNyhan, @smouts , @monkeycage
• Journalists/commentary:@speechboy71, @DouthatNYT, @conor64, @costareports, @MEPFuller
• Other: @darth, @LOLGOP

And, of course, @MattGlassman312. There are hundreds of other good ones too, so find your own!

18) Bill Mitchell. You must follow Bill Mitchell (@mitchellvii) on Twitter. If you aren’t familiar with him, he has become the ultimate pro-Trump internet troll, producing horror in those well-versed in the science of statistics, joy in the hearts of those who can appreciate a good KenM trolling performance, and total suspense for everyone who wants to know what he’s going to say/do whenever things go poorly for Trump or the Republicans.

He stuck to his guns before the 2016 election, when he declared that Halloween mask sales are better presidential predictors than polls, and he’s only gotten better since his guy won. Also, he cruises at about 300 tweets/day. I’m not kidding; this might be the most important piece of advice in the list. I mean, just look at these brilliant piece of performance art:

 

That’s galaxy-class Twitter troll game. You’re welcome.

After the polls begin to close (5 action items)

19) Ease into things. If you plant yourself on the couch at 6pm, you will be brain-dead by 10:30. This is not college football; it is best enjoyed with an active mind. So turn on the TV, get your prep-work out, but don’t sit down. If you absolutely must be plugged in from the get-go, I recommend cleaning or exercising in the TV room. And for goodness sakes don’t eat a full sit-down dinner in front of the television. You’ll regret it. Have a light snack and order the pizza for 7:30. Make the returns background noise and a passive activity early on; by 7:30 or 8, you’ll be ready to hunker-down.

20) Pick a cable news network and stick with it. And I recommend making your choice based solely on comedy. Who has the stupidest display board, with the most useless bells and whistles? Who has the most commentators lined up in a bleacher-like tier? Which network is doing live-remotes from the most ridiculous places? Who has the funniest name for their “war room”? The bottom line is that the networks have ceased to be journalistic endeavors, and are now only good for getting raw data or being entertained. Everything else — from play by play to commentary to meta-analysis — is better on the Internets. Like fifty times better.

21) Don’t be afraid to get emotional. For whatever reason, America spent the 20th century trying to remove political intensity from the practice of actually casting and counting the votes. As recently as 100 years ago, polling places were raucous scenes, complete with bands, rallies, and liquor. Now they are like graveyards. And that carries over a lot of the time to how people adsorb returns. Don’t let it get to you. You’re emotionally invested in either politics or policy; you wouldn’t be reading this otherwise. Don’t pretend we’re counting the votes in a vacuum. Go ahead and cheer.

22) Around 9:00pm EST, call someone who’s only mildly into politics, and talk to them about the elections. Or more precisely, listen to them. Ask them who they voted for and why, and what they think of the emerging results. Don’t offer any opinions, analysis, or commentary. Too many junkies live exclusively in the world of the strategic meta-narrative; it’s both insightful and refreshing to hear people on election night who approach things at face-value.

23) Find out who won local office in your town. Contrary to the indications derived from media coverage, your town and school board elections routinely have a bigger effect on you and your family than anything going on in Washington. It’s bad enough that you don’t know who your state rep is, but it’s unconscionable that you don’t know who’s setting the policies for your kids’ school. Take the time and find out who won these races, and promise yourself that you’ll have a better knowledge of them next time around. That way, you’ll at least feel guilty two years from now when you say, “Is he the Democrat or Republican?”

Late Night (3 action items)

24) Watch an unexpected victory speech, and an unexpected concession. Obviously, if there’s a pretty big surprise upset (like Hyde-Smith not making the runoff in MS), find those speeches and watch them live. Otherwise, look for the mild-upsets in Senate races in TN, WV, NJ, etc. If Ted Cruz loses, watch him. And if you can find an internet feed of a political amateur winning a House seat, those are solid gold moments.

25) Turn it off by 1:00am EST, after the initial California returns have come in and been digested. Unless you’re prepared to stay up all night, the marginal value of waiting each additional half-hour at that point is really low. If they can’t call the west coast races by 12:30am EST, it will probably be sometime—perhaps weeks—until they can. Don’t bother.

26) Light up a joint if pot wins in Michigan. Just kidding! Federal law will still make marijuana possession, sale, and cultivation illegal in the United States, and Gonzalez v. Raich will continue to guarantee for the time being that those federal laws are constitutional, regardless of how much money we throw away in the War On Drugs and how many non-violent drug offenders we put in federal prison in the coming years. Think that’s dumb? Me too. But I tend to support candidates who are ready to end the drug war. Next time, will you?

Enjoy the elections, everyone!

[reprinted and edited from 2012 and 2016 to cover House/Senate rather than electoral college]

Scientifically forecasting the presidential election has, in the span of just a few elections, gone from a hobby of some obscure political scientists to a full-blown mainstream media and public obsession.  There are lots of forecasting sites out there for the midterm election, the most popular being FiveThirtyEight. And these sites are really popular; people love to read them!

And so I figure there are a lot of people out there who would like to do some amateur election modeling in the next week. And that’s one of the dirty little secrets of all this: the basic strategy is not wizardry. I’m not even remotely approaching a good modeler and/or quantitative forecaster. But that doesn’t mean I can’t try my hand at it. And the same thing applies to you.

There’s only one file you need to get started. Right-click and save this excel sheet (it’s about 2mb): 2018-monte-carlo-simulation-matt-glassman.

Open up the excel file. There are two sheets, one for the House and one for the Senate. I’ll focus on the Senate here. The top contains a list of all Senate races, and an associated probability of the Democratic candidate winning that state. The bottom contains summary statistics and a graphical plot of results.

Each time you alter any of the state win probabilities, the file re-runs a simulation of 50,000 elections, based on the individual state probabilities, and reports the following relevant national results: percentage of time the Dems and Republicans win control of the Senate; the percentrage of time the Senate is tied 50-50, the average number of seats for each party; and a graphical probability distribution of the Democrats’ number of seats. Excel will instantly re-run the simulation (it takes about 2 seconds on my crappy computer) any time you change any of the state win probabilities.

The graphic you see here is the distribution of outcomes when FiveThiryEight’s current (as of 10/31) “classic” win probabilities for each state are plugged into my simulation (not surprisingly, my sim and his sim both find the mean number of Democratic seats to be about 48.2; my sim’s estimate of the percent of the time the Dems control the House is lower — 6.1% to 14.8% — most likely because my sim is simple, non-dynamic, and doesn’t account for anything but the state win probabilities). But you can plug in whatever you want. It can be fun to get lost in the various scenarios. Trust me. If you are sure the Dems are going to win AZ, FL, and NV, you can plug in 100 for those numbers and rerun the sim. I just did that, and the Dem chances for chamber control inproved to 20%.

Now, let me be crystal clear about one thing: this is not a model of the election. The Monte Carlo simulation is the final step in translating your model into a forecast. Your actual model is the data and analytical process that generates the individual state win probabilities. When you waste a fun hour plugging in various different state probabilities, your implicit model is “my best guess.” In effect, you are just doing somewhat-systematic punditry. If you want to actually model the state probabilities, you need at a minimum some sort of data (if you just want to forecast) or some data and a theory (if you want to forecast and explain the Way Things Work).

Here’s an example of a super-simple forecast model: take the most recent major-firm poll in each state, get the Democrats’ percentage in the poll, build a table that translates each polling number to a win probability (i.e. polling 52% = 70% win chance; polling 58% = 99.99% win chance), and then just plug in the probabilities that your poll data suggests. Re-run simulation each time you get a new district-level poll.

Of course, that’s an absurdly simple and naive model. All sorts of advancements can be made on it. You can study the historical translation between poll numbers and win probabilities to improve your table; you can average multiple polls; you can weight those averages by the age of the poll and the past track-record of the pollster; you can correct for “house effects” of district-level polls; you can incorporate national polls and weight their contribution to the model; you can incorporate fundamental demographic data about the district; you can use all this to build a baseline and make the whole thing a continuous Bayesian update; you can build in uncertainty.

This sort of complicated and detailed modeling is exactly how the popular models work. Now, FiveThirtyEight’s model is proprietary, but other very good models, such as Votamatic, are fully transparent and available for inspection. Go check them out. It will demystify much of what is going on under the hood of these things. But the bottom line is that simple and complicated models all work the same way: use an algorithm to translate some data into win probabilities for each district, then simulate the elections with those  probabilities.

Also note that the simulation I gave you here isn’t dynamic in any way. It’s the most basic simulation possible. In real life, if the Dems win the Tennessee Senate race — even if they only had a 25% estimated chance of doing so — they would almost certainly not lose in West Virginia. The simulator doesn’t account for this; the races are completely independent. Which isn’t how the world works. Making them partially dependent — forcing the simulator to have Democrats win WV if he happens to win TN, or having Republicans win ND if they happen to win MO — is an important complexity that many serious forecast models employ. This one does not.

And that’s the rub. Simple modeling and forecasting is very easy. Get some data, generate some win probabilities in the districts or states, and then simulate the election. Good modeling and accurate forecasting is much, much tougher. It requires careful theoretical and empirical specification, and a subtle understanding of how politics and public opinion work. You can read how the Votamatic model of the presidential election works here. Those aren’t chops I have, and they probably aren’t chops you have. But they certainly aren’t magical tools or skills that people are born with. And there is virtually zero barrier to entry to getting started. So why not?

At any rate, enjoy the Monte Carlo simulator — even seat-of-your-pants modeling of the win probabilities is a hell of a lot of fun! And if you want to get more into it, good luck. The sky’s the limit.

[cross-posted from Notice and Comment]

With the announcement of Justice Kennedy’s retirement yesterday, many liberals have called on Senate Democrats to take action to block the Senate from confirming a new nominee to the Court. Here are six thoughts on the matter, from a Senate procedure point-of-view.

1.This is a wholly different situation than the Garland nomination in March 2016. In that case, the party seeking to block the nomination had a majority in the Senate, as the Republicans held 54 seats throughout the 114^th Congress. Blocking a nomination with a majority, procedurally, is easy. Majority Leader McConnell simply chose not to take up the nomination on the Senate floor. So long as he could persuade at least 50 members of his caucus to not make a motion to proceed to the nomination—and to table any rogue minority motion to do so—the nomination would never reach the Senate floor. It’s also entirely possible that McConnell would have had the votes to defeat the Garland nomination on the merits, but blocked its consideration for strategic reasons or to just not risk having miscalculated.

The Democrats are not in the same situation. They are in the minority in the Senate in the 115^th Congress, with 49 seats. Consequently, they cannot directly block a motion to proceed to the nomination. Nor can they effectively filibuster the nomination. In the wake of the nuclear option being used in 2013 (for non-SCOTUS nomination) and 2017 (for a SCOTUS nomination), a cloture motion to end debate on a nomination can be obtained by a simple majority. If 50 Republican Senators are determined to confirm a nominee to the Court, there is little the minority can do to directly interfere. They can filibuster to force the majority to get cloture, and they can use all of the allotted post-cloture debate time (30 hours) to delay, but they have little chance of directly procedurally stopping the nomination.

2. Many liberals  yesterday were exhorting the Democrats to “take all possible actions” or “to play hardball” to block the nomination, often citing McConnell’s actions to block Garland. But you cannot black box the hardball; you need to actually specify what you would like the Democratic minority to do, procedurally. And here’s the cold truth: a majority can play a hardball strategy of this sort through inaction, which is simple and effective. McConnell only had to worry about maintaining his coalition inside the Senate, and the possibility of public opinion blowback outside the Senate.

For the Democrats to employ a hardball strategy now, inaction will not work, as shown above. Unless they can defeat the nomination on the merits, their only procedural strategies are to (1) make the costs of considering the nomination so high that the GOP abandons it; or (2) literally grind the Senate to a halt such that the nomination cannot be taken up. Neither is even remotely likely to succeed, and attempting either could result in additional costs (mostly electoral) for the Democrats, in both the Senate and the House.

3. How could the Democrats increase the costs of considering the nomination? By using obstructive tactics to slow down other issues the Senate majority would like to take up. Instead of agreeing to yield back post-cloture time on other judicial nominations, they could demand (and use) the full post-cloture debate period. They could filibuster all general legislation. They could demand recorded votes for things routinely done by voice vote or unanimous consent. They could refuse to vote for cloture on appropriations bills (which require 60 votes), and shut down the government. In essence, they could conduct a cross-issue filibuster, in the hopes that a number of Republican Senators would decide that the costs of pursuing the nomination were too high in terms of other legislation they would like to pass.

This is highly unlikely to work. First, a SCOTUS seat is something the Republicans are willing to pay a very high price for. Even if you could stop all legislation and every other judicial nominations dead in its tracks (you can’t), it might not persuade them to abandon a SCOTUS confirmation. Second, if the Democrats resorted to an all-out general dilatory posture that raised the costs to an unacceptable level for some GOP Senators, the Republicans might use the nuclear option to change the rules in order to restrict the dilatory tactics. Finally—and most importantly—aggressive hardball tactics are constrained by public opinion. Even if Democrats pursued a dilatory strategy that somehow successfully blocked the nomination through the election, it would be a pyrrhic (and short) victory indeed if the cost was a net loss of 4 Senate seats, or control of the House. The fear of that public backlash creates a practiacal prior restraint on even attempting many theoretically-possible hardball tactics.

4. A more radical option would be to try to literally grind the Senate to a halt. This would involve objecting to the myriad of routine things that are done each day in the Senate by unanimous consent. Refuse to skip the approval of the journal. Refuse to allow committees to meet while the floor is in session. Refuse to adjourn without a vote. Refuse to end quorum calls. And then take positive actions that are allowed under the rules but only rarely employed. Demand the reading of all amendments. Demand all motions be reduced to writing. Make rogue motions to proceed and demand recorded votes when the motions are tabled. You can also add in pure dillatory actions. Make constant points of order, appeal the rulings of the chair, and demand recorded votes on the tabling of the appeal. And so on. In effect, seek to make the Senate literally non-functional.

The problem, of course, is that this will only work, again, if the majority is not willing to change the rules and the public blowback isn’t costly enough to punish those who try it. It is highly unlikely the Democrats would even consider this option precisely because they are constrained by the fear of majority rules changes and public opinion blowback that would lead to electoral losses. And not just in the Senate, but in the House as well.

5. Public opinion constrains hardball tactics in Congress much more than most people appreciate. Most actions taken (or not taken) by individual Senators and by political parties are done with an eye toward the public reception of the action. Escalating hardball tactics can cause reactions both by other political actors and by voters. The threat of negative voter reaction to assertions of power limits the options for political actors, and prevents them from using all of the weapons at their disposal. Consider a somewhat radical example: if one Court seat is so important to Republicans, why don’t they simply pass legislation expanding the Court to 11 (or more) seats?

The answer is twofold. First, they currently do not have a majority to abolish the legislative filibuster. For a variety of reasons, members prefer it continue to exist. But more importantly, they likely believe that such a move would either trigger a massive public electoral backlash, or a massive retaliatory procedural backlash from the Democrats, or both. Hardball tactics are only successful to the degree they don’t generate backlashes that leave you worse off. McConnell correctly assumed that blocking the Garland nomination would produce no such devastating backlash. Most Senators, I would wager, believe that trying to pack the Court would.

6. Because of the ultimately futility of minority procedural options in the current scenario, it is highly likely that the Senate Democrats will only try to fight the SCOTUS nomination on the merits. While some liberals have hopes that Senators Murkowski and Collins can be convinced to reject the nomination, that is probably just wishful thinking. I suspect the nominee will ultimately win 53-56 votes, all Republicans voting for him or her, plus Democratic Senators Manchin, Heitkamp, and Donnelly. The only question is whether other red state Democrats (McCaskill, Tester) vote to confirm, and whether Senator McCain comes back to Washington.

Accepting that they cannot defeat the nominee on the merits, and that a procedural strategy has almost no chance of succeeding and high potential electoral costs, Democratic leaders will instead pursue a strategy of trying to shape the narrative around the nomination and confirmation, in an attempt to extract an electoral benefit in the November elections. They will (correctly) reason that gaining control of the chamber is the surest way to limit SCOTUS confirmations over the next 2.5 years, and that the longshot hope of blocking the current nomination likely decreases the chances of taking control of the chamber, and thus in turn increases the likely number of SCOTUS nominees confirmed during president Trump’s term.

When Congress passes major complex legislation, they often make minor errors in drafting or clarity. It is relatively routine for Congress to follow-up such legislation with what is known as a “technical corrections” bill, in which these minor errors or unclear provisions are corrected. Although such correction legislation on major enactments has become more controversial in the age of intense partisan hardball, correction bills still pass through Congress with little opposition.

We need a technical corrections amendment to the Constitution. The Constitution has numerous errors of omission, unclear passages, and noncontroversial anachronistic provisions. While there have been 27 amendments to the Constitution, only a few of them have made technical corrections. For instance, the 25th amendment clarifies that, in the case of the death or resignation of the president, the vice-president literally becomes the president (as opposed to “acting president” or simply having the powers of the office “devolve” upon him or her). The 20th amendment separates the presidential term of office from the congressional term of office by 17 days, which corrects a problem of the House voting for the president in the case of no electoral-college winner; prior to the amendment, the outgoing House voted. Now the incoming House votes, which makes much more logical sense.

What should count as a technical correction? I propose a two-prong test: first, the change should be something that we wouldn’t think twice about if it was already in the Constitution. Take the 20th amendment: if the original Constitution separated the terms of the president and the members of Congress, no one would object or even ever consider it. Second, the change can have a potential big impact on things, but not an immediate, known impact. This will allow us to clarify some contingencies that are quite important but unlikely to come up in the near-term (such as the order of succession). Absent a lack of short-term impact, such provisions should be less controversial, as political actors will have no reason to support/oppose them for short-term gain, and can operate in a veil-of-ignorance as to how they might advantage or disadvantage ideological or partisan groups in the future.

Obviously, these conditions will create edge cases that can be argued one way or another. The important thing to remember is that we aren’t talking about an abortion-ban amendment or a “right to vote” amendment or a gun control amendment or a balanced budget amendment. Those are all quite clearly not technical corrections.

So here we go. The draft amendment has six sections. Annotated comments appear within.

Proposing an amendment to the Constitution of the United States for technical corrections.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein) That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:

SECTION 1. The minimum age for service as a Representative, Senator, or President of the United States shall be 18 years of age.

Currently, the Constitution provides a minimum age of 25, 30, and 35 for the House, Senate, and presidency, respectively. These are largely anachronisms. Voters are more than capable of deciding whether an adult is suitable to serve in Congress or as president. Some may argue for an absolute abolition of the age requirement, but I personally am comfortable limiting the offices to adults.

SECTION 2. Each state shall cast, in such Manner as the Legislature thereof may direct, a number of votes for president and vice-president equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress. Such votes will be directly transmitted to the President of the Senate.

This provision would eliminate the electors of the electoral college system without eliminating the basic voting structure of the electoral college. Each state would get the same number of votes as it currently receives, but those votes would be directly cast with no elector middleman. This would eliminate the nightmare possibility of faithless electors switching their vote and swinging the election, and it would also, by implication, remove the impediment for presidential and vice-presidential candidates to be from the same state.

SECTION 3. If no candidate for president receives an absolute majority of votes, the House shall choose the president from among the top two vote recipients.

Under the current system, if there is no electoral college winner (due to a tie or more than two candidates receiving electoral college votes), the House must choose from the top three vote-recipients. This creates the possibility of all sorts of nonsense. No third candidate with a tiny number of electoral votes should be allowed to win the presidency. And a three-person ballot in a two-way tie for the electoral college creates some true nightmare scenarios. A top-two runoff in the House conforms much better to our basic normative notions of democracy.

SECTION 4. All citizens of the United States, naturalized or from birth, are eligible to the Office of President provided they meet the other qualifications of the Constitution.

This eliminates the natural-born citizen clause of presidential eligibility, which is largely an anachronism. No foreign-born prince is going to be elected president. The voters can handle that problem. That said, a softer version of this section would simply clarify that anyone who was a citizen of the United States at the time of their birth is a natural-born citizen. That would end all disputes about whether someone born overseas to two American parents, or to one American parent, is a natural-born citizen.

SECTION 5. Congress shall place no office in the presidential line of succession except executive branch offices that require Senate confirmation. 

Currently, the Constitution authorizes Congress to set a line of succession in law, without qualification. This is terrible on two fronts. First, it’s not clear if it is constitutional for legislative branch actors to be in that line of succession. And if, god forbid, we ever had to implement the line of succession, it would be a complete disaster if we had competing actors claiming they were the rightful constitutional successor, or claiming the current acting president was not constitutionally eligible. Second, even if it is constitutional, it’s just a terrible idea to have legislative branch offices in the line of succession. It creates an incentive (or the appearance of an incentive) for the Speaker of the House to pursue impeachments out of self-interest, and it creates a scenario in which the continuity of government entails a large shift in the partisan control of the presidency. Requiring the succession order to run through executive branch posts solves both of those problems.

SECTION 6. The convention process for amending the Constitution is hereby abolished.

The convention method for altering the constitution has never been used, and it is a Pandora’s box of problems. It should go.

 

 

 

I grew up in a games-playing family. Most nights, it was what we did after dinner. We had a massive collection of games, and we played a wide variety.  Family board games. Strategy games. Trivia games. Cooperatives. Parlor Games. You name it, we played it. Clue. Stratego. Risk. Connect Four. Trivial Pursuit. Spoons. Diplomacy. Pit. Chess. Balderdash. And while I didn’t realize it until I was older, we didn’t just play games, we were into games. We often spent as much time trying to dissect the strategic implications of the games—even simple kids games—as we did playing them. It was cutthroat but friendly. We were the kind of people who got locked in heated strategy debates about Hungry Hungry Hippos on Christmas morning.

But mostly we played cards. Usually tricks and trumps Bridge derivatives—I will forever consider Oh Hell the best (but not greatest) card game—but also the Rummy and Go Fish derivatives too. Pitch. Bid Whist. Catch The Ten. Spades. Skat. Euchre. Gin. Bridge. Authors. Speed. Gabes. And, of course, Poker. I swear I was the only 10 year old in America in 1988 who regularly played Heads-Up Pot-Limit Stud Hi-Lo. In college and graduate school I played serious poker and competitive Bridge. Still do. To this day, my first instinct when I don’t have anything to do is to start a card game.

Not surprisingly, I came to see the world through the structure and language of games. This has served me surprisingly well in my time thinking about, analyzing, and practicing politics. As it turns out, games and politics are often very similar. Both exist within structures of rules, with players trying to maximize some sort of utility. Often, political strategies are at least partially game-theoretic, in that the best choices for one political actor are partially dependent on understanding the choices of other political actors. This is both true on the electoral side of politics, as well as the legislative/governing side. Reducing politics to a really complicated card game isn’t a perfect way to understand it, but it’s a very good framework for organizing your thinking and it sure beats *not* organizing your thinking.

Anyway, here are six ways being a cardplayer has informed my thinking about politics.

1. I think a lot about the rules. Like, all the time.  Even among very casual, kitchen-table family card players, people who are new to a game almost invariably seek to clarify the rules. Well, of course they do. If you have any interest in winning the game, you are going to have to devise a strategy, and every winning strategy is derived from the implications of the rules of the game. This is so obvious when you play a card game that it amazes me how many people disregard it when they approach politics. Political behavior is constrained by all sorts of rules—the Constitution, laws, the chamber rules of legislative bodies, the private regulations of political parties and other groups—and understaning those rules is often the key for political actors  formulating a maximizing strategy, or for observers and analysts understanding the strategic choices made by political actors.

This matters at the global strategic level, but also at the tactical advice level. If someone came to me and said, “Oh, Hell. You’re holding AK9 hearts and two baby spades. Spades trump. What are you bidding?” I wouldn’t even be able to begin answering that question without finding out a whole lot more about what is going on. How many people are playing? Where am I in the biding order? Have any bids been made yet? What’s the score? What’s the scoring method? How many rounds are there to go? Are these players any good? Are we playing for money or for fun?

It’s no different in politics. If someone asks “Do you think bill X will pass this year?” you might be able to give an answer based on the title of the bill and a quick read on what it does, but you’d be a lot more capable if you knew more about the institutional structure of Congress. You should have a million tactical questions. Has it passed one chamber yet? What committee has jurisdiction? Who is the chairman? How many co-sponsors does the bill have? Does the leadership like it? Is there a companion bill in the Senate? What do interest groups X,Y, an Z think of it? Has the White House said anything? And, of course, these tactical questions are all derivative of an understaning of the rules structure that governs Congress and provides actors with opportunities to either help or hinder the bills chances of passing.

Not enough people think about the rules, either in cards or in politics. I see people entering expensive poker tournaments, all the time, who don’t even know the blind structure. And I see Members of Congress and their staff, often quite unaware of the parliamentary strategies they have available to them. In both cases, the players are likely not maximizing the likelihood of achieving their goals, simply because they have not fully understood the rules and their strategic implications. When I was at the House Appropriations Committee, I was often a huge pain in the ass, because I was constantly bugging our parliamentary and budget experts for advice about our strategic options under the rules. But in several instances, it made a huge difference.

2. I realize that political actors have extraordinarily disparate goals. What’s the goal in a card game? This is a tougher question than most people think. Most people answer “winning” and that’s a pretty good first approximation. But it’s also a very dangerous assumption. Sit down in any card game in America tonight, and the vast majority of people in the game will not be there simply trying to maximize their probability of winning. Some will be trying to maximize their fun, which in many games is not correlated with winning. Other are there for the thrill of running a big bluff on their buddy, or because they like seeing their friends on Friday night, or just to pass the time. And so drawing strategic implications about their play, either as an opponent or an observer, can become quite difficult. It’s just not correct to assume they’ll take win-maximzing actions; they may be on a completely different utility schedule than you. Even among people strictly trying to win, it’s often easy to forget that winning itself has its own maximization function, and isn’t just a matter of maximizing one’s score. In games being played for money, another whole layer goes on top of all of this.

Just as in games, one of the most common flaws in political analysis is the assumption about what a particular political actor’s goal is. And if you don’t have a good sense of the goal, it’s basically impossible to evaluate the strategy. Political goals can be incredibly complex, and even in the most straightforward situatons—general elections—the goals of the candidates aren’t as simple as they seem. My dad ran for judge a bunch of times in our suburban town, but he was never really trying to win. His hopeless candidacy was really just a favor to the powerful political machine in the city outside of which we lived, and to whom he had various reason to want to be well-regarded. And our strategy reflected that. People often mistakenly assume candidates are seeking to maximize their votes in an election. That’s ridiculous. Candidates are usually seeking to maximize their probability of winning; no candidate with 57% of the vote locked up is going to do something that will likely improve them to 67% but could possibly cost them 8%. That’d be insane. People also get confused about presidential primaries. There are a lot of reasons to run for president, and only one of those reasons is to become president. Some candidates are running for president. Some are running for vice-president. Some are running for Secretary of State. Some are running to sell books. Some are trying to get jobs on Fox News.

This is as true on the legislative side as it is on the electoral side. When the leaders of a party put a particular bill on the floor, their motivations are probably some combination of policy politics, internal party politics, personal politics, interest group politics, electoral politics, fundraising politics, long-term politics, and God knows what else. When you choose to criticize their decisions on one of these dimensions and promote an alternative strategy, you are often wrong because you aren’t correct about the actual goal. I’ve surely been critical of Pelosi’s decision in 2010 to put that climate change bill on the floor of the House, but I was mostly coming at that with an assumption it was a mistake given an electoral or party politics goal. But I really have no idea what Pelosi was thinking, and she may very well hae maximized some other utility schedule.

What this teaches you is to be modest in your criticisms of political strategy. If you don’t know the goals—and in many cases you simply can’t—it’s a fool’s errand to judge the decisions being made. This alone can make you a much better political analyst on Twitter. Just stop criticizing strategy when the goal of the strategic actor isn’t clear.

2. I appreciate the limitations of an incomplete-information environment. Almost all good card games are built on an incomplete-information structure. The players have private information that shapes their decisions, and a key skill in any of these games is to accurately estimate as precisely as possible the private information of the other players. Now and again in Bridge or poker you can use information you glean early in the hand to build a complete picture of the deal or perfectly read on opponent’s cards, but that’s unusual. Most of the time, you just have to come up with probabilistic estimates of where missing cards are located or a range of hands that an oppponent is holding. But you’ll never really know. So you make the best decisions and judgements you can based on the information you have.

This comes in handy in political analysis, particularly as an outsider trying to observe and understand things. So much crucial information in politics is private. Just realizing you should *start* from that assumption can make a big difference in how you perceive political events and evaluate political actors and their strategies. One place this comes up over and over again is with congressional Republicans and Trump. I see people every day online and in Washington whose main criticism of the GOP is that they aren’t doing enough to reel in the excesses of the president. But we only see the public side. Partisans aren’t in the business of publicly embarrassing their own leaders. Senators who publicly hold hostage nominations or bills are generally using their last-resort leverage, after private bargaining, negotiating, and compromising have failed. Why won’t the GOP Republicans do more to reign in the president? My guess is that their private communications with him have significantly reigned him in, across policy and investigative dimensions.

4. I know that random chance plays a large role in political outcomes. A deck of cards is close to a perfect randomizing device, and virtually all card games use it to create a fixed uncertainty that can affect the outcome. Even games that don’t—like duplicate Bridge—still generally have psuedo-random exogenous unknowns that the players themselves have little control over. The trick in card games is to embrace the randomness of the deck and become completely zen about it. All you can do is play the cards that you are dealt as best as you can play them, and not try to control things you can’t control.  Your job is simply to make the best decisions you can at each decision-point. If you do that, you will maximize your probability of winning. But you won’t guarantee it. Heck, in games played for money, you don’t want to guarantee it. If there was no luck, inferior players would quickly stop playing; it would become as obvious as it is in golf who is the better player.

Likewise, you can’t put a lot of stock in the results of an individual Bridge deal or a hand of poker if you are trying to evaluate your strategy. Such results-oriented thinking is devastating, precisely because the signal is so noisy. If you go about changing your strategy based on the outcome of each deal, you’ll be hopelessly lost in no time. The only way to evaluate card play is to break it down into individual decisions, assume he randomness of the deck, and evaluate each decision based on the know information at the time and across the probabilistic nature of the random deck. If you begin to associate outcome success with strategy success, you will at best be operating sub-optimally, and will often be heading dangerously down a negative-utility path.

This general idea is a core concept for both political practitioners and observers. There are lots of things that a political actor, for all intents and purposes, can’t control. The economic health of the country. The actions of foreign leaders. Natural disasters. All of these things can affect political outcomes, and all of them are best thought of as the randomness of the deck. Smart political actors focus on the strategic choices that are available to them, and approach those choices as individual decisions that have marginal effects on outcomes. Too often, people reach for monocausal explanations of political results. That’s nuts. Elections are bivariate outcomes that reflect the sum of a multitude of strategic choices and a good amount of random chance. To draw conclusions about the quality or effectiveness of a campaign based on it’s bivariate result just dumb. But there’s just so much results-oriented thinking in politics; every winning campaign is the height of technological and organizational sophistication, every losing campaign is a total shitshow and a comedy of errors. It’s all bullshit retrospective evaluation. The Clinton campaign probably wasn’t terrible; the Obama ’08 campaign probably wasn’t brilliant. And if they were, it wasn’t proven by the outcome.

5. I accept the players for who they are. There’s a type of ok-but-not-great cardplayer who is constantly berating other players for not playing their cards well, which in turn is causing the ok-but-not-great player to lose.  But there’s a dirty little secret to card games: you can’t choose how the other players play. All you can do is accept how they play and adjust your own strategy to maximize your utility against these players. This can reach the height of folly when you are playing poker or other card games for money. Certain mediocre players just can’t stand it that other players are playing “terribly,” winning, and causing them to lose. Logically, you want players to play terribly against you; if you can accept the randomness of the deck, there’s no better spot to be in once you figure out they are awful and correctly adjust your strategy. But for whatever reason—financial or ego or whatever—a lot of players hate when opponents play poorly and win.  A good cardplayer simply builds the opponents into the game; they are in effect part of the rules that create your strategic incentives. Getting angry at them is not only folly, but counterproductive; they only way they can beat you in the long run is by getting *you* to play badly.

This translates into a simple political truth: you can’t choose the voters. I am constantly amazed at the number of people who refuse to accept that voters are allowed to create their own utility schedule for which candidates they like. Liberals tie themselves into absolute knots because some voters in Kansas have a preference schedule that priorities a pro-life position over a economic redistribution that would improve their material conditions. How can it be! There are at least two nasty consequences to this. First and foremost, people simply disbelieve and project their own preferences onto voters, distorting their view of reality and weakening their strategies. Second, people tend to get angry at “the voters” and begin to flirt with darkly elitists theories of politics that end up being quite anti-democratic. You see this constantly from partisans who lose a bunch of federal elections in a row. They begin to blame the voters, or shift to an “if that’s what they want, they deserve what they get” attitude. That’s basically worthless, assuming you can’t actually destroy the democracy to save it. Most political actors and observers in America have a basic committment to a democratic system; the voters are not going away. As such, getting angry at them doesn’t really accomplish anything positive. Instead, you should use election results and voter preferences as signals for improving your own strategies and political evaluations.

6. I prioritize the mundane over the spectacular. There’s a popular myth that being great at card games is about making spectacular plays. Finding hard-to-see squeezes in Bridge or making incredible hero-calls for all the money in poker. Those things are nice, but they aren’t what makes a great cardplayer. Great cardplayers consistently make better decisions in the routine choices that come up over and over again, minute after minute, hour after hour, without error. For every time you might need to find a squeeze to make a Bridge contract, there are literally hundreds, if not thousands, of little decisions that provide an edge against an inferior player. Just having a solid pre-flop strategy in hold’em is worth far, far more than an uncanny ability to read an opponent and be able to correctly fold the second nuts on the river in a huge spot. And the skills that go into developing this sort of mundane ability aren’t superhuman, most of it is actually quite pedestrian: discipline, focus, and practice. People want winning cardplay to be about romantic figures with superhuman talent for remember cards and making absurdly amazing negative inferences about missing information. But it’s almost never actually about that.

In politics, people vastly overestimate the spectacular. Everything is built-up as confrontations between individual titans. But most of the time, what is consequential in politics are fundamentals and shoe-leather. In presidential general elections, there’s a fair case to be made that almost nothing that happens in the campaigns matters much at all. Partisan allegiance drives most of the voters, and the economic fundamentals predicts most of the rest, and there you go.  All the gaffes and scandals and debates and ads and news cycle drama really doesn’t amount to much. The campaigns might matter, but most of the time they are both so well-funded and organized that they tend to just cancel each other out. At the local level, campaign effects might matter more, but everyone still wants to think the great upsets in congressional House races were secured via devastating one-liners in debates. Most of the time someone just outworked someone else. There’s nothing sexy about knocking on 50,000 doors, but it’s as close to a silver bullet as exists for purposeful action that might unseat an incumbent.

The same is true in legislative politics. It’s mostly just hard work. There really aren’t many secrets. You just work like hell to get co-sponsors on your bill and interest groups lined up behind it and press your case to the leadership and deflect all their objections and pray someone in the Senate doesn’t hate it and hopefully it gets the go-ahead from the committee chair and gets on the suspension calendar and finds a ride to the president’s desk and gets signed. Even the high profile stuff that is made via huge deals isn’t magical bargaining in smoke filled rooms between incredible wheelers and dealers who use their wizard power to extract huge concessions. It’s mostly just staff staying up late at night sending emails and eating cold pizza and trying to get everyone on board so they can go home with something their boss can claim is victory. Shoe-leather.

****

If you enjoyed reading this, a lot of it is derived from times I’ve been a guest on the ThinkingPoker podcast, in particular Episode 191 (before 2016 election), Episode 195 (after 2016 election), Episode 2017 (June 2017) Episode 235 (late Fall 2017).

A lot is being written this week about Authorizations for the Use of Military Force (AUMFs), in part because of the recent military attack on Syria and in part because Senator Corker (with Senators Kaine, Flake, Coons, Young, and Nelson) introduced a joint resolution AUMF (S.J. Res 59) in the Senate to repeal and replace the existing 2001 terrorism and 2002 Iraq AUMFs. Here’s a good primer on the Corker legislation. Here are good CRS reports on the difference between an AUMF and a declaration of war (mostly how they trigger other emergency laws), issues in the continued use of the 2001 AUMF, and issues surrounding a new, replacement AUMF. If you want to dive into the endless debate over the division of war powers between Congress and the president, you can head over to lawfare or read Lou Fisher’s primer on it. The rabbit-hole follows from there; armed with wi-fi and some patience, you will never find yourself wanting for another opinion about American war powers.

In this blog post, I’m going to make four structural points about war powers that I think generally get overlooked in the public debate.

First and foremost, warmaking is decidedly a political issue and not a legal one. You can’t swing a dead cat on the political internet right now without hitting someone claiming the Syria attacks were “illegal.” Members of Congress. Law professors. Foreign leaders. And so on. But almost all of these claims and their intricate arguments mistake the nature of war power under the Constitution: it is fundamentally a political question.

No federal court is going to step in and adjudicate the fundamental question of going to war; despite evidence that courts were willing to take up at least some of these questions in an earlier time, since the Vietnam War it has largely become Court doctrine that questions of war powers are best settled by the political branches.

There’s a lot of nuance here, particularly if the president were to explicit violate another part of the Constitution (by, for example, spending money that Congress had specifically and affirmatively declined to appropriate), but Area Congressman Annoyed That Courts Won’t Grant Him Standing To Argue President’s War Unconstitutional is more or less a 40-year running Onion headline at this point.

How do the political branches adjudicate control over the war power? By using their constitutional authorities to assert power and constrain other political actors, and by lobbying the public to politically and electorally weaken their opponents. The president can order military strikes. Congress can fund or not fund the military. The president can veto or sign such funding limitations. Congress can pass or not pass AUMFs. The president can rally the public in favor of war if Congress won’t pass an AUMF. Congress can rally the public against the president if they believe he is going to (or did) launch an unwanted or unnecessary war. The president can abide by the War Powers Resolution reporting requirements or not. Congress can impeach him if he ultimately refuses to listen. (See Matthew Dickenson’s recent blog post for a bit more of this.)

Within this framework, arguments about the “legality” of a war aren’t worthless, but they also don’t serve a legal role. They become political arguments designed to sway public opinion. Again, political actors have two tools available to them in these kinds of fights: their formal powers and their persuasive powers in the public sphere. As Josh Chafetz has written, it is the judicious use of both of these powers that ultimately settles political fights.

Second, that warmaking is political doesn’t render AUMFs (or the War Powers Resolution) useless. One response a lot of people have to this political conception of the war power is to just throw their hands up and say that the AUMFs are useless, since the president will just do what he wants, claim inherent war power under Article II of the Constitution, and Congress will never dare to use their hard power to cut off funding for troops in the field.

I think this is exactly wrong, on all counts. Presidents are generally very attune to public opinion about war, with good reason: unpopular wars are among the most deadly things for presidential approval ratings and reelection chances. When Congress is unwilling to provide an AUMF for a particular military action, that is both a signal to the president about the popularity of a theoretical upcoming military action and a signal to the public that not all political actors are on-board with the proposed action.

And while the lack of an AUMF might not stop a president from launching some sort of strike, it has almost certainly constrained presidents as to the scale and scope of military actions. Presidents are simply loathe to launch wars on their own; this is why they go to Congress and the public to preemptively build cases for such actions. Whatever its merits, Bush painstakingly built a case for the Iraq War. Obama’s action in Libya were highly constrained by a skeptical Congress and public. And the same is currently true for Trump and Syria.

Second, it is simply not true that presidents ignore congressional statutes in regard to war. As much as they can moan and complain about the War Powers Resolution, every president has complied with its notification requirements. Defense Secretary Mattis testified in strong opposition to a revised AUMF that limited the geographic scope of the war on terrorism, precisely because the administration would feel compelled to follow such statutory limitations on their authority. Again, they could always go beyond the scope and claim Article II authority to do so, but the public cost of doing that would be high.

We have also not observed presidents defying the hard authority of Congress over war funding. Many people mistakenly believe Congress would never cut off funding in order to stop a war, but such limitation riders in appropriations bill have been used successfully numerous times. Most famously, the Vietnam was was first limited (by preventing expansion to Cambodia) and then effectively ended through limitation amendments.

More recently, such limitations were placed on U.S. military activity in Somalia and Rwanda. In all of these cases, the president complied with the congressional restrictions. For a more detailed look at funding cutoffs, see this CRS report.

Third, the Constitution creates a strong status quo bias in public life in the United States. It’s not exactly breaking news that the U.S. constitutional system is designed to produce inaction absent substantial consensus. The separation of powers system was put in place by the Founders specifically to prevent accumulation of power in any one person or institution, and to give the various institutions incentives to struggle against each other.

The large number of veto points in the system make it difficult to create public policy change even with super-majority public support. The status quo almost always wins in American public life. The flipside of this status-quo bias is that once you do achieve public policy change, it becomes equally difficult for opponents to reverse it. In effect, your change becomes the new status-quo.

This creates a distinctive problem for Congress in regard to statutory presidential powers. Congress can give the president new statutory powers by gathering a majority vote in the House and a filibuster-proof majority in the Senate. But once the president is given such powers, Congress will need a 2/3 supermajority in both chambers to repeal them, since the president will almost certainly veto any attempt to reduce his statutory authority.

In effect, the status quo bias within the constitution is assymetric and tilts toward the presidency; I call this the “ratcheting-up effect.” Disrupting the status quo to provide presidential power is far easier than disrupting it to limit presidential power.

What Congress does have on its side is the ability to design and craft policies that expire. If purposeful congressional action is required to continue a policy, the constitutional leverage over the policy shifts from the president to Congress. This is how discretionary appropriations work. The money runs out in the executive branch (most appropriations last one fiscal year), and the president needs to come ask for more. If Congress does not actively provide them, the account goes unfunded. The heart of the power of the purse isn’t really that Congress controls the money, it’s that the money runs out and Congress needs to positively act to provide more.

In regard to statutory presidential powers not derived from appropriatoins, Congress can create such expiration by using sunset clauses. These are provisions that specify the legislative grant of power to the executive ends at a date certain. This way, Congress never has to face a supermajority hurdle to repeal the authority; they can simply let it expire. If they wish to continue the policy/power, they can pass it again, under the basic majoritarian rules of the House and (relatively) mild supermajoritarian procedures in the Senate.

Lots of stuff is sunset by Congress. Parts of the PATRIOT Act were sunset. The TARP money was sunset. Virtually all appropriations are sunset to a year (even if the money doesn’t actually run out). Sunset clauses in legislation are strongly beneficial to congressional power. If you need proof of that, note how much presidents hate them.

Fourth, all AUMFs should be sunset. Period. The most important grant of authority Congress can give the president is a declaration of war or an authorization for the use of military force. Building a norm that all AUMFs be sunset would both strengthen congressional power and increase congressional responsibility over war, two goals that should be pleasing to citizens in a democracy.

First off, we should be very wary of giving war the benefit of the status quo bias of our constitution. War is not the normal condition of a well-functioning republic, and congressional decisions to end wars should not face higher hurdles than congressional decisions to begin wars. Presidents have numerous institutional temptations and incentives to prefer wartime, and thus Congress should retain the ability to choose when to start and stop wars with the least amount of presidential leverage.

Congress should never face the ratcheting-up problem regarding the authorization of war. Right now, presidents can and do point to an almost 17-year old congressional authorization as justification for military action abroad. That’s almost prima facie ridiculous.  By sunsetting all AUMFs, Congress would force presidents and others seeking to continue wars to bargain without the leverage of the status quo continuation of the war. As with appropriations, Congress would have the leverage, because inaction would cause expiration.

Second, sunset AUMFs would force Congress and the public to revisit the underlying authorization of war on a regular basis. This would require new Members of Congress to go on record supporting an existing AUMF if it was to be renewed, and would offer opponents of the AUMF an opportunity to amend it or simply fight to not renew it. Only 96 of the current 435 Members of the House of Representatives and 23 of the 100 Senators were in Congress when the current 2001 AUMF against terrorism was voted on and passed. A sunset provision that regularly required Congress to renew authority for an ongoing war would create an environment in which representatives would need to justify a decision to continue a war. Not all policies should require such continued justification, but if any do, it seems like war is a good candidate.

What should an AUMF sunset look like? There are lots of suggestions floating around both Congress and the public sphere right now. Jack Goldsmith likes a 3-year sunset. That seems fine. I’d prefer all AUMFs be linked to the current Congress, and expire 60 days after the start of the next Congress. That would give the new Congress plenty of time to debate and consider an extension. Or not. But it would enshrine the principle that continued war is a decision made by Congress, as well as a responsibility of each Member of Congress to take on.

There is strong opposition to this right now. Some of it is substantive—Members of Congress or the public who want the war on terrorism to continue unabated in its current form have little incentive to build a general sunset norm around AUMFs or support a specific sunset for the current 2001 AUMF. Some of it is a belief in presidential war power; certainly the administration is very much against any time limitations in AUMFs, and they have allies in Congress as well. Other members of Congress may be happy to shirk responsibility over war to the president; by maintaining an old AUMF they gain the ability to criticize the president when POTUS starts a war that goes badly, without having to accept responsibility for authorizing it. Congress is not totally innocent here.

But in some ways they are. No one imagined that the 2001 AUMF would still be in force today and be the basis of presidential actions in dozens of countries. It seemed relatively targeted at the time, given its plain-reading scope that associated it with the 9/11 attacks. A never-ending AUMF is not the nasty “emergency powers” often granted to dictators in pseudo-democracies around the world, but it does feel vaguely in the same category.

Opponents would have you believe sunsetting an AUMF is equivalent to telling our adversaries when we will stop fighting. This strikes me as ridiculous. No one questions the sunsetting of the PATRIOT Act surveillance provisions on these grounds. And no one questions the annual nature of military appropriations on these grounds. There is also precedent for sunsetting an AUMF. The 1983 AUMF for action in Lebanon was sunset to 18 months.

It is true that Congress holds the power of the purse, and that an end to any war can be achieved in that manner. In the grand sense, the president can only fight with the army Congress builds him. And limitation amendments on appropriations can effectively be used to constrain or end conflicts, and have been. But a sunset AUMF is as much about restoring Congress’s role in the debate over a continuing war as it is about restraining the president’s leverage over such authorizations. And no committee markup or floor debate about a limitation amendment can substitute for a full discussion about the continuation of an AUMF. In some ways we are seeing that right now with the Corker joint resolution. It would be a much better situation if we saw it every two years.

 

Now that the specter of a government shutdown is (once again) upon us, it’s probably a good idea to review what that actually means. I’ll do it question and answer style, hopefully in a way that seems natural.

What the heck is a “shutdown”?

The actual term is “funding gap” or “lapse in appropriations.” According to Article I, section 9 of the Constitution, no money can be drawn from the Treasury, except under appropriation made by law. That is, to say, the government can only spend money that it has been authorized to spend by law. And laws must be passed by Congress. So if the current appropriations expire and no new ones have been passed by Congress, then no money can be drawn from the Treasury. And that means, in the broadest sense, the government can’t pay for anything — salaries, supplies, etc. Which means, more or less, that the government has to cease operations, or shut down. As Matt Fuller reminded everyone yesterday, “shutdown” is a noun, don’t use it as a verb.

What do you mean “expire”?

Whenever Congress appropriates money, they indicate what period of time the money can be used. The vast majority of appropriations are annual, meaning they are for the period of one fiscal year. Some appropriations, such as money for construction projects, might be appropriated as multi-year. And some money appropriated by Congress is “no-year” money, meaning it can be spent at any time in the future, so long as it is used for its lawful purpose.

Annual appropriations are almost always provided by Congress for a period that runs from October 1 to September 30 of the following year. This is know as the fiscal year. Fiscal years are designated by the calendar year through which the appropriations provide for. So October 1, 2017 was the first day of Fiscal Year 2018, or FY2018.

Because Congress has not passed annual appropriations for FY2018, there may be a shutdown.

Wait, it’s January. Why are we dealing with this now?

Because Congress has been providing temporary FY2018 appropriations since October 1. There is another way to avoid a shutdown besides passing annual appropriations. And that is to pass what is called a continuing resolution (or CR), which is just a fancy term for a law that says, in effect, “money can be continued to be spent for a certain period of time while we work to get the annual appropriations bills passed.” Such a law can be written to cover any amount of time Congress desires. Indeed, a CR is just an appropriations bill of a different form.

CRs generally provide agencies with funding at the same rate they were receiving it in the previous year, in an across-the-board fashion. Sometimes an across-the-board rate reduction is included, or so-called anomalies that adjust individual accounts. But a CR, in principle and practice, is a very short law that works at an aggregate level and doesn’t consider details or changes in agency programs.

Congress has passed three such CRs this fiscal year. The first one provided funding from October 1 through December 8. The  second one provided funding through December 22. And the third one provided funding through January 19. It’s the expiration of the third one—at midnight tonight—that creates the possibility of a lapse in appropriations.

Note that Congress isn’t even considering passing actual FY2018 appropriations today; they are just considering another CR that would fund the government through February 16, with the hope that the appropriations bills could be completed by then.

So you could, in theory, have a CR that prevents an October 1 shutdown and goes through November 13, at which point a shutdown could start that lasts until a CR is passed on November 19, but then starts again on December 15 when that CR expires and goes until January 6 when full-year a appropriations are finally approved.  Indeed, this is exactly what happened in FY1996.

So when there is a shutdown, the whole government just stops operating?

Not exactly. Under the Constitution, no money can be drawn from from the Treasury. That is, no outlays of actual money to creditors. But the Constitution doesn’t prohibit the government from incurring obligations; the government is theoretically still free to enter into contracts, hire and employ labor, etc. They just can’t pay off these obligations. Kinda like if you had a credit card, but no ability to pay it at the end of the month because your checking account was frozen.

But my friend is a federal employee, and he’s not going to be allowed to go to work during a shutdown.

That’s right, because while the Constitution only prohibits disbursement, there’s a federal law (the Anti-Deficiency Act) that prohibits the obligation of federal money in the absence of an appropriation, with criminal penalties for agency heads who violate it. In effect, the ADA freezes the credit card, whereas the Constitution freezes the checking account. So if your friend’s agency had him come to work, it would be in violation of the Anti-Deficiency Act, because the agency would be obligating money without an appropriation, but it would not be in violation of the Constitution, because your friend’s salary would not be disbursed from the Treasury.

I don’t get this obligation / disbursement business. Explain.

When Congress appropriates money to an agency, it gives it to them as budget authority. That simply gives the agency an amount on a piece of paper, which is the amount of money that can legally obligate for lawful purposes. Say Congress provide $100 million in budget authority to an agency. It’s not like Treasury goes and dumps $100 million in cash or gold off at the agency. All the money is at Treasury.

So when the agency spends money, it doesn’t literally hand over cash to its employees or creditors, it simply enters into an obligation to pay them (be it salaries for employees or funds for capital purchases). The agency then notifies Treasury, and Treasury ultimately transfers the funds to the creditor.  I think the credit card / checking account analogy, while not actually perfect, is the best way to think about it. Congress gives each agency an amount on a credit card, which they are allowed to spend. But it’s all linked to one checking account, which is controlled by Treasury. The Constitution shuts off use of the checking account when no appropriation exists funding it. The Anti-Deficiency Act shuts off the credit card.

But now we’re back to the question: does the whole government just stop operating?

Nope. The Anti-Deficiency Act includes an exception for the “safety of human life or the protection of property.” Subsequent opinions of the Attorney General (found in appendices here), opinions of the DOJ Office of Legal Counsel, and guidance of GAO / Comptroller General have clarified what does and does not fall under this exception. In past shutdowns, OMB opinions have considered the following types of things to fall under the exception: military and national security, public safety such as air traffic control, care of patients in hospitals and prisoners in prisons (and wildlife at the national zoo), things necessary to protect federal property and continue the functions of the Treasury, and disaster relief, among other things. Under common sense interpretations, the heat can also be left on at federal buildings.

Don’t let all these exceptions distort the bottom line: if no appropriations bills have been enacted, the vast majority of  federal agencies will largely shut down, and sizable portion of the federal civilian workforce will be furloughed. You can see the percentages here.

Has this always been the case?

No. Prior to the Attorney General opinions in 1980 and 1981 (known as the Civiletti decisions), most agencies didn’t stop operating at all when there was a funding gap; they just liberally interpreted the ADA and decided Congress didn’t intend for them to cease operating. The 1980 and 1981 opinions took a much stricter view of the ADA; that’s really when the modern shutdowns began.

So some federal employees keep working and some do not?

Right. Those who must continue to go to work are called “excepted” (sometimes referred to as “essential.”) All others (“non-excepted” or “non-essential”) are furloughed.

Of course, this only applies if there is a lapse of appropriations; if a federal agency has a non-appropriated source of funding—such as a revenue stream they are, under law, allowed to draw money from—they can use that funding to avoid the need to shut down.

So the excepted employees still get paid?

Not during the shutdown. Remember, the exception only allows the government to obligate the money (i.e. put it on the credit card) without violating the Anti-deficiency Act. Until an appropriation is passed by law, the Constitution prohibits disbursement of the money by the Treasury. So yes, the soldiers will continue to work and continue to earn money, but they will not receive a check until an appropriation is passed by law. In effect, the government legally owes them money, but can’t pay them.

And the non-excepted employees will not get paid?

Yes and no. The government will not be incurring an obligation for the non-excepted employees, so they do not legally owe them anything. But in past shutdowns, Congress has typically passed legislation retroactively paying non-excepted federal employees for the period that they were furloughed.

What about transfer payments like Social Security?

Social Security is funded through a permanent appropriation, meaning that the benefits themselves are not affected by a shutdown. However, employees at the SSA could theoretically be non-excepted. In past shutdowns, OMB opinions have considered SSA employees required to process recipient benefits as excepted, and all checks have been sent out.

I thought there were usually 12 appropriations bills in Congress. What if half of them have passed?

You’d have a partial shutdown. The Constitution doesn’t require or concern itself with how Congress divides up its appropriations bills. If the State Department appropriations for FY2018 have been passed into law, then the shutdown doesn’t affect them whatsoever. This is not an uncommon situation; during the second shutdown in FY1996, some of the bills had been passed already. During the FY2014 shutdown in October 2013, some individual departments were funded and thus the shutdown ended for them.

Does the legislative branch operate during a shutdown?

If the Legislative Branch Appropriations Act is not passed, then the legislative branch is subject to the Anti-Deficiency Act and, of course, the Constitution. Under the 1980 and 1981 opinions of the Attorney General, and subsequent interpretations by GAO, there is an ADA exemption for employees involved in the performance of Constitutional duties of the president and Congress. This makes sense: it would be ridiculous to say the bill reading clerk in the House or the sergeant-at-arms in the Senate could not work when the reason they would be working would be to support the ending the shutdown and providing  the appropriations.

Members of Congress salaries’ are provided for by a permanent appropriation, so they never experience a funding lapse.

In the FY2014 shutdown, Congress left the decision of whether Hill staffers were necessary to the constitutional functioning of Congress to individual employing authority, which is most cases were the individual Members (in their offices) or committee chairs (for committee staff). Support services, such as the cafeterias, were not open. The Committee of House Administration provided detailed guidance on the matter in FY2014.

What about the Courts?

In general, the federal courts are subject to the Anti-Deficiency Act and obviously the Constitution. On a practical level, however, the courts have not had to deal with shutdowns because they have a large stream of non-appropriated funds: the filing fees paid by litigants and others accessing the court system. These fees provide enough of their annual budget such that even in the absence of an appropriations, the courts can go about two weeks without any disruption in activites. In FY2014, the courts operated more or less normally during the shutdown. If a prolonged shutdown occurred, court staff would ultimately have to be furloughed, which could result in postponement of litigation and also raise constitutional questions about due process and the speed of trials in criminal matters. The courts are obviously also affected by how a shutdown impacts the Department of Justice.

Federal judges are in an interesting situation in regard to a shutdown. Article III of the Constitution provides that judges shall “receive, for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” This potentially creates a paradox in the constitution: treasury cannot constitutional disburse money, but the judges—in theory—must be paid. This has never been tested; because of the non-appropriated funds, no shutdown has ever affected the federal courts such that a payday for judges occurred under a lapse of judicial appropriations. It is actually pretty funny to imagine a federal judge bringing suit under the Article III and having the case being heard by … a federal judge. One obvious statutory fix for this would be to create a permanent appropriations for federal judge salaries. They are mandatory money anyway—constitutionally mandatory, that is—so it’s not like you’d be reducing any congressional power-of-the-purse authority.

How often have there been shutdowns?

There have been 16 lapses in appropriations of a day or longer since FY1977. The last three were two in FY1996, that lasted 5 and 21 days, respectively, and one in FY2014 that lasted 16 days. It’s not clear how many actual shutdowns there have been.

Wait, there’s a difference between a lapse in appropriations and a shutdown?

Yes, a pretty dramatic one.

Now you’re just fucking with us.

No, this important. A lapse in appropriations occurs as soon as Congress has not provided budget authority and Treasury cannot constitutionally disburse funds. But prior to the Civiletti opinions in 1980 and 1981, agencies generally continued to operate as normal during periods of expired appropriations. And even after the Civiletti opinions, many of the short lapses in appropriations did not result in agencies shutting down; the combination of the lapses occurring on weekends and the expectation that they would be resolved shortly led many agencies to take no action. It’s actually pretty hard to tell form the historical record what happened in most of the short funding lapses in the 1980s; some agencies began earnestly shutting down, others did nothing, some did something in between.

The only actual widescale shutdowns in the post-Civiletti era are two FY1996 shutdowns (5 days and 21 days) and the FY2014 shutdown (16 days).

Ok, so what does an agency do to actually “shut down”?

OMB provides clear guidance on the procedures for this in Circular No. A-11 and other public and non-public documents provided to agencies. Agencies are required to maintain contingency plans for funding gaps including decisions about what activities are exempt from the ADA and what employees will be furloughed or designated as exempted; OMB provides guidance for both short (less than 5 days) and longer lapses in appropriations. Once a lapse has occurred, agencies are not allowed to perform activities that would violate the ADA but must perform activities related to the orderly shut down of operations, including the formal furloughing of employees and the securing of federal records.

For many agencies, these orderly shutdown activities don’t occur until Monday if the lapse occurred after close of business on Friday.

Where can I learn more?

As always, my recommendation is to go the most recent CRS report on the topic (I used to be a co-author of it.) It has all the citations and links you could ever dream of to lead you to the primary source material you need to keep yourself busy for a whole weekend reading about this stuff.

 

Today is the start of the second session of the 115th Congress. Under the 20th amendment to the Constitution, Congress is directed to assemble at least once a year, at noon on January 3rd, unless by law they appoint a different day. The 20th amendment also specifies that the terms of the Representatives and Senators will henceforth begin at noon on January 3rd of odd-numbered years.

Why were all these changes necessary? What calendar did they use before the 20th amendment? What was wrong with that old calendar?

Put simply: the Framers screwed up the calendar. Badly. And their error had enormous consequences for 19th century politics.

There’s a tendency in popular political culture to assign the Framers a laughably extreme degree of reverence, one way or another. In one popular view, they’re treated as god-like figures who could do no wrong and wrote an infallible Constitution. In the other view, they’re or a bunch of rich elites who designed a self-serving barely-democratic government, which rigged the system against the common man and completely sidestepped the obvious moral question of the day.

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

But given the importance of today—the Constitutional meeting day of a new session of Congress—I’m going to focus on one of the flaws.

The ridiculous old federal calendar

Prior to the 20th amendment, the calendar was frustratingly out of sync, with serious consequences. In Article 1, section 4 of the Constitution, the framers wrote that the Congress “shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.” December was chosen, in part, because it was compatible with the agricultural calendar.

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

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

Consider the 1860 election: Lincoln and the GOP won in November, with South Carolina seceding on December 20th, 1860. But Lincoln would not be inaugurated until March 4, and the new Congress was not scheduled to meet until December of 1861! (They actually met in special session called by Lincoln on July 4). Instead, a month after the election, Buchanan’s state of the union message was read in the early days of the second session of the 36th Congress, which was left to try to broker a solution to the secession crisis. And a repudiated administration was left to try to solve the winter crisis and developing stare down in Charleston harbor.

How did the Framers screw this up so badly?

So where did the March 4th date come from? Why didn’t the terms of the members coincide with the start date of the session, as they do now?

The framers screwed up.

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

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

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

Had the original vision of the Founders been in place in 1860, Lincoln and the newly elected Congress would have taken control in December 1860, prior to South Carolina secession, and months before Fort McHenry had been rendered a showdown by the inaction of the Buchanan administration and the stalemate in the second session of the 36th Congress. This is not to say that calendar caused the war. But it certainly didn’t help.

The 20th amendment

There’s a folklore belief that the delay between FDR’s election and the his inauguration was what spurred the amendment into being, but that’s largely urban legend: similar proposed amendments had passed the Senate every Congress since 1923, and the successful amendment was out of Congress well prior to the 1932 election, with specific language that it would not go into effect, even if passed, in time for the 73rd Congress.

Why didn’t they fix the problem earlier? One possibility was the old Senate: prior to the ratification of the 17th amendment in 1913, action by the state legislature was needed to pick Senators. But virtually all state legislatures held their sessions early in the calendar year, after Fall elections. If the federal calendar was adjusted to pull the terms of Members back from March into December, there was a real possibility of a large number of absent Senators in the first session, the state legislatures having not yet met.

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

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

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

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

References

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

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

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

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

Senator Strange will not be back in Washington next year. Senator Corker will not be here in 2019. And Senator Flake may not be either.

What do these three GOP Senators have in common?

The primary system. Senator Strange was beaten by it. Senator Corker got scared into retirement by it. And Senator Flake is gearing up to be challenged by it.

As Anthony King wrote 20 years ago in his wonderful article The Vulnerable American Politician, the U.S. electoral system is an outlier among democracies in creating unsafe incumbent politicians. American legislators face more elections than politicians in other countries, they are forced to raise their own money for campaigns, they must succumb to nomination challenges via ballot, and the weak American parties provide them little cover from constituents angry at their policy choices. King described many of the well-known consequences of this reality: members are hyperresponsive to consituents, have short 2-year time horizons for policy decisions, spend lots of time raising money, and often bring a risk-averse outlook toward tough policy decisions.

What is fascinating in the contemporary political environment is that many members of Congress occupy districts where their main vulnerability is not in the general election, but in the primary. The rise of so-called “safe seats” is a well identified trend going back over a generation; Mayhew identified his vanishing marginals in 1974. But the safe seat designation is a misnomer; the seats are only safe in the general election. Members are secure only to the degree they can forestall a credible primary challenger on the left (if they are a Democrat) or the right (if they are a Republican). And so Members vulnerable to these challenges spend a lot of time positioning themselves as solid liberals and conservatives.

The interesting developments are on the right. Since 2010, conservative politicians have increasingly run and won elections by tapping into voter and activist anti-Washington and anti-establishment sentiment in these safe districts. Sometimes they have defeated incumbents for nominations and won general elections (Mike Lee; probably Roy Moore); other times they have won open-seat primaries just to lose to Democrats in otherwise winnable seats (O’Donnell in Delaware; Angle in Nevada); sometimes they have unseated incumbents in primaries and gone on to lose general elections (Mourdock over Lugar in Indiana). The threat of such a challenge may also scare incumbents into retirement, who would rather go out on their own terms than face an embarrassing primary loss.

As the GOP base moves further to the right in its anti-Washington and anti-establishment thinking, the trend appears to be accelerating. After the victory by Moore over Strange this week, Steve Bannon has pledged to begin recruiting primary challengers across the country, in an effort unseat GOP incumbents who are not sufficiently populist or anti-establishment. In addition to Corker’s seat and the challenge to Flake, this may add Senator Wicker (MS) to the target list and a host of moderate House Republicans.

The dilemma for many incumbent GOP legislators is stark. Part of the attack upon them is that they are insufficiently anti-establishment, evidenced by the fact that they are too cozy with the congressional leaders. But defining the congressional leadership as tantamout to “the establisment” eates an intractable problem under the populist never-compromise ideology of the far right. Leaders in Washington *have* to compromise, because our system of government demands it; the only other choice is to get nothing done. So each GOP incumbent is in the uncomfortable spot of potentially facing a primary challenger who will accuse them of cozying up to the leadership and selling out to the establishment, all the while knowing that the only choices they have in DC are to either work with the leadership to accomplish things or join the chorus of anti-establishment attacks that make headlines but accomplish little concrete policy.

I was discussing this (in more simple terms) with my 9-year old last night, and it dawned on her that there’s a serious recursive problem here. You can win a primary and defeat an incumbent, but the moment you attempt to work with the leadership, you will yourself be exposed to a primary challenge on *your* right, as you have now become a compromising member of the establishment. To some degree, this is true almost regardless of ideology; once the leadership in Washington has become the hated establishment, it becomes in some ways its own substitute for ideology. The deals themselves are the enemy.

Of course, this is even more plainly true for the leaders, who are stuck in a similar game with their conferences. You can remove them (Boehner; maybe Ryan and McConnell), but anyone who takes the job will instantly be forced to make deals and become part of the establishment. And so you have the recursive problem facing both sides of the GOP right now; neither the leaders or followers can cut deals in Washington without exposing themselves to someone’s wrath. The rank-and-file are scared of the primary challengers, and the leaders are scared of the rank-and-file.

There’s an old belief that the world is flat, and lays on the back of a turtle, who himself is standing on a larger turtle. When the curious student asks the teacher what the larger turtle is standing on, he is met with a terse response. “It’s turtles, all the way down.” As we stand at the beginning of the 2018 primary preseason, you may be tempted to ask a similar question to the one my daughter posed last night. Where does this end?

Quite possibly, it’s primaries, all the way down.

 

 

It has dawned on many people this week that the devastating hurricane that has hit Puerto Rico is not getting as much attention as those that recently hit Florida or Texas. Likewise, the U.S. response to the hurricane in Puerto Rico has been slow, and a relief package does not appear to be a congressional priority in the same way it was for the previous two hurricanes this season.

Why is that?

A lot of theories are being thrown around. I wrote my dissertation on territorial politics, so I have some relevant knowledge (although I don’t really think this is about territorial politics, per se). Here are seven things that I think are relevant to the situation.

1. Most disaster relief spending is contested, and it can also wear on Congress. Most Members of Congress agree that substantial emergency disaster relief is a reasonable congressional response to hurricanes, but some Members believe disaster relief should be paid for or otherwise offset up front, either on principle or as a specific leverage opportunity to cut spending. You saw this with Sandy, and Harvey, and Irma. It’s not like a hurricane that hits the mainland doesn’t generate contest in Congress over relief. And like most congressional spending, there’s a weariness to it. As the third hurricane, some Members are going to become *more* concerned about the deficit spending, even if that is, in principle, irrational.

2. Puerto Rico has no Senators or Representatives. This is the factor you hear about if you turn Twitter on. And it is certainly true that territories, in general, tend to get less distributional benefits than states. The connection is obvious. But I also think the mechanism isn’t quite as obvious as people think. Three Representatives don’t carry much weight in the House, certainly not enough to leverage those votes as a bloc. Two Senators is better—individuals in the Senate can cause all sorts of procedural problems and thus generally have more leverage—but it’s still not, on its own as a pair of votes, that much leverage.

The more hidden advantage of having Senators and Representatives is that (1) it creates official advocates who will make disaster relief their singular intense priority immediately and continuously; and (2) it creates personal relationships between these advocates and other Members of Congress, relationships that have both a history and a future. Right now, there’s no Senator with a direct constituent concern for Puerto Rico, nor any Senator with a personal relationship with such a Senator. Those things matter, perhaps as much or more than a few votes on the floor. But the most important reason it would help PR to have Senators is…

3. Many Americans don’t see PR as part of the United States. For better or worse, people are going to be more willing to support disaster relief for places that are in the United States than they are for random places in the world. Most Americans probably think of Puerto Rico as somewhere between “part of the United States” and “some random place in the world.” If Puerto Rico has two Senators and its full complement of Representatives (probably 3), it would unmistakably be part of the United States (like Hawaii) and many Americans would be more likely to see people who live there as part of the shared community in which they are obliged to support disaster relief, without question. Presumably, many Americans don’t realize Puerto Rican citizens are U.S. citizens. That can’t help. It would unambiguously be an island with millions of U.S. citizens  if it was as state and had full representation in Congress.

4. Puerto Rico *isn’t* part of the U.S. the way the Arizona Territory was. The relationship between the U.S. and its external territories, especially Puerto Rico, is complicated. Puerto Rican citizens are U.S. citizens, pay social security taxes, and have rights to move to the mainland at any time. On the other hand, most don’t pay federal income taxes, they can’t vote in the presidential election, and they don’t have a traditional territorial government (for instance, the governor is elected by the people rather than appointed by POTUS). They also have a political and cultural history distinct from the United States. So relative to the mainland territories of the 19th and early 20th centuries, Puerto Rico is somewhat more like “some random place in the world.”

5. Racism. I have no doubt that one factor related to all of this is that Puerto Rico has a large non-white population (the exact demographics are tough to know, because self reporting of white/Mestizo/Latino/mixed is a complication). To what degree this is an independent factor rather than just an input into why people don’t see PR as part of the United States is hard to discern. After all, Hawaii has a non-white supermajority, and while that probably creates some hostility from those on the mainland, it doesn’t seem to be a driving factor in distributional politics against the state. The official languages of Puerto Rico are Spanish and English, but Spanish is spoken by the vast majority of the population. This creates further cultural divides between the island and the mainland, and may create additional cultural racism.

6. Media Infrastructure. One problem after the hurricane was that there was little or no U.S. media on the island to report back pictures or video of the devastation. This is in part derivative of the already-mentioned factors, particularly the Spanish language culture and the “foreign” perception of the island, but also because it is, well, an island. It’s not an easy place to get to; if a hurricane wiped out  Chicago, you’d have camera crews driving in from everywhere to let people know about it. If an island goes down in the Caribbean and loses communications, it’s just not easy to get there quickly with the infrastructure to do good immediate reporting.

7. Presidential leadership, or lack thereof. If the President was more interested in the devastation in Puerto Rico, there would have been much more attention paid and a much quicker response. But he wasn’t/isn’t and so there wasn’t. As Jonathan Bernstein pointed out this morning, the president spent the weekend fighting with the NFL and when he finally got around to Puerto Rico, he sort of blamed their debt crisis for their predicament. This stands in contrast to his statements and actions after Harvey and Irma, which were normal and well-received, if not particularly distinguishing. Nothing has the power to focus politics on a particular event like the bully-pulpit of the president. Trump’s lack of agenda control has been obvious for a while, and as in other cases it’s not clear whether it’s odd strategic choices, incompetence, or just a lack of message discipline.

Of the seven items on this list, I think the fundamental one is #3, that most Americans don’t see Puerto Rico as part of their national community. Of course, as discussed above many of the items are endogenous and so I definitely agree that if Puerto Rico had Senators, PR would be seen as part of the community and we would have had quicker and more decisive relief action. I’m hopeful that Puerto Rico will ultimately receive a similar package of aid to what Texas and Florida get, but I’m not holding my breath. Opponents will probably do some foot-dragging, and the fact that Puerto Rico *is* exempt from a fair amount of federal taxation does create a slim-reed of an argument that this is in some ways foreign aid and the Puerto Ricans less deserving of our help than the Floridians. But remember, Puerto Rico is a devastatingly poor place (it would be the poorest state per capita if it was a state) within the United States, and for that reason alone it probably deserves more of our federal generosity during a disaster than more prosperous areas of the country.

 

---

1. Six weeks from now, we will know a lot more about where American politics is heading. The September agenda in Congress is packed. I drew this flowchart a few days ago to lay out some of the big pieces of the agenda:

Some of the agenda consists of so-call Must Pass items: legislation that, if not approved or otherwise dealt with, would have large negative substantive or political consequences. These include raising the debt limit (to avoid default), passing appropriations for FY2018 (to avoid a government shutdown), and reauthorizing the Children’s Health Insurance Program (to avoid a large number of kids losing health insurance). By their very nature, must-pass items create a very different politics than other issues (such as health care repeal or tax reform); once the status-quo is not an option, everyone who is a player in the game—individual Senators, coalitions of Members, interest groups—shifts their focus to getting their stuff into the bill. And skillful brinksmanship becomes a negotiating asset.

The thing to remember—and one thing my flowchart doesn’t really capture—is that cross-issue bargaining is a huge part of negotiations over must-pass agenda items. You shouldn’t expect any of these issues to be partitioned off into discrete negotiations. And that includes items that aren’t must-pass. Undoubtedly, the BCA caps on discretionary spending will be involved in the negotiations, and perhaps health care and/or tax reform. And looming in the background is the FY2018 budget resolution. As shown in the flowchart, some of these issues are literally connected, because they are procedurally connected; the GOP can’t do party-line tax reform without a budget resolution, and there’s no way the FY2018 appropriations are going to pass without raising the BCA caps. But all of the items are really connected, because Members/parties/interests can withhold support on one to gain leverage on another. This is standard in any legislature (or really any bargaining situation) but a lot of people overlook it.

There has been a tendency to compare September to some of the previous must-pass showdowns over appropriations and the debt limit in the last five years, in which the main players were Obama, Boehner, House conservatives, and Senate compromisers. In many of those interactions, a familiar pattern appeared: Speaker Boehner would pass a very conservative party-line package through the House to allow conservatives to lay down a marker and show off to their constituencies; then Obama, Boehner, and Senate compromisers would cut the actual deal and pass it through the Senate; finally, Boehner would jam the House conservatives by bringing the deal to the floor and pass it using a fair number of Democratic centrist votes, with wings of both parties voting against it and the Speaker graciously taking substantial heat from the right. Many people, including me, expect the politics of September to resemble this. But there are complications:

• It’s not obvious President Trump is on the side of the compromisers (see below);

• It’s not obvious Speaker Ryan is prepared to play the whipping boy role Boehner was so good at but that may have ultimately cost him the Speakership;

• It’s not obvious the Democrats have as much incentive to compromise; and

• It’s not obvious the conservatives are going to settle for base-pleasing optics paired with substantively losing now that they have a psuedo-ally in the White House

We simply don’t know what is going to happen, on many levels. There’s the substantive level of, on balance, who wins the negotiations (border wall?). There’s the future political ramifications of who does well with the constituent and national optics (2018 ramifications?). There’s the internal ramifications of how the process of negotiation affects the coalitions (wither Speaker Ryan?). There’s the future leverage of various factions (does anyone feel the need to prove resolve by blowing things up?)  And there’s the institutional ramifications for the branches (Does POTUS or Congress come out looking small?).

---

2. The President’s legislative strategy looks very high risk. The more I watch how President Trump is approaching the legislative arena, the more I realize how much of his strategy revolves around a few key attributes of his:

• he’s very hesitant to look weak or appear to have “lost”;
• he doesn’t know much about policy and he’s not really interested in it;
• he doesn’t really like negotiating that much, at least not in the political realm.

These things are leading to what appears to be a high-risk strategy. He has drawn some pretty serious lines in the sand—most notably his insistence that he’ll shut down the government if the FY2018 appropriations don’t include border wall funding—and he is absolutely blasting Senators from his own party in public right when he probably would be wise to be courting their assistance on the September agenda.

One way to think about this is to consider Sam Kernell’s well-known critique of Neustadt. For Neustadt, there were two resevoirs of presidential power: professional reputation in DC, and public prestige in the nation. The former was much more important; a POTUS with a reputation as a winner and a skilled bargainer could manipulate the DC coalitions and expect to greatly influence public policy while augmenting his own power.

Public prestige, for Neustadt, was a much more blunt and less useful tool; the president could occasionally appeal to the public and try to influence Congress, but it was a poor second choice. It didn’t work well, it pissed off Members of Congress, and it did nothing to influence the many political actors who were well-insulated from the voters. It could help—IKE’s popularity certainly wasn’t a bad thing—but it could never be the basis of power.

Kernell’s thesis was that, by the 1980’s, the traditional bases of power had broken down and fractured in DC, such that bargaining was no longer a particularly attractive or effective options for a President. Instead, there was an increasing incentive to “Go Public” and try to influence outcomes by turning voters against your opposition, effectively going over the heads of your negotiating adversaries and attempting to get the public to brownbeat them into submission. Given that, public prestige—your standing among the voters—became much more important than your professional reputation in Washington.

Plenty of presidents have tried “going public,” with varying degrees of success. Trump seems to be taking the idea to 11. It really looks like he is rolling everything into one great 2018 Hail Mary referendum on his dominance of federal politics: he keeps lashing out publicly at anyone and everyone, Democrat or Republican, who even mildly gets in his way. Jeff Flake. Bob Corker. Paul Ryan. Mitch McConnel. Chuck Schumer. Richard Bluemental.

This is quite obviously not the way to ingratiate yourself as a bargainer who wants to careful negotiate policy and build a professional reputation in DC. This is someone who is hoping (perhaps just implicitly) that he can activate the public to punish anyone who stands in his way. The happy outcome for Trump might be something like Flake and Corker losing primaries in 2018 to Trump-loyalists who hold the seats, or perhaps McConnell being deposed as majority leader. It just seems like a triple bank-shot, certainly with a lot of upside if successful, but very little actual chance of success. Of course…

---

3. The other side of this is the fixation on dominance politics. I noticed this morning that the administration is now saying it’s not going to release an actual tax plan, and instead leave it up to the House Ways and Means Committee and the Senate Finance Committee to come up with the actual details of the proposal.  Most people are going to see this as either (1) reflective of White House incompetence; or (2) reflective of Trump’s disinterest in policy details and obsession with just winning. Both of these makes sense. The saga that was the repeal of Obamacare seems like good evidence for both of them.

But I’d like to propose a third option: maybe Trump’s personality and need to maintain his public image of dominance makes him allergic to the very idea of negotiation and compromise. If you don’t come up with detailed White House proposals, you don’t ever have to retreat from your ideal position in order to craft a half loaf of incremental progress. You don’t ever have to negotiate away things you’d really like in order to secure a victory. And, of course, you don’t ever have to learn policy details. If you can’t stomach the idea of having to admit you didn’t win everything you said you would win, perhaps the easiest move is to let someone else decide what is and isn’t winnable before you endorse it.

One problem with this, as it turns out, is that the president’s legislative efforts are endogenous to whether or not he “wins.” Trump likes to win, but the absence of presidential leadership is a huge impediment to winning in the legislative sphere. Sure, you can go for a dubious optics victory: let the Hill GOP come up with a plan, half-heartedly push for it in public, and then blame the Senate Democrats when it fails. But if you want to achieve positive, purposeful policy change in the U.S. system, presidential involvement is, by and large, a required ingredient. And so you sort of get a self-fulfilling prophecy here with Trump: he wants to win and doesn’t really care about policy, but he’s scared of looking weak for having compromised away from his starting negotiating position, so he withdraws from the policy arena and leaves it to others, and the absence of the president from the process reduces greatly the chance of success.

---

4. The White House is probably dreading the hurricane in Texas. I mentioned last week that events have a funny way of getting in the way of everything on the agenda at the White House. Hurricane Harvey will be no different. In fact, hurricanes (and other natural disasters) have proven to be particularly tough political events for presidents to negotiate. It’s a situation that calls for the public skills of a different kind of executive: namely, a mayor. Someone who responds personally to events and gets in the trenches to help out. And anyone who’s seen a good mayor in action knows exactly how this goes: he goes out with the first-responders and does hours—or even days—of good old fashioned labor. Piling up sandbags. Handing out meals at a relief shelter. Cleaning up garbage and damage. Being in personal public communication with the chief of police and the head of the fire department. Being visible at the scene, not just as an observer, but as an administrator. The optics are simple: this is a community response and I’m not only the leader of the community, but also an ordinary member of it. Not only am I coordinating this response, but I’m also literally executing it.  And it works. Mayors do stuff in this mode every week. It’s not always a emergency, but it’s always leader-on-the-ground.

The president (any president), however, is not the mayor of the nation. He’s too far removed from the front-lines of the first responders. In fact, he’s too far removed from the coordination of the relief effort. His relevant job is to manage a top-level bureaucracy, position the appropriate personnel, make high-level policy decisions when presented with options, and produce accountability by firing people when things go wrong. Even if the president wanted to behave like a mayor in the wake of hurricane, it’s a nightmare: if he shows up on the scene he can’t really help, because he travels with an entourage the size of a football team and creates a massive media circus wherever he goes. So presidents often look unusually helpless in the wake of natural disasters. Bush in Katrina is a great example. His father’s response to hurricane Andrew was’t much better. It’s just really tricky to figure out how to not appear totally aloof and uncaring, but also to not get criticized for getting in the way and/or trying to capitalize on the politics.

Of course, substance matters as much as optics. But you’ll never really know. The federal government might provide an excellent response to Harvey, with the machinery running smoothly and minimizing the suffering for people to the maximum extent possible. And the president may even have a personal hand in that through his control of the bureaucracy. But that will never be the story. Because the White House role in a hurricane, as a optics matter, is to be the mayor. But the job simply doesn’t allow it. And so they muddle through.

---

5. Jeff Blair started a music podcast.  You might know him as a political writer at Decision Desk HQ, but he’s also a wonderful encyclopedia of knowledge about all sorts of popular music. His tweetstorms on various bands are epic. Elton John. The Beach Boys.  Mott the Hoople. And now’s he’s doing a podcast over at National Review where he’s bringing in a political commentator each week, but only talking about their favorite band. Sean Trende was the first guest, and the band was—wait for it—Van Halen.

Now we’re fucking talking.

Three quick points in response to the podcast: first, they are correct that Van Halen I and 1984 are the two best Van Halen albums. But VH I is way better than 1984. I don’t think it’s particularly close. And that’s before you remember that Van Halen I doesn’t sound particularly revolutionary now, because every band for 15 years tried to copy it. And while many came close, no one really topped it. It’s like A New Hope. You think those special effects look good *now*?

Second, they never really discuss one of the keys to Van Halen. They talk about how great EVH is at guitar, and they talk about the showmanship of DLR, but one of the unique aspect of Van Halen is the combination of hard rock and harmonized vocals. It’s great to have the best guitarist in the world and a top rock showman, and that’s undoubtedly why no one could copy Van Halen. But what makes a song like Feel Your Love Tonight pop is the harmonies.

 

Finally, I dislike Van Hagar as much as the podcast guests do. But I do think Top of the World is a gem of a song.

---

See you next time (probably end of next week). Thanks for reading!

Well, it’s been a long time since I’ve been at the helm of this ship. Here we go. Wheeeeeee….

I’ve been thinking a lot lately about congressional organization and capacity.  You can’t really swing a dead cat in Washington right now without hitting someone who’s writing about the decreased capacity of Congress or their plans to fix it. I also just finished reading Josh Chafetz’s magisterial new book, Congress’s Constitution, and he devotes an entire chapter to how internal chamber rules within Congress affect the external power of Congress in separation of powers battles with the President and the Courts.  And, of course, it’s also my job to write about this stuff.

But mostly I’ve been pondering the current state of affairs, in that we’ve found ourselves in a pretty unprecedented institutional situation right now: strongly polarized parties in combination with a strong institutional presidency. Now, we’ve certainly had polarized parties before. And through much of the 19th century we had polarized parties in combination with a weak institutional presidency. But in the age of the modern, powerful presidency—say, post-1939, after the EOP is created and the President has become the head of a large executive branch—we really haven’t had the sort of party polarization that characterized much of the 19th century. At least not until the most immediate past.

And this has all sorts of implications. Here’s three that I’ve been thinking about:

First, the institutional presidency seems relatively resilient to perceptions of failure or aggrandizement. And I think this is because presidential failure and aggrandizement tends to attach to the individual rather than the institution. I can so clearly remember in 2008 how many liberals were aghast at the state of affairs in the Bush administration—the wars, the torture, the rendition, the Patriot Act, and so on—but refused to see it as problem of the presidency and instead were convinced that it was a problem of the president. The thinking was that if they could just get the right man into the office, everything would be fine. And it was and it wasn’t. Obama certainly made them feel better about the presidency but, on balance, did precious little to hem in the national security state that had them so worried under Bush. It’s not hard to draw up a parallel both going into the 2016 election (for Republicans) and looking forward now for many liberals and a fair number of Republicans. If we can just get Trump out of office and [favorite candidate X] into it, everything will be fine.

Congress doesn’t really attach that way. Start with the Fenno paradox. Despite the absurdly low ratings of the institution, most people like their Congressman! When people say Congress is dysfunctional, they typically aren’t thinking that they have agency to replace a Member and fix it. They really mean Congress—the institution—is dysfunctional. The public is only dimly aware of Members beyond their own, but even in the case where leaders are treated as individual failures by the public, the solution rarely becomes a personnel change. It’s true that many people believe that a takeover of Congress by their party would improve it’s output, but this is almost always at the substantive policy level. I don’t know that I’ve ever heard someone say if we could just get [my preferred politician] into the Speaker’s office, congressional dysfunction will melt away.

And this imbalance between executive branch dysfunction being pinned on the person and congressional function being pinned on the institution has serious ramifications. If you take seriously—as I do—the idea of a public sphere of battle between the branches (as articulated by Chafetz and some others), this works squarely against Congress.  If the institutional balance of power hangs at least partially on the ability of the branches to muster their resources to affect public opinion about the proper division of power between the executive and Congress, the personification of the presidency and the dehumnaization of Congress in the mind of citizens will often lead to (1) hopelessness about Congressional power; and (2) continued belief that executive branch problems are individual flaws of the president; and (3) giving power to the presidency is ok so long as we personally find him competent/likeable/our guy.

Second, the Wilsonian model of congressional reform is a dream scenario for the modern presidency. In brief, Woodrow Wilson was the first of many to articulate a parliamentary-style fix for separation of powers system: strong disciplined congressional parties that treated Congress like an “arena” legislature, merely a location of lawmaking, rather than a transformative institution that developed, negotiated, and compromised legislation. Under this view, parties and executive branch leaders would take over those policy functions, while chamber rules would be streamlined and congressional leaders strengthened so that the existing veto points (committees, filibuster, etc.) would melt away and allow for party government. Versions of this argument have circulated in the U.S. consistently since Wilson’s time, and can even be heard today: the path forward from gridlock is to kill the filibuster and strengthen the congressional leaders so they can ram through party policies, ending the gridlock.

Whatever the substantive merits, this would be a disaster for Congress the institution. Maybe in the days of strong party leaders and a weak presidency, this might have worked. But under the trappings of the modern presidency, there is simply no chance anyone but POTUS would be the party leader in charge of such a majority, and the necessary hollowing out and streamlining of Congress required to grease the skids for party government would simultaneously all but end executive branch oversight. The scary thing for Congress is that the Wilsonian model is not just popular among many observers and practitioners when their party has unified control—that’s understandable situational institutionalism—but also has proven generally popular, especially under divided government. Take Gingrich in 1995. There’s just an incredible lure to centralizing congressional power. Certainly it has some internal positives in being able to move policy and get a party to look discipline and effective as passing legislation. But in order to achieve it, the hallmarks of congressional capacity must be abolished. And thus the Gingrich attacks to weaken the committee chairs, set aside CBO, damage the seniority system, and gut committee staff.

There’s undoubtedly an allure here. After all, if you could centralize Congress to an absurd degree, you could bring the President to his knees. Centralization could create a more powerful Congress. Imagine a Congress with literally all power centralized in the Speaker. Everyone in both chambers will vote for whatever the Speaker wants. That would effectively abolish the veto, giving the President no leverage in domestic legislation. The Speaker could redesign the bureaucracy at will, adjust all funding levels by fiat, and even remove the president at any time. But it’s a pipe dream: centralization can never practically achieve that, and on it’s way to trying, it ends up killing congressional capacity.

The alternative mode of congressional reform is the obvious one: reinvest in congressional capacity to reshape the balance of power between the branches. Add committee staff and conduct more oversight; distribute power to create more veto points for the executive to navigate. Beef up non-partisan institutions to reduce reliance on executive and executive-allied information. Equip individual Members with more resources so they can promote homegrown ideas in the public sphere. Pay staff better to attract experts who can give serious scrutiny to external proposals, be it from the White House or from downtown. In other words, insulate Congress such that it can self-generate quality policy and reduce its reliance on the president. In any case, don’t succumb to the idea that a gridlocked policy process in Congress can only be solved by a hollowed-out Congress. It’s a trap.

Finally, I’d note we actually have a third dimension variable here right now with Trump. It’s not just polarized parties in the age of the strong presidency. It’s also polarized parties in the age of the strong presidency with a very, very weak president. I continue to believe that the Neustadt interpretation of the Trump presidency is the correct one: this is a very weak POTUS, who will have little ability (relative to other presidents) to achieve his policy goals, or to legitimate the actions does achieve. His professional reputation is terrible; no one in his party is scared to speak out against him, let alone go on TV and defend him carte blance. He has few friends on the Hill; if they aren’t quite rooting for him to fail, they aren’t exactly lending a hand. The White House is a mess; he’s fired a laundry-list of senior staffers with no sign of control coming, he has seemingly no control over the bureaucracy as a policy process or even just to prevent leaks. His skill set seems totally wrong for the job. And in a role where one needs hundreds of people to help you if only because they think it is in their best interest, more people are walking away than stepping up. And his public approval is in the garbage. This isn’t a recipe for significant power in Washington or policy achievements; this is a recipe for a complete failed presidency.

But I’m really not sure what this means for the presidency. I certainly think no one will blame the presidency for Trump’s shortcomings (see my first point above today); any executive failures in this administration are going to publicly attach to Trump for sure. The Democrats will undoubtedly make competence an issue in any election involving Trump, and don’t be surprised if there’s a Republican primary challenger to Trump—particularly a very conservative one—making much the same argument. But the larger question is really twofold: first, will the Trump administration makes such a dog’s breakfast of governance that a significant portion of the population comes to view it as not just a question of getting the right man in office, but also as a question of rearranging congressional/executive power because it has become apparent it’s too risky to put so much power in the executive. You can see the strands of this in congressional proposals to limit the use of the nuclear arsenal. In my mind, those aren’t really about Trump; those are about the realization, via Trump, that the presidency should have that power at it’s unilateral disposal.

Second, absent that sort of public clamor, is it possible Congress simply is forced to step up and assert power in the vacuum created by an incompetent White House? This goes less to hard statutory powers like nuclear weapons use and more to softer powers like control of the agenda. You see some signs of this in the health care debacle from last month; with the president MIA, the driving forces of the legislation were left to come from Congress. And they did and they didn’t. But I think in this instance, Congress was still a step behind the game; it was really the proof-of-concept that Trump wasn’t going to be able to lead a serious policy push, and would at best be a neutral factor, if not a negative one. And so it remains to be seen whether Congress steps up in the absence of the White House serving as driving and coordinating principle for policy. Maybe the White House will get its act together (I suspect they will do better on tax than health care), but I still find it hard to imagine POTUS himself being a driving policy figure in private or public. And maybe even if Congress did step up to a new sort of policy leadership role, it would only be temporarily. Unlike the nuclear weapons usage possibility, it’s entirely reasonable to think things might revert under a new presidency. But we don’t know; only time will tell.

The Saratoga Race Course opens today for its 150th season. Widely considered for generations to be the most beautiful racetrack in the world  and a Top 10 sporting venue in America, Saratoga is only open for six weeks a year. That short season, combined with the idyllic small town setting and glorious Upstate New York summer weather, make it the crown jewel of American horseracing, and an annual global destination for the rich and famous.

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

Saratoga is, of course, known as the “graveyard of champions.” Secretariat lost to Onion there in the ’73 Whitney. Jim Dandy beat Gallant Fox in the ’30 Travers.  And, of cousre, Man O’ War. When I was a boy, the most famous TV ad for Saratoga was a shot of the sun coming up over the practice track, and a gravely-voiced announcer slowly reciting the famous spine-tingler: Man…O’….War. Greatest…horse…of…all…time. Started twenty-one races…Won twenty of them….His…only…loss? …To a horse…named…Upset…At a  track …. called … Saratoga! There’s really nothing quite like standing at the top of the empty grandstand in the morning and surveying the homestretch while you think about that commercial. Magic.

I have always loved everything Saratoga. The track. The town. The people. The races. The picnic area. The fancy clothes. The sounds. The smells. The horses. The clubhouse. The paddock. The beautiful afternoons. The walk downtown after the races end. The restaurants. The bars. The horsemen. The horse talk. The kids selling tip sheets. The spinners collecting t-shirts. The fat men smoking cigars and telling anyone in earshot that “they almost had the triple!” All of it.

But I love Saratoga the most in the morning. The races don’t start until 1pm, but you can get into the track as early as you can get out of bed. There’s nothing quite like arriving at the track at 8am, grabbing some picnic tables, playing cards, reading the newspaper, wandering the clubhouse, walking downtown for breakfast, handicapping the races, and shooting the breeze with your buddies as the morning rolls by.

And so here’s a photo essay of the race course as many people have never seen it. Many of these photos were personally taken by me 15 years ago, in a spat of twenty-something nostalgia, when I realized I would probably never again live near Saratoga, and would likely never visit the mighty racetrack more than once a season. Others were taken more recently, or culled off the internet. Make sure you click on the pictures to blow them up, much of the beauty is in the details.

 The Oklahoma practice track, across the street from the picnic area and the main track, 6am. Although Saratoga is only open for six weeks each year (late July until Labor Day), many horses stable and train in Saratoga for longer stretches.

The clubouse entrance, 7am. Lawn jockeys are a traditional front yard decoration in the town of Saraotga, and each year the clubhouse entrance jockeys are repainted to match the silks of winners from the previous year’s major stakes races.

The picnic area, 7:05am (weekday). There are hundreds of picnic tables on the grounds of Saratoga, and they are first-come, first serve. The racing at Saratoga starts at 1pm. On the weekdays, the picnic tables will not all be taken until 10am or so.

The picnic area, 7:05am (weekend). On the weekends, if you are not in the gates prior to 7:15am, you probably won’t get a table. Notice that you don’t have to stay at your table. You can swing by at 7am, put down a tablecloth and a cooler, and then leave and go back to bed. Many people get their table, then go watch some horse workouts or walk downtown from breakfast. In recent years, more and more groups have started brining their own bridge tables and canopies, and just setting up in open space at 9am or whenever. That’s what I tend to do.

The spring inside the picnic area. 8am. Saratoga, of course, is also famous for its natural springs. You’ve never tasted such horrible water, or seen old men down such horrible water like it was the fountain of youth. Not a picnic table in sight at this hour.

One of the trackside restaurants in the clubhouse, 8:15am. Early morning handicappers are surveying their racing forms. I swear to you, I have been to Saratoga Race Course hundreds of times, and I have never seen once shred of evidence that you can gain any handicapping edge by studying the Daily Racing Form. None.

The Turf Terrance restaurant in the clubhouse, 8:20amn. Jackets required. Fancy hats optional. Political or other connections helpful.

Two horseplayers having breakfast trackside, 8:45am. I prefer Compton’s Diner down on Broadway to the breakfast at the track, but it is fun to watch the workouts while you read the paper and sip coffee. And If you ever want to see someone smoke a cigar at 8am, you’ve come to the right place.

Breakfast at the rail, watching a workout, 9am. Those “at the rail” style seats did not exist when I was a boy, but much like Fenway Park, Saratoga has been steadily enhanced over the past 20 years, largely without sacrificing it’s rustic 19th century charm. Like the famous saying goes, it’s not hard to get to Saratoga: you just drive 175 miles north from New York City, turn left off the highway, and go back about 100 years.

Betting windows in the picnic area, 9:30am. The track needs a lot of seasonal labor. Out in the stables, it’s almost entirely Hispanic immigrants. At the lemonade and ice cream stands, it’s almost universally teenagers. And behind the betting windows, it’s disproportionately public school teachers. I can remember going to place a bet once the summer after 9th grade, looking up, and seeing my English teacher. Yikes!

Betting windows in the clubhouse. Like most people at Saratoga, I’m not much of a gambler — I usually bet maybe $5 on any given race. When it comes right down to it, most people don’t go to the track specifically to gamble. Sure, the average person at the track bets $5 or $10 on a handful of races, but that’s not why they are there. For the most part, people are there because it’s something to do with one’s friends and family on a beautiful day in a beautiful park.

Bartender relaxing outside an empty clubhouse barroom, 10am. It costs $5 to get into Saratoga, and an additional $5 if you want to go into the clubhouse. The clubhouse has the best seats, a bunch of restaurants and bars, the winner’s circle, and the luxury boxes along the finish line. Like most people, I rarely buy the clubhouse admission, preferring to hang out in the picnic area, grandstand, and down by the rail.

The view from the clubhouse seats, 9:30am. Five bucks to get into the track, plus a $2 bet on 7 or 8 races, bring your own food and drinks, and it’s more or less the most entertainment you can buy for less than $25.

Those who prefer the benches start to filter in. Everyone who goes to the track does it differently, and no one can believe anyone else’s logistics make any sense. Some people just wander the whole time (insanity). Some like the benches (ditto). Some like buying seats in the clubhouse (ok). I’ve always been a picnic area guy: set up two bridge tables and a bunch of camping chairs, and use that as a home base from which to occasionally go to the rail, the clubhouse, etc.

Walking downtown for breakfast, 9:30am. Across the street from the track is the National Horseracing Hall of Fame. It’s about 1/2 mile neighborhood walk down glorious Union Avenue—lined with trees and mansions—to downtown Saratoga.

Downtown Saratoga has one main street—Broadway, pictured here–and then about 6 square blocks of side streets, lined with bars and restaurants. It’s almost certainly the nicest small town I’ve ever set foot in. We’ll get breakfast at Compton’s Diner, which will be filled with horseplayers, horse owners, and occasionally jockeys.

The clubhouse entrance starts to get crowded, 11am. Outside the entrances to the track, local kids have summer jobs hawking water, food, newspapers, and, of course, tip sheets. There are dozens of tip sheets sold at the track, none of them worth the $5 they cost.

Programs for sale, just inside the gates, 11:30am. These kids make a fortune. The norm at Saratoga is to never take your coin change when you buy something. So those kids are getting 50 cents tip on most programs. And they are selling hundreds of them in the span of about 2 hours. Needless to say, a summer job at the track is a highly prized possession for teenagers, and political connections are often used to obtain one.

The bands begin to play in the picnic area, 11:30. Sometimes, Saratoga is so classy it hurts. Like the shaving equipment and free cologne in the picnic area men’s room. I’ve seen people stop and use the cologne, but I’ve never observed someone actually lather up for a shave.

Artwork row. I’ve always been tempted to buy an autographed copy of the iconic shot of Turcotte looking back from aboard Secretariat at the 1/16 pole at the ’73 Belmont. But I’ve never pulled the trigger on any racing memorabilia.

The picnic area begins to fill up. Contrary to what most newcomers expect, the picnic area is one of the best places to watch the races. There are TVs everywhere, the crowd energy is high, and you don’t have to disrupt your card game or conversation, or even get up out of your seat.

Cocktails. Liquor doesn’t sell that all that well at Saratoga Race Course, because (1) you can bring as much of your own as you want into the picnic area, and (2) the atmosphere at the track is a lot more family-friendly then you might otherwise imagine. On the other hand, the legal drinking age in the town of Saratoga during track season seems to be about 17, which makes sense because the legal gambling age at the track seems to be about 12. Family-friendly indeed!

Playing cards in the picnic area is a huge Saratoga thing. So are fancy dresses. Here are my wife and older two daughters and mother-in-law years ago, showing off both traditions.

Lounging in the picnic area, noon. To really do the picnic area well, all you really need a coolor with beer, gatorade, water, and some subs for lunch, some snacks, a few decks of cards, an a couple local newspapers.

The horses walk through the picnic area for race #1, 12:30pm. If you have never stood next to a thoroughbred racehourse, it’s quite startling just how enormous and poweful they are.

The horses enter the paddock for race #1, 12:35. Watching grown men scream encouragement to a horse as it walks by is both hilarious and scary. You go get ‘em, Mr Peanuts! One time!

Jockeys climb aboard, 12:45. Watching grown men scream strategy to the jockeys is just plain hilarious. Don’t take him wide this trip, Robbie!

The grandstand and rail fill up, 12:50. For a typical race, you need to get to the rail about 10 minutes before post if you want to be in the front row along the fence. I usually watch one or two races a day from the rail, one or two from the clubhouse, and the rest on the TV monitors in the picnic area.

Leaving the paddock for the track, 12:52. One reason a racetrack doesn’t feel like a casino is that the gambling isn’t constant. There’s a solid half hour between races, so you have a lot of down time, which means you aren’t constantly thinking about or engaged in wagering.

Heading toward the starting gates, 12:56. Obviously, there has been a lot of research done in the last 150 years on horse genetics. The thing that I can’t fathom is that they never figured out how to breed fast thoroughbrdeds that had ankles thicker than toothpicks.

The horses are in the gate, 1pm. Tom Durkin—who called the Triple Crown races for decades— has been making the calls at the track since I was about 10. Sadly, he retired recently, though he still spends summers in Saratoga and gives an awesome celebrity tour of the racing museum. I was at Saraotga on August 16, 2008 for his famous call on AARRRRRR! .

And they’re off! 1pm. On most days, there are 10 races at Saratoga. My buddies and I usually stay for 9—often the feature race is not the last one—and by that time it’s about 6pm and time to meander downtown for happy hour and dinner.

Watching a race from the paddock outdoor bar in the picnic area. This is a very classic Saratoga scene: two women in fancy dresses, and some dude in a lime green suit.

Watching a race from the rail. You cannot believe how fast these horses are moving until you see it up close. Terrifying.

Watching a race from the grandstand, my least favorite spot.

A winning ticket (if memory serves correct). I have almost never bet $20 on a race, so this must be from a show pool some budidies and I put together. A lot of people like to bet the longshots, but favorite-longshot bias is rampant in horse-racing, and so the value is almost always on horses with shorter odds.

Time to head downtown to dinner. Early evenings in downtown Saratoga are often absurdly beautiful. Live bands playing outdoors at many of the bars. Thousands of people in the streets. Goregeous weather.

 

Caroline Street. Midnight. The bars don’t close in Saratoga in August until way past your bedtime. Many are still serving drinks at 3am. Time to go to bed. Tomorrow is another day in Saratoga. At least until September.

 

 

 

My 26-point layman’s guide to getting your politics junkie on tomorrow:

In the morning (7 action items)

1) Do not — under any circumstances — turn on your television prior to 6pm EST. This isn’t specific to the morning, but it has to be first, because it’s absolutely crucial. The only thing worse than the election night coverage on the cable news networks is the election day coverage on the cable news networks. And trailing right behind those two things is the douchebag in your office who watched the Today show on election morning and is now repeating the same drivel outside your cubicle. Don’t be that guy.

In case you are tempted at any point in the day, I’ll save you the time by summing up the coverage for you here: worthless anecdotes about turnout; analysis of rainy weather forecasts that supposedly affect turnout but actually do not; “explanations” of the “science” of exit-polling and election prediction; interviews with senior citizens who voted at 11am in the Midwest; set pieces like “36 years ago this week” about past elections;  meta-narratives about the parties probable reactions to a 5-seat swing in the House vs. a 15-seat swing; exposés on campaign financing, voter turnout, and enthusiasm; editorials on what the election “means,” whether this is a “change” election, a “wave” election, or a “turnout” election; stories about the parties angling with teams of lawyers to oversee recounts; worries on the left and right about voter fraud and voter suppression; some blair-witch style youtube video showing something allegedly wrong; debates over whether this is 1988 or 2008 or neither; debates over divided government and gridlock; anecdotal profiles about who the independents are voting for; questions about why aren’t there more moderates; polemics on whether the Trump followers will have an impact in DC during the lame-duck, whether the Trump followers will be a force in politics for much longer, and whether the Trump followers are actually an organized group;  and 35 other things that could  be studied with a rigorous methodology but instead will be delivered in the absence (or face) of data, and an equal number of things that should never be studied, period.

Did I mention this will all be delivered to you at a 4th grade comprehension level?

2) Learn the Electoral College landscape cold. You need 270 electoral votes to win the Presidency on Election Day. Here’s the map of states that aren’t competitive. If we assign these as already locked-in, then there are now 223 electoral votes for Clinton and 179 for Trump:

That leaves 136 electoral votes up for grabs, and only 10 states you really need to watch (PA, CO, NH, NV, FL, NC, OH, IA, AZ, MI, plus the split-state districts in ME-2 and NE-2.) Get yourself knowledgeable about when the polls close in those states, review some recent polling averages, and check out some of the online forecasts to think about different situations. (Here are the NYT summary of forecasts; here’s 538’s forecasts.) Over at 270towin.com, you can fiddle with a map yourself to see how different scenarios play out.

Is it possible Clinton wins Georgia or Trump wins Wisconsin? Sure. But if either of those things happen, the Presidency will have long been decided; they simply can’t be the states that make the difference. So focus on the ones above. Utah may also be interesting due to Evan McMullan, the first 3rd-party candidate since 1968 who is a serious threat to win a state. It’s not impossible that McMullan winning Utah could affect the outcome—or even make him President—but it’s highly unlikely.

3) Learn the Senate landscape as best you can. There are only 8 races that are either remotely close enough to have big impacts or are otherwise interesting, seven seats currently held by Republicans (FL, IN, MO, NH, NC, PA, WI) and 1 seat currently held by a Democrat (NV). Check out the candidates and the stakes in each of these. Forget all the rest. Right now, there are 54 Republicans and 46 Democratic (or Democratic-aligned) Senators. Since the Democrats are almost certain to pick up the Republican held seat in IL, they will need to net a gain of 3 (if Clinton wins the Presidency) or 4 (if Trump wins) of the competitive seats to take control of the Senate. Examine some polling averages, and take a look at some of the online forecasts to think about different situations. (Here’s the NYT forecasts; this is 538’s.)

4) Figure out some House bellwethers. Unless you spend your days dealing with the House of Representatives (ahem), it’s hard to be up on all the competitive house races. But it’s a lot more fun to watch returns if you can assess the importance of a given House race result without having to trust Chuck Todd. Throughout the night, there will be a flood of House returns, and if you know that New Jersey’s 5th District and Florida’s 18th district are a lot more important in judging the national result than Pennsylvania’s 4th and Rhode Island’s 2nd, you’ll be ahead of the game. In the past, this has been a doable-but-arduous task. There are now a lot of websites that make your job easier.  You can use Roll Call’s great House guide and Cook’s race ratings and RealClearPolitics House map and ratings and 270ToWin’s guide or any number of other websites to orient yourself.

5) Make a prediction of some sort — and maybe a bet — but don’t be the “prediction-guy.” Make your prediction public by emailing it to someone (Or heck, tweet it to me @MattGlassman312). Here’s mine: Clinton wins the electoral college 341-198. Democrats picks up a net 15 House seats and gain Senate control 52-48.  Cooper beats McCroy for the NC governor, and the Dems sweep the open governor seats in IN, NH, and VT. I also guarantee that either David Gergen or some governor-type (Ed Rendell? Haley Barbour?) will get on my nerves at some point. And yeah, I’ll bet you a drink that I’m closer than you on the House total.

The trap to avoid here is turning the whole night into a test of your prediction ability. Don’t be that guy who’s only interested in the NCAA tournament because he’s got seven brackets going and $1000 on the line, but doesn’t really give a shit about college basketball. So keep the predictions light and modest. Guess some House and Senate totals, and call half a dozen races. But don’t go crazy. Face it: you didn’t build (you didn’t build!) your predictions from some proprietary model and a whole bunch of insider information, so your success or failure basically reflects zero on your ability as a forecaster. But your behavior tonight can reflect grandly on your status as a douchebag. So let Nate Silver and the British gambling houses sweat it out; your job isn’t on the line here.

6) “Watercooler” the election. I spend a lot of time at work trying to avoid political discussion — and I work on the Hill! So I understand your general impulse to stay away from your wackier colleagues on Election Day. But it might be the one day of the year when talking politics at the office can generate some positive returns. Especially if you go beyond contemporary politics and talk to people about democracy. Obviously, you have to weed out the cynics who want to lecture you on why they didn’t vote and the angry partisans who can’t imagine who would vote for that idiot for Senate and the monologuers who won’t shut up about why Denmark is such a better democracy than ours, but if you can weather those storms, you might strike gold.

You’re not looking for anybody specific here, but I recommend finding two people in particular if you can. First: a veteran. Ask him if he ever voted from a combat zone. Then listen. Second, someone who’s run for local office in the past. Ask them what it was like on election day when they ran and how it changed their view of democracy. Then listen. And, of course, if you work with any African-Americans over the age of 65 or so, by all means talk to them about voting and elections. You’re almost guaranteed to get a story worth hearing.

7) Vote. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some patriotic inspiration, go read my voting story from a few years back.

In the afternoon (6 action items)

1) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like using a panel of “experts” to interview David Axelrod for three minutes about who he thinks is going to win the Senate. You’ve been warned.

2) Figure out who you are going to watch the returns with. People go all sorts of ways with this. I totally respect the people who have to watch alone, in the dark, just them and the TV, like they’re die-hard baseball fans watching game 7 of the world series. But that’s not my scene. Ditto with the election-night-headquarters style parties with you and 200 of your closest friends at a barroom. I think a home get-together is best, preferably with at least one person who shares your politics and one who doesn’t. I don’t recommend getting a ton of people together; think more “friends coming over” than “party” — you want six, not thirty.

I also think bringing lots of huge partisans into the mix is a mistake, but strong ideologues can be great if they are not too attached to party labels. Avoid cynics and Euro-philes at all costs. Face it, democracy is the least-worst alternative, and unemployment in parliamentary-systems on the continent is like 15%. Yeah, the Senate is anti-democratic, but so is the veto. Get over it. I don’t want to hear it tonight. And neither do your guests.

3) Get your snack setup straight. This is tricky. It’s not a college football tailgate. It’s sure as hell not a dinner party.  It’s not a BBQ. It’s not having people over for The Game. My suggestion is to go simple and traditional. That means, of course, pizza and beer. Fill in with pretzels or chips. The thing to stay away from is really messy food, since you’re going to want access to your laptop or ipad (see below) regularly. So probably stay away from salsa, or guacamole. And as much as it pains my upstate heart, wings are a big no-no. You also want a wonkcave configuration that’s amenable to eating and using a computer. You don’t have to go full-blown dork with TV trays and all that jazz, but figure something out ahead of time, so you aren’t sitting on a really deep couch, balancing a plate of pizza on your knees while you smear blue cheese all over your Ipad screen.

4) Learn about a few ballot initiatives. Here’s a  comprehensive if somewhat sterile review of the statewide questions voters will face tomorrow. Personally, I’m focused on the following: Arizona Proposition 205 and California Proposition 64 (legalize recreational marijuana; nice overview here); the various gun control propositions in a variety of states; the San Francisco proposal to lower the local voting age to 16; and a local issue in my area, the proposed Fairfax County Meals Tax.

5) Forget the governors’ races. Once you’ve studied the Senate races and found your House bellwethers, you might be tempted to start looking into some governor’s races. It’s not worth it (unless your state happens to have a competitive race, such as Indiana or North Carolina). Maybe pick one that’s really interesting, but don’t bother trying to master them. Invariably, they won’t affect your life and you won’t think about them again until they start announcing for President in a few years. Put your energy into learning more about the Senate races.  It makes for much better viewing.

6) Ponder our democratic republic. The 2016 election has featured a tremendous amount of vitriol, norm-breaking, and outright hostility between candidates, parties, and voters. Many political scientists, journalists, and other observes have serious concerns that these developments are not just an extreme version of ordinary election name-calling, but canaries in the coal mine for serious cracks in our democracy. While we have one of the strongest and longest-standing republics in the world, it is not immune to decay, rot, or even collapse. It’s probably worth your while to read an overview of what the concerns are. I recommend either Andrew Sullivan’s recent essay, or Jonathan Rausch’s essay from a couple of months back.

7) Vote if you haven’t yet done so. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some further patriotic inspiration, go read my old State of the Union post.

In the early evening, before the first polls close (6pm EST) (5 action items)

1) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like making predictions about national turnout levels based on anecdotal interviews at 2 precincts in the midwest. You’ve been warned.

2) Get your laptop setup with the proper tabs open. My setup is going to look like this: a few live-blogs sitting open on the desktop (such as Five Thirty Eight), an ideological spectrum of other blogs available for quick consult ( TalkingPointsMemo, National Review), the tally-maps from some major networks/papers (probably MSNBC, and Foxnews), and the Virginia official returns site. Anything more than that, and it becomes unwieldy.

3) Arm yourself with the proper printouts. Some things are just better to have in hard copy. If there’s some variant on  Nate Silver’s hour-by-hour House guide from 2010, that’s pretty indispensable, especially if you aren’t uber-familiar with the House terrain. And a copy of Cook’s House Race Ratings is nice too to have on the table. I also recommend getting some scrap paper ready to use as your own tally-sheet for House and Senate pickups.

4) Get yourself setup on Twitter. I cannot emphasize this enough. Nothing has made following political events more fun in the last 10 years than Twitter. It brings just the right mix of seriousness and humor that democratic electoral politics deserves. Get yourself setup on it and get tweeting. Or just reading tweets. You won’t regret it. Follow the candidates (@RealDonaldTrump; @HillaryClinton), of course, and some straightfoward news sites (@AP, @CNN, etc.), and the big name forecast-types (@natesilver, @nate_cohn @DrewLinzer, @SamWangPhD). But here are a bunch of non-obvious tweeps I recommend following (for all-around reasons of smarts, humor, and likely volume of tweets tomorrow):

• Academic types:@jbview, @julia_azari, @BrendanNyhan, @smouts , @monkeycage
• Journalists/commentary:@speechboy71, @DouthatNYT, @conor64, @wpjenna, @MEPFuller
• Other: @pourmecoffee, @LOLGOP

And, of course, @MattGlassman312. There are hundreds of other good ones too, so find your own!

5) Bill Mitchell. You must follow Bil Mitchell (@mitchellvii) on Twitter. If you aren’t familiar with him, he has become the ultimate pro-Trump internet troll, producing horror in those well-versed in the science of statistics, joy in the hearts of those who can appreciate a good KenM trolling performance, and total suspense for everyone who wants to know what what he’s going to say/do when Trump actually loses. Or wins. Also, he’s cruising at about 300 tweets/day.  I’m not kidding; this might be the most important piece of advice in the list. I mean, just look at this brilliant piece of buffoonery / performance art:

That’s galaxy-class Twitter troll game. You’re welcome.

After the polls begin to close (5 action items)

1) Ease into things.  If you plant yourself on the couch at 6pm, you will be brain-dead by 10:30. This is not college football; it is best enjoyed with an active mind. So turn on the TV, get your prep-work out, but don’t sit down. If you absolutely must be plugged in from the get-go, I recommend cleaning or exercising in the TV room. And for goodness sakes don’t eat a full sit-down dinner in front of the television. You’ll regret it. Have a light snack and order the pizza for 7:30. Make the returns background noise and a passive activity early on; by 7:30 or 8, you’ll be ready to hunker-down.

2) Pick a cable news network and stick with it. And I recommend making your choice based solely on comedy. Who has the stupidest display board, with the most useless bells and whistles? Who has the most commentators lined up in a bleacher-like tier? Which network is doing live-remotes from the most ridiculous places? Who has the funniest name for their “war room”? The bottom line is that the networks have ceased to be journalistic endeavors, and are now only good for getting raw data or being entertained. Everything else — from play by play to commentary to meta-analysis — is better on the Internets. Like fifty times better.

3) Don’t be afraid to get emotional. For whatever reason, America spent the 20th century trying to remove political intensity from the practice of actually casting and counting the votes. As recently as 100 years ago, polling places were raucous scenes, complete with bands, rallies, and liquor. Now they are like graveyards. And that carries over a lot of the time to how people adsorb returns. Don’t let it get to you. You’re emotionally invested in either politics or policy; you wouldn’t be reading this otherwise. Don’t pretend we’re counting the votes in a vacuum. Go ahead and cheer.

4) Around 9:00pm EST, call someone who’s only mildly into politics, and talk to them about the elections. Or more precisely, listen to them. Ask them who they voted for and why, and what they think of the emerging results. Don’t offer any opinions, analysis, or commentary. Too many junkies live exclusively in the world of the strategic meta-narrative; it’s both insightful and refreshing to hear people on election night who approach things at face-value.

5) Find out who won local office in your town. Contrary to the indications derived from media coverage, your town and school board elections routinely have a bigger effect on you and your family than anything going on in Washington. It’s bad enough that you don’t know who your state rep is, but it’s unconscionable that you don’t know who’s setting the policies for your kids’ school.  Take the time and find out who won these races, and promise yourself that you’ll have a better knowledge of them next time around. That way, you’ll at least feel guilty two years from now when you say, “Is he the Democrat or Republican?”

Late Night (3 action items)

1) Watch an unexpected victory speech, and an unexpected concession. Obviously, if there’s a pretty big surprise upset (like Kirkpatrick in Arizona or … TRUUUUMMP!), find those speeches and watch them live. Otherwise, look for the mild-upsets in Senate races in NH, PA, etc. If Marco Rubio loses, watch him. And if you can find an internet feed of a political amateur winning a House seat, those are solid gold moments.

2) Turn it off by 12:30am EST, after the initial California returns have come in and been digested. Unless you’re prepared to stay up all night, the marginal value of waiting each additional half-hour at that point is really low.  If they can’t call the west coast races by 12:30am EST, it will probably be sometime until they can. Don’t bother. Unless the Presidency is hanging in the balance. Then get your coffee out; you’re not going to bed if the map looks like it’s headed toward this:

3) Light up a joint if pot wins in California. Just kidding! Federal law will still make marijuana possession, sale, and cultivation illegal in the United States, and Gonzalez v. Raich will continue to guarantee for the time being that those federal laws are constitutional, regardless of how much money we throw away in the War On Drugs and how many non-violent drug offenders we put in federal prison in the coming years. Think that’s dumb? Me too. But I tend to support candidates who are ready to end the drug war. Next time, will you?

My 24-point layman’s guide to getting your politics junkie on tomorrow:

In the morning

1) Do not — under any circumstances — turn on your television prior to 6pm. This isn’t specific to the morning, but it has to be first, because it’s absolutely crucial. The only thing worse than the election night coverage on the cable news networks is the election day coverage on the cable news networks. And trailing right behind those two things is the douchebag in your office who watched the Today show on election morning and is now repeating the same drivel outside your cubicle. Don’t be that guy.

In case you are tempted at any point in the day, I’ll save you the time by summing up the coverage for you here: worthless anecdotes about turnout; analysis of rainy weather forecasts that supposedly affect turnout but actually do not; “explanations” of the “science” of exit-polling and election prediction; interviews with senior citizens who voted at 11am in the Midwest; set pieces like “30 years ago this week” about past elections;  meta-narratives about the President’s probable reaction to a 5-seat swing in the House vs. a 15-seat swing; exposés on campaign financing, voter turnout, and enthusiasm; editorials on what the election “means,” whether this is a “change” election, a “wave” election, or a “turnout” election; stories about the parties angling with teams of lawyers to oversee recounts; worries on the left and right about voter fraud and voter suppression; some blair-witch style youtube video showing something allegedly wrong; debates over whether this is 2006 or 1998 or neither; debates over divided government and gridlock; anecdotal profiles about who the independents are voting for; questions about why aren’t there more moderates; polemics on whether the Tea Party will play nice in DC during the lame-duck, whether the Tea Party will be a force in politics for much longer, and whether the Tea Party is actually a party;  and 35 other things that could  be studied with a rigorous methodology but instead will be delivered in the absence (or face) of data, and an equal number of things that should never be studied, period.

Did I mention this will all be delivered to you at a 4th grade comprehension level?

2) Learn the Senate landscape cold. There are only 11 races that are either remotely close enough to have big impacts or are otherwise interesting (KS, IA, NC, CO, AK, GA, NH, LA, AR, MN, VA, KY). Learn the candidates and the stakes in each of these. Forget all the rest. Get yourself knowledgeable about when the polls close in those states, review some recent polling averages, and check out some of the online forecasts to think about different situations. (Here are the NYT forecasts ; here’s 538’s forecasts.)

3) Figure out some House bellwethers. Unless you spend your days dealing with the House of Representatives (ahem), it’s hard to be up on all the competitive house races. But it’s a lot more fun to watch returns if you can assess the importance of a given House race result without having to trust Chuck Todd. Throughout the night, there will be a flood of House returns, and if you know that New York’s 11th District and New Hampshire’s 1st district are a lot more important in judging the national result than Pennsylvania’s 4th and Rhode Island’s 2nd, you’ll be ahead of the game. In the past, this has been a doable-but-arduous task. Four years ago, Nate Silver produced a handy shortcut in the form of a guide; no word on whether such a similar cheat-sheet will be available for laymen this year.  But you can use Cook’s race ratings or RealClearPolitics race ratings or any number of other websites to orient yourself.

4) Make a prediction of some sort — and maybe a bet — but don’t be the “prediction-guy.” Make your prediction public by emailing it to someone (Or heck, post it here in the comments). Here’s mine: GOP picks up a net 11 House seats and gains Senate control 53-47.  Brownback, Deal, and Malloy hold on in their governor tests, and the Dems win MA. I also guarantee that either David Gergen or some governor-type (Ed Rendell? Haley Barbour? Chris Christie?) will get on my nerves at some point. And yeah, I’ll bet you a drink that I’m closer than you on the House total.

The trap to avoid here is turning the whole night into a test of your prediction ability. Don’t be that guy who’s only interested in the NCAA tournament because he’s got seven brackets going and $1000 on the line, but doesn’t really give a shit about college basketball. So keep the predictions light and modest. Guess some House and Senate totals, and call half a dozen races. But don’t go crazy. Face it: you didn’t build (you didn’t build!) your predictions from some proprietary model and a whole bunch of insider information, so your success or failure basically reflects zero on your ability as a forecaster. But your behavior tonight can reflect grandly on your status as a douchebag. So let Nate Silver and the British gambling houses sweat it out; your job isn’t on the line here.

5) “Watercooler” the election. I spend a lot of time at work trying to avoid political discussion — and I work on the Hill! So I understand your general impulse to stay away from your wackier colleagues on Election Day. But it might be the one day of the year when talking politics at the office can generate some positive returns. Especially if you go beyond contemporary politics and talk to people about democracy. Obviously, you have to weed out the cynics who want to lecture you on why they didn’t vote and the angry partisans who can’t imagine who would vote for that idiot and the monologuers who won’t shut up about why our democracy is capital-F-fucked, but if you can weather those storms, you might strike gold.

You’re not looking for anybody specific here, but I recommend finding two people in particular if you can. First: a veteran. Ask him if he ever voted from a combat zone. Then listen. Second, someone who’s run for local office in the past. Ask them what it was like on election day when they ran and how it changed their view of democracy. Then listen. And, of course, if you work with any African-Americans over the age of 65 or so, by all means talk to them about voting and elections. You’re almost guaranteed to get a story worth hearing.

6) Vote. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some patriotic inspiration, go read my voting story from a few years back.

In the afternoon

7) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like using a panel of “experts” to interview David Axelrod for three minutes about who he thinks is going to win the Senate. You’ve been warned.

8) Figure out who you are going to watch the returns with. People go all sorts of ways with this. I totally respect the people who have to watch alone, in the dark, just them and the TV, like they’re die-hard baseball fans watching game 7 of the world series. But that’s not my scene. Ditto with the election-night-headquarters style parties with you and 200 of your closest friends at a barroom. I think a home get-together is best, preferably with at least one person who shares your politics and one who doesn’t. I don’t recommend getting a ton of people together; think more “friends coming over” than “party” — you want six, not thirty. Also, this isn’t a  Presidential election; midterms call for a more refined, thoughtful arrangement.

I also think bringing huge partisans into the mix is a mistake, but strong ideologues can be great if they are not too attached to party labels. Avoid cynics and Euro-philes at all costs. Face it, democracy is the least-worst alternative, and unemployment in parliamentary-systems on the continent is like 15%. Yeah, the Senate is anti-democratic, but so is the veto. Get over it. I don’t want to hear it tonight. And neither do your guests.

9) Get your snack setup straight. This is tricky. It’s not a college football tailgate. It’s sure as hell not a dinner party.  It’s not a BBQ. It’s not having people over for The Game. My suggestion is to go simple and traditional. That means, of course, pizza and beer. Fill in with pretzels or chips. The thing to stay away from is really messy food, since you’re going to want access to your laptop (see below) regularly. So probably stay away from salsa, or guacamole. And as much as it pains my upstate heart, wings are a big no-no. You also want a wonkcave configuration that’s amenable to eating and using a computer. You don’t have to go full-blown dork with TV trays and all that jazz, but figure something out ahead of time, so you aren’t sitting on a really deep couch, balancing a plate of pizza on your knees while you smear blue cheese all over your Ipad screen.

10) Learn about a few ballot initiatives. Here’s a nice overview of the statewide questions voters will face tomorrow. Personally, I’m focused on the following: North Dakota Measure 1 and Colorado Amendment 67 (personhood amendments related to pro-life movement); Oregon Measure 91  (legalize pot and regulate it like alcohol); and Massacusetts Question 3 (repeal casino gaming in state).

11) Forget the governors’ races. Once you’ve studied the Senate races and found your House bellwethers, you might be tempted to start looking into some governor’s races. It’s not worth it (unless your state happens to have a competitive race). Maybe pick one that’s really interesting, but don’t bother trying to master them. Invariably, they won’t affect your life and you won’t think about them again until they start announcing for President next year. Put your energy into learning more about the Senate races.  It makes for much better viewing.

12) Vote if you haven’t yet done so. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some further patriotic inspiration, go read my old State of the Union post.

In the early evening, before the first polls close (6pm EST)

13) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like making predictions about national turnout levels based on anecdotal interviews at 2 precincts in the midwest. You’ve been warned.

14) Get your laptop setup with the proper tabs open. My setup is going to look like this: a few live-blogs sitting open on the desktop (probably Andrew Sullivan, Josh Marshall, and Five Thirty Eight), an ideological spectrum of other blogs available for quick consult (DailyKos, Instapundit, National Review), the tally-maps from some major networks/papers (probably MSNBC, and Foxnews), and the Virginia official returns site. Anything more than that, and it becomes unwieldy.

165) Arm yourself with the proper printouts. Some things are just better to have in hard copy. If there’s some variant on  Nate Silver’s hour-by-hour House guide form 2010, that’s pretty indispensable, especially if you aren’t uber-familiar with the House terrain. I also recommend getting some scrap paper ready to use as your own tally-sheet for House and Senate pickups. And a copy of Cook’s House Race Ratings is nice too to have on the table.

16) Get yourself setup on Twitter. I cannot emphasize this enough. Nothing has made following political events more fun in the last 10 years than Twitter. It brings just the right mix of seriousness and humor that democratic electoral politics deserves. Get yourself setup on it and get tweeting. Or just reading tweets. You won’t regret it. Here are a bunch of tweeters I recommend following (for all-around reasons of smarts, humor, and likely volume of tweets tomorrow): @jbplainblog, @speechboy71, @julia_azari, @ezraklein, @BrendanNyhan, @conor64, @smouts, @monkeycage, @radleybalko, @pourmecoffee, and, of course, @MattGlassman312. There are hundreds of other good ones too, so find your own!

After the polls begin to close

17) Ease into things.  If you plant yourself on the couch at 6pm, you will be brain-dead by 10:30. This is not college football; it is best enjoyed with an active mind. So turn on the TV, get your prep-work out, but don’t sit down. If you absolutely must be plugged in from the get-go, I recommend cleaning or exercising in the TV room. And for god sakes don’t eat a full sit-down dinner in front of the television. You’ll regret it. Have a light snack and order the pizza for 7:30. Make the returns background noise and a passive activity early on; by 7:30 or 8, you’ll be ready to hunker-down.

18) Pick a cable news network and stick with it. And I recommend making your choice based solely on comedy. Who has the stupidest display board, with the most useless bells and whistles? Who has the most commentators lined up in a bleacher-like tier? Which network is doing live-remotes from the most ridiculous places? Who has the funniest name for their “war room”? The bottom line is that the networks have ceased to be journalistic endeavors, and are now only good for getting raw data or being entertained. Everything else — from play by play to commentary to meta-analysis — is better on the Internets. Like fifty times better.

19) Don’t be afraid to get emotional. For whatever reason, America spent the 20th century trying to remove political intensity from the practice of actually casting and counting the votes. As recently as 100 years ago, polling places were raucous scenes, complete with bands, rallies, and liquor. Now they are like graveyards. And that carries over a lot of the time to how people adsorb returns. Don’t let it get to you. You’re emotionally invested in either politics or policy; you wouldn’t be reading this otherwise. Don’t pretend we’re counting the votes in a vacuum. Go ahead and cheer.

20) Around 9:00pm EST, call someone who’s only mildly into politics, and talk to them about the elections. Or more precisely, listen to them. Ask them who they voted for and why, and what they think of the emerging results. Don’t offer any opinions, analysis, or commentary. Too many junkies live exclusively in the world of the strategic meta-narrative; it’s both insightful and refreshing to hear people on election night who approach things at face-value.

21) Find out who won local office in your town. Contrary to the indications derived from media coverage, your town and school board elections routinely have a bigger effect on you and your family than anything going on in Washington. It’s bad enough that you don’t know who your state rep is, but it’s unconscionable that you don’t know who’s setting the policies for your kids’ school.  Take the time and find out who won these races, and promise yourself that you’ll have a better knowledge of them next time around. That way, you’ll at least feel guilty two years from now when you say, “Is he the Democrat or Republican?”

Late Night

22) Watch an unexpected victory speech, and an unexpected concession. Obviously, if there’s a pretty big surprise upset (like McFadden in Minnesota or Gillespie winning in Virginia), find those speeches and watch them live. Otherwise, look for the mild-upsets in Senate races in NH, WV, etc. If Mitch McConnell loses, watch him. And if you can find an internet feed of a political amateur winning a House seat, those are solid gold moments.

23) Turn it off by 1am, after the initial California returns have come in and been digested. Unless you’re prepared to stay up all night, the marginal value of waiting each additional half-hour at that point is really low.  If they can’t call the west coast races by 1am EST, it will probably be sometime until they can. Don’t bother.

24) Light up a joint if pot wins in Oregon. Just kidding! Federal law will still make marijuana possession, sale, and cultivation illegal in the United States, and Gonzalez v. Raich will continue to guarantee for the time being that those federal laws are constitutional, regardless of how much money we throw away in the War On Drugs and how many non-violent drug offenders we put in federal prison in the coming years. Think that’s dumb? Me too. But I voted for Gary Johnson in 2012. Next time, will you?

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.

There’s a hot debate on the blogs right now about the 1964 Civil Rights Act. It started with a strange Kevin Williamson piece at NRO that seemed to me quite a-historical (and I mean that in the most neutral sense), which was quickly fisked by Jonathan Chait and Jonathan Bernstein, among others. Since then there’s been a lot of writing back and forth on the matter, mostly on the subject of what the party positions were on civil rights and who should get the credit for passing the bill in ’64 and all sorts of derivative stuff from there.

I have a keen interest in all this, because I’ve long been an admirer of the 19th and early 20th century Republican Party and have often wondered what would have happened if things went slightly differently in the mid-20th century. What if Dewey had won in ’44 and tried to push a civil rights bill through the GOP-controlled 80th House? What if Ike had cared more (or at all) about civil rights and done the same thing in the 83rd House? What if Rockefeller had won the ’64 GOP nomination?  And so on and so forth. It’s not a hard alternative history to tell in which the GOP makes the aggressive moves in the 50′s — pushing public accommodations bills, voting rights bills, more fervently supporting Brown v. Board — and forces/compels the northern Democrats to make a clean break from the southerners, or forces them to drift into an even tighter alliance with the segregationists. Who knows what sort of party alignments we’d have now.

Anyway, the debate currently going on has a couple of holes I wanted to fill. So my four points:

1. Simpson’s paradox is in full effect here, and that has some interesting consequences. Simply put, if you control for region, Democrats were more supportive of the CRA in both North and South. Among northern Members of the House support for the CRA was 94% among Democrats and 85% among Republicans. In the South, it was 7% among Democrats and 0% among Republicans. The paradox, of course, is that because there were only 10 Republican House Members from the South, when you compare the two parties in aggregate, the Republicans are much more supportive of the CRA (80% in favor) than the Democrats (61% in favor).

The upshot of this is that you can, more or less, generate any statistic you want, depending on what story you want to spin about the House vote in ’64. Report the party aggregate stat, and the Dems are the bad guys. Report the geographic votes, and you can make the Republicans look comparatively worse. I think the most fair story to draw from just the numbers is this: geography was destiny for the ’64 CRA vote, but party had a small marginal effect. If you knew where a Member was from, you could predict there vote very accurately, regardless of party.

But the rub is — and I think this is where I break from a lot of liberal contributors to the discussion — you could also pretty accurately predict someone’s vote if you knew they were a Republican. As far as the yeas and nays go, that’s the bottom line: the GOP supported the ’64 CRA. I don’t see how you could describe it any other way. That, of course, is not really true of the Democrats. Knowing that a Member was a Democrat doesn’t really give you any information about their vote: 70% of the House voted for the CRA. But just 61% of the Democrats. Knowing someone was a Democrat actually made it more likely that they voted against the bill. But again, geography was destiny.

2. Of course, the real reason the numbers are a sideshow is that intensity of preference was not evenly distributed. This is true all over the map and all over the spectrum. As a group, the most vociferous proponents of civil rights in 1964 were the northern Democrats. Anyone who tells you otherwise is simply lying. The northern Republicans were a mixed bag. When it was time to vote, they were nearly as supportive as the northern Democrats, but as a group they ranged from those who were as vociferously in favor of it as the northern Dems, to those who would vote for it but never push for it, to those who rejected the federal bill but believed in civil rights either personally or at the state level. (And, of course, there were a small handful of soft and quiet segregationists in both northern parties).

And that counts in legislative politics. There are all sorts of reasons why the GOP didn’t push civil rights — it wasn’t a big issue for their largely white districts, they had concerns about federal power, they enjoyed watching, and benefited from, the Democrats in-fighting about it, and some of them probably didn’t privately believe in it, or didn’t care — but the fact is that they didn’t. And so they get credit for their votes, but not their attitude. Johnson and the northern Democrats drove the bill. The GOP got on board to help pass it.

But what did not exist in the northern caucus by ’64 — either among Democrats or Republicans — was any sort of hard-core defenders of segregation, or voting discrimination, or — God forgive us — lynching. And this is an important point. Anyone who equates Goldwater’s position with, say, James Eastland’s position on the matter, simply because they voted the same way, is purposefully deceiving you. Or deluding themselves about what it was really like in the South in the early 60′s. I don’t really have any patience for Goldwater-style federalism on civil rights, but the idea that the man belongs in the same category as the southern Democrats is absurd. These were people who were calling their own constituents “niggers” in public campaign speeches and on the floor of the United States Senate. Goldwater had supported the ’57 and ’60 CRAs. And believed in racial equality.

And that’s important too. The southern GOP Members were, for the most part, much less hostile to African-Americans than the southern Democrats. they were, in many ways, the mirror twins of their northern partisans. Remember the old saying about the war, “Not every Democrat was a traitor, but every traitor was a Democrat.” That’s kind of how it went with the violence, the Klan, the voter intimidation, and the public defense of segregation. Not every Democrat in the South thought violence was justifiable against African-American civil rights protesters. But every one who thought it justifiable was a Democrat.

3. And this intensity of preference disparity, in both sections, leads us to the important questions. The key question for the Republican Party, of course, was why didn’t they take up the mantle of civil rights after World War II. After all, they had a long and genuinely admirable history of supporting and pushing for civil rights for African Americans. From passing the 1866 and 1870 CRAs and the 13th-15th amendments, to working toward ensuring voting rights in the South, first at the point of a gun during Reconstruction and then through legislative attempts later on (the 1890 Federal Elections Bill being the most prominent example). Their party platform from 1864 to 1964 routinely contained strong support for African American voting rights and other civil equalities.  And from the war until the New Deal, the vast majority of African Americans voted for them, and most African Americans leaders were Republicans.

People will give you all sorts of answers for why the GOP didn’t get out in front of civil rights in the 20th century. Some think the commitment to African American rights was more political bluster than substantive belief. Some people like to argue the anti-federal nature of the party ideology, although that was only really true after 1928 or so, it can’t explain much before that. And still others will tell you that the Republicans did try on civil rights. And indeed, they often did. And they had many vocal proponents over the 100 year period. And all too often they were stymied by either the Democrats or, more sadly, the conservative wing of their own party.

What amazes me is how contingent the timing, and thus the poltical shake-out, of the ’64 CRA actually was. I don’t think it’s outlandish to suggest that a strong CRA was coming in the 60′s, and that the only question was when. I also don’t think it’s crazy to believe Kennedy might have failed with his bill in ’64; Johnson probably got it through faster than anyone else could have. And so I think it’s entirely possible that any number of men in either party could have led the civil rights charge between ’64 and, say, 1970. Kennedy in a second term. Nixon in ’67 after a ’64 reelection built on the traditional non-South GOP coaltion. Rockefeller. Humphrey. All the ’60 VP contenders, like Scoop Jackson or even Symington. I guess the point is that I sort of think that Johnson was more consequential than important for the CRA; this was idea whose time had come and whose train was leaving the station sooner or later.

And so I think it’s important to remember that the political alignment of the parties is often at the mercy of their role as short-term electoral competitors. That the GOP became less and less supportive of civil rights projects after the CRA, VRA, and Fair Housing is hardly unrelated to the increased Democratic resolve on these issues. I mean, in one sense we all know this: the segregationists started voting against the Dems in the 60′s, and after flirting with Wallace for a while, finally settled in the GOP.  But I think it gets overlooked in a lot of cases, and people underestimate the impact that a slight tipping of the balance can have on the ideologies in a party system. If a GOP President (say, Ike) had led the charge for a real CRA, there’s every chance the southerners would have doubled-down on the Democrats, and tipped the whole equilibrium. And the important thing to remember is that stuff like this cuts across other issues; it seems strange now to think about the party of the lower class being against civil rights. But that was true for many, many decades and could easily be true today.

This sort of party ideology metamorphosis is exactly what happened before the Civil War. The Democrats started losing some traction in the North after the Wilmot proviso. Then the Kansas-Nebraska Act pushed the equilibrium even further: Democrats started losing in the North, meaning the party was more southern, meaning the ideology was more pro-slavery, meaning there would be more losses in the North. Everyone recognizes that as what happened in the 1850′s. No one seems to ever apply it to what happened in the 1960′s. And again, I think it was far more contingent in the 60′s than people want to believe. Kinda like 9/11. If Gore had been president, my sense is that he would have taken similar actions to Bush during 2001 and 2002. And I think it highly likely that the civil liberties wing of the GOP would have become much more prevalent, as the party shaped its basic critique of the war. Instead, by historical dint of Florida balloting, the GOP got Bushism.

But, of course, this brings us to the northern Democrats. I more or less agree with Jon Bernstein here, when he argues that the Democratic party had basically split on civil rights, and that the majority of the elected congressional party strongly supported however liberal of a CRA you could pass by 1964. Just go read Humphrey’s speech at the ’48 convention. These are men who are tired of compromising their values over the issue for the sake of political harmony. But that only raises the key political/moral question: why did so many northern Democrats compromise their values in order to keep peace with the southerners? One answer, of course, is that they didn’t. Humphrey fought like hell for civil rights, and he probably happy to see Thurmond walk out the door in ’48.

But I don’t think that’s good enough. And I think a lot of the problem was institutional. In the broadest sense, one answer is that it’s not clear what they could have done. They weren’t going to join the Republican party en masse; by the time that option would have been acceptable, their northern constituencies would have already demanded a civil rights act from both parties. But the strong arm radical things they could have theoretically done — like trading the Speakership to the Republicans in exchange for GOP support on a strong CRA — seem ridiculous and counterproductive. But they could have held the South’s feet to the fire. They could have passed endless strong CRAs out of the House between ’57 and ’63. They could have pushed endless Powell-amendment-style desegregation bills. Much of the problem, I suspect, was their unwillingness or inability to cross Rayburn. And consequently their inability to corner, or even put much pressure, on the South in the House.

This is a bit unfair; they weakened Judge Smith’s control over the Rules committee in ’61 and ’63, which was certainly a victory for civil rights. But in general the position of the northern democrats was something closer to “don’t rock the boat” than it was to “go to hell, segregationists.” Perhaps Kennedy is the perfect embodiment of this position. None of this is to say that the northern democrats don’t deserve their assigned credit for the CRA; they do. It’s just more evidence, I think, that they ideology of the northern democrats was slippery enough, and their hold on the party precarious enough, that a retrenchment of Democratic views on civil rights, via northerners leaving the party and southern influence expanding, was not out of the question in the 60s, particularly if a GOP President had launched out in favor of a strong CRA.

Whenever I tell my liberal friends that I’m considering voting for a Republican candidate, they look at me like I have three heads. How could you possibly vote for that party? This always bemuses me because most of my liberal friends are the exact kind of intellectual ideologues who would have (a) been northern Democrats in 1960, and (b) would have been bending over backwards to make arguments to me about why they had to work with the southerners even though they hated their position on the great moral issue of the day. Politics is an art of compromise. Until the issue becomes one that you can no longer compromise on. And I think an honest critique of the northern Democrats is that they kept on compromising their principles far too long on civil rights.

4. Who cares? Which, I think, should in turn make us less sure about this whole debate. In the big picture, I don’t really care which party was for civil rights. I just care which Members were for it, both then and now. Just as it doesn’t really matter now which party brought down slavery (and I don’t think there’s a bizzaro-Williamson out there arguing that it was the Democrats), it doesn’t really matter which party passed the CRA.

I’m going to admire Hubert Humphrey and Thomas Dewey on the issue just as much as I’m going to shame Goldwater and despise Eastland. And the party labels next to their names don’t seem, to me, to have much bearing on anything besides the history books. Anyone trying to connect the CRA vote in ’64 to comtemporary politics is, at best, stretching things. Especially when they try to turn the CRA into some sort of black and white partisan debate. There were heroes and there were villains in the civil rights battle. But they were not uniformly wearing opposite party labels.

Ok, I’ve babbled enough. Till next time…

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.