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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Which brings us to clustered voting.

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

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

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

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

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

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

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

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

Oh, Nelly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Enjoy the game tonight, everyone!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kerpin did get one thing right in his article:

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

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

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

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

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

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

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

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

Two statements that I think are indisputably true:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References

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

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

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

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

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

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

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

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References

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

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

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

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

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

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

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

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

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

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

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

Friday morning, on the plane

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

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

Me: President Obama.

Anna: Like on our place mats at dinner?

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

Anna: When will you be President?

Me: Well, I’m not old enough.

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

Me: Would you vote for me?

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

Friday midday, at my mom’s house

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

Me: Why do you say ‘clown’?

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

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

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

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

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

Friday evening, at childhood best friend’s house

Me: You been following the GOP debates?

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

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

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

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

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

Me: Ha! What do you mean?

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

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

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

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

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

Me: Yeah.

My sister’s house, Saturday afternoon

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

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

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

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

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

Me: I agree. I think he could beat…

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

Me: Would you vote for Perry against Obama?

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

Me: What about Cain?

SFIL: No chance.

Me: [joking] Racist!

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

My mom’s house, Sunday afternoon

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

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

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

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

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

Me: What did you mean by slippery?

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

Me: Weren’t you a Hillary supporter?

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

Me: So who do you like?

Aunt: I’ll probably just vote for Obama.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But I’m not so  sure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Event

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

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

Question

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

Solution

Use Bayesian inference.

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

Written in simple notation:

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

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

P(Nom|E1) = .24

Answer

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

Discussion

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

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

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

Someone check my math. Everyone assess my priors.