Representative Donald Payne (NJ-10) died this morning, after a short bout with cancer. Rep. Payne was the first African-American to represent New Jersey in Congress. He was 77.

From an institutional standpoint, what happens when a Representative passes away while in office? A few things:

1. The Clerk of the House assumes responsibility for the Member’s office.  Representative Payne’s office will be renamed “Office of the 10th District of New Jersey.” Under House Rule II, clause 2(i)(1), the staff of the office may continue to be paid for performing their duties, under the supervision of the Clerk, until an election fills the office with a new Member.

While these staff responsibilities no longer include advising on roll call votes, developing legislation, or taking policy positions, there is still the normal amount of constituent casework to be handled, as well as the process of closing the office and organizing the files and records of the Member, which under House rule are the property of the Member.

Many staff, of course, leave their jobs to pursue other employment opportunities. The Clerk is authorized to hire and terminate staff, as necessary, in order to maintain the functioning of the office. In typical practice, only a small number of staff are necessary.

2. The Member’s next of kin receive a benefit. Under law (2 U.S.C. 38a), the remainder of the Member’s salary is paid to the Member’s specified beneficiary or heirs. It has also been long-standing practice for Congress to include a death gratuity, usually in the sum of one year’s salary, payable to the deceased Member’s widow or widower, or children, in the next annual Legislative Branch Appropriations Act.

3. The whole number of the House of Representatives is adjusted. The death of a Member triggers clause 5(d) of House Rule XX, which instructs the Speaker to announce that the whole number of the House has been adjusted. This is important for determining any numerical threshold that relies on a fraction of the total Membership of the House, such as the Constitutional quorum to do business. Since January 25, the House has had a whole number of 434 (due to the vacancy of the 8th district of Arizona). With Representative Payne’s death, the number will be reduced to 433.

4. An election is triggered. The Constitution provides for the filling of vacancies in the House, which can occur by death, resignation, expulsion, declination, or the House declaring a vacancy. Under typical practice, Governor Christie of New Jersey will declare the vacancy to exist in the 10th district, and then will issue writs of election to fill Representative Payne’s seat, under the protocols of New Jersey law.

5. Various memorials are traditionally provided for by the House. The death of Representative Payne will almost certainly be officially acknowledged on the floor of the House, and that recognition may be followed by a moment of silence. At some point, either immediately or in the following days, a resolution of condolences is usually brought up on the floor, and Members of both parties are given an opportunity to speak in memory of the Member. On occasion, a similar resolution may be offered in the Senate.

Unless the family of the Member is having a private funeral, statute provides that the House will pay for a congressional delegation to attend the Member’s funeral, and under law (2 U.S.C. 124), the House is authorized to defray to expenses of the funeral. If the Member is to be buried at the so-called Congressional Cemetary, the House is authorized by law to pay for the monument.

At the end of a Congress in which a sitting Member passed away, a tribute book is also produced by GPO, which includes the record of the memorials held in Congress, as well as tributes or eulogies entered into the Congressional Record by other Members.

Godspeed, Representative Payne. May you rest in peace.

Yesterday, in making a point about the filibuster, I mentioned that one fundamental difference between the House and Senate is the relative ease by which the partisan House majority can block minority amendments, even if those amendments have the support of the (numerical) majority of the chamber. As I’ve written about before, this has pretty big consequences for the deliberative nature of the chambers:

If deliberation is to mean anything in legislative politics, it needs to mean this: when one person proposes an idea, if someone else has a better idea that more people will like, the better idea should win the day. In effect, if you have a bill you want to pass, but I have an amendment that the majority thinks would make the bill better, then my amendment should be incorporated into the bill. That, in legislative life, is deliberation: a new idea having the chance to be voted on to replace an old idea, and actually replacing the old idea if the majority likes the new idea better. Normatively, this is what we want: people continually propose modifications to law, and the legislative output iteratively develops to ultimately match the will of the majority.

And when you come around to that version of deliberation — rather than one based on people listening when other people speak —  all of a sudden the Senate does begin to resemble the world’s most deliberative body. Generally speaking, amendments cannot be restricted on the floor without unanimous consent; anyone who thinks they have a better idea is guaranteed a vote on that idea to see if the majority agrees with them. No one can get their own idea passed into law without the possibility of a better idea replacing it. This is the essence of the Senate at its best — there’s no way to lock the place down  and ram through your ideas, if the majority wants a different idea.

But wait, in what sort of oddball legislature would they allow the opposite — ideas getting passed into law that a majority wants to, but can’t, amend with better ideas? Oh wait, that’s the United States House of Representatives! In the House, the majority can write restrictive rules of debate for individual bills, rules which state what amendments  are and are not allowed to be voted on. The majority leadership routinely uses special rules, held together by partisanship and punishment for dissenters, to eliminate the possibility of popular amendments altering the leadership’s ideas in any way.

This isn’t an occasional thing, either — the vast, vast majority of important legislation goes through the House under a special rule, and a fair percentage of the time there is a plausible amendment out there which would have majority support in the chamber, but cannot be proposed because the leadership has excluded it from the special rule, and has held together the majority party on the special rule vote through carrot and stick tactics with the backbenchers. And this has been a recent development. Even as recently as 30 years ago, most important bills came to the floor under open rules, or at least allowed a wide variety of amendments. Now it is virtually zero.

I say this all because the general public consensus is that the Senate is broken. But if your concern is democratic deliberation, in the true legislative output sense of the word, the House might be your real worry.

All that said, there is a procedural way for the majority leader to at least partially shut-off undesired amendments in the Senate, known as “filling the tree.” This procedural tactic, although still relatively rare, has come into greater use in recent Congresses. And from a deliberative point of view, it is not unrelated to the value of the filibuster: if  minority-offered amendments can be eliminated procedurally, then one of the key arguments in favor of the filibuster is undercut. For if the filibuster cannot be used to secure the right of minority amendments, then it is largely reduced to just an up/down supermajority hurdle on the passage of legislation, which is a much weaker (albeit, still defensible) justification for its existence.

So let’s talk through filling the tree  in the Senate. It’s a nice way to do a basic refresher on some Senate amendment procedures, too. There’s a ton to talk about here, so let’s do it Q&A style.

Q: What prevents House-style special rules from being written in the Senate to restrict amendments?

A: Unlike under the House rules, the Senate rules do not allow a bare majority to change the rules at will. So while the partisan majority in the House can (and routinely do) write temporary rules  to structure debate and limit amendments, in practice the Senate can only do so by unanimous consent. Which they do, all the time. But if they can’t come to a unanimous consent agreement to structure the debate on a bill, then they have to go by regular order.

Q: What does “regular order” entail?

A: It just means that they have to go by the actual Senate rules, rather than whatever they would make up in a unanimous consent agreement. For this discussion, there are two key features of regular order:

1) Unlimited debate. It is well-known that under normal Senate rules, debate on certain motions cannot be stopped against the will of a Senator without a supermajority for cloture.

2) No restrictions on germaneness of amendments. The normal Senate rules (unlike the House) allow a Senator, in most situations, to offer an amendment on any topic at any time.

Q: Wait, non-germane amendments are allowed in the Senate?

A: Yes. This can often lead to debate on a bill ceasing to be about the bill itself; instead, the entire debate shifts to debate over an amendment. The minority is quick to take advantage of this — the democrats were famous for offering minimum-wage amendments to everything under the sun in the late 90’s Republican-controlled Senate. Just yesterday, the Blunt amendment regarding health care coverage of contraception was a non-germane amendment to the Highway reauthorization bill.

Q: So any Senator can offer any amendment on any topic at pretty much any time?

A: In theory, yes. And this is what makes the Senate so different from the House. You can take an entire bill  — one that the majority has no intention of ever bringing up, or even letting out of committee — and put it into an amendment and then attached to any piece of legislation. There are four major exceptions, in which amendments must be germane: appropriations bills; legislation raised under the Budget Act or other laws that specifically require germaneness; amendments made after cloture has been invoked; and, of course, when a unanimous consent agreement has been reached that restricts non-germane amendments.

Q: So Senators can just keep adding amendments to a bill, forever?

A: Yes, but not exactly. Absent a unanimous consent agreement and short of getting cloture, debate on any bill or amendment cannot be limited. However, the amendment process is still structured. That is, under regular order, only a certain amount of amendments are allowed at once, and they must be disposed of before further amendments can be offered. In addition, there is a limited number of opportunities to amend the same piece of text in a bill. So there’s no cap on the number of amendments, but you do have a process that both eventually runs out of room for amending, and also limits the number of amendments that can be pending at one time. And this is the key to filling the tree.

Q: Why is it called “filling the tree?” What’s the tree?

A: The amendment process in the Senate  is quite complicated. In order to simplify it, a set of charts have been developed by the parliamentarian to make it easier to understand when and what type of amendments may be offered. These charts are known as the “amendment trees,” due to their likeness to a tree trunk and branches. “Filling the tree” is the term for using up all the available amendment branches.

Q: How is the amendment process structured?

A: It depends on what form the underlying legislation comes to the floor, as well as what kind of amendment is first offered. I’ll use the most simple example here, a motion to insert text into a bill.  Here’s what the amendment tree looks like:

Under the Senate rules, when someone offers a 1st degree amendment to insert (“A” in the chart), no other 1st degree amendment to the bill are allowed until the pending amendment is disposed of. However, a 2nd degree amendment can be offered to amend the either the 1st degree amendment, either a perfecting amendment (“C”) or a substitute amendment (“B), or both if the substitute is offered first. (Generally speaking, a 2nd degree substitute amendment would replace the entire 1st degree amendment, while a 2nd degree perfecting amendments alters the text of the 1st degree amendment.)

Q: Huh?

A: It’s not as complicated as it sounds. Say we have a bill that “requires all school lunches to include fruit.” I offer a 1st degree amendment to insert “and vegetables.” Someone else then offers a 2nd degree substitute to my amendment that says “and whole grains,” which would have the effect if adopted of removing the “and vegetables” and replacing it with “and whole grains.” Finally, someone offers a 2nd degree perfecting amendment to my amendment that inserts “green” before “vegetables,” which would have the effect of making the amendment “and green vegetables.”  There you go. One important issue is the order of voting. In the case of a 1st degree amendment to insert, the vote order is 2nd degree perfecting, 2nd degree substitute, then 1st degree insert (as labeled 1,2,3 in the chart). And that has all sorts of strategic consequences. For instance, if the perfecting 2nd degree amendment that inserts “green” is popular, then the original 1st degree amendment (for just inserting “vegetables”) will never get a vote, since once it comes up for a vote, it will read “green vegetables.”

Q: But if there are limited amendments allowed, how come there are often dozens of amendments pending in the Senate?

A: Two reasons. First, that’s just the most simple amendment tree. In other scenarios (for instance, when the original 1st degree amendment is not an amendment to insert), you could have up to 11 1st and 2nd degree amendments pending. But more importantly, amendments can be laid aside in the Senate by unanimous consent, meaning that multiple first degree amendments to insert could be pending if everyone agrees to it. In fact, once you fill the tree, you have to make sure to object to any unanimous consent request to allow further 1st degree amendments, since that would of course make them available.

Q: So how do you fill the tree?

A: It’s easy: you just offer amendments on all possible branches, until no more amendments are allowed. At that point, no further amendments can be made until your amendments are disposed of.

Q: When do those amendments come to vote?

A: Unknown. Remember, there is unlimited debate in the Senate under regular order. Once the 2nd degree perfecting amendment is pending, no further amendments are allowed, and the vote on the 2nd degree perfecting amendment will not occur until debate has ended.

Q: But won’t those votes eventually happen?

A: Yes, but if you keep debating, the votes might not happen until after cloture is invoked on the underlying bill.

Q: Why does that matter?

A: Because, as we discussed above, after cloture is achieved, only germane amendments are allowed. So any non-germane amendment that a Senator had hoped to offer prior to cloture is no longer eligible.

Q: And therefore, the majority can limit the amendment process to germane amendments?

A: That’s right. And they can theoretically do more than that. Since there’s a finite amount of debate time allowed post-cloture, the majority could fill the tree, get cloture on the underlying bill, and then run out the clock post-cloture debating the existing amendments, never letting any other amendments be called up. And they could make all the amendments trivial, such that the vote on them doesn’t even matter, since it won’t change the underlying bill.

Q: But couldn’t minority Senators do the same thing, and fill the tree with friendly amendments?

A: No, for two reasons. First, amendments can be disposed of negatively prior to the end of debate; it’s called tabling. Anyone who gains the floor may make a motion to table an amendment, even if debate on the amendment is not complete. And the motion to table is itself non-debatable. Therefore, unpopular amendments can be quickly disposed of. This, of course, makes logical sense: there is good reason to allow extended debate on something the (numerical) majority is trying to pass; there’s not a lot of reason to allow extended debate on something a (numerical) majority opposes and doesn’t want to talk about.

Second, by practice and precedent, the majority leader has the first right of recognition on the Senate floor if multiple Senators are seeking recognition to offer amendments. Under Senate rules, a Senator who offers an amendment not only loses the floor after offering it, but also may not offer a 2nd degree amendment to the amendment until action has been taken on it. Now, the latter problem could be solved by asking for the yeas and nays (which doesn’t relinquish the floor), but it still requires gaining recognition multiple times in a row. Only the majority leader can realistically hope to achieve that, since he can  block any attempt by another Senator to do so (as could the minority leader, or bill managers, who have priority after the majority leader.)

Q: But why do that. Why not just table the non-germane amendments you are trying to keep out?

A: Three reasons. First, you might not have the votes. If the Senate is closely is divided, say your majority has a 52-48 advantage, then your caucus might be against a policy by a 49-3 margin, but unable to prevent passage of the amendment. So, just like in the House, you might prefer to never have to deal with it. You can use various bargaining tools to persuade your 3 supporters not to bring it up, and those same tools might work on the minority, but if they don’t then filling the tree might be your best way around having to include the amendment. And no, you can’t really filibuster the amendment, since that will stop your underlying bill dead in its tracks, which is probably just fine with the minority.

You also might be facing a killer amendment (also known as a “poison pill”). Killer amendments are simple: they are minority amendments that split the majority into two camps: one group that can’t possibly vote against the amendment, and a second group that can’t possibly vote for the underlying bill if the amendment is included. The minority then votes strategically: they vote with the first group to pass the amendment, and then they vote with the second group to kill the bill. Example: gun control. Say there are 48 Republicans, all who support a gun rights amendment. And say there are 15 Democrats who also support it, and must vote for it. But there are also 15 Democrats who can’t ever vote for a bill that includes strong gun rights. The GOP offers the amendment, it passes with 63 votes, and then the bill fails when the GOP aligns with the other 15 Democrats to vote against it. Filling the tree can theoretically avoid this situation.

The third reason is that, even if you have the votes to table an amendment, you might not want to take the vote. Minority amendments are often raised in an effort to put the majority on the record either supporting or opposing particular policies, and in many cases the majority would simply prefer to not go on the record, at least not in bill language chosen by the minority at a particular point in time.

Q: So how does this actually work, in practice?

A: Typically, it’s a move of last resort. The majority almost always prefers to call up bills and structure the debate and amendments under a unanimous consent agreement if they can get one that satisfies them. It’s just faster and more predictable. But short of that, the majority leader will get the bill on the floor (perhaps by securing a cloture vote on the motion to proceed), and then offer the necessary amendments, intervening between each to ask for the yeas and nays, until the tree is full. As an example, here’s Majority Leader Dole on May 3, 1996, filling a tree to avoid a non-germane amendment on the minimum wage [text is truncated by removing clerk readings,  UC’s to dispense with amendment readings, and seconds for the yeas and nays]:

There being no objection, the Senate proceeded to consider the bill.

Mr. DOLE. I send a substitute amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3952.

Mr. DOLE. Mr. President, I ask for the yeas and nays

The yeas and nays were ordered

Mr. DOLE. Mr. President, I send an amendment to the desk to the substitute.

The PRESIDING OFFICER. The clerk will report.

The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3953 to amendment No. 3952.

Mr. DOLE. Mr. President, I ask for the yeas and nays.

The yeas and nays were ordered.

Mr. DOLE. I now send a second-degree amendment to the desk.

The PRESIDING OFFICER. The clerk will report.

The bill clerk read as follows:

The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3954 to amendment No. 3953.

And the tree is full. No more amendments allowed. Dole then explained his actions:

Let me also indicate, it is necessary to go through this procedure of filling up the tree so we can take action on this bill without having nongermane amendments offered to it. I would indicate we have made a proposal to the Democratic leadership with reference to minimum wage. I have asked Senator Lott to try to resolve that with Senator Daschle and others … if we want to change general policy, I suggest we do it through the process of hearings in the appropriate committee.

Q: Are there any loopholes?

A: Yes. The minority could offer a motion to recommit the bill to a committee with instructions to report back forthwith, which would be functionally the equivalent of an amendment. In order to avoid that, the majority leader would need to himself make a motion to recommit, and then fill that motion’s tree (which includes a first degree amendment and a 2nd degree amendment to the amendment). Senator Dole did this in the example above.

Q: Is it common to fill the tree?

A: Not particularly, but it’s more common than it used to be. During the 111th Congress, the tactic was used about 15 times. In comparison, it was only used twice in the 105th Congress.

Q: How does the minority feel about the tree being filled?

A: Um, they don’t like it. Not at all.

Q: What recourse does the minority have to the tree being filled?

A: Procedurally, very little. Of course, the Senate is run on a lot more than procedure, and the minority can retaliate against perceived norm violations in all sorts of manners, ranging from withdrawal of support for some aspects of the bill at hand, to cross-issue retaliation, such as putting holds on other legislation or filibustering a nomination. And, of course, the minority can always escalate things by taking drastic actions, such as refusing to dispense with routine items by unanimous consent, such as the reading of amendments or even morning hour procedures such as the reading of yesterday’s journal. In effect, the recourse is largely political.

Q: Are there downsides to filling the tree.

A: Yes. When you shut off amendments, you shut off all amendments, including ones that your side might like to make. Now, that can be overcome in part by including those amendments as part of filling the tree, but that requires both forward knowledge as well as off-floor negotiation. And while that’s by no means impossible, it does highlight that filling the tree doesn’t simply preclude minority rights to amendments, it precludes everyone’s right to amendments.

Q: Are there other reasons to fill the tree besides avoiding non-germane amendments?

A: Sure. It can give the majority better control over the substance of amendments and the order in which they are voted upon. As noted above, the order of the amendment votes can alter which underlying ideas actually get a vote, as well as the pair-wise comparison that is being made in any given vote. Also, the majority can fill the tree as negotiating leverage if they are working with the minority on a UC agreement regarding debate or individual amendments.

Q: Is filling the tree a problem?

A: Only if you think it is. But if so, then yes. As I discussed yesterday and earlier in this post, any legislature needs to draw a balance between the ability of the majority to quickly move its preferred legislation, against the rights of the minority and the individual to extended debate and deliberative amending of legislation. In the end, these are both axiomatic sets of values, and your answer to the question of the propriety of filling the tree almost certainly depends on what underlying values you bring to the table. What filling the tree can accomplish — shutting off non-germane amendments, and in some cases all amendments — is hardly beyond the pale for a legislature; after all, the former is written right into the rules in the House, and the latter is accomplished in the House on a daily basis. But, while perfectly legitimate procedurally,  it certainly is not in the spirit of the traditional Senate rules.

Previous “Q&A” style posts

December 15, 2011 — Rule Layover Waivers in the House.

December 5, 2011 — How a bill becomes a law. Literally.

November 29, 2011 — The other caucuses. The ones in Congress.

I recommend reading Ezra Klein’s two recent pieces on polarization and the filibuster, here and here, which focus on the important idea of how institutions filter preferences:

Snowe’s retirement will have many lamenting the endangered moderate and wondering how we can turn back the clock. But we can’t. About that, Snowe is right. Polarization is with us now and will be with us for the foreseeable future. The question is whether we will permit it to paralyze our political system and undermine our country or whether we will accept it and make the necessary accommodations.

Doing so would require taking on cherished, consensus-promoting features of the old system, like the filibuster. But in today’s girdlocked world, those features no longer promote consensus. They simply promote gridlock.

…

The filibuster, of course, is what permits a united minority to kill bills. As such, it radically increases the value of holding the opposition together in a “block everything” strategy, and thus radically increases the pressure on minority senators to resist the allure of compromise. In its absence, it would both be worth less for individual minority senators to resist compromise, and worth less for their leadership to pressure them to resist compromise. Thus, compromise would become easier.

It’s also important to note that the filibuster is mainly an issue in times when one party controls the House, the Senate, and the White House. That’s not an unknown state of affairs, obviously, but it is relatively rare: In the last 30 years, there have only been eight years of unified government — four for Democrats, and four for Republicans. That’s because, in our system, with its staggered elections, a party usually has to win a few subsequent elections to achieve unified control of the government. When they do that, it tends to mean they have an unusually strong mandate from the public.

So the question isn’t whether the majority party should be able to work its will all of the time, as is true in, say, the British system. It’s whether the majority party should be able to work its will during the few times when the public has decisively put it in charge of the government. And it seems to me that given the nature of our problems, it would be productive if the two parties had more opportunities to govern effectively and then be judged upon their results.

This is a fair argument, but it doesn’t hold water for me. Mostly because it’s at odds with itself: you can’t simultaneously achieve “more compromise’ and “more opportunities [for the parties] to govern effectively and then be judged upon their results.” Those are basically opposite: you either have a majoritiarian system in which the minority is effectively shut out from policy making, or you have a system in which minority participation is required to pass policy, and compromise is therefore necessary. Given the realities of polarization, you really can’t have both.

Four related general points, not all of them directed at Ezra’s columns:

1. This concern — the majoritarian one — is much wider than the filibuster. The American system is just chock full of anti-majoritarian features. That is, if the comparison is to the British system or some other single-chamber sovereign legislature that attempts to singularly replicate the will of the people, the filibuster is really far down the list of anti-majoritarian features. Here’s a short list: bicameralism, staggered Senate elections, the independent Presidency, the veto, the supermajority requirements to ratify treaties, the committee system, the bar on non-germane amendments in the House, constitutional federalism, and so on. It’s endless.

Our system is not majoritarian. On purpose. And there’s nothing inherently wrong with that. Or, to put it better, it’s not obvious to me that making a system more majoritarian necessarily improves the overall legislative output or the overall health or happiness of a limited-government republic. There are plenty of things in life that absolutely shouldn’t be majoritarian — like criminal jury deliberations — and the burden of proof, I think, is on those who believe our federal government would be better served with fewer anti-majoritarian institutional features. Simply asserting — as many people reflexively do — is definitely not good enough.

Which I think Ezra agrees with. But I also don’t think it’s good enough to point out how one exogenous change (polarization) is amplified by an existing anti-majoritarian institutional feature (filibuster). That’s true for almost all exogenous changes and all institutional rules. Things change. The practice of politics is dynamic, both across institutions and over time. Within the broad understanding of representative democracy, there’s virtually no arrangement of institutions that, ex ante, is superior to any other. It depends what your axiomatic priorities are. And so for each argument you make against the anti-majoritarian features, there’s pretty much an equivalent argument in favor of them. It reduces, usually, to a clash of axiomatic values.

Still, there are consequences to the majoritarian impulse in the contemporary political environment. One important one is that…

2. The filibuster is under attack, I think, for quite the wrong reasons. I’m of the mind that the filibuster is probably the most overrated of all the anti-majoritarian devices. Not because it’s not important or consequential, but because many commentators view it as the difference between hell and utopia. But as Ezra notes, it’s often not even a huge systemic factor unless there is unified control of the government. Does it alter policy outcomes? Of course. Are there places I’d like to see it reformed? Absolutely (judicial nominations). Is it more important than the veto, or bicameralism, or the staggered terms in the Senate, as far as anti-majoritarianism goes? Color me skeptical.

The reason the filibuster gets so much attention is threefold: first, high visibility. It’s pretty tough to see how the committee system works it’s anti-majoritarian ways, but the filibuster is often on bright display. Now, that’s not always the case — tons of legislation is buried by the filibuster before it ever gets to the floor, making filibusters ridiculously hard to count up — but it’s definitely in the limelight a disproportionate amount of time. Second, the filibuster as currently practiced is new. That is, plenty of people can easily remember when lots of legislation passed the Senate that would, under today’s conditions, be killed by a filibuster. Finally, the filibuster is, relatively speaking, easy to change. Unlike bicameralism or the veto, here is an anti-majoritarian institutions that could theoretically be removed by a few quick votes in the Senate.

But all of this sums to looking for your lost keys under the street lamp. Regardless of the fate of the filibuster, the policy outputs of our system are not going to respond to bare majoritarian wishes. Period. If you’d like them to be somewhat more responsive to bare majoritarian wishes, then by all means promote the ending of the filibuster. But I don’t think it’s fair to say to that ending the filibuster would somehow have massive consequence for the anti-majoritarian character of the institutional structure. We had policy gridlock at many points in the (pre 60-vote Senate) 80’s and, conversely, a sizeable amount of important legislation has been passed in the last 10 years, despite the Senate rarely having an effective 60-vote coalition. And so while I understand that the filibuster changes policy outputs, I’m less inclined to believe it actually regularly stops major policy dead in its tracks. At any rate, even total reform is unlikely to result in huge consequential policy changes. And it certainly wouldn’t make our system more just in any sort of normative sense. In fact, it might just make it less just, because…

3. The conventional non-filibuster counterfactual is pretty weak. I’ve always thought that there’s a strange nostalgia for the Washington politics of the 60’s among those who dislike the filibuster and/or polarization. It doesn’t really wash. Yes, on civil rights the northern Democrats and the Republicans teamed up and the bill was written in the minority leaders’ office and, in general, the parties weren’t quite so ready to vilify each other because there were conservative Democrats and liberal Republicans and a fair number of cross-partisan coalitions. But if the animosity wasn’t so partisan, it was certainly just as real. And I can’t imagine contemporary Democrats would be all the happier if they could just get a dozen of the more conservative Republicans to switch party labels.

But the main point here is that when you look back a generation or two and see (1) less polarization and (2) less use of the filibuster, it doesn’t at all follow that if you institutionally replicate the second point (by ending the filibuster), you somehow move closer to the first. Now, I know Ezra wasn’t exactly asserting that, but I think a lot of people seem to believe it — that if we just get rid of the filibuster, we can achieve the sort of bipartisanship of yesterday. Nonsense. What you will achieve, at best,  is the party politics 1870s’. And while that’s not something that bothers me — I’m fine with strong responsible parties — it does fly in the face of what a lot of people think of when they think of killing the filibuster. Things like deliberation and compromise.

I just don’t see it. Killing the filibuster in its entirety in the contemporary climate would almost inexorably lead to a foreclosure on the ability to raise amendments on the floor, in effect removing the one clearly deliberative aspect of the Senate. Generally speaking (and tree-filling aside), amendments cannot be restricted on the Senate floor without unanimous consent; anyone who thinks they have a better idea can get a vote on that idea to see if the majority agrees with them. In effect, no one can get their own idea passed into law without the possibility of a better idea replacing it. This is the essence of the Senate at its best — there’s no way to lock the place down  and ram through your ideas, if the majority (numerical, not partisan) wants a different idea.

But wait, in what radical legislature would they allow the opposite — bills getting passed into law that a (numerical) majority wants to — but can’t — further amend with better ideas? Oh wait, that’s the United States House of Representatives! In the House, the (partisan) majority can write restrictive rules of debate for individual bills, rules which state what amendments are and are not allowed to be voted on. The majority leadership routinely uses special rules, held together by partisanship and punishment for dissenters, to eliminate the possibility of popular amendments altering the leadership’s ideas in any way.

This isn’t an occasional thing, either — the vast, vast majority of important legislation goes through the House under a special rule, and a large percentage of the time there is a plausible amendment out there which would have majority support in the chamber, but cannot be proposed because the leadership has excluded it from the special rule, and has held together the majority party on the special rule vote through carrot and stick tactics with the backbenchers. And this has been a recent development. Even as recently as 30 years ago, most important bills came to the floor under open rules, or at least allowed a wide variety of amendments. Now it is virtually zero.

The true tension in all of this is that you can’t have it both ways. You either have the House — where the leadership of a partisan majority can effectively lock out legislation that has majority support — or you have the Senate, where the minority can block legislation that has majority support. Threading the needle requires either strangely weak parties or unrealistically benevolent leaders. But my bottom line, one that you don’t hear too often outside the Capitol, is that we probably don’t want two chambers that suffer from the same problem, and that having iron-fisted leadership rule in the House and minority power in the Senate is preferable to having two of either, and probably better than having the converse. Scratch that, definitely better than having the converse.

Kill the filibuster and get more compromise? It’s just not a likely result.

4. A majoritarian Senate might not even be a normative improvement. I’ve said it before, but at the micro-level, the main problem with filibuster reform is that you aren’t unleashing majoritarianism in the Senate as we normally think of it in the contemporary world, you are unleashing majoritarianism of the states, which may or may not correspond to popular majoritarianism at any one time. People constantly bemoan the state of the world when the Senate rejects an idea that seems popular in public opinion. But one simple explanation is often forgotten: the Senate is malapportioned!

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

Now, you can ask Senators to take a Burkean trustee view of representation and vote the national good. That may or may not be warranted in any individual case. But I think it’s a fallacy to imply in such situations that at least some Senators must be inherently doing something against the wishes of their constituents if national public opinion goes one way and the Senate goes another. The institution, for better or worse, is simply not built that way. And because it’s not built that way, we have to be careful about adjusting Senate rules in search of majoritarianism. For it isn’t there to be found, in any real sense. Any bare Senate majority might reflect an underlying 40% of the nation, or an underlying 60%. And that would be just as true post-reform as it is now. It’s a reminder that the Senate can be just as anti-majoritarian without the filibuster as it is with it. For it is not, and was not meant to be, a popular institution.

And look, I’m not a huge fan of the filibuster. I think it allows for unhelpful ambiguity in Senator position taking, unnecessarily slows things down, and gives perhaps too much leverage into individuals. But all of that sums to much less than the whole of the contemporary complaint. A federal government without the filibuster is just a government with one less anti-majoritarian feature. For every policy the filibuster buried, there are probably 50 that were buried by non-filibuster anti-majoritarian features of the system. And for every policy you like that got buried by the filibuster, there’s probably one you don’t like that saw the same fate.

Now, I don’t want to say this is all much ado about nothing. The filibuster shapes policy, and in some areas (like judicial nominations) it is having a serious impact. But I think it gets way more attention than it deserves. The filibuster is far from the only institutional veto player, it is usually not the decisive institutional veto player, and its reform will come with some costs. Reformers should correspondingly temper their expectations about the world after success.

In response to my post from yesterday about brokered conventions and dark horses, Jonathan Bernstein makes the case that I’m underestimating the possibility of a factional bolt if the (highly unlikely) deadlock came to pass:

I’m going to stick up for my argument a bit. The thing is: Matt’s objections are also objections to getting to a deadlocked convention in the first place. So if they really reach Tampa with no resolution, then that means that the party didn’t unify around one candidate during the primaries and caucuses, and they didn’t work something out during the two months between Utah and Tampa, and they didn’t work out anything in the first days of the convention. If all that happens, then either the rules and norms of the game are somehow getting in the way of cooperation (contrary to what I and some others believe, which is that the rules and norms of the game facilitate cooperation), or that there really is some sort of serious schism either predating the nomination battle or caused by it.

So basically, if we grant the implausible premise of a deadlocked convention…I’m going to say that all bets are off, and lots of chaotic outcomes are very possible. Including the possibility that some of the actors involved may not behave very rationally at all. For two reasons: one is the emotions of the moment, but another is that a lot of the delegates are probably not very sophisticated or experienced political actors at all.

You should take anything Bernstein says very seriously (I certainly do), and the point he makes here is a good one. I agree that the possibility of chaos increases dramatically if a delegate deadlock from the primary season is not settled prior to the 1st ballot vote at the convention. That’s definitely a signal (beyond simply the voters indecision) that the party itself is seriously split on the nomination decision. And I think it’s also a really good point that emotion can lead to irrational behavior among delegates, and that this can precipitate a bolt. Hell, that’s basically the story of Charleston, 1860: the southerners worked themselves into a frenzy in the convention hall after they lost the platform fight over Dred and the territories, and then walked out basically on impulse. Once they had bolted, however, most of them sat around Charleston either sulking or giving fiery speeches, but mostly wondering when they would be invited back to join the convention. Emotional and irrational indeed.

So I would say Jon’s argument convinces me that a bolt is at least plausible under a deadlock. But I still think there are serious structural forces working against it, even if we did get to the 1st ballot undecided. First, I think there’s a big difference between a party being closely divided and one being deeply divided. The Democrats in 1860 were deeply divided, but not really closely divided: the schism over slavery was (obviously) about to come to physical sectional conflict, but within the Democratic convention (where at the time delegates were assigned by state population proportion, regardless of party strength within the state), it wasn’t really closely: the northern view basically predominated. In the GOP right now, we kind of have the reverse: a deadlock would show a very closely divided party — perhaps split almost exactly 50/50 between Santorum and Romney — but it doesn’t seem to me to be a deep division. It’s more like Hillary and Obama. Sure, each faction has its preferred candidate, but it’s not like either faction would consider moving their support to the Democrats given the nomination of their non-preferred candidate. In 1860, that was exactly the situation.

Second, I don’t think a split aggregate judgement of the voters necessarily implies a schism among delegates, or among the competing candidates. The voters aren’t purposely choosing schism; they are only acting collectively by aggregation, over a series of months. The delegates, on the other hand, would have to take a dramatic step while everyone was watching in order to create a bolt. It would not simply be a ratification of the voter indecision; it would itself be a wholly new decision. Now, part of this is mitigated by Jonathan’s point: if the party can’t get this together between the end of the voting and the start of the convention, that’s evidence that something is wrong. But it’s still not the positive step of fracturing the party. That seems to me to be another purposeful action, at another level of seriousness, in and of itself. And I don’t think it would occur until after many ballots had been taken. In fact, I think the possibility of a dark horse — itself a radical longshot and a completely untenable idea in practice — is probably more likely than a bolt. But maybe I’m just agreeing with Bernstein now: this is so highly unlikely at two levels (first the deadlock, second the inability to solve the deadlock prior to, or subsequent to,  the first ballot), that once those two unlikely scenarios have come to pass, a bolt becomes an actual possibility.

[updated; see below]

Greetings from Austin, TX! For those of you who missed it, last time I was here (September) I took a fabulous tour of the state capitol building, which inspired this post on legislative security, or the lack thereof. Austin is, of course, named for Stephen F. Austin, who managed to make it into one of my GOP Candidate Venn Diagrams back in December. I’m sure by Wednesday my thoughts will have marinated in the warm Texas air long enough to inspire further Texas-blogging. But it hasn’t happened yet. Or maybe you’re just lucky that I’m resisting the urge to do some air-travel complaint-blogging (is there any sharper contrast than taking off in idyllic DCA and then having a layover in Dallas-Ft. Worth?). I did cross paths with a weary-looking Speaker Gingrich at DCA around 7am, but aside from reporting that he got no special treatment at security, there’s not much there.

What’s actually on my mind is all the talk about deadlocked conventions, specifically the prospect of the upcoming GOP convention being so. This seems to be all the rage these days on the blogs. Here’s Sullivan. Here’s Ezra. Here’s Mickey. Here’s Jamelle. Here’s Nate. Here’s Sean Trende. Etc. Etc. I should start by saying that Jonathan Bernstein and Josh Putnam have already done the yoeman’s work of bringing some solid political science analysis to the table, and getting the odds and required conditions of a deadlocked convention in proper perspective (see Jonathan’s writing here on the basic idea, here on the odds, here talking different definitions, here talking some nuts and bolts if the unthinkable came to pass, today talking about it again, search his blog for more; Josh’s writing here and then here on the myth of proportionality in the GOP rules changes; here talking about how the calendar has ruled out a late “straight” entry; search his blog for more). The bottom line is that a deadlock is (1) highly unlikely; (2) isn’t somehow magically more possible due to the GOP primary rules changes this year; and (3) also should not be referred to as a “brokered” convention, because the so-called brokers of yesterday simply do not have control of the delegates in the modern environment.

What I’d add to all of this is three things:

1. People are confusing the related historical ideas of a “brokered” convention and a “dark horse” candidate. These are two separate ideas, and they should be kept separate for analytical purposes. A “brokered” convention in the 19th century was one in which no candidate had enough delegates committed coming into the convention to simply take the nomination on the first ballot without any bargaining. Since the primaries weren’t universal prior to 1972, this often ended up being the case, especially on the Democratic side, where the 2/3 rule was in force between 1832 and 1936, requiring a candidate to get 2/3 of the delegates for nomination. In any case, it was often the situation in the 19th century that the convention opened with half a dozen or more candidates, each with some support among the various state bosses who controlled the delegates, but without anyone even close to majority support. The nomination would be settled after the campaigns bargained for the support of the brokers’ delegates, often by making policy promises or horse-trading patronage or other goodies.

This, however, has nothing to do with the idea of a dark horse. A dark horse was a nominee who emerged victorious at a convention despite have little or no delegate support coming in, and perhaps not even being on the radar screen as a candidate prior to the convention. The two most famous dark horse candidates are probably Franklin Pierce in 1852 and William Jennings Bryan in 1896. The ’52 Democratic convention opened with four major candidates — Douglas, Cass, Marcy, and Buchanan — but on the first 34 ballots, none of them could get a bare majority, nevermind the 2/3 necessary to win. On the 35th ballot, Pierce was introduced as a compromise candidate, and although he never got more than about 1/6 of the votes on the next 14 ballots, a deal was struck prior the 49th ballot and he was nominated almost unanimously. Bryan came into the 1896 convention unmentioned among about 8 possible candidates, but was so inspiring to the Silver faction during his cross of gold speech that he quickly became a contender, and won on the 5th ballot. The point is that a dark horse is the result when the brokering process completely stalls or when some unforseen event dramatically alters the convention; it’s not the essence of the brokering process itself. You could have a brokered convention in the 19th century without a dark horse (they were more or less routine); conversely, you could theoretically have a dark horse that emerged victoriously on the first ballot (although it never happened).

These two ideas are being conflated right now in regard to the GOP convention deadlock talk. A lot of people seem to think that a deadlock heading into the convention somehow strongly suggests a dark horse. But if the situation were to arise that no one had enough delegates to win on the first ballot coming into the convention, the initial bargaining would probably not include dark horse candidates, such as Jeb Bush or John Thune or Chris Christie or Mitch Daniels or Sarah Palin or whoever, but instead would involve bargaining between delegate groups among the existing candidates, in an attempt to resolve the deadlock in favor of one of them. Much like the 19th century, a turn toward a dark horse would probably only occur after the initial bargaining yielded no fruit. Now, this is not airtight: as Bernstein and others have pointed out, without the party bosses who could effectively bind and deliver voting blocs, who the hell knows how such bargaining would be organized. But I have a hunch that in the most likely of the unlikely situations — one in which at least one candidate is very close to having enough delegates — it would not be hard for him to bargain his way to an additional 100 or 200 if that’s what it took. And so I think the upshot is that those looking to deny Romney (or whoever) a bare majority going in are unlikely to see it result in a dark horse; much more likely is that Romney buys up the Ron Paul delegates with some platform or patronage or other promises, and takes the nomination.

2. Dark horse candidates are much, much better suited to the 19th century electoral structure. This is another reason the GOP would be unlikely to move toward a dark horse: the institutional structure of the modern presidential election is completely inhospitable to such a candidate, and the parties know it. And since the parties want to win, they won’t do it. Here’s the problem: in the 19th century, the party was the chief campaign organ; whoever the nominee was for President, they were simply plugged — more or less as a name on a sign — into the electoral apparatus of the party. The candidate didn’t even campaign; he usually just went and sat on his front porch, wrote a few letters about his policy positions (mostly of the type “I am a regular Whig/Democrat in all respects”), and stayed the hell out of things. The party did the campaigning: they raised the money; they had the federated network of operatives, newspapers, volunteers, and printers; they conducted the parades and speaking tours through their party men and elected federal, state, and local officials; and they set the strategy in each state for promoting their presidential candidate within the context of their entire state ticket. The candidate was important because of who he was, but was not important in respect to what he could do between August and November.

Totally different now. The candidate now runs the electoral machine: raising the money, coordinating the volunteers, doing the polling, organizing the campaign themes, and everything else. He also personally campaigns and takes part in the general election debates. In other words, he is indispensable to the electoral effort of the party between August and November. And so, as many people have pointed out, a dark horse candidate has at least two strikes against him: first, he has not been vetted in the face of a national primary campaign. As someone said last week on Twitter, if Rick Perry hadn’t run in the primaries and been vetted out of the race, he would probably be one of the top dark horse names being mentioned right now. Think about what that line of thinking means to GOP operatives pondering a dark horse. Yikes! On the other hand, Perry is miles in front of a real dark horse, and this is point two: the financial and organziational requirements of a general election campaign seem fundamentally predicated on months, if not years, of advanced preparation. You need national donor and volunteer lists, boots on the ground in every state, media connections, deep polling and social analysis of voters, and so on. No politician who hasn’t been running for President has anything remotely close to this. Even if Jeb Bush had complete access to his brother’s 4-year old organization, it would leave him so far behind as to probably destroy any value-added (and more) that he could bring by not being one of the (evidently) unliked existing candidates.

3. I don’t see factional bolting as a realistic possibility, even contingent on a deadlocked convention. Bernstein raised an interesting possibility that cuts between the two ideas mentioned above: a factional bolting at the convention. In this idea, there would be no successful bargaining between the major candidates, but there would be no dark horse who emerges either. Instead, the convention might fracture, resulting in two conventions that nominate two separate candidates, creating not only an utter mess for the party, but also a legal disaster: unlike the famous Democratic party fracture in 1860, such an event today would require state by state judicial intervention, since the states control the ballot lines and would need to adjudicate who was the rightful holder of the GOP ballot line. A nightmare of intense proportion, and not for just the Republican Party: if one of the major parties was effectively cut off from nationally competing under one candidate, then real choice for voters is short-circuited, and that’s not good for anyone in the short-term.

I don’t see this as a possibility, even conditional on a deadlocked convention. The pro-bolt thinking goes something like this: the social conservatives have their candidate (Santorum), the business conservatives have theirs (Romney), and the libertarians have theirs (Paul), and we’ve come to the point where these groups will no longer play nice under the GOP tent. I don’t buy it. While there is probably intense personal loyalty among committed delegates (the campaigns choose them), I don’t see the schism required in the party to support bolting. When bolting has occurred in the past, it has almost always occurred over a single burning issue — the Southerners walking out of the Democratic convention in 1860 (slavery; or more specifically the defeat of platform support for Dred and a federal slave code for the territories) or 1948 (segregation). And in both of those cases, there’s a fair amount of evidence that the bolters were acting at least plausibly rationally, in an attempt to push the election into the House of Representatives. A bolt at the 2012 GOP convention would plainly not accomplish this, as there would be no visible way for the bolting candidate to get on the ballots.

And so the only reason to bolt would be in an attempt to wrestle the nomination away from the other candidates and for oneself. But this is obviously a high-risk strategy, and one that would probably be net-negative for the successful candidate. Now, net negative could be arguably better than not having the nomination, but party actors — particularly those whose job depends on winning the election — would be uniformly against it. As would the national press, I presume. And therefore, I find it highly unlikely that a candidate would want to try it; to be seen as the first bolter would almost certainly seal one’s fate to losing the election, regardless of the legal fallout as to who got the nomination.

Ok, I cannot believe I just wrote 2000+ words about something that not only isn’t going to happen, but that I’ve been laughing about all the writing that has been done about it already. But I guess that only proves the maxim: political junkies love things like brokered conventions, House-decided presidential elections, and electoral college ties, even if the results of those things actually happening would be almost certainly not good for our republic.

Update (2/28; 2:45pm): Jonathan Bernstein has posted a response to all this that I highly recommend reading. It’s always flattering to have people you respect critique your writing, and that’s certainly how I feel about Jon. I alos have a subsequent response to Bernstein’s thoughts here.

I’m headed down to Austin, TX on business this morning for the next bunch of days. That means blogging could be lighter. Or heavier. We’ll see.

Some stuff I enjoyed reading from this week:

1. John Sides had a two-part series — here, and then responses to criticism here — on the obsession with negative political ads and the reality of their effectiveness. I suspect the Daisy ad from the ’64 election is one of the most overrated campaign messages of all time. As if that is what sunk Goldwaterism.

2. Seth Masket has normed the data by votes on that excellent David Gilson chart of spending in presidential elections. I’d still like to see something that took GDP or GDP/capita into account, but it’s one of the more fascinating “in one chart” links I’ve seen in a while.

3. Tom Pepinksy reviews a new paper on language and economic behavior. I’m not sure there’s more than a handful of people in America besides Tom who have the precise background — linguistics and political economy — necessary to give you that sort of analysis.

4. John Bernstein  had a nice quick hit knocking down the idea that Ross Perot had a substantive impact on 90’s budget politics. I’m not quite as sure that there was no effect — the man did spend millions of dollars on a campaign — but his point is dead-on relevant regardless: Ross Perot was not much of a policy factor, ever.

5. The guy who invented pinball — yes, that pinball — died … last Sunday! He was 100.

6. Ta-Nehisi Coates on good writing, and the authenticity of Ulysses S. Grant’s memoirs. I discovered Grant’s memoirs one morning while cruising the stacks in Sterling Library at Yale. Destroyed an entire day (not that it’s hard to do that in graduate school, but) sitting there reading them. Absolutely wonderful writing.

7. Of course I agree with Matt Yglesias on the absurd food truck bans in many cities. Having lived in two sweet food truck towns — Albany, NY and New Haven, CT — I can personally vouch for their awesomeness.

8. I’m normatively against affirmative action, but only mildly; it’s within the nexus of my cost-of good-intentions objection to liberalism. I have, however, been saying for over a decade that, as a positive matter, it will fall once it starts to pit minorities against each other. To that end, I agree pretty much entirely with Ilya Somin’s predictions about the Fisher v. Texas case.

9. I’m bored with most of the writing about contraception. As a libertarian, Connor Friedersdorf’s tweets yesterday struck a cord with me — that we should subsidize birth control for the poor, and make it over the counter, but it doesn’t seem like a health insurance company not offering it is somehow a denial of “access” — but mostly I’m just resigned to the idea that taking health care public means these fights are going to be the norm. And that liberals need to be very careful: requirements that things be covered can quickly be converted into requirements that things not be covered.

10. Kevin Drum on the Death Star. One of the best first sentences I’ve read in a long time. “There’s been a lot of loose talk about the Death Star lately.” It’s great because it’s so true. Of course, my contention would be that there will never be a piece of Star Wars writing that tops this.

People always say that it’s tough for Senators to run for President because they have all these roll call votes lying around from the past that opponents can pick on. But the actual mechanism that makes all these votes problematic usually goes unexplained; it’s not clear, on the surface, why having taken a ton of votes automatically makes you vulnerable as a candidate. I think it boils down to four issues, none of which are mutually exclusive:

1. You voted for something that turned out to be quite unpopular. This is pretty self-explanatory. If you voted for the Iraq war or the TARP bill or the Kansas-Nebraska Act, and the national primary or general election electorate isn’t too keen on those things anymore, you will be questioned about your vote.

2. Your constituency in the legislature might not resemble your constituency for national office. This is more or less every candidate’s problem when running for president. There are very few districts or states that perfectly reflect the national constituency. And there are none once you factor in the number of state-specific provincial issues that you might vote on.

3. Legislating fundamentally requires compromise. This comes into play in two different ways. First, there are votes on bills that have multiple provisions in them. Voting against a bill simply because it has one thing in it that you don’t like means that, more or less, you will be voting no on pretty much everything. So legislators quite intuitively weigh the overall value of a bill. Second, the construction of any given bill usually involves compromises in order to secure passage. And therefore your choice often boils down to, on the one hand, a bill you like but don’t love or, on the other hand, no bill at all.

4. Maximizing your personal power and your constituency’s benefits means often trading your vote. I’ve written about this a few time before (see here, and here, and here), but the basic idea is that all legislators have three primary goals: re-election, increasing their own power within the legislature, and making good public policy. Sometimes — especially when the three goals align together — it’s easy. You think policy X is a great idea, your constituents love it, and your party leadership not only loves it too, but they want you to lead the political fight for it, and they will reward you down the road for your leadership on the issue. Couldn’t be any easier. When it becomes interesting, however, is is when the three goals come into conflict: when increasing your power in the chamber means casting votes that hurt your re-election chances; when making good public policy for your constituents goes against their own perception of their interests (and thus your re-election chances); and when increasing your power in the chamber necessitates accepting bad public policy. It’s even harder when you factor in the endogeneity — sacrificing your constituents’ wants for more internal power may ultimately benefit your constituents down the road.

I say all this because last night’s debate  illuminated this problem quite clearly, as Rick Santorum was forced to reconcile  his voting record in the Senate. Here he is defending his vote on NCLB:

I supported No Child Left Behind. I supported it. It was the principal priority of President Bush to try to take on a failing education system and try to impose some sort of testing regime that would be able to quantify how well we’re doing with respect to education. I have to admit, I voted for that. It was against the principles I believed in, but, you know, when you’re part of the team, sometimes you take one for the team, for the leader, and I made a mistake. You know, politics is a team sport, folks. And sometimes you’ve got to rally together and do something. And in this case, you know, I thought testing was — and finding out how bad the problem was wasn’t a bad idea.  What was a bad idea was all the money that was put out there, and that, in fact, was a huge problem. I admit the mistake and I will not make that mistake again. You have someone who is committed.

There’s the vote trade. And here he is defending his vote on an appropriations bill that had Title X funding in it:

As Congressman Paul knows, I opposed Title X funding. I’ve always opposed Title X funding, but it’s included in a large appropriation bill that includes a whole host of other things, including the funding for the National Institutes of Health, the funding for Health and Human Services and a whole bunch of other departments. It’s a multi-billion-dollar bill … [s]o while, yes, I — I admit I voted for large appropriation bills and there were things in there I didn’t like, things in there I did.

There’s the compromise. Here he is discussing entitlement reform and the wishes of Pennsylvanians:

I was a leader, as you know, on taking on tough issues, which is the entitlement programs, not just welfare reform, but I also worked on Medicare reform and Medicaid reform and also was a leader on trying to deal with Social Security.  And I did that not representing one of the most conservative districts in the state of Texas but in the state of Pennsylvania, with the second largest per capita population of seniors in the country. And I can tell you those seniors really cared about Social Security. Why? Because all my rich seniors moved to Florida and Arizona. And what’s left — what’s left in Pennsylvania is folks who relied on Social Security … [I] had a strong record in a tough state to be a conservative.

There’s the different constituency. And here he is again explaining his NCLB vote:

Look, I think we’ve all had votes that I look back on I — I wish I wouldn’t have voted — No Child Left Behind, you’re right, it lead to education spending.

And there’s the mistake! Four for four, Senator.

Now, I’m not saying it was a good idea for Santorum to be this candid about his voting record; as Jon Bernstein said in his debate wrap, Santorum must have missed the day at candidate camp when they taught people how to duck tough questions. It’s abundantly clear, for whatever reason, that the electorate doesn’t usually like answers such as, “I made the best decision possible given the available information at the time,” or “You may not like the results, but it was the right thing to do and I make no apologies for my vote,” regardless of whether those answers are true or reasonable. And while it’s not unreasonable to cite the idea that you once represented constituency A and so you voted for X, but now you are seeking to represent constituency B so you are in favor of Y, voters aren’t too fond of that argument. And compromise is often disdained as well; it’s very difficult to explain to voters the sum value of a bill, if they instead want to know why you voted for the ACA even after the Stupak amendment was removed.

What’s more interesting to me is why voters don’t like hearing these explanations for legislative voting records — after all, none of them are unreasonable, and only the “I made a mistake” one fundamentally puts a candidate in a bad light. You’d think that being a “team player” might be a benefit to someone in a party primary, but it just doesn’t seem to wash like that. Same thing with being responsive to a constituency. I guess what I mean is that it’s not obvious that voters should be turned off by these sorts of explanations of voting record.

Three things intuitively come to mind: first, voters may simply prefer to be uninformed romantics about politics; perhaps they want to believe that sticking to the purest policy motivations can achieve legislative success or best represent a district. In other words, they don’t want to believe in strategic political behavior. At least not relatively speaking; perhaps they are willing to believe that if one candidate is telling them the dirty truth about the sausage-making and the other is singing as white as the pure driven snow, that somehow not everyone is making sausage.

Second, I suppose voters may care about conviction and depth of belief, especially when voting for President in a primary. Even if strategic voting and constant compromise is the way to maximize your  representation in a legislature, it makes you sound like you are a delegate-model automaton. If people believe that leadership (however defined) is required for the presidency, and that strategic legislative behavior is negatively associated with the conviction that may be required for executive leadership, then there’s certainly a connection there. This would go along with thinking that legislators have trouble winning the presidency because voters do not trust legislative experience or success as a good measure of executive potential. They are, after all, two very different jobs.

Finally, I think it’s possible that the information gap is to blame. Perhaps voters just don’t know that much about how a legislature works (probably true), don’t really care about taking the time to learn how it works for the purpose of voting in a presidential election (definitely true), and therefore see all defenses of a voting record as one large lump of equivocating. In other words, voters prefer a simple world, not for the romantic reasons outlined above, but because it’s too costly to get into a game of comparative evaluation of equivocations, and therefore anytime a politician starts explaining, they are going to evaluate the claim at a very basic level: is this bullshit or not. And, under this theory, the mechanisms of the legislature qualify as bullshit damn nearly all of the time.

So don’t worry ’bout tomorrow, take it today;
Forget about the check, we’ll get hell to pay.

—AC/DC, from Back in Black (1980)

Once again, my wife is going out with some friends tonight, and assuming that the girls go to sleep fine, at home it’s just going to be me, the GOP debate, and my liquor cabinet. I don’t know any drinks that are particular to Arizona, but it only stands to reason that tequila should be involved. I have some Patron Silver (Tequila white lightnin’!), so maybe a margarita made with fresh-squeezed lime juice and Cointreau instead of triple sec.

And, as always, I presume the executive power questions will have me ready to go straight to the bottle with a Modern Whig: chug bourbon, smash bottle, use glass to slit wrists. Cheers!

At any rate, I’m going to live-tweet this thing at @MattGlassman312, so check it out. And enjoy the debate.

And anyone local to me, c’mon over. I’ve got plenty of liquor.

Happy 100th Birthday Arizona!

This is a few days late — Arizona the state turned 100 back on February 14 — but I happen to know a little Arizona territorial history, so I thought I’d pass it along. Better late than never.

My dissertation looked at the political development of the American west — how the statehood process in the Constitution was executed via the politics of territorial creation, territorial division, and state admission. One of the APD-ish chapters (condensed blog post on it here) examined how the civil war affected western territorial development, and Arizona was semi-prominently featured in that research, because the war affected not only the timing of the creation of the Arizona territory, but also the decision to divide the New Mexico territory along the familiar north-south line (as currently divides Arizona and New Mexico) rather than an east-west line, which at the time would have created a more natural political boundary.

Subsequent to southern secession, there was a  general fear among the North of a western rebellion. Although the exact nature of the relationship between the states and the federal government had been up for debate for almost two generations, the reality of the southern secession in 1860-61 quickly turned all of the theoretical arguments of the previous 70 years into questions of immediate and concrete reality, including questions that had not been fully contemplated over the years: if the south was free to leave the union, was the west? If the south (free or not) did in fact leave the union, did it have any claim over the western territories? If the north made peaceful disunion with the south, did that affirm the concept that peaceful separation from the union was both legal and attainable for other states, or for western territories?

It is easy to imagine how these ideas made northern leaders, trying to hold the union together, quite nervous. Of greatest immediate concern to the union, however, was the competition with the south for the territories. It wasn’t an iron-clad lock that the western territories — particularly political communities in the west that had been denied territorial status over the past decade — would side with the union in the war. The combination of these two fears – the rebellion of the west into its own nation and the competition with the south for the allegiance and control of the territories – and the reality of watching their fears realized, spurred Congress into action during the war.

The creation of the Arizona territory exemplified these worries. After the New Mexico territory was created as part of the compromise of 1850 (the Gadsden Purchase was added in 1853), there was a period of about 5 years where there was very little local or national voice for further division of the territory. Staring in 1856, however, residents of the southwestern portion of the territory living in Tucson began to petition Congress to divide the state along an east-west line, which can be seen in the below map:

From 1857 until 1859, residents of Tucson annually sent a delegate to Washington from their proposed territory, but Congress refused to seat him. There were, however, sympathetic politicians in Washington, particularly southerners eager to see the creation of new plausibly pro-slavery states, and bills were introduced in both chambers of Congress for the creation of Arizona via an east-west line through the center of the territory annually from 1857 to 1860. Northern Republicans, of course, had little interest in creating a new southern-leaning territory, however, and correctly pointed out that the 1860 census revealed that Arizona county (the southwestern portion of New Mexico territory) had only 6,482 residents, far too small a population to merit a territorial government. With the northerners firmly in control of the national government after the 1860 election, the prospects for Arizona territory looked slim.

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

The union did not wait to act. Lincoln dispatched the Army to occupy Tucson, and Congress prepared legislation in March to create the United States territory of Arizona. The decision was made to split the old New Mexico territory along a north-south line, for two reasons: first, in order to reduce the influence of southern-sympathizers in both the new territory as well as the (new) New Mexico territory. Second, to avoid the appearance of rewarding rebel communities in the west who might seek to organize future territories by seceding from the union. The legislation for the territory stalled for a bit in Congress, and Arizona territory was not officially created until February 24, 1863, long after the Union Army had retaken control of the area. Although statehood would not come for almost 50 more years, the north-south line of division was never altered, and is today Arizona’s eastern border.

The upshot of this is threefold. First, it reminds us that contingent events matter. Absent the war, there would probably have been an Arizona territory eventually — the five big holding territories of the post-1848 west (Washington, Nebraska, Utah, Kansas, and New Mexico) were all subdivided into multiple territories and eventual states — but it would quite likely have been the southern state desired by the territorial residents, rather than the western state placed by Congress in response to war concerns.

Second, it illustrates that the process of bounding the proto-states was both shaped by contemporary politics and consequential to future politics. Time and time again — in Michigan territory, in Minnesota territory, in Washington territory, in Iowa territory, and so forth — the final boundaries of the new state or the new territory are both contestable and contested. As such, the territories and future states are first and foremost political constructions. And it’s not always the case that interests wish to be part of new states; in many territorial divisions and final statehood boundary fights, the politics takes on the character of a core vs. periphery battle, with each side sometimes interested in keeping the periphery in, and sometimes interested in getting it out.

Finally, the division of the New Mexico territory suggests that interests in both the territories and in Washington have goals to which different boundary lines can strongly influence, and thus strong incentives to shape the new territories and states to their preferences. The political development of new states is not simply an admissions game in DC, nor is it simply a settlers game out in the territories. Instead, the local goals of western residents combine with the goals of Washington politicians to create the political structure of development. Local leaders petition Congress, territorial legislatures memorialize Congress, and territorial conventions write state constitutions. But political actors in Congress have their own goals, to which the territories are often instruments. And almost uniformly, the key playing field for these two groups to meet is the House and Senate Committees on the Territories, whose influence on the process is still felt today, with its large role on the political footprint of the west.

The central government of the United States itself has no direct democratic constituency. It is instead constituted exclusively by the aggregation of democracy that takes place in the state governments: members of Congress are chosen by districts either within states or by the states at large; the President of the United States is chosen by the electoral college, a system that purposefully sets aside a direct national election in favor of an aggregation of state elections. Ultimately, no matter how great the authority of the central government becomes, the structure of social choice in the United States will continue to reflect the federal nature of the system.

And that federal nature was largely created as the byproduct of the political goals of western settlers and political actors in Congress, who built a nation incidentally while pursing short-term interests in the 19th century. The resulting configuration of non-original states in the United States – their number, size, and shape – is a lasting visual footprint of the politics of the statehood process in the 19^th century. The politics that created that footprint continues to structure social choice in the United States today.

But that’s a (long) story for another time.

[The below writing is provisional, necessarily brief, and probably unclear; I did it with a 3-year old hanging on my back. — mg]

My graduate school adviser, David Mayhew, had an article over the weekend in the Washington Post — entitled Which Was The Most Important U.S. Election? — that I’d recommend reading. The basic premise is that all elections are billed as the “most important,” and while that obviously can’t be true, some elections are more important than others. Mayhew then goes on to nicely discuss a variety of criteria by which to judge past elections — the importance at the time, durable policy shifts that resulted, durable political cleavages that resulted, the independent effect of the campaign, and of course the most fascinating to think about, what if the other guy had won? Well worth reading.

It’s this last point, the counterfactual point, that I want to take up briefly. Because I think it’s the one that bedevils most of this sort of analysis. At one level, the counterfactuals are impossible to figure, because we don’t have any grip on the path-dependence; as Mayhew notes, if Polk loses to Clay in 1844, the Mexican War may never happen, meaning the southwest might not have become part of the U.S. in time to create the territorial slavery crisis of the 1850’s, which might have dramatically altered the trajectory of anti-slavery in the North and perhaps the entire structure of the demise (or not) of southern slavery. Who the hell knows? Same thing in 1968. If Humphrey had wound down the war by the end of 1970 and didn’t resign in the face of impeachment over criminal political activity, it’s not clear how the nation would be different today, but reasonable to think it would be. Consequently, we only have the vaguest notion of the alternative realities against which we compare the known outcomes.

But at a second level, I think the counterfactual issue raises an even more daunting problem: it confuses our sense of what is important as opposed to what is consequential. This is an artificial distinction, I suppose, but here’s what I mean: when I say something is important, I mean that it has an independent effect on what happens. When I say something is consequential, I am saying something less: that the alleged thing did not affect what ends up happening so much as it contributed to when or how it happens. Here’s an example: you don’t eat your lunch until 3pm because you were busy at work. Then, when dinner is on the table at 6:00pm, you aren’t hungry and don’t eat much. We can pretty clearly say that being busy at work was important in reference to your dinner performance. But take the opposite situation: you skip lunch, and so at 5:00pm you are quite hungry for dinner. We could say that skipping lunch was important in the outcome but actually it’s just consequential. Whether or not you skipped lunch, at some point, you were going to get hungry anyway. Note that this is not true in the other situation — you were not eventually going to be too full for dinner; eating lunch at 3pm is precisely important to that outcome.

This may all seem trivial, but I assure you it is not. Let’s switch to the elections I always use to illustrate this point: 1860 and 1800. Everyone seems to think that 1860 is the most important election in U.S. history; I have always contended that it was simply the most consequential: the outcome of the election — a GOP victory followed by the gulf states seceding followed by a standoff over federal property followed by an armed conflict followed by the upper south seceding followed by a war — was probably not specific to 1860-61. It was the equivalent of getting hungry for dinner. If Fremont had won in 1856, there’s every chance that the entire play would have been produced four years earlier, in the winter/spring of ’57. Similarly, even if the most optimistic Unionist scenario had occurred in the wake of the 1860 election — a Douglas or Bell victory that somehow managed to reduce the tension between the fire-eaters and the anti-slavery men — it’s almost impossible to envision a path forward that would have diffused the fundamental conflict over slavery. As with 1856, a GOP victory under, say, Seward in 1864 might very well have produced the same spiral into war.

And so those who claim 1860 as important should not, in my view, be attributing much of that importance to the Lincoln and/or GOP victory, per se. Consequential as hell, no doubt. It lit the fuse that led to Sumpter in April, 1861. But that fuse was ready and waiting to be lit, and any GOP capture of the Presidency after 1854 was highly likely to strike the match (See this post of mine for some discussion of why the Presidency was the key worry of the South). And so 1860 looks important where 1856 does not, but that’s just a matter of outcome and consequence, not of actual importance. In effect, 1860 was consequential because Lincoln won, whereas 1856 was not consequential because Fremont lost. But ex ante, both elections were of similar potential importance/consequence: a GOP victory was likely to lead to southern secession and possibly war. That it happened in one and not the other does not strike me as reason to assign one election as important and the other as not. (This is not to say 1860 was not important on the other Mahewian dimensions; it’s merely that the counterfactual aspect is not particularly compelling.)

This temporal effect — which preferences 1860 simply because that was the GOP victory — is even more insidious when there is a negative result. For after all, the war came, so we know that something was important in the late 1850’s and early 1860’s. But what happens when the war doesn’t come? This, in my mind, is what happened in 1800. In that election, the Jeffersonian forces defeated the incumbent Federalists, who had been steadily creating a more and more authoritarian and non-democratic central government (most well-known by the Sedition Act and the various Alien Acts passed in 1798). Two pieces of the election were notable: first, the Jeffersonians won, which led to the non-renewal of the Sedition Act; second, the Federalists did not challenge the legitimacy of the elections or otherwise refuse to give up power. I would argue that both of these were important, rather than consequential, events. There was nothing inevitable about the ending of the Sedition Act or the peaceful transfer of power to an opposition group. It wasn’t a question of when those things were going to happen, but if they actually were going to happen at all.

Thus, that the Jeffersonians won the 1800 was nothing like the GOP winning in 1860. But the key difference is that in 1800, the dog didn’t bark: the Federalists handed over power, the Sedition Act expired, and the United States went on to build a very solid limited national democracy over the following generation. But it could have very easily gone the other way: a Federalist victory or a refusal to give up power in 1801 could have either sunk the U.S. in its tracks as a nation, or wholly undermined the democratic character of the nation, perhaps setting us back a generation or more as a modern liberal state. And so we view 1860 and 1800 exactly backwards: the former is billed as a important election because it happened to usher in an almost inevitable set of events, while the latter is not particularly recognized as important because a set of vitally contingent events ended up not in disaster, but instead came out roses. In other words: the consequences of 1800 were happy, despite being the result of an incredibly important contingent election, while the consequences of 1860 were profound, despite being inevitable except as to date and time, which hinged on a similarly contingent election.

None of this, of course, denies that the 1860 was the most fascinating moment in American history. As I’ve written before, we may never see American politics in quite such disarray every again.

Back in October, as an anti-tribute to Columbus Day, I wrote a post on federal holiday legitimacy that included this chart:

The chart plots all ten federal holiday on two dimensions:

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

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

Columbus Day is the obvious loser on both these dimensions.

But the holiday coming up on Monday — which at the federal level is “Washington’s Birthday,” not “President’s Day” — is actually my least favorite holiday. Not because it’s the second least-legitimate under my dispassionate rubric. There’s that, but it’s mOre because I actually don’t believe in the underlying sentiment. Whereas I think Columbus Day is silly, I think Washington’s Birthday is fundamentally wrong. I don’t like the veneration of war service. And God knows I’m not really a big fan of the Presidency. Really, not a fan. Not at all.

But mostly, I just don’t believe in the idea of political courage, or that elected officials should be considered heroes for their political actions. I think Profiles in Courage is more or less bullshit. Democracy, for me, isn’t the story of good and evil men battling it out, with outcomes hinging on the character of individual key players. But our culture tends to reinforce that premise: that a few individual men produced our government in the 1780’s, and brought down slavery, and ended segregation, and defeated fascism and communism. President Washington was undoubtedly an important President who did many great things for our country. But he didn’t do them alone, and he wasn’t a divine right king. To make it out like he was just gives me the willies, like some sort of totalitarian state. Henry the 8th surely had holidays for himself. Kim Jong-il too. We don’t need them.

In reality, most of the important historical developments in our democracy were the complicated result of national or international coordination, with massive numbers of people — at both the low and elite levels — involved in the effort. But leave that aside. Even if we could pin something like the triumph over slavery on a few people, it’s not obvious to me that they were courageous. For instance, the leading antebellum Republicans weren’t exactly courageously going against their constituents when they promoted anti-slavery policies!

The historical triumphs of American democracy are a credit to the institutional structure and its ability to wring moral justice from an arrangement of government that, ex ante, preferences neither the good nor the right, but instead just the popular. It’s a testament not to individual leaders, but to a system and a people, and to the wonders of democratic government; ideas — no matter how unpopular at first — can and do matter. But leaders? I’m very skeptical, at least beyond the margins. Can skillful leaders accomplish more than weak ones? Sure. Are successful leaders more skilled or responsible for the outcomes than unsuccessful ones? I’m not convinced. And so, if it were up to me, I’d just assume get their pictures off the money, stop naming roads and buildings after them, and stop pretending that to win a national election is tantamount to a blessing from God.

And look, I’m not trying to be a curmudgeon. Anyone who reads this blog probably knows that I’m a hopeless romantic sucker for democracy and its ritual pageantry. I love voting. I love the State of the Union address. I also don’t have a strong beef against the holiday — this isn’t that big of a deal and, heck, I like the day off.  But it definitely gives me the creeps. Of course, call me a hypocrite, but I love the National Mall. And yet, when I’m down there, I can’t shake the idea that the Washington Monument is the worst of all the memorials. Because it doesn’t pay tribute, really, to anything of substance; it’s all about a man. The Lincoln Memorial lets you read Lincoln’s second inaugural and the Gettysburg Address. In effect, it’s a tribute to a set of ideas, as expressed by a man. Ditto with the Jefferson Memorial.

I’d be much happier with Washington/Lincoln’s birthday replaced with something like a Constitution Day holiday, and MLK Jr.’s birthday replaced with an Abolition Day holiday or a “we beat segregation” day of some sort. But since that’s not going to happen anytime soon, I’m just as happy with a Washington’s Birthday that no one cares about. And so on Monday there will be sales at the stores and people will relax with their families. A lot of people won’t even have the day off. And not a whole lot of people will think about President Washington. And as far as I’m concerned, that’s a good thing.

Well then, congressional staff.

Someone asked me a few weeks ago to do a general post on the topic, but…where to begin? Let’s do this in three chunks: a legislative branch overview, a basic rundown of the staff in a Representative’s office, and a look at the most relevant recent trend: leadership staff growth. I’ll just highlight some key stuff, this is far too big of a topic for a blog post.

Legislative Branch Overview

There’s somewhere in the neighborhood of 30,000+ people working in the legislative branch of the federal government, which seems like a lot until you realize that 30k is roughly just a bit more than 1% of  the about 2.75 million non-military employees in the executive branch. Anyway, those legislative branch staffers can be divided into five general categories:

Member Personal Staff — staffers in the House or Senate employed by individual Representatives and Senators. Each Representative’s office can hire up to 18 permanent staffers and 4 others (i.e. part-time, interns, etc.), constrained by the financial limits of their Member’s Representational allowance (usually referred to as the MRA; a lump sum of money appropriated annually in the Legislative Branch Appropriations Act and  given to each office to pay for staff, office expenses, travel, and mail. The MRA is regulated by law, chamber rules, and Admin committee regulations). Senate offices are not limited in the number of staff, but are constrained by the financial limits of the SOPOEA (similar to the MRA). There are roughly 7,500 personal staff in the House, and about 4,500 personal staff in the Senate.

Committee Staff — staffers in the House or Senate employed by one of the standing committees.  There are about 1,500 committee staffers in the House and about 1,200 in the Senate. Like personal staff, funding for committee staff is provided in the Legislative Branch Appropriations Act and authorized by the chambers under resolutions in the jurisdiction of the administration committees. Committee staffs vary in size, constrained by chamber rules and their budgetary resources. While there is no hard and fast rule in the House or Senate, the norm in the modern era has been to give the minority control of 1/3 of the committee staff; all vouchers, however, are signed by the committee chair.

Leadership Staff — staffers in the House or Senate employed by the chamber majority or minority. This includes the formal leadership structure — Speaker, majority and minority leaders, whips — as well as the party policy apparatuses  (i.e. the caucuses and conferences) and some other positions (like cloakroom staff). As discussed in trends below, the overall number, and the funding for, leadership staff has increased significantly in the past few decades.

Administrative Staff — staff that work for the House or Senate itself, such as the Clerk’s Office, the Parliamentarian’s Office, the Sergeant-At-Arms Office, the CAO of the House or the Secretary of the Senate’s Office, and so forth. Roughly 900 staffers in the House and 350 staffers in the Senate.

Support Agency Staff — staff that work for the legislative branch external to the House and Senate proper. This includes the Library of Congress and Congressional Research Service, the Architect of the Capitol, the Capitol Police, the Congressional Budget Office, the Government Printing Office, the Government Accountability Office, and the Office of Compliance. Roughly 15,000 employees.

Staffing in a Representative’s Office

Within the general boundaries of their budget constraint, as well as law and chamber rules — which can be shorthanded to something like “follow the civil rights act in hiring, don’t hire your brother, staff must work on official business only, and absolutely no campaign work on official time” —  Members can organize their staff resources as they see fit. Therefore, how Members allocate their 18 permanent staff slots varies considerably. It really is like 435 small businesses.

The first thing to get over is the nomenclature. There are literally dozens of names for the eight basic jobs in a personal office. I think of those jobs as: Chief of Staff, Legislative Director, Press Secretary, Legislative Aide/Assistant, Caseworker, District Director, Scheduler, and Staff Assistant. But you will hear tons of variations on these (Senior Legislative Assistant, Deputy Chief of Staff, Communications Director, etc.) as well as other jobs that are distinct but not universally employed by every office (Legislative Correspondent, Counsel, Systems Administrator, Field Representative, Office Manager, etc.). Here we’ll stick to the basic eight, since those are the most important to understand, anyway.

One key variable is how many staffers will be in DC vs. how many staffers will be in the district. In general, district staffers deal with casework (i.e. citizens who have a problem or issue interacting with the executive branch), grants, outreach, and sometimes the logistics of Member and DC staff travel while in the district. So the typical district office will have a District Director, some number of caseworkers, and probably a staff assistant answering the phones, dealing with mail, and other administrative tasks.

In the DC office, the point person will almost always be called the Chief of Staff, although there are still some old-school people who refer to them as administrative assistants, which is maddening because that doesn’t sound like the top job in an office these days. Under the chief of staff you are going to have three general groups of people: the legislative employees, which is typically a legislative director and some number of legislative assistants; the press shop, which in the House is often just one person, the Press Secretary; and the administrative people, which will include the scheduler and all of the legislative correspondents and staff assistants. These aren’t even close to hermetically sealed-off teams; House offices typically run much more like all-hands-on-deck situations. A brief description of the responsibilities:

Chief of Staff: overall management of the office; often the point of contact between other staff and the Member; strategic planning and coordination of district and Washington activities; policy adviser to Member; point person for budget and hiring.

Legislative Director: policy adviser on top Member legislative priorities; management of legislative assistants; point person on floor developments and action.

Legislative Aide/Assistant: track legislation in particular policy areas; develop legislative initiatives in those areas; follow relevant committee action; write floor or committee speeches; prep Member for committee hearings or other relevant meetings; meet with district and lobbying groups in policy area.

Staff Assistants / Legislative Correspondents: work with Cos, LD, and LAs on duties as assigned; often includes tracking legislation, drafting responses to constituents, prepping materials for meetings; answering phones; reception duty in office, etc.

Scheduler: Maintain Member’s personal schedule; schedules staff meetings, briefings; coordinates with Press Secretary to plan media appearances.

Press Secretary: handle all aspects of press relations; formal spokesperson duties; speech writing; communications strategizing; arranging media contacts for Member, etc.

Again, the most important thing to remember is that these jobs are hardily airtight compartments. The work of  Member’s office — responding to casework  and policy input from constituents, monitoring legislative developments, and formulating policy positions and original legislation — are often complete team efforts. It’s not unusual to see the Chief of Staff physically assembling a briefing book when time is short, or the press secretary taking a lobbying meeting in a pinch.

Trends

The most interesting trend in congressional staffing is the relative growth of leadership staff compared to personal and, in particular, committee staff. Below is a chart of House leadership and House Committee staffing levels, from 1982 to 2010. The dotted line is committee staff (note the large drop in 1995, when committee staff was cut across the board by 1/3), and the solid line is core leadership staff (Speaker, Maj. and Min. Leaders, and whips); the left Y-axis plots committee levels, the right leadership levels.

During this time period, total personal office staff increased about 6%. Committee staff decreased roughly 18%. And core leadership staff increased by 233%. (These changes are also reflected in the relative real funding of the three groups).

It’s not an exaggeration to say that the House leadership exists in a qualitatively different resource environment than it did a generation ago. Take the Speaker’s Office, for example.  In 1982, the Speaker’s Office employed just 14 people. By 2010, the staff had more than quadrupled to 59 people. Here’s a plot of the growth:

As shown, the growth of the Speaker’s Office staff has not been steady. Instead, it has seen two significant increases. The first is the well-known increase under Speaker Gingrich in 1995, in which the staff of the Speaker’s Office went from 10 to 28 and then peaked at 38 in 1998. The second is a similar increase in 2007 under Speaker Pelosi. After staffing levels were more or less constant or saw a slight decline under Speaker Hastert, they nearly doubled between 2006 and 2008, going from 36 to 64 staffers. When Speaker O’Neil left office in the mid-80’s, he almost certainly couldn’t have fathomed taking on the leadership role that future leaders like Gingrich and Pelosi would undertake; he simply did not have the resources to do it.

I also have a forthcoming academic chapter about leadership staff trends. I will post an ungated version soon.

A few weeks ago, in response to this blog post, Jamelle Bouie asked me a question: why do I consider myself a libertarian, rather than a straightforward liberal?

That’s a great question! And I’m spending some time answering it. Previous entries in the series:

Part One: Consenting Adults (1/31/2012)

Part Zero: Ground Level Decks (1/30/2012)

The Cost of Good Intentions

Having clarified the proper relationship — which is ‘no relationship’ —  between the state and individual non-harming activity, I’d like to turn now toward the issue of state involvement in preventing and ameliorating harm. There should be no question that the state has some important role to play here; to disagree would be to leave the realm of libertarianism in favor of some sort or anarchy. So I don’t think the first-order question —- does the state have a role to play in regard to harm — is worth any further discussion. But that only leaves the second-order question: what role should the state play?

Rather obliquely, I think a singular concern animates this discussion: the lawful state execution of an innocent man. Which is, I think, the ultimate example of the general problem of the state causing harm to the non-harming individual as it seeks to prevent and ameliorate harms perpetrated on the non-harming individual by others. As a non-harming individual, I am obviously interested in the state having a monopoly on violence such that violent harm will not be perpetrated upon me by others; but if that monopoly on violence results in a greater harm being perpetrated upon me by the state than I otherwise could reasonably expect absent the state’s involvement, then clearly there is a problem.

And that’s the rub. If we were not concerned about harm caused by the state, then preventing harm caused by private citizens would be simple. We could employ massive numbers of cops (at massive expense), do huge dragnets anytime there was a mugging, arrest every plausible suspect within a 10 mile radius of any crime, drop all suspects in jail until they could prove they were innocent, and execute anyone who couldn’t do so within a week. Now, as absurd as that examples sounds, its principle is the basis of all limitations on the state’s ability to stop harmful behavior by individuals. The power to stop harmful behavior inherently entails the possibility of the state doing harm itself.

And so we find ourselves in a cost/benefit analysis. We need to maximize the utility function to the individual such that the harm reduction produced by state action is maximized, after the harm done by the state is subtracted out. And thus we get many of the familiar post-Enlightenment civil liberties: innocent until proven guilty, trial by jury, habeus corpus, an independent judiciary, the right to counsel, protections against search and seizure, and so forth. Many people naively believe that these rights are in place as limitations on the state’s ability to discriminate in pursuit of the guilty, that they exist for the purpose of due process and equality of all defendants. Nonsense. These restrictions are in place to minimize the state harm done to the innocent, non-harming individual. That they ultimately aid the guilty as well is a defect, albeit one that we happily live with given the alternative.

And so we learn to live with the consequences of this arrangement. We empower the state to reduce harm through prevention and punishment of crime, which gains us utility X. But we restrict the state from using all possible tools to maximize X, because those tools come with costs Y. Our goal is to maximize the function U= X-Y, hopefully across both society and all non-harming individuals. Which leads us to the situation in which, hopefully, we trade off a fair number of guilty men escaping punishment from the state, in exchange for an absolute minimization of the number of innocent men who are wrongly punished.

That’s the theory. And so far, I would suspect that any straightforward liberal is right with me. And probably many contemporary conservatives. The only difference at this point might be where we believe the line falls on the utility maximizing function. It’s a fair question. Some conservatives might believe that you can maximize total and individual utility by paring down the 4th amendment search and seizure protections. Some liberals might believe that the utility maximization may come from doing the opposite.

It largely depends on how you rate the costs of state harm. If you don’t think it’s a big deal for innocent people to be pulled over by the cops now and again for 15 minutes or so, you could obviously further optimize the utility function by allowing random Terry stops on the highways. Conversely, if you think all random citizen interactions with cops are highly suspect and potentially very harmful, you might very well believe that we could optimize the utility function by getting rid of the random DWI checkpoints on the highway. There’s no obviously correct answer; at some point, it becomes a clash of axioms.

So as a policy and constitutional matter, I probably differ from most conservatives in that I believe the harm done by the state to innocent non-harming individuals is a very serious detractors from the overall utility. It’s one reason I adamantly oppose the death penalty. It’s why I think indefinite detention is a policy utterly beneath our republic. And it’s why I’m for stronger 4th amendment interpretations by the courts and legislative restraints on police activity. I’m probably to the left of most liberals in these views as well, although I don’t think I could fundamentally be distinguished from them in a basic test on these counts. Perhaps I rate the costs of these state harms slightly higher, but I don’t think it’s all that different.

Where my thinking parts from the liberals is in my view of what constitutes a negative cost in terms of state harm: liberals (and conservatives, too, of course) do not fully account for the state harms, or the magnitude of that harm, when they look to use the power of the state to solve problems. And this, I think, illuminates what I see as the the principle difference between modern liberalism and libertarianism: liberals seem quite convinced that any definable problems or harm can, if not be eliminated, at least be mitigated through state action, such that the overall situation is improved. I simply do not believe that to be true; in my view, there are a great many things that we might agree in principle are problematic or harmful, but that are already at their maximum utility under current arrangements, and state action can only serve to increase the total harm to society. Or, conversely, that the utility function can be maximized by reducing the state involvement.

I would suggest that the blindspot of liberals is particular acute in three theoretical, and related, areas: unintended consequences, long-term utility calculations, and the general capacity of the state. Start with unintended consequences. For whatever reason, a fair number of liberals seem to think that policies aren’t particular dynamic, that you can institute changes A, B, and C  and get beneficial effects E,F, and G that outweigh negative consequences J, K, and L without also  getting surprise results X, Y, and Z.

But society is complicated! Predicting human behavior is difficult. Virtually nothing functions even 95% as intended. And perverse incentives and disappointing results are almost always the norm. The odds of getting a highway project in under budget is 50/50 at best. At best. The odds of getting the ACA to work as intended is probably way, way worse than that. We’re already seeing numbers on some aspects of it come in so far away from projections that it’s laughable. Now, does that make the ACA bad policy? Not necessarily. But it does mean that we have to apply a severe discount to the utility of proposed solutions when we consider them ex ante. And certainly more of a discount than most liberals are willing to apply.

Second, long-term calculations. Whatever the immediate unintended consequences of state action are, they pale in comparison to the long-term unknown consequences. Was Medicare a good idea in 1965? Probably. Would we have thought it quite as good of an idea  if we knew the way senior health care costs were going to skyrocket over the following 50 years? Probably not. Would we have changed our mind then knowing what we know now? I doubt it. But would we have done things differently? Almost for sure.

And that’s the point: we can’t see the future 6-months down the road, and we sure as hell can’t see it 50 years down the road. That doesn’t mean we have to throw our hands up in the air, announce we have no crystal ball, and stop doing anything. But it should lead us to some humility and some conservative thinking about the capacity of the state to ameliorate problems. Short-term solutions are the easiest thing in the world, since you can borrow money and happiness from the future. But that doesn’t make them automatically less harmful than doing nothing. Liberals tend, in my experience, to forget this.

Finally, the capacity of the state. This kills me, every time I talk about it, because liberals often refuse to accept it even in principle. Here’s the concept: when you empower the state to do good, you inherently increase its capacity to harm. Period. Now, the classic examples — like The Road to Serfdom — are, in my mind, overcooked quite a bit. It’s not the case that centralizing control over a democratic economy will inevitably lead to a tyrannical non-democratic state at some point down the road. But that doesn’t mean it’s not a danger, or that it’s a danger you can ignore. If you want to maximize the possibility that there is never a police state in America, you can start by radically shrinking the military, the police force, and the tax base of the federal government. And when you don’t do that — when you instead increase the capacity of the state, you are creating the infrastructure necessary for negative uses of the state.

Now, like I said, you don’t want to think of this at The Road to Serfdom level. Instead, think about things like agricultural subsidies. If you are a liberal and you are appalled by the amount of money the federal government gives away to big farming, stop and think about the roots of the policy: 19th and 20th century price supports for family farmers. Same thing with corporate welfare policies, or with the income  tax code. Good lord, the tax code. I would contend that if you support basically any tax breaks for anything (i.e. child tax credits, charitable giving deductions, etc.), you are merely setting the stage for massive corporate loopholes and carried interest tricks. The only way to avoid them is to stick with a neutral principle, like no credits/deductions for anything. I’m serious. The moment you allow the state to take on projects for the greater good, it will inevitably have the capacity — even if it’s only the intellectual ability to dream — to take on projects that benefit the rich, or the powerful, or both.

Again, does this mean nothing is worth the state’s doing? Not by a longshot. But it has to be part of the calculation if you want to be a realist. And at the policy level, there’s not much worse than a liberal dreamer. Actually, that’s not true: there are my parents, who I’m pretty sure drove me to libertarianism. Because they embodied the worst of all of the above blindspots, with one gut-punching twist: they knew the limitations and problems of the state, but they didn’t care. Both of them were mainstream young 60’s liberals, the kind of people who thought McCarthy was awesome in ’68 but were more likely to support RFK. Probably just like the modal middle-class northeastern 19-year olds of the day.

Anyway, they pared this sunny liberal optimism with an absolutely ridiculous level of cynicism about the government’s ability to solve problems. Never saw a highway project they didn’t curse at. Never watched the news without ripping into the inefficiency of the bureaucracy. And absolutely hated the post office and the DMV. And yet this cynicism did not stop them from endorsing ever-greater government interventions into the economy and society! My nickname for this was cynical liberalism. My father, arguing till the cows come home about how we need to expand Medicare and Social Security, only to 20 minutes later be complaining about how the federal government couldn’t tie it’s shoes for less than $20. And if you pressed him on it, he’d say something absurd like, “Well, we have to try! We can’t just do nothing!”

And that’s the point. We can do nothing. In fact, we are obligated to do nothing when doing nothing is the solution that maximizes the utility of society and the individuals within it.  That’s why I titled this the cost of good intentions. Because sometimes, as hard as it is to do, the best solution is to simply walk away from the problem. It’s cliche, but sometimes the cure really is worse than the disease. Even whey you are trying to help the worst off in society.

And so while my beef with conservatives is that they are too willing to underestimate the magnitude of state harm when weighing it against the utility of state intervention, my beef with liberals is that that tend to discount whole categories of harms that detract from the utility of state intervention in society. Like I said, some problems — when put into a cost/benefit analysis — are best “solved” by doing nothing. My sense is that not enough liberals understand this.

A final example: handgun bans. I’m pretty sure that nothing drives me battier when talking to liberals — and I mean nothing — than discussing handguns. I don’t think there’s an issue out there (well, maybe agricultural subsidies) that turns some liberals into daydreamers faster. They are incredulous at the idea that reducing guns doesn’t always reduce gun crime, and in some cases may increase it. They refuse to accept that there are hundreds of millions of handguns currently in the United States, and that they aren’t going anywhere, legal or illegal. They can’t stand the idea that almost no murders are committed with legally-possessed handguns. It just annoys the hell out of them to hear a pro-handgun argument, even when I make my basic “I don’t love handguns either, but you have to be a realist about the effects of banning them” monologue.

But the cherry on top is watching them react to any sort of “protection from the state” argument. I swear, you mention the idea that gun ownership protects people from state tyranny, and pretty much every liberal immediately makes some joke about Joe Sixpack stopping a U.S. military tank with his handgun. But I think this precisely misreads the situation on two levels. The first is the factual: anyone who has ever watched the youtube videos from Iran knows that the tyrannical state doesn’t maintain its grip by employing tanks everywhere; there’s simply not enough money to do that. Instead, it relies on thugs and other ill-trained militia to terrorize citizens with knives, clubs, and small arms. You watch the video of a man being assaulted on his own front lawns by one or two state thugs with knives and clubs, and it become self-evident that such practices simply would not be possible in a society with as many homeowner firearms as the United States.

But leave that aside, because that’s the stuff of Road to Serfdom overcooking. The real reason I think the handgun bans make perfect sense to liberals is largely tied up in the blindspots I’ve pointed out in this essay. The belief that the state can be employed to solve or at least mitigate almost any problem corresponds to an unwillingness to see non-governmental solutions or mitigations to serious problems. The vast majority of people who own handguns own them for one specific non-sporting reason: to protect their families from harm within their own homes. But that brings us full-circle to the role of the state in the libertarian worldview: the prevention of harm to the non-harming individual. Any state action that reduces the number of handguns that exist solely for home defense must begin by admitting that the policy, on its face, is going to increase harm to the non-harming individual. And that places the tough burden of proof on those who seek the state power to do so. I don’t own a gun, I don’t think I ever would. But I have very little sympathy for those who think we should be taking them away from non-harming individuals.

Today, as required under law, the President submitted his FY2013 budget to Congress.

Imagine that I sent an email to you and six of our friends suggesting that we plan a picnic for next weekend:

Hey all, we were talking about getting together this weekend. It looks like the weather is going to be great, anyone want to have a picnic? I already talked to Rachel and Jack about it, they thought it was a great idea. We could do it at Burke Lake Park Saturday around 12:30? There’s a good spot on the south side down by the water that’s nice and shady. It has a couple of picnic tables, but I could also bring my two extra-large quilts. What would people want to eat? I was thinking we bring hot dogs and hamburgers to grill over their charcoal pits, potato salad, watermelon, and chips. Maybe Sarahjane could make those blond brownies, too? And someone should grab some beer and soda. The water will probably be warm enough to swim, so we could bring bathing suits. They also have that frisbee golf there, and someone could bring a football.

Now, the chances are that this is not exactly how the picnic will go. People might suggest other food they want to bring, different recreational activities that we might need equipment for, or even a completely different time or location. Sarah might offer to make a different dessert; Jack might suggest we bring our baseball gloves; Becky might throw in that she’d rather have fruit salad than watermelon; Tom might declare that 1pm works better for him; Anna might say she also wants pretzels and veggieburgers; Megan might veto the quilts in favor of sand chairs, and Chris might suggest the clearing on the east side of the lake because it has both shade and sun. And, of course, the whole thing could fall apart if people have other things they need to do.

What is highly unlikely, however, is anyone sending back the following email three hours later, after 2 others have already agreed to the picnic:

That could be fun, Matt, but I was thinking this: we go to Manassas mid-afternoon Sunday. Have an afternoon lunch at Mickey’s Diner, we haven’t been there in forever. It’s going to be the perfect wind to fly kites at Bull Run battlefield park. There’s a great sunset there in the summer, and the hiking trails are awesome. And the Manassas gun range is right by there, so we could bring our rifles and go skeet-shooting afterwards. I’ll also throw my volleyball net in my trunk.

This is, in a nutshell, why it’s an advantage to be the first-mover in legislative politics.

1) You get a head-start on popular persuasion. This is because of the information asymmetry. You might have spent 3 hours crafting your picnic idea and formulating the perfect email. You might have even called Rachel and Jack to get them on-board before presenting it to the group. And people who love the idea are going to respond really quick. Anyone who disagrees fundamentally with the idea of the picnic has probably less than 20 minutes to counter with an alternative idea, since as soon as one person responds affirmatively, the wholesale substitution is probably no longer viable within the full group. And so it goes with legislation. Think of the committee chair who spent weeks crafting a chairman’s mark, facing off against committee opposition that only got a copy of the proposed legislation minutes before the markup. Or the army of  people that the administration can deploy today on the press while Members of Congress sit around trying to figure out exactly what is even in the budget proposal.

2) Something beats nothing, every time. This follows directly from the head start on popular persuasion. Our picnic proposal not only offers specifics as to time, place, and manner, but it also quickly locks in the big-picture agenda. Even if the majority would prefer to do something else, as soon as a few people back the picnic and there is no immediate alternative, the picnic has won at the conceptual level. That’s why the kite-flying / gun range alternative seems so absurd and impolite — it might be more popular ex-ante in a pair-wise comparison, but once people have signed onto the picnic in concept, they’re not changing their minds. Too many plans may already be based on it, and too many resources may already have been expended. So to in legislative politics; when the majority in Congress chooses among possible legislative paths on a big issue, they are unlikely to accept a full substitute from their own side down the road, even if it would have won a pair-wise vote at the outset.

3) You force people to amend rather than substitute. Following from the lack of full substitutes comes the tendency for non first-movers to focus their attention on amending little details. This is when you know you have won, because it indicates that people have conceded the big-picture and are now out to maximize their utility under it. And so they each seek to change the detail that most concerns them. Here you have also won; not only have you laid down the big-picture, but even if everyone changes one detail, you’ve still decided almost a  majority of all the details. Now that’s disproportionate influence. This is as true in legislation as it is in picnic-crafting. There are so many details in every major bill that if you can afford to cut loose any two dozen of them, you’ll still end up with something that not only looks like what you wanted in spirit, but is, in fact, 80% of what you wanted. Especially because even when they do change things — like Tom moving the picnic by half an hour — they haven’t really altered your general vision.

4) You become a stronger veto player. For whatever reason, people offer undue-deference to first-movers. Maybe it’s a subconscious reward, because the first-mover is seen to have put in the most “work” or “leadership” on an issue; it could also be the result of a repeated-game logroll, in which people expect you to defer to them when they are the first-mover. Or it could just be not wanting to step on anyone’s toes or create a scene between friends. In any case, when you propose a picnic, people will be more than careful not to alter things unilaterally without your permission. Someone wants to play cornhole instead of frisbee golf? They’re going to run it by you to see if it’s ok. And this seems true independent of your institutional authority over the situation. With co-partisans, it may come down to not wanting to embarrass someone or mess up their grander plan. But in any case, it’s real. It will not just take a simple majority to alter your picnic plan once the basic terms are agreed to, it will take a supermajority.

I suspect that not a whole lot of people were thinking about any of this in Congress when the Budget Act was passed in 1921, which for the first time required the President to submit a unified executive branch budget, rather than the departments simply coming to Congress piecemeal and presenting budget requests. The institutional results for inter-branch relations was largely twofold, both beneficial to the President: it made him the first mover in the budget and appropriations process, handing him the authority to develop and submit the unified budget. And second, it gave him increased control over the executive branch, since it required the departments to now send their budget request up through the BoB (now OMB) for approval, meaning the White House would have stronger authority to request, manipulate, and reject agency budgeting and planning.

In any case, the role of the President in the legislative process was vastly expanded in 1921, and it was done by Congress. Appropriations are the only thing that Congress has to do each year, and in an attempt to bring rationality and clarity to the process, they effectively took their main function and voluntarily decided to share it with the President.  Does this make the Budget Act a mistake? Not by a longshot. The United States almost certainly needed a unified federal budget, and there is hardly another actor in the system who could have provided it. But it is a reminder that the best laid plans, even when they are executed successfully, are rarely without unintended consequences. For better or worse, the budget process in the United States is now, in part, heavily dependent on the President. And this is magnified by the fact that he now writes the picnic email.

This post was authored by my brother-in-law, Dan Courtright, a writer who lives in New York and knows a hell of a lot about football.

I’ve heard each of the following claims over the past few days, mostly on the Mike Francesa show and ESPN. Let me weigh in on their relative merits:

1. On the final drive of the game, the Giants put 12 players on the field on purpose. An entertaining fallacy. The idea is that the Giants purposefully put 12 men on the field in the 4th quarter to defend the Pats with extra players, taking non-refundable time off the clock, guarding the end zone, and taking the 5 yard penalty afterward. I have no problem with the idea that this might be a good strategy; but it was not the Giants’ strategy on Sunday. Justin Tuck – the 12th man – was running off the field when the ball was snapped.

2. Deion Branch may have caught the pass on the sideline at the Giant 30 with 5 seconds left. I haven’t heard this anywhere. But it’s true. Giants fans – check your Tivos (Patriot fans, recover the game from your Tivos’ ‘Deleted Items’ folder). Branch dragged both toes in bounds, and kept them down through the chalk; the only question is whether he had possession of the ball while the toes were still in bounds. My Tivo attests that it was incredibly close. When Branch first touches the ball, both toes are on the ground. There is a frame on one replay where he has both hands on the ball, and the toes are probably still in – although, the reverse angle would tell a more convincing tale (did anyone else wonder where the reverse angle was on the Manningham sideline catch the Pats challenged? The ball appeared to start moving as Manningham hit the ground…). The replays on the game broadcast did not offer the “incontrovertible video evidence” required to overturn a call, but a preponderance of the replay evidence led me to believe that it was probably a catch. One of the hardest things to determine in a frame-by-frame replay is “possession” of the ball – when the ball between Branch’s hands? Had his fingers yet flexed around it? It’s tough to tell.*** One thing is certain: incontrovertibly, the booth should have called for a review.

A lot of pundits wondered why Lee Evans’ end zone drop in the Super Bowl was not reviewed. The Branch play was much, much closer to being a catch than that one.

***The NFL needs to adopt a method by which the replay official can view a play from two angles simultaneously. How many times does an NFL replay have two elements that need to be satisfied at or by a specific moment in time? “Was the ball out before the knee was down?”; “Was the foot still down when he gained possession of the ball?”; “Did the ball break the plane before the knee was down?” As any fan knows, sometimes one angle proves the first element, and another angle proves the second element, but there is no shot that prove both together. You can see from one angle when the ball came out, but the runner’s knee is obscured by a mess of bodies; you can see from another angle when the knee touched down, but the runner’s back is to the camera and you can’t see the ball. The when is the problem.

I’m no expert on video (despite the fortune spent to drag me through film school. Sorry, Dad). But couldn’t FOX and CBS and NBC sync all its video to one time code (isn’t its video already synced to a uniform time code?) Then, couldn’t they offer the officials split-screen, frame-by-frame video of any two angles simultaneously? There’s no way this is impossible. And there’s no way it won’t eventually affect the outcome of a big game. Like most of life’s important questions, NFL hinge on particulars of time, space, and perspective. With a split-screen, time-sensitive review of plays with multiple questionable elements, the NFL could bind the three in a way that would make Einstein blush. I know money’s not the issue. And, if the NFL wants to pretend money is the issue, slap a sponsor on it – the Budweiser “Double-Vision” Review. You know. For kids. 

3. Having a first-round bye is a disadvantage. Some numbers: Since 1990-91, when the modern playoff structure was adopted (as far as two home-field byes awarded) the home team in the divisional round is 73-33. Since 2002-’03 the home team is 25-15. Since 2007-’08, the home team is just 11-9. Overall, since 1990, the win percentage for the home team following the bye is 70%. But, from 1990-02, the win percentage of the home team after a bye was a whopping 85% (41-9); and only in 1995 did the home teams in the divisional round collectively fail to win at least three of four games. From ’03-11, the win percentage for the bye team was just 58%; and the home teams collectively managed to win at least three of four games in only three of the nine years. The question is whether this discrepancy is significant. Statistically, it is probably not, given the small sample size (although, this should be confirmed by someone who can actually, you know, do math). But the discrepancy does follow a good deal of colloquial logic. Reasons for the downward trend could include:

(a.)   The relative prevalence of precision-based, timing-route passing attacks, as fostered by recent pass-friendly changes in NFL rules and stricter enforcement of existing rules. See Peyton’s ’05 and ’07 Colts; and Aaron Rodgers ’11 Packers (all of whom took Week 17 off after clinching the bye).

(b.) The introduction of the salary cap in 1993, its effect on free agency. The integration of new players into a system takes time – even if these players are as good as the players they replaced, they aren’t usually that good right away. This could explain the “late surge” phenomenon that has produced many of the last decade’s Super Bowl champs. From 1980, when Plunkett’s Raiders won the Super Bowl, till 1997, when Elway’s Broncos did, no team without a 1st-round playoff bye won the Super Bowl (from 1980-89, all three division winners earned byes, and there was only one Wild Card game per conference). The ’00 Ravens; the ’05 Steelers; the ’06 Colts; the ’07 and ’11 Giants; and the ’10 Packers all won Super Bowls as teams without 1st-round byes – and they beat teams with 1st-round byes to get there. While each respective team was not the league’s most dominant team in September, winning the Super Bowl supports the argument that each of them was the best team in January. When there is a lot of player turnover, this sort of late emergence becomes much more likely. Rookies, newly added free agents, and former back-ups who step into starting roles for departing free agents, who don’t know what they’re doing in training camp, emerge as contributors late in the season. When bad players become average, average players become good, and good players become stars, the team on a whole gets much, much better. That team can, in those cases, surpass teams who would have mopped the floor with them in September, October, or November, when they amassed the wins that earned them the bye. In those cases, these wins over teams with byes are not so much upsets – at the time of the play-off game, the emerging team is actually better than the team that had the bye.

(c.) The league divisional and scheduling realignment of 2002, which turned three 5-team divisions into four 4-team divisions; and made teams within the same division play common opponents in all but two of their 16 games. The changes were made to fit two new teams – Houston and Cleveland – into the NFL. The first part – which created more, smaller divisions – increased the variance in intra-divisional strength. Strong divisions were likely to be stronger, and weaker divisions weaker, than under the old system. The second part – which brought more inter-divisional equity to the schedule, introduced three new factors with regards to the playoffs: 4 division winners per conference, instead of the three from 1990-2001; 2 wild cards per conference, instead of the three wild cards from 1990-2001; and a schedule that was relatively balanced within the division, and therefore made it more likely for each division’s best team to win the division. These three factors combined to make division battles more fierce, since Wild Cards were reduced by 50%. Also, more subtly, these factors conspired to mask terrible divisions when they were matched in the schedule with another terrible division. Each division plays one in-conference division and one out-of-conference. When relatively weak divisions (divisions whose mean expected win total is under 8 wins) are matched up against one another, they artificially inflate the records of their divisions by bringing both divisions closer to the league mean expected win total of 8 wins. Simply put, when teams from these bad divisions play one another, one team has to win, and one team has to lose. But if both teams are bad teams, really neither team deserves to win – they both deserve to lose! When this reciprocal stinky-divisional masking takes place in concert with a large discrepancy between the good and bad teams within a division, the division winner finishes with a record that is better than the actual strength of the team. Two such teams include the 2003 Chiefs (opponent record in Chief wins: 80-128) and, in concert with (a.) above, the 2005 Colts (101-123 opponent record in Colt wins).

The above analysis does not tackle the real question – is a 1st-round bye a disadvantage? Well, compared to what? Compared to what it used to be? Well, yes. Compared to the teams who have to play an extra game? Decidedly no. I mean, would a team ever NOT want to take a bye? Winning the divisional game is not – of course – the only consideration; the team with the bye essentially has a 100% chance to advance to the Divisional play-off. If that team had to play a Wild Card game, that percentage (while still above 50%, presumably) would depreciate significantly.

4. The Giants are picking 32nd in this April’s draft. I saw this on the ESPN crawl. That’s when the win sunk in. I love when the Giants pick 32nd.

5. Eli Manning is an elite quarterback. True. I am a linguist, and – thank you to my friend, and foremost Eli devotee, Satch – you cannot spell elite without Eli. He is so good at the 2-minute drill – and so literally unstoppable in the 4-minute drill – in a league where the 2-minute drill is very hard to stop (due to expanded restrictions on contact with receivers, and the quarterback***), that the Giants are within 6 points and two minutes of winning any game. Taken with the fact (above) that NFL teams are designed to be, and are in reality, competitively balanced; and are likely to play close games with close scores; the best (or 2nd or 3rd best) two-minute quarterback gives his team an enormous advantage over other teams. With age, vulnerability to injury, home field, and all other applicable factors in consideration, I would trade Eli Manning straight up for Drew Brees and Aaron Rodgers. That’s it.

***Many of the “rule-changes” I remember the NFL making are actually amendments in how the rules are enforced. I was sure that “illegal contact” was a completely new penalty, invented in the mid-2000s; I mean, I’d never seen it called before – there was pass interference, and defensive holding; evidently, it was not. A rule from 1995 outlawed using the helmet to hit ‘defenseless players’ in the head or neck. The helmet-to-helmet roughing the passer and defenseless receiver penalties that we see every Sunday owe to the expanded enforcement of that rule.

6. Eli Manning is a Hall-of-Fame quarterback. In the week leading up to the Super Bowl, I offered some loud-mouths at work a bet: 1:1 odds, I take Eli Manning inducted into the Hall-of-Fame in the next 20 years, you take that he’s not, for any amount of money up to $10,000 (I used the money total for bravado). No one took it (it’s untakeable – the duration is preposterous – any of us clowns might not have a job in two weeks – we spend most of our time at work making bets). The odds are now 1:2***. I don’t know if Eli should make the Hall of Fame; I try not to think like a sportswriter thinks. But I do know that he will.

***The only 2-time Super Bowl-winning QB eligible for the Hall of Fame who has not been inducted is Jim Plunkett. Three are currently active: Eli, Brady, and Roethlisberger.

7. Eli Manning is as good as Peyton Manning. False. He’s better. Much better. He’s six years younger, and he has the ability to turn his head up to 90 degrees each way.

8. Eli Manning’s career is as good – or better – than Peyton Manning’s career. False. Peyton Manning is one of the three best quarterbacks in NFL history. Eli Manning is one of the three best quarterbacks in the NFC East.

9. Tom Coughlin is a Hall-of-Fame coach. Tough Tom’s career winning percentage is .558. The only coaches in the Hall of Fame with lower win percentages are Sid Gillman (who modernized the downfield pass) and Weeb Ewbank (whose name is Weeb). Coughlin was Jacksonville’s first head coach; he led them to a record of 36-12 from 1997-1999, including 14-2 in ’99, and the team made the play-offs in four straight seasons, the first of which (’96) was the Jags second season in existence (an NFL best). He does not make enemies among sportswriters, nor does he make friends among sports-readers. He is not known as unique in either personality (an important component in a popularity contest) nor in football strategy; his most notable trait is his punctuality. He has won two Super Bowls. So did Jim Plunkett’s coach, non-HOFer Tom Flores. So has Mike Shannahan; not yet eligible and, unless he turns around the Redskins, not a Hall of Famer. So did Bill Parcells, who failed to make the Hall of Fame last week, in his first year on the ballot. I thought he would make it – 1:100 odds. So I’m not sure about Coughlin. Again: I try not to think like a sportswriter. (Of course, when Coach Coughlin wins his third, he’ll be a shoe-in. Let’s Go Giants!)

10. The Giants need to sign a guard this off-season. Okay, so only Satch said this to me, and he said it three weeks ago. And, after the Giants’ 4-game skid, when he wanted to put 100 bucks down on the G-Men to win the Super Bowl, I talked him out of it, so I do sort of owe him $10,000. But I went back and watched the tape: aside from the bullshit hold call on 3rd-and-1 when Wilfork fell down, and a false start, LG Kevin Boothe had a phenomenal Super Bowl. He looks trimmer (you know, than a blimp), quicker, and he’s really strong. The Pats clearly had Boothe marked coming into the game, as they lined Wilfork up over him the whole first half. In the 2nd half, they moved Wilfork over Baas to try their luck there; Boothe had simply owned the All-Pro nose tackle. Also, his combination-blocking with Diehl on stunts was great. When the Pats ran a two-man stunt against their side, Boothe and Diehl switched seemlessly. He really had a great game, and I’m glad we have him signed through next season as a player with no leverage to hold out.

11. Mario Manningham has played his last game as a Giant. True. Some desperate GM will sign him to add bling to a crappy WR corps. I saw Cincy being bandied about; a buddy of mine at work thought Cleveland. Either one sounds feasible – Oh-hi-oh, meet low-I-Q. Nice postseason beating nickel-back single-teams about 30% of the time. Thanks for the memories.

12. Brandon Jacobs has played his last game as a Giant. True. Jacobs all but bid the Giants adieu during his post-game interview on the field in Indy; when he was asked about Eli, he said he loved being Eli’s teammate. Then he added that he wished Eli, “All the best.” The Giants owe Jacobs 4.4M next year, plus a $500,000 roster bonus due in March that they won’t pay. Jacobs has expressed a desire to renegotiate; but I think the Giants terms will come under market value. Satch asked me to put a number on him; I think the Giants will offer him about 2M, little guaranteed, for one year, with escalators he won’t reach unless Bradshaw gets injured. As above, I think some desperate GM will sign him to add bling to a crappy RB corps. I think somebody will give him 2 years, 5M, half of it guaranteed.

I’m seeing/hearing a lot of political analysis today that goes like this:

Fact:  a majority of Catholics (58%) are in favor of the Obama administration’s recent birth control decision.

Conclusion: therefore, the decision cannot possibly hurt Obama electorally among Catholic voters.

This is bad logic: the conclusion does not necessarily follow from the fact. And I think it’s a good example of the more general problem of extrapolating electoral effects from policy polling. So let’s go through this in a bit of detail:

Standing in front of us are 100 random Catholic voters. What do we know about them? Well, we can guess that about 58 of them support the birth control decision, and that about 37 of them oppose it (presumably 5 “don’t know” or “have no opinion.”). What else can we say about them, in regard to the politics of this situation? Well, not much. We are missing a lot of information, namely:

1. What were the voting preferences of the 58 and the 37 prior to the birth control decision?

2. What are the voting preferences of the 58 and 37 now?

In other words, what effect does an administration birth control decision have on their vote?

The reason this is so important is that elections are not about winning majoritarian approval for individual policy decisions; they are about winning votes. At the micro-level, the relationship between the two things is a simple equation: how many net votes did a particular policy action gain or cost you? If it gained you aggregate votes, then electorally it’s a good thing. If it didn’t, it’s not.

The problem is that we don’t know how many Catholic votes the birth control decision gained or lost. For example, if all 58 of the supporters were going to vote for Obama as of last week, but 20 of the 37 in opposition were previously going to vote for him but have now changed their mind, then the net results is 20 votes lost. The opposite scenario — in which all 37 opponents were already not going to vote for Obama, but 20 of the 58 supporters of the decision were previously going to vote Republican but now will vote for Obama — is also possible. That’s a net gain of 20 votes. More reasonable numbers can be plugged in for the underlying support and the patterns of switching, but the result is the same: the aggregate level of support for the policy itself is more or less irrelevant.

And that’s the key here: the level of support for a policy choice may be correlated with electoral support and/or net change in electoral support, but it doesn’t have to be. The only way the poll numbers could be definitive is if we knew all Catholics were single-issue voters on this policy question. But they aren’t, so we need more information about how the decision affected both Obama’s supporters and his opponents. Ask yourself which is a bigger number: the number of Catholic Obama supporters who might turn against him over birth control, or the number of former Obama opponents who might become supporters over birth control. I have no idea what the answer is, but those two numbers combine to the net electoral number, and that’s the number we are interested in.

Opinion polls can be quite deceiving in this manner. Imagine you are a liberal Democratic President and you see a poll that shows a decisive majority — say 70% of Americans — wants to legalize medical marijuana. On it’s face, looks like a really smart electoral move to come out in favor of medical pot. But be careful: there are almost certainly voters who supported you in the past on both sides of this issue. And there’s a strong possibility that more former supporters will desert you over the issue than former-opponents will join you. Probably want to get more data before you make a decision. (Or, more likely, just sidestep the whole thing. Sigh.)

Lurking behind this is the issue of intensity of preference. Ask 100 people how they feel about some policy issue, and you’ll find that some oppose it and others support it. But only a small portion of those people will consider it relevant to their vote choice on election day, and only an even smaller fraction will be single-issue voters on the subject. When those intensities are not evenly distributed among the opinion, that’s a good recipe for the electoral effects to be strongly skewed in reference to the policy opinion numbers. Fifty-eight of our Catholics support Obama’s birth control position, and 38 oppose it. But what if only 10% of the supporters see it as a key electoral issue, while 50% of the opponents do. I have no idea if those numbers are correct, but it’s not insane. That could (potentially) make for an electoral problem for Obama.

Now, there are a million caveats to keep in mind. First, I’m just pointing out a logical error; I have no idea if the decision will help or hurt Obama among Catholic voters. I just know we can’t know from a poll of Catholic support for the decision. Second, in some ways it doesn’t matter how it affects Catholics, because they aren’t the only voters. Even if the decision hurts Obama among Catholics, it might be a net positive if it gains him votes among other demographic groups. Or vice-versa. At the ballot box, demographics don’t matter. You just want the most votes. Third, policy decisions affect more than just voting preferences; everything from campaign donations to volunteer labor can be gained or lost. And those things have important effects on electoral outcomes.

The fourth factor: good public policy

I’m going to shift gears and go long-form on the fourth caveat, which is  policy decisions aren’t just made for electoral reasons. Sometimes, good public policy is the goal!  There seems to be a strange and increasing trend among Washington journalists and others to seriously discount the “good public policy” component of party goals. Part of this is a traditional media frame: it’s much easier to cover the horse-race electoral aspect of politics than the substantive policy side of things, and it also allows for an easy neutral story line that is less readily available when policy comes into play. But part of it is something quite new; there seems to be an increasing belief that the only measure of party success is electoral victory. I read story after story talking about how the Democrats failed in the 111th Congress because they lost so many seats in 2010, and how they are continuing to fail in the 112th because they are likely to lose seats in the 2012 election. It’s pervasive.

This is what, in political science, would be called a Downsian view of parties: they exist only to win elections, and their platforms are formed only with that goal in mind, the resulting public policy utterly incidental to the goal of winning the next election. It’s not a bad view of politics; in fact, it’s quite instructive for thinking about (small d) democratic politics, but it’s obviously a model. It’s not intended to suggest that becoming singularly concerned with winning elections is a good prescriptive frame for a party or for partisans.

So what’s the problem with this outlook? I think the main problem is that it misplaces the long-term policy goals of parties. As I’ve discussed before (here and here and here), one of the weaknesses of democracy as a form of government is its inability to undertake long-term planning. Here we have a related problem: parties and partisans tend to undervalue long-term policy successes. The increasing belief that success is equal to seat maximization in the House adds to this problem. Health care serves as a good example. The Democratic Party has been seeking to federalize some form of universal health care for the better part of a century. All of a sudden they are faced with the prospect of being able to do so, but at the expense of losing a pile of seats in Congress and their majority in the House. It’s easy to see why that would freak out any individual Member — would you want to give up your job to pass a policy that might not even be your top priority? — but it’s less easy to see why it should bother the party. Trading 65 House seats to enact a policy that it has been chasing for 70+ years seems like no big deal, so long as a few conditions hold:

1) The party thinks the policy is good long-term policy and politics

2) The party things they will be back in power in a reasonable length of time

3) The party thinks the policy will not be reversed when they are out of power

It’s undoubtedly true that the Democrats believe number 1, and all historical precedents show that number 2 is true (if they survived the Kansas-Nebraska Act, the Democratic Party can survive anything).  The third tenet is more problematic. From an individual perspective it’s probably decisive. It’s one thing to give up your job for a public policy outcome; it’s entirely another to give up your job for a public policy outcome that is repealed immediately following your election defeat. (Of course, all of these things are probabilistic; you will lose re-election at probability X and your policy will be repealed at probability Y and those are both numbers you can estimate and base decisions upon). The same logic probably holds from the perspective of the party.

Think this through for a few moments. If you’re a liberal, ask yourself: how many years would I give up control of Congress and/or the Presidency in order to get the health care bill I like? Likewise, if you’re a conservative, ask yourself: how many years would I give up control in order to achieve substantial Medicare reform, or social security privatization. It seems to me that these partisan goals are easily worth giving up power for two or three Congresses (conditional, of course, on not being repealed). And once such actions are taken, it strikes me as silly to bemoan one’s electoral condition subsequent to the policy. Example: President Obama’s two signature initiatives of the 111th Congress were the stimulus bill and health care reform. Both were controversial at the time, both passed, and now you have many liberals bemoaning the President’s electoral circumstances. But why? This is a fine example of a party campaigning on a platform, enacting the program, and standing for re-election. Would you rather not have the policies? That seems (from a liberal perspective) silly.

One argument I will hear counter to this from liberals is that they are paying the price for a stimulus plan that (a) was necessary as a response to circumstance; and (b) staved off a depression but didn’t reduce unemployment, and thus looks like a failure to the median voter. In effect, they feel wronged because they enacted a policy to clean up someone else’s mess, and then when the marginal effects weren’t visible in the absolute indicators, the someone else blamed them for bad policy. That may be so. But I pose the question to liberals on their own terms: take your own counterfactual — global depression — and ask what your electoral fate would have been under those circumstances. I see exactly no possibility that President Obama and Speaker Pelosi would be in power come January 2013 under the condition of 25% unemployment beginning in 2009. Governments do not survive depressions that set in on their watch.

There are institutional factors that mediate all of this. In a strict parliamentary system, reversal of policy is much more cut and dry than in a Presidential system, especially when the election in question is a mid-term. There’s also a stickiness to public policy that makes reversal much less likely as time goes on. If a policy is not immediately reversed, there is a strong chance that it’s implementation, if even moderately successful, will reshape the issue space such that future adjustments to the policy will be just that, adjustments. This hold across a wide variety of policies — entitlements, taxes, social policies — that are often subject to strong proposals for radical adjustment, but rarely attacked fundamentally for repeal.

Another mediating factor is the lack of counterfactual knowledge implicit in these decisions. Health care reform provides an example again. Just about everybody knew by the end that the Democrats were going to lose seats in the House. And there was good circumstantial evidence that those losses were at least partially attributable to the health care debate in ’09 and ’10. But there were a fair number of liberal voices arguing by Spring ’10 that not passing the bill at that point was going to cost more seats than passing it. Similarly, polling evidence seems to suggest that Republican House Members might pay some electoral penalty by voting for the debt limit increase. But the counterfactual — how much of a penalty would they pay by not voting for it, given the unknown consequences of doing that — is unclear. And therefore determining the marginal effect of these sorts of decisions is very difficult, even at the individual level. At the party level, it’s immensely complicated.

And so all of this tends to interact with the various theses you hear from your friendly academics, journalists, and crazy uncles, regarding polarization and partisanship and all of that. It seems to me that one of the axioms of modern intellectual centrism is that policies which tend to hurt a party’s electoral chances are inherently bad policies. I think this is wrong, and probably disingenuous. For one, it collapses the idea of representation into a pure delegate model of Member behavior. That seems normatively wrong. But it also comes off as very self-serving, as the delegate model is often the strategy picked by the centrists, as they tend to come from swing districts and their incentives are strongly aligned with very carefully reflecting their constituents and often avoiding difficult choices.

Parties which take strong positions and stick with them may lose election. But they also have the ability to enact significant policy. While these two things always require a balancing act, I think it would be wise for parties to seek institutional structures and procedures which fight against the tendency to equate electoral seat increases with good policy choices. So many forces in a democracy inherently  tend toward this line of reasoning, and it would well serve programmatic-oriented parties to be cognizant of, and institutionally resistant, to such tendencies.