Yesterday, I discussed the explosion of inbound email to Congress, and some of its possible impacts, particularly the way it alters a congressional office’s representational relationship with citizens and potentially has a nationalizing effect on politics, because of the difficulty of filtering out constituents from non-constituents. I don’t want to make too much of this, however, for a few reasons. First, it would be vastly overstating the case to say that email is nationalizing congressional politics. If it is having an effect — which we don’t really know, after all we’re just theorizing here based on some aggregate statistics and anecdotal evidence — the effect is a marginal one, and almost certainly pales in comparison to other nationalizing forces in congressional politics.

Second, I kind of (purposefully) set up of a strawman yesterday when I said there isn’t a sorting algorithm for constituent email. As most interns on the Hill know (and as several emailed to remind me yesterday!), there are techniques for filtering out non-constituent email. A little background: almost every congressional office uses a Correspondence Management System (CMS) to process constituent communications, the most popular being Intranet Quorum (IQ). The CMS has a database of all district constituents, and allows you to input all aspects of a constituent mailing — date, subject category, opinion, response, etc. — for the purpose of tracking both individual and district-wide communications data.

So one way to filter the emails — which almost all offices try to do now —  is to force constituents to fill out a web form when sending an email to the office that includes their address. That way, you can cross-check it with the CMS and determine whether the sender is a constituent. Of course, there are problems with this. First, it doesn’t work when people skip the web form and directly email staffers by finding out the email address of the LA on their topic of interest. Second, it requires the web form, which may dissuade actual constituents from writing. Third, it can be beaten relatively easily by anyone who really wants to flood Congress with opinion mail; whereas the old postal sorting system could only be beaten by postmarking stuff from each district, a strategic emailer needs only harvest an address from a district.

The end result is that a lot of the representational promise of email from the mid-90’s has not been borne out. At the outset of the email explosion, many people thought it might be a possible source of data for an office, one that could provide a good guide to district opinion. But at this point, it has largely become something that needs to be managed. The low cost of sending an email has resulted not in more useful communication from constituents, but just more work for interns and staff assistants to make sure that every constituent gets a timely response to their inquiry. And so the largest effect of the inbound email explosion has been on the structuring of the congressional offices: more low-level staffers than ever are assigned to correspondence work, but paradoxically the correspondence itself is of less value to the office.

Now, some will say this was always true of the postal mail. That its value to the office was entirely negative, it only created work in making sure that constituents got timely responses, and that the ideal point for any office was to receive zero constituent mail. Undoubtedly, in many cases that was (and is) true. If you are a solid pro-choice Representative, the only thing that pro-life mail does is generate staff work and resource costs in logging the CMS, printing out the form response for “pro-life constituent position inquiry,” and paying the postage to mail the response.

But I can also clearly remember instances of the mail being used to measure the balance of intense district opinion over hot issues. I worked for a conservative Democrat in 1998, who was very torn on impeachment. We tracked every district letter we received for three weeks leading up to the vote, and the fact that they were 70/30 against impeachment made a strong impression on the staff and my boss.And that’s something that I don’t think is possible with the email. Or at least not as possible as it used to be. And so ffices are left in an odd situation: many of them like to “see what the mail says” when they are thinking about hot legislative decisions, but the mail (and the phone calls in the age of cell phones and free long distance) is less representative of the constituency than it used to be.

But leave all this aside, because what I want to talk about today is the other side of the email explosion — the email and other electronic communications sent out of the congressional offices. I don’t think there’s any question that this side of the equation is not only fundamentally changing how congressional offices think about their constituent communication strategies, but also having a marginal effect on the nationalization of congressional politics, by offering Members the capacity to reach a national constituency that did not previously exist. And in the right circumstances, many Members might find strong incentives  to seek such national constituency. Now, we don’t want to go to far with this thinking; Members still get elected in districts by local constituents, and that’s always going to create an overwhelming incentive to focus on the geographic district first.

So with that caveat in mind, here are five points:

1. Electronic communications are different than old-school mail in three important ways. First, they have very low marginal costs. Sending franked mail to the district not only incurs a fixed marginal cost per letter, but also comes directly out of the Representative’s MRA in the House; any time you send a sizeable mass mailing to your district, it eats into the budget that could be used for staff or other resources. Electronic communications — be it email, social media, tele-townhalls, web advertisements, etc. — tend to have fixed capital or startup costs, but are then largely free on the margin.

Second, congressional offices are not limited as to who they can contact with electronic communications. Following a federal court action (Coalition to End the Permanent Government v. Marvin T. Runyon, et al., 979 F.2d 219 (D.C.Cir. 1992)), the Rules of the House were amended to restrict Members from sending franked mail outside of their districts. So it’s not even possible to reach a wider-than-district audience with postal mail. Electronic communications, however, are not so limited. Members can build email subscriber lists — many offer such subscriptions immediately upon entering their website — and the use of social media tools like Facebook, Twitter, and YouTube allow Members to broadcast and interact with a potential constituency far wider than their geographic district, if they want.

Finally, electronic communications are fast. This is obvious, but it has important ramifications for how congressional offices choose to use it and how it shapes their communications strategy. Once upon a time, if you wanted to send out a tick-tock on the movement of a policy of interest through the floor, the only outlet was more or less to fax a press release to any newspaper that might listen, which invariably meant the local newspapers in your district. There was no point in trying to send postal mail directly to constituents at that speed. Now, however, you can tick-tock floor activity or other business to subscribed email lists or social media instantly, and if you want to send unsolicited mass communications to non-subscribed citizens, the lack of printing time and postal costs let you move them quickly through the franking commission and out the door.

2. The use of franked mail is at record-lows; the use of electronic communications has skyrocketed. The above is all great in theory, but what’s actually happening on the ground? Well, for one, the total cost franked mail coming out of Congress (adjusted for inflation) is at its lowest point since Congress began reimbursing the Post Office for congressional mail costs in fiscal year 1954. In nominal dollars, franked mail costs are down to $12.8 million in FY2011, from a high of over $113 million in FY1988.

Now, the steep decline in mail costs between the late 80’s and the mid 90’s was due mostly to two reforms: public disclosure of mail costs for individual Members, and direct charging of Members’ budgets for the cost of mail they send, instead of allowing unlimited mailings from a common funding source. But there’s a more telling decrease in mail costs in the last eight years, which is somehwhat masked in the chart. Here are the odd-year mail costs from FY2003 to FY 2011:

FY2003: $19.3 million

FY2005: $17.5 million

FY2007: $17.5 million

FY2009: $16.8 million

FY2011: $12.8 million

That’s a 33% drop in just five cycles. And comes during a period when the price of a stamp (which is a rough measure of postal cost inflation) went from 37 cents to 44 cents, more than a 20% increase.

(As an aside, the pattern persists of more mail being spent in even-numbered fiscal years than in odd-numbered years. While many observers have attributed this to the increase in mail sent prior to the elections, the truth is actually more complicated than that. The single month with the most mail sent during any Congress is almost always the December of the first year, as many Members send out end-of-session newsletters. By quirk of the fiscal calendar, which start in October, that means that the two peak months of franked mailing — December of the odd-year and the more modest increase in the two months before the pre-election cutoff in the even-number year (June and July) — happen to fall in the same fiscal year, distorting the stats. If you go by calendar year, there is almost no difference between election-year and non-election year mail totals, as the two peaks cancel each other out. I will do a full blog post on this someday.)

Well, how about the other side of the coin – what has happened to electronic communications coming out of Congress? We don’t have quite as fine-grained data as we do on the postal side, but we have a good proxy: the volume of “mass communications” (defined by the House as “unsolicited communication of substantially identical content to 500 or more persons in a session of Congress” which includes things like mass unsolicited emails, web or print advertisements, radio spots, newspaper inserts, etc. the House has been tracking this data since FY2009. Basically anything you send unsolicited to a whole bunch of people. The chart below shows the volume of quarterly mass postal mailings in the House from 1997 to 2008, and then the quarterly volume of all mass communications (which include postal mailing) from 2009 to 2011.

This graph should be striking. Mass postal mail volumes follow a familiar pattern of peaking in the last quarter of the first year of each Congress (from the December newsletters) and then again in the period preceding the election, and then drop off in the prohibited period (late 3rd quarter and early 4th quarter of election years) and the lame duck 4th quarter of a Congress as well as the 1st quarter of a new Congress. In the first Congress in which mass communications were tracked — the 111th, 2009-2010, a similar pattern was observed, albeit at a naturally greater scale (since mass communications are inclusive of mass mailings). But then in 2011, in the first session of the 112th Congress, the mass communications simply explode, to something like approaching 10 times the volume of mas communications sent in the first quarter of 2009.

My instincts tell me this isn’t due to radically-increased use of mass faxes or mass newspaper inserts. This is almost certainly electronic communications of the internet age, taking off for real out of congressional offices. I have not examined the data carefully yet at the individual level, but I think there’s good theoretical reasons to believe that a lot of it can be attributed to two things: first, the influx of 90+ new House Members, most of whom have come to politics in the information age. Second, and related, is the effect of the 2010 election, in which social media and electronic communication played a large role in both campaign information dissemination and fundraising strategies. Freshmen Members are arriving in Congress already electronically plugged-in to large networks of constituents and non-constituents through email lists, Facebook accounts, Twitter feeds, and other media. In short, times are changing and young replacement Members are most savvy to it. That would be my guess, at least.

Anyway, with the outbound data trends out of the way, let’s get back to the more speculative talk about the impact this might be having representation:

3. The opportunities for surrogate representation have seemingly incrased. In her excellent APSR article, Jane Mansbridge defines surrogate representation as happening when Members represent constituents outside their district. In the traditional formulation, this often happens around specific issues with dispersed national constituencies: Dennis Kucinich representing anti-war advocates, Barney Frank representing gay rights advocates, and so forth. My sense is that, twenty years ago, very few Members were engaged in such surrogate activities. They simply did not have the resource capacity. Members were (and still are) of course barred from sending franked postal mail outside of their districts. The only way to get a national audience was to get on TV — which usually meant having at least the power of a committee chair, or doing something extraordinarily provocative. And it would have been crazy to suggest spending any significant portion of campaign money on outside-the-district activities.

Today, the entire playing field has been rearranged. Even backbench Members can seek a national followings with relative ease, and at virtually no cost. The Internet, and in particular the social media application like Twitter, Youtube, and Facebook, have zero marginal cost. One can stake out an issue, make a concerted effort to become a national leader on the issue, and have some chance of success, all without expending pretty much any marginal resources. The upside is clear: national leadership on issue means a higher political profile both inside and outside the House, more campaign fundraising opportunities, and (lest we forget) greater opportunity to influence public policy. My sense is that Members are beginning to alter their representational strategies around these facts: connecting themselves to national movements, inserting themselves into national policy debates more often, and modifying their fundraising strategies to more optimistically look for out-of-district money. And the more that Members engage in surrogate representation, the less they engage in traditional district representation.

4. There may be electoral pressure to nationalize representation. But it goes deeper than this. Electoral challengers may be nationalizing their representation, too. Why wouldn’t they? If a Twitter townhall  focused on a national issue or a viral youtube clip can expand your potential fundraising base, get your name in faraway papers, and maybe get you invited onto a cable news show, there’s almost no incentive not to do it. Add on that nationalizing a challenger campaign can create an army of pseudo-activists to target the incumbent and its a no-brainer. And thus Members choosing not to undertake a new media strategy might at a serious disadvantage. And pretty much any new media strategy is inherently a nationalized strategy from a infrastructure perspective.

5. Such trends would be in conflict with the basic electoral logic and Fenno-esque model of constituent relations. Certain things have not changed. The most important, of course, is that only people in the district can vote. But there are other important things too: district offices have to be in the district, franked mail still can only go to the district, and so forth. So the electoral connection, and most of the resources available to maintain it, are still tied squarely to the district. And this means that Members will always be tied, first and foremost, to the district. The largest Fenno constituency that the Member has — the geographic constituency — still rules. But it may not be the largest constituency the Member sees anymore when he looks bak home from Washington. The national constituency may now enter his or her thinking — whether he wants it or not; whether he knows it or not — in a way that fundamentally rearranges the lens through which he sees his district.

This has potential implications. The most important thing that comes to mind is that the Member may greater incentives now than ever to try and shape his district in a more national mold. This would be akin to Mansbridge’s idea of “educating” the constituency under an anticipatory representation model. But it might just be a Member choosing to frame issues in the district in a national way, or choosing to emphasize national over local issues when communicating to the district.

6. But the constituents themselves may be nationalizing. Nationalizing their representational profile, of course, is also potentially dangerous from a Member perspective. As Mayhew writes in The Electoral Connection, Members treat national partisan or ideological swings as acts of god that they can’t control; they instead focus on what they can control, mostly district-related things. To tie one’s fortunes to the national party is to place one’s future in someone else’s hands. But this may dovetail with what is happening to constituents: it’s not crazy to suggest that voters themselves are nationalizing as well. And if that’s the case, then Members may be forced into a national representational context, one that affords them less safety from trends they cannot control.

Now, again, we don’t want to go overboard here. The electronic communications are at best having a marginal effect on nationalization of politics or transformation of Member offices, and the effect is almost certainly indirect if anything: by increasing the capacity of Members to nationalize, it offers a greater strategic menu of options to Members who might want to go that route. But working in concert with other nationalizing forces — the centralization of party power in Congress, the nationalization of fundraising, the breakdown of local and regional media structures, etc. — I think it may be playing a bigger role than is currently appreciated.

[This is part 1 of a two part post; for part 2 click here]

It’s no secret that the Internet has radically transformed the practice of legislative politics on Capitol Hill. Information is everywhere, and moves like lightning. And so I’m going to spend a few days writing some quick posts about one dimension of the change — changes to constituent communication — which is exemplary of the bigger picture of technological changes on the Hill.

Despite the somewhat obvious nature of the basic thesis — the information explosion has altered many aspects of legislative politics — people sometimes underestimate the magnitude of the change. After all, some of the trappings of the Hill give off the appearance of an institution and a culture that strongly defies technological change. Official politics still takes place face to face, both on the floor and in committee, in their office; Members still physically walk from their offices to the floor in order to debate and cast votes; and heck, the Senate still votes by calling the roll, no different than they did in the 18th century. The visible practice of politics, as seen on C-SPAN or gleaned from walking around the Hill,  is hardly different than it was in 1960. Or 1860, for that matter.

But below the surface, things have radically changed. Members no longer seek information so much as look for better ways to sort and filter it. Staffers are no longer chained to their desks and their hard-line telephones. And, perhaps most importantly, the relay of information from the Hill to the rest of the country (and vice-versa) has been reduced, time-wise, to basically zero. As soon as it happens here, it’s known everywhere. And not only is the information relay faster after something happens, but the outside, non-Hill world feels closer to the policy-making process before anything happens. And that has consequences.

And the most basic consequence is that which corresponds to the most basic feature of a legislature: the representation of a body of constituents by an elected individual, and the communicative relationship between the constituents, the representative, the election, and the political and policy decisions the representative makes. To which I present figure 1, which plots incoming mail to the House and Senate since 1996, as a function of delivery medium. The top line (black) is incoming emails, the bottom line (red) incoming postal mail.

If you don’t work in politics, this graph is probably pretty striking. If you do, it’s probably either familiar or terrifying, or both. Members of Congress interact with constituents in a variety of ways: in person, both in their districts and in Washington; over the phone when people call their offices; and through the mailing of letters. We can’t say for sure how many people a Member meets in person or how many phone calls come to the Hill each day. But I think it’s safe to say that, traditionally, neither of those forms of communication ate up nearly as much time as the mail did in a congressional office. The mail comes three times a day in Congress, and it’s unrelenting.

At least that’s my recollection from 1998, when I was a lowly intern in the House and spent much of my day opening it. And so it makes me shudder to think that, back then, the postal mail was still the majority of mail that came to Congress. Since then, of course, it has fallen (about 16% less postal mail incoming to the House since 1998, down from about 15 million pieces to about 12 million pieces). But it’s been replaced by three hundred million emails. In fact, postal mail is now just 7% of all mail coming to the Hill. And that 7% is actually 100% of the mail that was coming in 1994. Terrifying.

A few things worth discussing:

1. First, some technical details. Email was first available and used on the Hill in late 1994 or 1995. No hard data exists on total usage prior to 1996, and data for 1996 and 1997 are only estimates. Second, incoming postal mail does not include mail sent to district offices, just mail sent to the Capitol complex in Washington; email volumes include all mail sent to House or Senate email addresses, regardless of end-user location.

2. More technical stuff. The email numbers are post-spam filters (i.e. only mail that actually reached end-users). This makes them slightly difficult to compare year to year, since the spam filters (as well as the spam senders) have gotten dramatically better over the years. In fact, the large peak in 2007 and the drop-off following it are almost certainly do to the explosion of more intelligent spam and the corresponding adoption of powerful new and improved spam filters in both chambers that year. The lesson, as always, is that these numbers represent a trend, not precise reflections of reality, and should be treated with that in mind. Especially since the spam filter for postal mail — an intern throwing the junk mail in the garbage can — has not changed during the period.

3. With postal mail, it was always easy to know if you were being written to by a constituent or by someone from outside your district. The rule of thumb for sorting such mail is typically something like this: if it’s a constituent or interest group from our district, put it in the pile for things that we will promptly respond to; if it’s a constituent from outside our district, put it in another pile for things that we will promptly deliver to the correct office; if it’s a interest group from outside our district, look through it quickly and see if it’s personal or a form letter / mass spamming. If it’s the former, consider responding. If it’s the latter, definitely trash it.

The problem with email, though, is that you can’t tell if the sender is from the district or not. And there are quite obvious incentives to not exclude anyone who might be a constituent. And so the incoming email has a tendency to nationalize the constituent communications techniques used in most Member offices; there’s just isn’t a sorting algorithm that  lets you separate your constituents from other citizens.*** Which means that the information context Members are facing in their offices is much more national in scope, even after they’ve tried to filter it. This has consequences. For one, it forces a complete rethinking of an office communications strategy. But it also distorts one’s perspective of district opinion, and tends to orient Members toward national public policy; people from outside the district are much more likely to communicate about policy issues than distributive politics such as grants or earmarks. More on this tomorrow.

4. From an institutional point of view, one key consequence of this explosion is the pressure it puts on congressional staff. Constituent and/or interest group service and communications is an important aspect of what goes on in Members’ personal office, but it is far from the only thing that goes on. To the degree that more staffers need to be allocated to the collection, processing, and responding tasks associated with incoming communications, the less staff time that there can be allocated to policy or other work, or the longer hours staffers need to put in. And while the number of staffers working in personal offices has increased modestly in the last generation (about 6% increase in Representatives’ offices since 1982), the prospects for a significant future increase — namely the proposition of a substantial increase in the Representatives’ MRAs or the Senators’ SOPOEA — seem quite dim.

*** This was (somewhat) sloppy writing, to make a point. I probably should have said “definitively lets you separate,” since there are certainly methods to filter out some non-constituents, the most popular being the IQ CMS software. I address the pros/cons of IQ in my followup post. The most important problem is that while IQ easily filters out people who weren’t trying to send you non-constituent mail, it is easily and routinely beaten by those who are strategically and purposefully sending mail disguised as constituent mail.

[Citations for appeals to common sense here and here (Chertoff), here (maj. op. pg 11) and here (Roberts), here (Paine).]

Previous Venn Diagrams

SCOTUS

Clarence Thomas, 3/29/12

GOP CANDIDATES

Michele Bachmann, 12/22/11

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11Up

Willard Mitt Romney, 12/21/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11

Previous Venn Diagrams

Michele Bachmann, 12/22/11

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11Up

Willard Mitt Romney, 12/21/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11

[updated to reflect first comment]

There’s not a week that goes by in which I don’t end up debunking some urban legend about congressional perks. That Members don’t pay social security. Or that they get free tax advice. Or that they get free health care. Or whatever. Virtually none of it is true, as we will see below.

Well, at least not true anymore. Once upon a time, there were a fair number of things that could be classified as Member perks. Right through the 1980s, in fact. But in the wake of the House Banking Scandal, the House Post Office Scandal, and the 1992 election — perhaps the only true anti-incumbent congressional election ever, save 1854 —  the perks were more or less eliminated. In fact, for all the solid, institution professionalizing reforms that the GOP instituted in 1995 (which I still believe is their most important positive legacy), the period between 1990 and 1995 was also a highwater mark for reform efforts, particularly those aimed at cleaning up the image of the institution.

And I’m reminded of a story former Speaker Carl Albert tells in his 1990 autobiography, which so perfectly captures the old-school mindset about these sorts of perks.  The story is about 32-year Representative Tom Steed (D-OK). Steed was confronted by the local paper in Oklahoma about his taking of congressional perks, including flying first-class back and forth from his district to DC. Steed supposedly responded, “What the hell, I’m a first-class Congressman.” And in the autobiography, Speaker Albert doesn’t knock Steed. Quite to the contrary, he applauds him. “He was a first-class Congressman.” And so times change.

Here are some common perk questions I get asked, and the answers to them:

Do Members pay Social Security?

Yes. Prior to 1984, federal civil service employees didn’t pay social security, nor did they receive social security benefits. Instead, they had a separate retirement plan, the Civil Service Retirement System (CSRS). Under P.L. 98-21, federal employees hired after 1983 had to pay social security, and all Members (regardless of when first elected) have to pay social security. Since CSRS wasn’t designed to interact with Social Security, federal employees (including Members) who began service after 1984 were eligible for a new retirement system, the Federal Employee Retirement System (FERS).

Do Members receive free or reduced rate health care while serving?

Incumbent and retired Members are eligible for the Federal Employees Health Benefits Program (FEHBP) under the same terms as other federal employees.  The cost of the premiums are split between the employees and the federal government. The current formula comes from the Balanced Budget Act of 1997 (P.L. 105-33), which sets the government contribution at 72% of the average premium of all plans  but no more than 75% of the premium of any individual plan. By comparison, according to the Department of Labor, private sector employers’ share for coverage is 81% for individual coverage and 71% for family coverage.

Do Members receive reduced rates for services of the attending physician?  Do Members receive reduced rate prescription drugs?

For an annual fee ($503 in 2010), Members can get basic health services from the Office of the Attending Physician in the U.S. Capitol and five other Capitol Hill locations. Dependent care is not included, nor is surgery, maternity care, dental care, or eyeglasses. Prescriptions may be written, but not filled, except for starter doses and emergencies. In the past, Members were eligible for services, including prescriptions, of the attending physician at no charge. In 1992, both the House and Senate eliminated the prescription benefit and instituted annual fees for the services.

Do retired Members get reduced-rate medical care?

No. They receive the same benefits as other federal employees:  a one-time election to continue  in FEHBP as a retiree, assuming they have been in it for five years and are eligible for an annuity.

Do retired Members get special pensions?

Sort of. Members can participate, as do other federal workers, in either the CSRS (if they were elected prior to 1984) or the Federal Employee Retirement System (FERS). The only difference between Members and other federal workers is that Members (as well as congressional staffers) have slightly higher contributions to the retirement systems, but are eligible for slightly higher benefits at slightly lower ages, with somewhat shorter vesting requirements. The rationale behind this is that congressional employees — be it Members or staffers — have somewhat less job security and therefore less certainty about their tenure.

Do Members receive reduced rate life insurance?

Members can participate in the Federal Employees’ Group Life Insurance Program (FEGLI) under the same terms as other federal employees.

Do Members receive reduced rates for use of the Capitol gym or other athletic facilities?

Both the House and Senate maintain a private gym for Members’ use. The annual fee for Members is about $250.

Can Members obtain free tax help from the IRS?

Until the 1990s, both the House and Senate opened temporary tax assistance offices to answer questions regarding tax return preparation. These offices were open to the general public and available for anyone to use, although by dint of their location, the services naturally were enjoyed mostly by Members and congressional staff. In 1994, the House discontinued the practice. The Senate discontinued the practice a year later.

Do Members receive reduced rates for use of Capitol restaurants, dry cleaning services, or barber/beauty shops?

Capitol restaurants, dry-cleaning vendors, and beauty/barber shops provide services at prices comparable to market rates. Some services — such as the House barber shop and beauty salon — have been privatized; others remain publicly run. Prior to changes made between 1992 and 1994, these services were often available at reduced rates. Members, however, have never received official rates that differed from staffers or from the general public.

Do Members have the option of buying furnishings from their House or Senate offices when they cease being Members of Congress?

In the House, departing Members can buy a standard Member desk and chair from their Washington, DC, office. The cost of the desk is  approximately $1,000 and the chair $500. Under House Administration Committee regulations, Members-elect may choose to acquire any furnishings and equipment currently located and in use in their predecessors’ district offices. Any furniture and equipment not selected and retained for use by them, may be purchased by outgoing Members.

In the Senate, departing Senators may purchase office equipment located in their Washington, DC, or state offices, subject to certain restrictions. They may purchase only one of each type of equipment, and it must have reached the end of its expected useful life and been declared surplus to the needs of the Senate by the Sergeant at Arms at least 30 days prior to the end of a Senator’s tenure. A departing Senator may also purchase his or her Senate chamber chair. Within 30 days of leaving office, a departing Senator has the option to purchase any furnishings provided by the General Services Administration (GSA) in one home state office. The purchase shall be at depreciated fair market value prices and in accordance with regulations prescribed by GSA.

Do Members receive special parking privileges at Reagan National Airport or Dulles International Airport?

Members have received free parking in preferred lots at Reagan Washington National Airport and Dulles International Airport since the facilities opened in 1941 and 1962, respectively. However, this benefit is not specified in statute; the parking spaces are provided as a courtesy by the Metropolitan Washington Airports Authority. A legislative attempt to explicitly deny the benefit was defeated in the Senate in 1994 (S. Amdt. 1632 to S. 540, 103rd Cong., 2nd sess., Apr. 20, 1994).

Are there really free ice deliveries to Member offices on Capitol Hill?

Not anymore. It was discontinued in 1995.

Can you get a free or really cheap carwash in the Capitol Hill parking garages?

Not anymore. They were discontinued in the Senate in 1991 and in the House the following year.

Isn’t Congress exempt from civil rights and labor laws and such?

Nope. The 1995 Congressional Accountability Act applies 13 major workplace safety and other occupational laws to Congress, which previously did not apply to the legislative branch. One exception is the Freedom of Information Act. Of course, there’s a good reason for that: it may very well be unconstitutional to apply it; the speech and debate clause may prohibit it.

Do Members get to send constituent mail, and drive in fancy cars, and fly around the country, all for free?

Not really, and certainly not compared to how they used to. Once upon a time, Member travel and constituent mail costs were paid for in more or less unlimited amounts by the House. Members were given a certain number of trips they could take home to their district, but the cost of individual trips wasn’t really limited. Constituent mail was regulated as to what Members could send under the frank, but not how much. Even more to the point, Members did not have personal limits on how much mail they could send, nor did they have to disclose publicly how much they personally sent. It all came out of a general collective House account.

Contrast that with the system that emerged after a series of reforms were put in place between 1986 and 1998. Members may now travel to their district as often as they want, and they can still send as much franked mail as they want, but there are two general rules. First, all expenditures are now public. So every penny that Members spend on travel and/or franked mail is disclosed. Second, Members now have personal accounts (under the MRA system) from which all of their expenses are drawn. You can view the allowed and prohibited uses of the MRA here.

By formula, Members get roughly $1.4 million dollars each year in this account, which is used to pay their staff, buy office supplies, rent a district office, send mail, and travel. The upshot is that, unlike in the past, Members now have economic choices to make about franked mail and travel: every time you send franked mail or travel back to your district, you have less money to hire staff. The results of these reforms have been stunning: total franked mail expenditures in the House have decreased from over $77 million dollars in FY1988 under the old system, to just over $11 million in FY2011.

In effect, the combination of public disclosure and the market reform of fitting franked mail into the Members’ budgets has effectively incentivized more conservative budgetary behavior of Members. The larger point is that, yes, Members can still rent cars to use for official purposes, but the expenses for those rentals are now not only publicly disclosed, but also come at the cost of other possible uses of the money. Those two things won’t stop a determined Member from leasing a luxury car for official business if they really want to, but it does greatly disincentivize it. And I think it does take it out of the realm of perks.

Later this week, the House is scheduled to consider H.Con.Res. 112, the FY2013 Budget Resolution.

Well then. Congressional budgeting.

I’d like to discuss one particular institutional feature of the appropriations process — the 302(b) allocations of the Appropriations Committee — but in order to understand that, you need at least something like a bare-bones understanding of the overall congressional budget process, which is as complicated as anything else that occurs in the House and Senate. So let me take two paragraphs and try to succinctly lay out how it all works. If people are interested, perhaps I’ll do a Q & A style post later in the week on the overall process.

Ok. Bare-bones basic federal budget process in five sentences. At the beginning of a fiscal year, the agencies of the federal government begin developing their budgetary plans for the following fiscal year, which are aggregated and vetted by OMB and others in the President’s administration. Under law, the President is required to submit to Congress by early February a comprehensive Budget of the United States for the fiscal year that begins the following October 1. The budget includes proposals and an accounting of  incoming collections (revenue and offsetting) and spending (authority, obligations, and outlays), following standardized government accounting practices that have developed over the years. Under the Constitution, no money may be drawn from the Treasury except by appropriation made by law, and therefore Congress must either pass annual, multi-year, or obligation-creating laws that provide the budget authority requested by the President, or ignore the President, make their own budgetary judgements, and provide that amount of budget authority.  In addition, Congress must provide either a mechanism for revenue or other collections to cover the spending, or an authorization for the United States to incur debt.

Got it? Good. Bare-bones basic congressional budget process in five sentences. Beginning in 1974, Congress has enacted a series of laws and chamber rules that require legislators to adopt a resolution that sets for the aggregate levels of revenue, spending, deficit, and debt limit. Under law, the Budget Committee reports — and the chambers approve — a concurrent resolution that provides these budgetary projections or the upcoming fiscal year and future out-years, as well as mechanisms to constrain both direct spending (i.e. entitlement spending) and discretionary spending. Direct spending is controlled through the process of reconciliation instructions, which may instruct the standing committees that have jurisdiction over various direct spending to report changes to those programs. Discretionary spending is constrained by providing an allocation (known as a 302(a) after the Budget Act of 1974 section it comes from)  to the Appropriations committees, which sets a maximum amount of budget authority that the committee may report to the floor and provides points of order against consideration of bills which exceed the limit.

Got it? Good.  Now here’s where it gets interesting. What effect does the existence of the 302(a) allocation have on the House Appropriations Committee?

A huge impact. And lots to discuss.

First, what actually happens when the Appropriations Committee gets the 302(a) allocation from the approved budget resolution? Under law, they are required to divide it up among the subcommittees, into what is know as 302(b) allocations, which they then approve and forward to the floor. (Here’s an example). These 302(b) allocations are the maximum amounts which each subcommittee may report to the floor in their bills, and are enforced by points of order on the floor. If you step back for a second and give it some thought, you might arrive at a logical institutional conclusion: under the 302(a) and 302(b) system, individual subcommittees of the Appropriations Committee are not particularly capable of reducing spending, since they are set in competition for part of what is ultimately a fixed-size pie. And, indeed, that is what you often see with the subcommittees; absent an ability to constrain aggregate spending by reducing their own consumption, the subcommittees instead jockey and lobby for larger shares of the already-decided whole pie.

This arrangement has consequences big and small. From a macro point of view, the very existence of the 302(a) pushes the bulk of the labor to restrain spending off of the Appropriations Committee and onto the Budget Committee, both intellectually and functionally.  Prior to the existence of the 302(a) allocations, the Appropriations Committee was front in center if federal spending created huge deficits or was otherwise seen as too high. And consequently, the committee was regularly stocked by somewhat more fiscally conservative Representatives and led by fiscally conservative chairmen, who often saw their primary job as oversight, not appropriations.  Under the modern system, on the other hand, the Appropriations Committee cannot exceed the 302(a) allocation  both chambers of Congress have just approved. And thus the duty to constrain spending falls on the Budget Committee, rather than the Appropriations Committee.

As described above, at the micro-level this has serious consequences for how the subcommittees operate. Imagine you are a subcommittee clerk working with a subcommittee chair. Even if you care about restraining aggregate spending, you can’t really do that. You can certainly restrain your own subcommittees spending, but that shouldn’t be mistaken for restraining aggregate spending. For if you deliver a bill that comes in below your 302(b) allocation, the portion of your allocation that you didn’t use can simply be transferred for use on another bill coming out of another subcommittee. In fact, the Appropriations Committee is authorized to, and routinely does, reserve a portion of the 302(a) allocation to the full committee, which it can then use as needed if unforeseen budgetary situations arise between April and when the bills are finished later in the summer.

This points to another strategic dynamic: it’s not the worst thing in the world to be one of the last bills the committee reports out to the floor, because there’s often a bunch of money left over in the 302(a), either because the full committee’s reserve has not been used, or because spending was cut through amendments on the House floor. That’s right, when floor amendments cut spending, the equivalent spending isn’t taken out of the 302(a) allocation, and therefore it’s quite difficult to constrain aggregate federal spending by using floor amendments to cut an individual bill. Even worse, an amendment could be offered behind you to put the money back in to a different part of the bill.

Both of these concerns are somewhat mitigated by the “spending reduction accounts” created under rule in each bill at the beginning of the 112th Congress, which traps money cut by floor amendment in a functionally-fictitious account within the bill, theoretically blocking attempts to reinstate the money or to transfer it out of the bill. Even this, however, is far from airtight, since it doesn’t actually adjust the 302(a) allocation, and therefore doesn’t preclude use of reduction funds at a future stage, such as during consideration of a conference report. And in the House, the leadership can usually resort to a special rule to block points of order, if necessary, so long as they can get their caucus to support the rule.

In a very tight fiscal climate, of course, none of this really matters. When each appropriations subcommittee is facing the possibility of a net cut in funds relative to the previous fiscal year, there are very few Members or clerks seeking to further reduce funding beyond their 302(b) allocation. And consequently, it truly becomes a question of trying to get as large of a piece as possible from the divided pie. It’s not an exaggeration to say that the 302(b) allocation is the key piece of information that the subcommittee is waiting all Spring to receive. What are they doing in the meantime? Well, mostly working with the agencies under their jurisdiction to understand and conduct oversight of the agency budget requests and justifications, holding related hearings on those requests and justifications, and doing both formal and informal budget drills. But sometimes, eventually,  just waiting around for the number.

The budget drills — which are nothing more than producing proposed numbers for your bill and seeing how it adds up — are in some ways key. It’s common for the full committee front office to request that the subcommittees do formal drills at different allocation levels (say, flat, 1% increase over last year, 2%, and 3%), and report back their findings to the front office. Such exercise are both instructive practice and strategic opportunities for the subcommittees, who are of course jockey and lobbying for their 302(b) allocations. They allow the subcommittee staff to see how short they are against competing agency requests and therefore begin to plan priorities, but they also allow them to highlight to the front office how bad a low-end allocation might be for  items in their jurisdiction. And so the strategic incentives are often to report budget drill numbers that are the equivalent of agency threats to close the Washington Monument; it’s helpful to spot drill shortfalls in highly visible locations. Double helpful if you are in a zero-sum competitive environment and every other subcommittee has the same incentive.

Now, I’ve barely scratched the surface here. There’s a lot more that can be said. But my bottom line is that observes often overlook how the modern congressional budget process has affected the appropriations process. The reality is that it has fundamentally transformed it, both formally and in the practices and strategies employed by the subcommittee staff and chairs. Not necessarily for better or worse, but definitely for sure. And while there have been lots of changes to the practice of appropriations in the last few decades — most notably the larger role of the leadership in developing the subcommittee bills, the increased use of special rules to block floor amendments to the bills, the increased power of the full committee over the subcommittees, and the proliferation (but eventually shut off) of the earmarking within the bills — it’s my hunch that a lot of the changes are, at root, connected to the existence of the Budget Act and the constraints of the 302(a)-302(b) system.

So I walked over to the Supreme Court this morning, around 11:50am, after day 1 of oral argument ended in HHS vs. Florida, aka Is Obamacare Constitutional?

Every time I see or go near a public political protest, I’m reminded of something my dad — who was no stranger to a good Vietnam anti-war demonstration — used to always say: the only rational reason to go to a street protest is to meet girls. Period.

But, then again, he brought some of his liberal elitist’s narrow mindset to the term rational. Street protest certainly seems not only appropriate, but almost necessary for those shut out of the normal democratic process (i.e. African-Americans denied the right to vote; people under 21 who were being drafted pre-26th amendment; etc.). Not that any of that applies in this case. But as a libertarian, I’m willing to let a thousand flowers bloom; neither the means nor ends of others’ peaceful political activities need be rational in our own eyes. And the very practice of political activity, no matter how irrational or wacky, probably has some significant civil society benefits.

Anyway, here are some photos I took. I have a few thoughts — none addressing the constitutionality or soundness of Obamacare, you have ten thousand better source options than me for that today— below the pictures.

Here are three things I was thinking about as I walked down 1st Street NE:

1. The scene in front of the Court was not particularly memorable. Pretty weak showing by the demonstrators today. Maybe that was because no one cares about the Anti-Injunction Act and everyone is saving their big guns for tomorrow. Maybe it was because this is just another stop on a multi-year protesting circuit around this issue. It certainly wasn’t the weather: a windy but otherwise beautiful March day in Washington, with flowers in bloom and barely a cloud in the sky. By the time I got there, the grassroots protesters were easily outnumbered by the suits and media and, well, people like me, down there to take it all in and gawk. There was very little animosity; I saw a handful of cross-ideological chats going on. No slogans being shouted. Pretty serene, actually. Nothing compared to the major right-to-life protests, which are easily 100 or 500  times as large.

Now, this is not to say that I was disappointed. I think everyone should take a walk by the Supreme Court at least once in their life as a major case is being decided. It’s a very small-r republican feeling. And an instructive one too. The Court building itself is an iconic backdrop; you are directly across the street from the Capitol. The attorneys and interest groups hold dueling news conferences, like trial-lawyers from the movies. Reporters and photographers have massive setups, which serve to remind you that so much of this is staged, and so much of the television coverage scripted. And, most importantly, there’s a sense when you stand among the protesters that you are at the very interface of citizen and government in a republic. Also, markets in everything:  if you went there today, you got to see the people being paid to wait in line for entry into tomorrow’s oral arguments.

2. There’s no way around the fact that protesting at the Court is logically awkward. Despite what my father says, I understand the motivations of grassroots demonstrators and protest lobbyist. As I’ve written about before in the congressional context, they believe (probably correctly) that they are influencing policy in some way. But standing outside Capitol South Metro trying to influence staffers is quite different than standing outside the Court, because, well, the Court simply isn’t beholden to public opinion the way legislators are. Now, that’s not to say the Court isn’t influenced by public opinion, just that it’s exceedingly unlikely Anthony Kennedy is looking out his chambers’ window and being shaped by protesters standing on the plaza. If anyone in the government is insulated from public pressure, it’s the Court.

But I think everyone kind of knows this. Even the protesters. And that’s why it’s so odd to go to a protest at the Court plaza: no one there is really trying to influence the Court, at least not directly. The whole game, as with most protests, is to try to influence the national media, who can then file stories that influence public opinion or legislative opinion, or both. Every time I go to a protest at the Court, I always think the protesters are facing the wrong direction: standing there on 1st street, they all have their eyes up on the columns of the courthouse (odd to call it that, isn’t it?), and their backs facing the United States Senate. But try to explain to some intelligent alien what is going on, and his eventual question would almost have to be: why aren’t they standing on the steps of the Senate, or at least looking that direction?

Now, people will claim this is the case with street protests over congressional policy. That the whole point is to influence the media, either to distort public opinion as it is seen by legislators or to change actual public opinion on an issue. That’s true in many cases, but it’s not always true in Washington. The protests and demonstrations at Capitol South metro are there specifically to try to directly influence Congress, without the media middle man. Which sort of reinforces the underlying point: protests at the Court are inherently media events; there’s no other reason to be standing in that particular spot. You aren’t trying for direct influence, and you don’t need to be in Washington. So it strikes me as mostly a coordination game among the protesters or, perhaps more likely, a convenience factor for the press, since they have to be there anyway. I’m not saying it’s not the logical place to conduct the protest. It is.

But even a cursory logical inquiry into it makes you realize the protests are more about the 2012 election that about the court case at hand.

3. The Court protests can’t take advantage of the space. The Supreme Court plaza is really one of the great physical structures for holding a protest. Just a massive flat area at the base of the steps to the Court, all raised up about 10 steps from the street. It’s almost as if they built it with protests in mind. Of course, you can’t really hold your protests on the plaza, because 40 U.S.C. 6135 allows the Court police to keep people off of the plaza. Consequently, all of the protest really takes place on the sidewalk in front of the plaza on 1st Street NE, and the no-man’s land between the 1st street sidewalk and the steps up to the plaza.   Functionally, this is understandable. But it really takes what could be an awesome venue and reduces it to squarely mediocre.

We’re closing on our new house tomorrow and then moving in on Friday. So blogging for the rest of the week may be lighter. Or heavier. We’ll see.

Every Twelve Seconds.

That’s the title of the horrifying — but also absolutely wonderful — new political science book by Tim Pachirat.

I went to graduate school with Tim, and I can vividly remember the first time he told me about his dissertation plans.  We were standing on Prospect St. in New Haven, next to the bike rack outside of Brewster Hall, killing time in the way that graduate students are so good at on sunny days. I was babbling on about an idea I had to write some ridiculous thesis about anti-party thought in 19th century America. When I finally came up for air, I turned the question to Tim. What grand plans did he have in mind? I will never forget his response:

“I’m going to go work in a slaughterhouse in Nebraska.”

I didn’t even know how to respond. This was a crazy idea. Double crazy for someone allegedly interested in political theory. Triple crazy for a vegetarian allegedly interested in political theory. And quadruple crazy for a vegetarian allegedly interested in political theory who was living in the married student housing ghetto at Yale with a wife and young children.

But sane enough to eventually become one of the best books I’ve read in years. Not best dissertations. Not best academic books. Just best books. Period.

Every Twelve Seconds is about industrial slaughterhouses and what Tim calls the “politics of sight.” The title refers to how often a cow is slaughtered in the factory Tim worked, about 2500 over the course of a day. As he reminds us in the introduction, however, it is not a book about animal rights. It is about violence and society. In Tim’s words, it provides “a firsthand, contemporary account of industrialized slaughter, and does so to provoke reflection on how distance and concealment operate as mechanisms of power in modern society.” But I think that sells the book short. It’s part The Jungle. It’s part Fast Food Nation. It’s part Dominion. It’s part a how-to guide for ethnographic research. And it’s part a golden roadmap for how to write relevant and engaging contemporary political theory.

But mostly, it’s a brilliant narrative that recounts not only the industrial process of turning cattle into packaged meat and the political and social structures of the world in which that occurs, but also what it feels like to be a human cog within that world. A world where men must necessarily come face-to-face with endless violence, at all times. And how, in response, that world must be designed. And so while the language of the slaughterhouse requires the cattle to be only known as “beef” during the endless march up the chute to the knocking gun and the killing floor, the men who perform these tasks — mostly poor, most unskilled, mostly immigrants, all working at-will for meager wages and in constant fear of being fired — must also come to be seen as just raw materials by their supervisors, with job titles like Tongue Trimmer or Tail Harvester or Spinal Cord Remover.

The narrative leaves nothing to the imagination, either technical or emotional. From the 19th-century-like imagery of standing around the factory gates in hopes of being selected for a job to the visceral experience of spending a 10-hour day doing nothing but ripping still-warm cow livers off of conveyor-belted hooks to the numbing bureaucratic cops-and-robbers game that the quality-control team plays against the USDA-inspectors on a minute-by-minute basis over clean knives and hand-washing and the trimming of feces off meat in the cooler, you don’t just read about the world of slaughter, but you actually experience it. And that includes the evolution of your own thought: as with the author, you are initially horrified by the sights, sounds, and smells of the slaughterhouse when confronted with the reality that is hidden in plain sight at the grocery store. This is where our steaks come from? But through the course of the book, the reader develops much of the desensitization that the slaughterhouse worker uses as a coping mechanism. Your revulsion toward the killing floor eerily dissipates as you move through the book.

Outside of the narrative, two analytical highlights of the book stand out. The first is the maps of the slaughterhouse, and the woven-in micro-description of the geographic slaughter process. So well protected are slaughterhouses by walls and state regulations, that it is difficult to get good information on even how they are actually organized. Tim recreates visual floorplans of the entire factory, with detailed information on where each worker stands, every USDA inspector patrols, and the jobs that occur second-by-second as the beef moves through the slaughterhouse. This brings to life various aspects of the narrative: for instance, the sheer duality of the operation, which is simultaneously a well-thought out and masterfully-executed engineering marvel of  assembly-line efficiency, while also a disgustingly and surprisingly medieval operation: there is blood everywhere, the temperature is absurdly hot on the kill side and absurdly cold on in the cooler, the weapon of choice is the knife, and workers joke around by throwing animal fat at each other.

The second highlight of the book is the chapter on the bureaucratic oversight of the USDA. Much to my surprise, it turns out that a slaughterhouse has numerous USDA officials working full-time to monitor the production. One might think that this results in a high quality of meat (which it undoubtedly does relative to, say, 19th century industrialized slaughter), but the implication of Tim’s experience is that regulatory structure has become so routinized as to cease to be external to the process; instead, the regulations — or, more precisely, the skirting of the regulations — are the process. And so a cat-and-mouse game ensues between the quality control team of the factory and the full-time USDA inspectors, with the incentives offered to each of them veering so far from their underlying goals (profit and safe meat, respectively) that they appear to exist in an alternative world, where their jobs cease to reflect food production but strangely appear to symbiotically rely on each other’s existence. Not exactly a sideshow to the operation, but not not a sideshow, either.

There are those who may shy away from this book because it engages political theory. That would be a mistake. I hate contemporary political theory. I could no more finish a book by Foucault than I could write one. But this book neither drifts into that world nor relies on it, and the occasional forays that direction are not only tolerable but (surprisingly) very enjoyable. It all comes back to the human narrative, and the meticulous technical and emotional detail brought to it. You will never read a political science dissertation quite like this, because I don’t think one has ever been written. As Tim writes in his introduction, “the detailed accounts that follow are not merely incidental to or illustrative of a more theoretical argument about how distance and concealment operate as mechanisms of power in contemporary society. They are the argument.”

And a masterful argument at that. You will probably attempt to blind yourself to this book. It is much easier not to read it. But that, in itself, is kind of the point. As a meat consumer, it is debatable as to whether you are responsible for what goes on in the slaughterhouse, in reference to the animals or to the humans. And it is also debatable whether or not what goes on there is morally sound in a civilized liberal democracy. But anytime you seek to shield yourself from information because the very knowing of the facts might make you uncomfortable, well, that’s a strong sign that you are afraid of what your moral sense might find.

I’m somewhat hesitant to write about the ACA (aka: the health care law, Obamacare, etc.), because: (1) it’s not something I know a whole lot about at the political level; (2) it’s something I know absolutely nothing about at the policy-details level; (3) it’s not a policy I feel very strongly about one way or another; (4) discussions of it very quickly drift into partisan and ideological fights; and (5) there’s a serious possibility of not saying anything new and/or interesting. So not an exacta, not a trifecta, not even a superfecta, but the rare quint-fecta of dangerous commentary waters!

This could get ugly. But let’s get it on.

I’m much more interested in the constitutionality of the ACA than I am in the actual policy. And not because I care all that much about the constitutionality of the ACA per se;  what I’m interested in is the effect that it will have on the future of congressional/federal power, as well as how it will fit into our understanding of the post-Lopez walkback from the psuedo-plenary commerce clause power of Congress that was more or less presumed at a practical level by the late 20th century.

Via a post by Jonathan Cohn this morning, comes Richard Primus’s theory that the Lopez decision will give the Supreme Court the room to declare the individual mandate constitutional:

As part of their socialization into the world of American constitutional law, lawyers learn the maxim that the federal government is one of limited and enumerated powers … [c]onstitutional law has tolerated tremendous expansions of federal power in practice, as the logic of modern life has directed. But it has proved easier to tolerate those expansions while continuing to pay homage to the maxim than to repudiate the maxim openly. A piece of our identity is invested in the maxim: articulating it reminds us of a part of who we are, or of a story in which we locate ourselves … Lopez was decided as it was partly because a majority of the Court felt that it could not uphold the Gun-Free School Zones Act and still utter the maxim. At oral argument in the case, the Solicitor General of the United States was asked to identify a law that the federal government could not make if the statute at issue were upheld. He could not provide an example.

…

That said, the maxim does not demand that the Supreme Court constantly strike down federal laws. It demands only evidence that it is taken seriously. Lopez and Morrison insulate the Court against charges of heresy on the point-not perfectly, but considerably more than would be the case had those decisions not been rendered. In later cases, the Court can uphold far-reaching exercises of the commerce power without laying itself as open to the claim that it has let the maxim come to nothing. When it upholds other federal statutes, the Court can identify concrete examples of laws that are beyond the commerce power, laws with respect to which it has exercised its solemn duty to police the boundaries of federal legislative power.So when it upholds other laws as within the commerce power, it can adduce evidence that it has not left the maxim empty.

This, to me, is a very-well stated description of what is actually on trial next week, and I think it is the crux of the issue with the ACA. It is fundamentally not a question of whether the individual mandate itself can be defended as Constitutional. Oh, there’s lots of debate on that, for sure. But the real issue has always been the one raised by Primus: if the commerce clause allows Congress to legislative the individual mandate, is there a hypothetical congressional Act that we can imagine that would not be constitutional? If there is not such a hypothetical law, must we then either accept that Congress does indeed possess plenary power and that the widely-held maxim of limited and enumerated powers is indeed dead and gone, or, if do not, then must we unwind the logic and accept that the individual mandate is not constitutional.

This is worth pondering, because from my point of view, at the heart of the debate over the individual mandate are two competing views of the Constitution, both of which can plausibly claim the mantle of “common sense.” The first point of view is the historical one: the text of the Constitution plainly limits the power of the federal government, and to read the document and decide otherwise is more or less absurd. To reject this premise out of hand is to willfully blind one’s self to even the most cursory analysis of the document. The competing point of view, of course, is the developmental one: over the course of 200+ years, the give and take of politics and court jurisprudence has unintentionally handed us what is more or less a common-law Constitution under which it is plainly recognized that the federal legislature is restrained only by specific textually prohibitions, and the will of the voters. Any other reading is absurd.

Now, the crazy part is not that these two competing views exist; the crazy part is that many people — including me — are instinctively drawn to both of them. This comes back to the common sense test. I’m not a huge fan of the ACA (based on what I know of it, which, again, is pretty chattering-class pedestrian), but I don’t find it the least bit unreasonable that the federal government would be allowed to regulate it. On the other hand, I don’t think the “broccoli test” — lampooned by many liberals as an absurd hypothetical — can be dismissed in one short stroke; I do not believe in a national legislature that has the ability to regulate all aspects of my private life down to what cereal I eat, held in check only by the will of the transient (super)majority. And I think that’s common sense, too.

And look, I’m not saying common sense is everything when it comes to SCOTUS decisions. But I think it matters. It matters to the justices — as the famous question asked of the government in Lopez indicates — and more importantly, I think it matters to the popular legitimacy of an upheld law. While the Court has never shied away from a decision simply because they went against common sense, many of the most popularly-detested decisions were hated precisely because they went against common sense. Dred being at the top of the list; it was just not a plausible understanding of America to implicitly or explicitly assert that the natural condition of all the territory in the United States was slavery, up until a state specifically prohibited it. Seventy years of common sense has said the opposite was true.

And so, to me, the chief job of the government next week at oral argument is going to be to find a way to square these two realms of common sense, that Congress can impose and enforce individual mandates on citizens to participate in private economic activity, but that there still exists a limitation on congressional power such that laws may be articulated that Congress cannot legally enact. To say that Congress never would enact such laws is not good enough. As with Lopez, I think the Court will not look fondly upon a government that meekly concedes no limitation on Congress. The alternative option, of course, is to proudly defend the plenary power of the national legislature under the commerce caluse. High risk, and incredibly unlikely. For no matter how much that has become the normative view of mainstream progressive thought, it woefully ignores the positive implications for the current Court.

Now, Primus and Cohn present a clever idea that threads the needle here and satisfies the common sense concerns. When Justice Scalia asks the government to identify a law that the federal government could not make if the individual mandate were upheld, the government will simply respond, “Lopez.” That is, even under the theory that the individual mandate is constitutional, the original 1990 Gun Free School Act would still be unconstitutional. And voila!, problem solved: we can uphold the individual mandate and continue to live in a world where the powers are Congress are, at some level, still not plenary. Not only will this be true at a factual level — Lopez, and the congressional limtis therein, will still be the law of the land — but more importantly, at a cognitive level. So long as the solicitor general can easily point out, and the Justices and the chattering class can easily take in, that there are still places Congress cannot go, we can all continue to sleep on the idea of an enumerated, limited federal government.

This is an interesting and important argument. But I’m not sure that it holds. It rests on the assumption that the Lopez decision will not be implicitly overruled by an upholding of the individual mandate. That’s certainly possible: the distinction at hand — and that was further articulated in Raich v. Gonzalez  — is that the Gun Free Schools Act simply had no connection to interstate commerce. Trying to link gun possession at schools to hypothetical increases in violence and then to hypothetical increases in insurance rates and thus the economy — as was one of the government’s principle arguments — was just a bridge too far. Fair enough. But read that last sentence again: in Lopez, the government specifically linked  gun possession to insurance costs. I don’t know if that sends chills down your spine, but it sure as hell should get you sitting up in your seat.

Because the very argument made in favor of the mandate now is that Congress has the power to regulate the health insurance market, and the individual mandate is legitimate simply as a  “necessary and proper” non-commerce means to an end that can plainly be regulated under the commerce clause. It’s a clean, straightforward argument. It’s the one Primus makes, and I think it’s the winning argument for the first half of the challenge facing the government. But it’s also potentially the fatal flaw in regard to the common sense problem. To wit: if the individual mandate is necessary and proper to the regulation of the health insurance market, what then stands in they way of the government barring possession of guns at schools as a means to regulate that same insurance market? Because while the Gun Free Schools Act didn’t pass the commerce clause test on its own, as a non-commerical component of a broad scheme regulating health insurance, it seems to fall directly into a Raich-esque sphere of legitimacy. At least plausibly.

In effect, it does not strike me as at all unrealistic to think that the upholding of the individual mandate is logically the death knell of Lopez. That is, if we are to accept the individual mandate, we are probably going to have to accept the dissenting view in Lopez, or something quite similar to it.  And if Lopez comes crumbling down, all of a sudden the solicitor general may once again be standing in front of the Court, trying but failing to articulate a limit on congressional power. Of course, I’m no lawyer, much less any sort of commerce clause legal expert. And sure, it’s a bit gimmicky to note that the government’s defense in Lopez articulated an insurance theory as the connection between gun possession and the economy. But that doesn’t make it any less real.

There are excellent policy arguments in favor of Congress regulating and providing for health insurance. And, as I have stated, it’s almost common sense that Congress should have the power to regulate and provide for health insurance more or less as they see fit. But as of yet, I have not seen an answer to the key meta-question at hand, which is “If we uphold this statute, what can Congress not do?” My guess is that a convincing response will be forthcoming if the law is upheld, since I can only assume that the Justices will not be able to uphold the law without articulating one. But I have not heard it  yet. And I do not think that Lopez gets you there.

Last week, in response to Pascal-Emmanuel Gobry’s suggestion that we increase Members’ staff and office budgets, I wrote a primer on how the Member’s Representational Allowance works in the House. Today, my goal is to offer the companion primer, on how committee funding works in the House. I’ll do it Q&A style, since it’s a bit complicated. (As with the MRA, I will focus on the House; the Senate process is slightly different, but operates on the same principles.) For background, you might want to start with my  post on the basic staffing structure in the legislative branch if you are totally unfamiliar with the terrain.

Q. How do House committees get money to pay for staff?

A. More or less the same way as Members do in their personal office: appropriations made under law in the Legislative Branch Appropriations, paired with authorizations that provide spending limits.

Q. So the Committee on House Administration Committee sets the spending limits?

A. Not exactly. They have jurisdiction over the policy area, but under Rule X, clause 6 of the Rules of the House of Representatives, the House Administration Committee reports a “primary expense resolution” to the floor that authorizes the expenses for each standing and select committee in the House (except for Appropriations). The resolution is then passed (or not) by the chamber on the floor. For instance, in the 112th Congress, the House Administration Committee report H.Res.147 to the floor, which was agreed to on March 17, 2011. Under Rule X, they are also required to submit a committee report (in this case, H.Rpt. 112-130) detailing the total funding and other information.

Q. Why doesn’t the Appropriations Committee get an authorization?

A. Under the 1946 Legislative Reorganization Act, the House Appropriations Committee is authorized to appropriate its own funds, separate from the funds for the other standing committees. So while the rest of the standing committees draw their funding from a single Treasury account (and therefore need individual limits on how much they can draw), the appropriations committee has its own Treasury account. From a practical politics point of view, it’s a reminder of the power of the Appropriations Committee; they need not submit to a funding process that puts their own funding in someone else’s control.

Q. Wait, the individual committees don’t have their own Treasury accounts?

A. Nope. And this is one of the most common misconceptions about how funding works in the Legislative Branch. Just as individual Members do not have separate Treasury account for their MRAs, neither do the standings committees. Instead, the appropriation for House committees is in two pieces in the Legislative Branch Act — one lump of money for all the committees except Appropriations, and a separate account for Appropriations. This is part of the reason that the House Administration Committee needs to report, and the House needs to agree to, authorized limits each committee; everyone is pulling their money out of the same general account.

Q. How much is appropriated?

A. In FY2012, just under $126 million for all the committees except for Appropriations, and $26.6 million for the Appropriations Committee.

Q. Wait, the appropriation is for a fiscal year? I thought you said the authorization was agreed to in March?

A. It was. There are two totally different timelines here. The funding for  the committees is appropriated — as like most federal appropriations — annually on the October 1 – September 30 calendar. The authorizations, however, are for calendar years (actually session-years, January 3 to January 2).

Q. I don’t get it?

A. Don’t worry, it’s confusing. Think of it this way: there’s a big garbage full of money. Every year we have to refill it with more money, because on October 1st, we can no longer use the money that’s in there. So we agree on how much to refill it with on October 1. Meanwhile, we want to let 20 different people take money out of the bag when they need it. So we set a limit for how much each of them can take out in any given year. That the limit we put on them runs on a different calendar than the the scheduled refilling of the bag doesn’t actually matter, so long as we keep refilling the bag and makes sure the limits we set for the 20 people don’t exceed the amount in the bag. That those people end up taking out money from two different fiscal years on one limit doesn’t make a difference. It’s the same bag.

Q. Why don’t we just authorize limits for fiscal years?

A. Because then the 2nd year’s authorizations in any Congress would run through the following Congress’s first session. And that’s not efficient because if there’s a change in power, there might be a desire for a substantial change in the allocation of funding across committees. It makes the most sense to authorize committee funds for each session, because that way, you know the priorities of the majority and they are (relatively) stable.

Q. But you said they do this in March?

A. Yup. The trade-off for having the authorizations not run across two different Congresses is that you can’t get the authorizations done for the first session prior to that session getting underway. It takes some time for the committees to develop their budgets, for the House Administration Committee to sort out how much money it has and where it should go, and for the primary expense resolution to be agreed to on the House floor.

Q. So how do committees pay for anything between January 3 and March?

A.Remember, it’s not an issue of the money not being appropriated. That runs on a fiscal year basis, so the bag is full of useable funds. The issue is that there’s no authorization at the outset of a Congress. So House Rules X, clause 7 provides for interim funding authorizations: the committees can spend up to 9 percent of their total 2-year authorization from the previous Congress. Any spending is then charged against their eventual 1st session authorization after the primary expense resolution is agreed to.

Q. Today is March 19. I follow congressional news. Why am I not hearing about this right now?

A. Because the contemporary process is for the primary expense resolution to be biennial, meaning that in March of the 1st session of a Congress, committee funding authorizations are provided for both the 1st and 2nd session of the Congress. Each committee is given a total authorization, as well as sub-authorizations for each session.

Q. Do they ever adjust the numbers later on within a Congress?

A. Sure. They did this year. H.Res. 496 reduced 2nd session funding for all standing committees (aside from House Appropriations).

Q. What’s the formula for determining how much each committee gets?

A. Unlike the MRA, there’s no neutral formula for determining committee funding. Instead, each committee develops its own budget request, which it submits to House Administration. Often, these requests are formalized into legislative resolution that are introduced in the House (see, for example, H.Res.107, which is the funding request for the Education Committee in the 112th Congress). House Administration then holds hearings prior to developing the primary expense resolution. Typically at these hearing, the chair and ranking member of each committee testify as to their budget request.

Q. Wait, Members of Congress testify at the hearing of another committee?

A. Yup. It’s one of the few places where that happens routinely (the other is, of course, at the Rules Committee when Members must testify on behalf of amendments they would like included in a special rule).

Q. What determines how much each committee gets?

A. At one level, it’s just politics. There’s a certain amount of money, each committee tries to justify how much they need within the context of how much is available via the appropriation. Lots of things come into play: the priorities of the House Administration Committee, the priorities of the majority leadership, the priorities of the majority caucus, the priorities of the chamber, the input of the appropriators, and so forth. There’s a certain level of professionalization to it as well — it would be very unusual to see, say, half the committees get a 20% increase over last year and half of them get a 20% decrease. The point being that’s there’s a certain amount of distributional comity. Nevertheless, the priorities of the majority party certainly matter. If some committees are clearly going to be busy, they will usually see more funding.

Q. What do committees spend the money on?

A. Mostly staff. As with the MRA, the funding for committees pays for more or less all expenses: staff, consulting services, office expenses, and travel. Unlike Members, or course, the committees do not have district offices and typically do not send very much franked mail.

Q. Who decides on how to spend committee funds?

A. Technically, the chairman has total control over the budget. Under the House Rules, committee funds are spent on vouchers signed by the chairman.

Q. Does the minority get any funds?

A. Yes. Well, sort of. There is a long-standing debate in the House over how the staff and resource funding should be divided for the committees. Currently, the Committee on House Administration promotes the idea that the minority should get 1/3 of the funding, and they look fondly upon committees that present that as their arrangement in the funding hearings. There is relatively widespread consensus that this should be the policy for staff funding, and it is something of a weak norm. (It should be noted, however, that the Chairmen still control and are still responsible for the entire budget). So most committees follow that norm. There are, however, occasional squabbles over whether non-staff resources should also be divided 2/3 and 1/3. Many, if not most, committees now follow the 2/3 and 1/3 distribution for all committee funds.

Q. So how many staffers work for the committees?

A. About 1500 right now. That’s down from from a high of about 2200 in the early 90’s. Below is a chart of House leadership and House Committee staffing levels, from 1982 to 2010, scaled on separate axes. The dotted line is committee staff. Note the large drop in 1995, when committee staff was cut across the board by 1/3. During this time period, committee staff decreased roughly 18%. Over the same period, Member personal staff increased by 6%, and core leadership staff increased by 233%.

Q. What do the staffers do?

A. Well, whatever the committee wants them to do. Mostly that falls into the nebulous world of policy analysis, policy creation, and policy oversight: evaluating existing laws and bills to change them, developing original legislation to change law, and conducting oversight of existing policy, usually in response to the priorities of the full committee and sub-committee chairmen.

Q. Yeah, but what do the staffers actually do?

A. Mostly four things. First, listening and negotiating with the stakeholders and policymakers who are seeking to alter current law. This can be everything from the chairman (often) to other Members (both on the committee and off), to stakeholders both inside and outside the government, public and private. Second, preparing legislative proposals in response to the concerns of these stakeholders, by actually drafting potential language. Third, preparing hearings and committee markups on the legislation, which runs the complete range from choosing witnesses and preparing questions, all the way down to physically assembling briefing books for the Members. Fourth, conducting oversight of existing policy, which can range from phone calls to stakeholders to oversight hearings of executive branch officials.

Q. Are committee staff paid similarly to Member offices staff?

A. Broadly speaking, yes. Committees have staff assistants who make very little money and they have senior professional staffers who often make the maximum committee staff salary under the Speaker’s Pay Order, which outlines several tiers of maximum pay for various number of individuals, all tiers being in the $160-170k range. It’s hard to generalize, but the committee system tends to have, on average, better paid staff, typically because they come to the job with more experience or education, and tend to stay in the job longer, in comparison to Member office staff.

Q. Do we need more committee staffers?

A. Completely depends on who you ask. And ultimately, like the MRA, it depends on your axiomatic values. There are really three concerns. First, are more or less committee staffers optimal on an absolute level? That is, would a different number of committee staff help offset the reliance of Members on information sources like lobbyists. Second, are more or less committee staffers optimal on a relative level, either in reference to the executive branch or in reference to other legislative branch entities, such as the leadership or the Member personal offices. Like lobbyists, both the President and the leadership can use their vast resources to produce and disseminate information as a political weapon. Whether you believe a better balance needs to exist will largely inform your opinion about committee staffing.

Of course, staffing also needs to be properly matched to authority. If you don’t believe in a strong committee system — that is, if you would prefer a greater centralization of policy-making power in the House — then it hardly would make sense to want to increase committee staff. And vice-versa. There’s some evidence that the committee system simply isn’t being used for the same purposes as it was a generation ago; the overall number of hearings and markups is down, and a higher percentage of major policy seems to be coming directly from the leaderhsip. That’s neither inherently good or bad, but it does, again, inform the question of committee staff. There’s not a lot of reason to beef up a congressional sub-institution with resources, if it’s formal and informal authority is purposefully being waned.\

Q. Aside from the separate funding stream, is the Appropriations Committee different?

A. Very much so. One really important difference is that there’s no flurry of bills coming at the Appropriations Committee, and very few surprises in their agenda. On a typical committee, you never really know what is coming next; not only do current events play a role in the agenda, but the legislative priorities of various Members and the leadership also dictate things. On Appropriations, each subcommittee more or less has one bill that they deal with every year, and they more or less know what is in it and what the calendar looks like for consideration of it. Yes, there are supplementals and other non-routine items, but the basic budget calendar (budget justification hearings starting in late winter; bill and report production in the Spring; markup in the late Spring; floor consideration in the summer; and oversight year-round) makes for a rhythm that is more regular than other committees.

Previous “Q&A” style posts

March 16, 2012 — Increase the MRA in the House?

March 5, 2012 — Democratic Appropriations Subcommittee Assignment in the House.

March 2, 2012 — Filling the tree in the Senate.

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

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

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

Under many plausible scenarios for American politics circa 2013, the sequestration provided for in the Budget Control Act will not come to pass, nor will the required cuts. That’s just sort of how things work, and you can kinda see it coming  in the way people are talking. For example, this.

BREAKING: It’s really hard to pass and  implement policies with long-term benefits but short-term costs.

I’m not a fan of people who talk about how America’s fiscal problems are a “failure of the political class.”  You hear this all the time among the pundit class, David Brooks writes some variation of it every other week in the back of the New York Times, and half of the Washington journalistic corp not only buys into the idea, but all of them seem to think they invented the concept because they were the last ones to write about it. It’s complete nonsense. Whatever shortcomings you might ascribe to American democracy, that the Members of Congress are ignoring a massive pubic outcry is not one of them. As if somehow the problem is that all the people want nice balanced budgets and a reduced public debt, it’s just that the politicians won’t deliver it to them. Please.

The real problem is that fiscal policy in an indebted democracy resides on a J-Cuvre. Which is nothing more than to say that the only way to achieve long-term positive results is to incur short-term negative pain. Thus the “J” in the curve. It’s just another way of explaining one of the fundamental problems democratic systems face: they are not good at long-term planning. But it’s particularly problematic when the long-term planning requires short-term pain. In many ways, the J-Cuvre is just a longitudinal collective action problem (long-term good vs. short-term good), as opposed to the cross-sectional version (common good vs. individual good)  that one might be more familiar with. It’s not crazy to say that these two problems are the heart of the institutional dilemma for any democracy.

The classic example is moving the former Soviet bloc economies in eastern Europe to capitalism. There was no doubt that capitalistic economics would produce much better long-term growth, but the only way to get there was to set the markets free, which caused all shorts of short-term pain at the bottom of the curve. Which led many voters to reject the ruling parties and reverse the liberalization. That’s a problem. In Washington (and other stable democracies) it translates to the classic political axiom: don’t produce policies that have short-term costs and long-term benefits. In fact, tend to do the opposite. So there you go.

But back to America’s political class. You constantly hear people bemoan the state of affairs that “no one in Washington will talk about raising taxes” or “no one in Washington will talk about cutting entitlements.” This is partly true, but it’s not for the reason people think, some “failure” of the political class. It is because to talk about those things, in many cases, is to not find yourself in Washington the following Congress. It’s basic natural selection. And it’s roots are with the voters, not the politicians. No one calls tax cuts without spending cuts a “failure of the political class,” and no one calls new unfunded entitlements a “failure of the political class.” More often we celebrate those things. But somehow their sum becomes a failure of the political class. In reality,  it’s all just the political class reflecting the (short-term) interests of their constituencies.

The trick, of course, in any J-curve situation is to find a way to get past the bottom of the curve without the democratic electorate either (a) punishing the long-term looking politicians and/or (b) electing new politicians to reverse the policies and/or (c) both. You need to both convince the existing political class that they will not be punished, and then have it actually turn out that they are not punished.  This, as you might surmise, is why autocratic states do not face significant J-curve problems the way democracies do; when there is no mechanism for reversing short-term public pain, it’s quite simple to ride out the curve until you get to the high side. You just do it.

In democracies, its’s a lot trickier. Some clever mechanism have been produced in the past: establishment of things like the federal reserve to set interest rates in an environment insulated from popular election and public sentiment; placing implementation of decisions in the hands of elected officials with longer time-horizions (like the President) or no time horizon (think Supreme Court settlement of the territorial question in the 1850′s or the segregation question in the 1950′s). But for most economic issues, Congress just has to deal with it. And it’s very, very hard to deal with an economic J-Curve when you have a 2-year term.

And this often leads to attempts by Congress to bind itself to a long-term policy, or more precisely, to bind a future Congress to a current policy. Everyone knows that’s really tough, and we all have a basic answer for why: a future Congress will just undo it. But that answer sort of begs the question. Why is it tough? And that’s  what really interests me: the micro-level reasons that this is so difficult for a legislature. I see five dimensions to this:

1. Legislatures can only make one type of law. This consistently bedevils legislators and staffers who would like to constrain future statutory action via … statute! But it simply can’t be done; any law that attempt to constrain what a future law can do is immediately rendered moot by any future law. You can constrain a lot of governmental actions with federal law, just not future federal laws. A classic example of this is the Commemorative Works Act, which requires that memorials in certain parts of DC be authorized by law (fine; that prevents non-statutes from authorizing the memorials), but then goes on to circumscribe what Congress can or cannot authorize in those laws. Useless!

For example, the law says, “A commemorative work solely commemorating a limited military engagement or a unit of an armed force may not be authorized.” But Congress can, and does, simply bypass such requirements by authorizing whatever the heck they want when they decide to authorize a new memorial. And lest you think this is only a problem for trivial issues, remember that it caught the Founders flat-footed; after they left the Northwest Ordinance out of the Constitution, they were forced to pass it as federal law in the first Congress. Subsequently, Congress routinely ignored it when organizing, dividing, and admitting new territories as states in the union. There are no “super-laws.” Next time you find yourself suggesting one — this will happen to you sooner than you think — remember that they are worthless. Period.

2. If statutory binds don’t work, you have resort to either macro or micro restraints. Given that you can’t use federal law to structure constraints on future federal laws, what can you do? Well, there are basically two options: bind from the top or bind from the bottom. Either constitutional amendment or procedural barricade in the chambers, particularly the Senate. Both of these solutions are plausibly great. A constitutional amendment adjusting the powers of Congress as a legislature will certainly accomplish your goal. And a procedural blockade in the House or Senate that prevents certain types of federal laws from getting out of the chamber is theoretically equally effective. Unfortunately, both strategies have drawbacks.

3. The macro-restraint of a Constitutional amendment just isn’t practical. It’s not for lack of trying that the Constitutional amendment route doesn’t work. Despite being the most popular proposed constitutional amendment of the last few decades, the Balanced Budget Amendment stills seems to be on the express train to nowhere-ville. Even if you set aside the many substantive concerns people have about the BBA, the process itself of producing a BBA is just a nightmare. Congress can’t do it on its own. The portion Congress can do takes a massive supermajority. And it just takes a long time even when you are successful. The latter issue is a massive problem for the BBA: supports grows for it periodically when there is a recession or an explosion of spending, but that immediate cause ceases to be a factor long before the BBA can get off the ground. And then interest has been lost. And the BBA just doesn’t seem like the type of amendment that could be passed in 100 days, 26th-amendment style.

4. And the micro restraints of procedural hurdles are often too far in the weeds. In theory, procedural restrains on the production of laws is a great solution. In the Senate, it’s (relatively) easy. You amend the rules (either the traditional way or via statutory rulemaking) creating a point of order on the floor against any legislation that you want to proscribe. Then individual Senators can block potential laws even if they have supermajority popular support in the chamber. This is more or less how non-statutory PAYGO is enforced in the Senate. In the House it’s a bit tougher, because the majority can write special rules that circumvent your point of order, but in theory you could at least make it a procedural pain in the ass to get around such a point of order (by specifying that the Rules Committee doesn’t have the power to introduce a privileged resolution that kills the point of order, the same way that the motion to recommit is protected), and it could be held together by a norm.

The problem with all of these types of procedural blockades is twofold: first, they are low on the public visibility/understanding scale. If future Members of Congress seek to reverse them, it’s so far in the weeds that it may not raise the public ire enough to dissuade such reversals. But more importantly, procedural points of order are passive restraints on congressional action; they only are enforced if someone demands they be enforced. So just as a quorum is assumed to be in the chamber unless someone suggests it is not, regardless of whether there are only a handful of Members present, so too with points of order. And that has a huge consequences: Members can bypass the points of order without a trace of evidence. There’s no record of something not being enforced on the House or Senate floor; you are looking for an absence of evidence. So not only is it not public that the point of order has been effectively rendered moot, but no individual Member is on the hook for not enforcing it.

5. Consequently, the “best” solution requires reducing legislative power. And so the most common way to bind legislative action is to remove the power altogether, and hand it to the executive branch. This is easy: write a positive law authorizing someone else to take control of a policy, preferably someone more insulated from democratic electoral politics, like the President, or an agency head, or the federal reserve. But this strategy comes with two problems. First, Members don’t love giving up power to the executive branch. And, more importantly, when Members do give up power to the executive branch, that’s an inherent loss of power for the legislature. But you already know how  I feel about that.

Pivoting off Ezra Klein’s review of two new books about lobbying and Congress, Pascal-Emmanuel Gobry suggests that the way to combat the legislature subsidy of lobbying is to pay congressional staff higher salaries:

What if every member of Congress had a, say, $20 million staff-and-research budget? What if a congressional chief of staff made $1 million per year, and what if each congressman had an army of staffers to research policy and draft bills, as opposed to a skeleton staff? The legislative subsidy would just become irrelevant. Or at least, congresspeople would be on equal footing vis-à-vis well-funded lobbyists. And the cost would be a drop in the bucket compared to the federal budget — and even less compared to the social and economic cost of carveouts and tax breaks.

This raises two immediate questions:

• What is the current staff-and-research budget of each Member of Congress? Is it anywhere near $20 million per Member? How is it determined?

• Why doesn’t Congress simply implement Gobry’s solution? It’s not like anti-lobbyist legislation is unpopular. So what’s holding this sort of reform back?

I’ve written a bit before about the basic staffing structure in the legislative branch, so check that out if you need the lay of the land. Here I’m going to answer the two questions above. I’ll do it Q&A style, since it’s a bit complicated. I will focus on the House; the Senate is slightly different, but operates on the same principles.

Q. How do Representatives get the money to pay for staff?

A. Under law, the Member’s Representational Allowance (MRA) — a lump-sum of money that Members can spend as they see fit — is authorized and regulated by the House Committee on House Administration, as well as by law and chamber rules.

Q. How much money is in each Member’s MRA?

A. It varies. The formula for calculating an individual Member’s MRA is a lump-sum that everyone gets, plus a variable amount based on three variables: how far the Member’s district is from Washington (to scale travel costs), the cost of living in the Member’s district (to scale district-office rental costs), and the number of non-business postal addresses in the Member’s district (to scale constituent mail costs). If you would like to see the actual formula, you can find it on page 2371 of the current Statement of Disbursements of the House. That document also provides the total amount given to each Member, as well as the itemized breakdown of all expenditures by each Member in the previous quarter.

Q. So…how much money does each Member get?

A. For calendar year 2010 (technically session-year, which runs from January 3 to January 2), the median amount was about $1.5 million. At the start of the 112th Congress, H.Res.22 reduced the authorized amount by 5% for 2011 and 2012 as part of a general reduction in expense funding for House leadership, committees, and Members. So while I haven’t run the numbers for this year, it’s about in the $1.4 million range.

Q. What can the MRA be spent on?

A. In general, four categories of expenses: staff, travel, office expenses, and mail. The general guidelines is that the MRA can only be spent on official representational business. If you want the full details, check out the Members’ handbook issued by the Committee on House Administration.

Q. What proportion do Members typically spend in each category?

A. Mostly staff. Typically, you’ll see about 65-70% of the MRA spent on Washington and district staff. (Representatives are limited to 18 full-time and 4 part-time staff or interns). After that, it varies: some Members send a lot of mail to their constituents, others travel back to their district a lot.  A number of studies have examined the publicly-available data if you would like precise numbers. Here’s a recent one. And on average, about 10% of the MRA goes unspent.

Q. Unspent? I thought Representatives were underfunded and staff underpaid?

A. They may well be, but there are two issues. The first is basic accounting: Members can’t borrow money against the next session or the next Congress if they run out of their MRA, so they have to budget in a buffer. More importantly, however, there is a strong downward democratic pressure on Members to be thrifty. Constituents do not like seeing Members spend money unnecessarily, and one way to look penny-wise is to not use all the money given to you.

Q. How much do the staffers make?

A. Again, it varies. Entry level staff assistants may make less than $30k annually. The maximum staff salary in the House under the 2009 Speaker’s Pay Order is $168,411 annually. The 2010 House Compensation Study provides a good survey of different salaries for different positions in a Member’s office. For a primer on who’s who in the Member’s office, see my old post.

Q. Maximum salary? I thought Member’s could spend the MRA as they see fit?

A. Not exactly. In addition to the regulations issued by House Administration, there are other guidelines under statute and regulation. Most of them are common sense or common ethics rules: restrictions on hiring your relatives, requirements that people you pay actually do work commensurate with the pay, and so forth. Under law, the Speaker is also authorized to issue guidelines setting maximum salaries for various positions.

Q. But wait, how can all this money be spent without an appropriation? I thought the Constitution required that?

A. It does. And there is. The money authorized for the MRA by the Committee on House Administration is just that, an authorization. The actual funding is appropriated in the annual Legislative Branch Appropriations Act.

Q. How much is appropriated for the MRA?

A. In FY2012, it was $573.9 million, in P.L. 112-74, the FY12 Consolidated Appropriations Act.

Q. And that covers all staff and resource expenses?

A. For Representatives’ personal offices, yes (well, mostly; see below). But that figure doesn’t include committee funding, leadership funding, or funding for administrative support offices (such as the Clerk’s Office). Nor does it include any of the funding for the Senate staff (personal or otherwise), or any of the other offices of the legislative branch (such as CBO, the Library of Congress, CRS, Capitol Police, etc.). The entire Legislative Branch Appropriations Act is about $4.3 billion annually, which sounds like a lot, until you remember that total federal outlays are about 1000 times that.

Q. So the total cost of maintaining Representatives’ personal offices is about half a billion?

A. It’s a little more than that, actually. Because that total MRA appropriation doesn’t include the government’s portion of the contributions to employee pensions and benefits. Those are appropriated separately in the Legislative Branch bill. There are also other expenses — such as the maintenance and upkeep of the physical offices in Washington — that are picked up in appropriations to other Legislative branch entities, such as the Architect of the Capitol. And it also doesn’t include the salaries of the actual Members, which runs about $76 million total (441 Members and Delegates X $174,000 annual salary + a bit more for leaders), or the government side of their pension and benefit contributions.

Q. So are staff underpaid?

A. That’s an open question. Many staffers certainly think they are. And the House Appropriations Subcommittee on the Legislative Branch has regularly worried in committee reports accompanying the Legislative Branch Appropriations bill about losing staff to the private sector, and the need to pay staff more in order to remain competitive. Most Members certainly wish they had more staff, and more ability to pay their existing staff. On the other hand, there are plenty of people who think that congressional staff are overpaid or, in some cases, completely unnecessary. Governor Perry, for instance.

Q. So it looks like it would take about 10 or 15 times as much money to get to Gobry’s $20m/Member budget level. Thoughts?

A. First impression is that it’s political impossible. For the House alone — and again, we’re just talking about the personal office staff, not the committees or the leadership or anything else — you are talking about $8 billion. That’s almost double what we’re spending on the entire legislative branch right now.

Q. But like you said, it’s a drop in the bucket relative to total federal spending?

A. True. But it’s very, very hard to increase spending — even marginally — in the Legislative Branch.

Q. How come?

A. As noted above, constituents tend not to look kindly upon Members who vote to increase stuff that is perceived to be “for them.” This is most directly felt on Member pay. But it affects virtually all spending in the House and Senate. Members have a very difficult time casting votes to increase money that goes to themselves or their staff. Even the upkeep of the Capitol building and the surrounding complex can raise the political ire of some constituents.

Q. But the Legislative Branch bill gets passed each year, no?

A. Indeed, it does. But it also has historically come to the floor under a closed rule, in order to prevent amendments being offered that would slash things like staff pay. (In recent years, almost all appropriations bills have come to the floor under closed rules. That, however, is a new trend. Twenty years ago, typically on the Leg Branch bill would come to the floor closed). The basic rule of thumb is this: if a vote is going to be taken on the floor that seeks to cut Member pay, or Hill staff salaries, that vote is going to pass. Regardless of personal feelings, Members just feel that they cannot cast votes against those kinds of amendments. And there are always plenty of Members with strong incentives to propose such amendments. Thus, a closed rule is the only safe way to go.

Q. So how do they ever increase Member or staff pay?

A. Two ways, typically. One is the way mentioned above: keep increases in the overall spending and the staff spending in the Legislative Branch bill very modest — often lower than most or all other appropriations bills — and then bring it to the floor under a closed rule to prevent any amendments that seek to cut pay. The other way is the method used with Member pay: put in place a system of cost-of-living increases — increases that can never be higher than the increases for general federal workers — which automatically go into effect unless they are specifically denied. Then prevent denial votes or amendments from coming to the floor, except in cases when there is genuine consensus to deny.

Q. So what are the prospects for an increase in Member staff resources?

A. I don’t like to make strong predictions of this sort, but I’d say in the near term: zero.

Q. But is it a good idea in theory?

A. Well, again, that depends on your axiomatic values. Personally, I’d like to see legislative branch staffing beefed up a bit, but that’s mostly because I see it not only as a general good for a legislature, but also as a relative good for a legislature vis a vis the executive. As I’ve written before (here and here), information production and dissemination is a serious weapon the branches can use against each other in political battles, and in my view, the legislature could use a more even balance with the President right now.

Q. What other considerations are there?

A. One is how you feel about where to distribute resources in the House. Right now, Member offices spend a lot of their resources dealing with constituent casework. If resources for Member offices were expanded, Members could arguably assign more staff to policy work, which might be beneficial if you believe the Member offices should be carrying a larger load of the policy development. But institutionally, the rules of the House and the allocation of resources right now all point toward the committee system having the lion’s share of the load for policy development. So it might make more sense to strengthen the resources of the committees. In any case, from a political point of view, a move to double or ten-fold increase the resources of the Members’ offices would likely consider increasing the resources of the committees as well, I would think.

Another issue is the leadership. Unlike Member or committee resources, leadership resources have grown dramatically over the past 20 years, and have altered the balance of informational power between backbenchers and leaders. That’s one thing that isn’t raised by Ezra’s review of lobbying; the leadership has many of the same incentives for legislative subsidy that lobbyist do: they provide information to assist backbenchers, and backbenchers employ that information on issues that they can’t spend their valuable time or resources for independent research. So increasing the staff and research budgets of the Members’ offices theoretically weakens the leadership’s ability to dominate backbenchers via information control. Which obviously muddies the politics.

Q. You mentioned committee funds. How does that work?

A. Oh, geez. Maybe next week.

Previous “Q&A” style posts

March 5, 2012 — Democratic Appropriations Subcommittee Assignment in the House.

March 2, 2012 — Filling the tree in the Senate.

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

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

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

Kevin Drum wondered last night if the conventional wisdom about California in the GOP primaries might be wrong:

One thing to keep in mind if you’re not from California is that our Republicans are not like, say, Maine Republicans: kind of moderate because they live in a basically liberal state. California Republicans are fire-breathing, take-no-prisoners, down-with-the-ship Republicans. I live in Orange County, which most people think of as ground zero for conservatism in the Golden State, and it’s true that we’re pretty conservative here. Our county board of directors routinely turns down federal money if it’s sullied in any way with connections to Obamacare. Still, as near as I can tell, OC Republicans are pussycats compared to Central Valley Republicans. I don’t know if the Central Valley Rs are more conservative than Alabama Republicans, but they’d sure give them a run for their money.

I don’t know very much about California state politics, but I do know that there’s some indirect evidence that might help us assess the last question, regarding the relative conservatism of California Republicans vs. Alabama Republicans. We can look at the voting records of their respective Representatives in the House.

Below is a plot of the average DW-Nominate scores of various partisan congressional delegations from the 111th Congress. The number next to each state is the state’s ranking among co-partisan delegations as to its tendency toward moderation (i.e. NY was the 5th most liberal GOP delegation; Idaho was the most conservative Dem delegation). Aside from California and Alabama, the states on the plot were not chosen by any algorithm; they are just there to give you the lay of the land.

You can see that California’s GOP delegation in the 111th Congress was, on average, more conservative than the average GOP Representative. The delegation ranked 31st most liberal out of the 41 states that had GOP Members in the 111th. Note that Alabama ranked 13th most liberal of GOP delegations. So based on this evidence (which is obviously indirect; we’ll get to caveats in a minute), Kevin’s most narrow point is well-taken: from a purely ideological point-of-view, it may be the case that Santorum or Gingrich might have more appeal in California than is typically assumed right now. Or at least the converse is not true: we don’t have any evidence that the Alabama GOP electorate is more conservative than the California GOP electorate.

More generally, I think the narrow takeaway point here is that there are a lot of surprises when you try to deduce the leanings of the primary electorate of a state based on that states general liberal-conservative reputations. For instance, it’s almost certainly wrong to assume that because California is a generally liberal state, it’s conservatives will be less conservative than those in a state that is generally more conservative. Another good example of this is Wisconsin, which I think we can fairly say is thought of as a liberal or liberal-moderate state overall. Indeed, its Dem delegation in the House was the 41st most conservative (i.e. 6th most liberal), on average, in the 11th Congress. But it’s GOP delegation was the 39th most liberal (i.e. the 3rd most conservative).

Now, for the caveats. Let’s start with the methodological ones. This is indirect evidence, at best. All sorts of disconnects exist between the DW-Nominate scores of Representatives from the 111th Congress and the ideology of the GOP primary voters in a state. To name just five: Reps are a small sample; Reps come from gerrymandered districts, not states, and those districts may be more/less polarized across states; conversely, GOP primary voters also exist in Dem districts; this was two years ago; and Member-district ideologies can diverge. The point is that you shouldn’t take this is some sort of smokin’ gun about primary voter preferences in California. It’s a lot closer to meaningless than it is to that. Just to highlight what I mean, Romney cleaned up in Arizona’s closed primary, which was the most conservative GOP delegation in the House in the 111th Congress.

Of course, this only begs a more important caveat: does the DW-Nominate scores of the House delegation sort along the same measure of ideology that is separating GOP primary voters between Romney and not-Romney? I haven’t looked into this enough to say, but my instinct is that it may very well not. Romney, Santorum, and Gingrich are all laying down pretty conservative policy positions, so the differences between them may have as much to do with style or messaging as they have to do with the actual policy differences of the type that could be picked up by something like a DW-Nominate score in the minds of voters. And so even if it’s true that California Republicans are more conservative than Alabama Republicans, it may also be the case that certain frames (such as an anti-Massachusetts attitude) are much more prevalent in Alabama than in California.

And yet, none of this is the main caveat, which undoubtedly remains the same as it has been for months: voter ideology, or voters in general for that matter, may have little left to independently say in the primary. This is because a fair amount of GOP primary voter belief (or any primary voter belief ) is really a coordination game being driven by party actors and party media outlets, who seem less and less likely to show any enthusiasm for the toppling of Romney in favor of Santorum. Which, of course, simply reiterates the fundamental truth of what is going on: California may matter this year, in the sense that Romney may not have the delegates to put him over the top by then, but the nomination in my view has been sewn up (save for Act of God type external shocks) for quite some time.

This is from Brad Turner and Steve Czaban and includes the game times, locations, announcers, TV listings, Vegas line, and info on each time like RPI and SoS. Here’s the .pdf file so you can print it out.

It’s March madness. Alright.

I love college basketball. Always have. My parents’ house is walking distance from Siena College, which has one of the best mid-major fan bases in the country, so I grew up rooting for them and, as with pretty much everyone else upstate, Syracuse. Needless to say, I think the NCAA tournament is the greatest sporting event of the year.

Still, I don’t love it as much as I used to. It’s pretty obvious to me that the contemporary sport has significant flaws, and those flaws have gotten worse over the past 5-10 years. Here are the three biggest problems I see facing the game right now.

The one-year-and-done policy for superstars. The fiat from the NBA  that you can’t play in the league until a full year after you finish high school has possibly wrecked more havoc on college basketball than anything else. The teams have no continuity of success; you don’t know half the kids staring in the NCAA tournament, and the student-athlete ideal has been degraded to a new low.

The NCCA tournament behemoth. The tourney has become so important that regular season games seem meaningless, and the conference championship — both regular season and tournament — has ceased to be interesting in the BCS conferences.

The fouling at the end of games. This isn’t a new problem, of course. And the steps they took in the 80’s to fix it certainly took care of the part of the problem that was literally ruining the game. But it still remains unsatisfactory. Not only does every close college basketball game become a free-throw shooting contest, but it also takes forever to finish a game. Which is great for the TV networks, but not so great for the fans. As someone who played rugby and loves watching college hockey, the difference could not be more stark: close games in those sports reach a frantic peak as you approach the finish. In college hoops, unless the difference in score is 3 or less, the ending grinds to a halt.

None of this comes close to ruining the NCAA tournament as a spectator sport; it’s still the greatest show on Earth for my money. But the combination of the three things has altered how fans approach the tournament, and how the NCAA sells it. In 1990, I could probably have named the star player or players on most of the BCS conference teams that made the tourney; they were usually juniors or seniors, and I had seen them play for several years. Not the case anymore. I think this changes how we look at the tournament. It definitely disrupts the multi-year storyline. Will it ever be the case again that a single game has the history of the Duke-UNLV rematch in ’91? Highly unlikely.

Anyway, here are three ideas for improving college basketball:

1. Make scholarship offers four-year commitments, regardless of whether the player leaves early. Right now, all of the best teams have incentives to offer scholarships to the one-year-and-done players,  since they don’t have to personally eat the externalities. Think about it: Kentucky can recruit four consecutive one-and-done players, and get them for the equivalent of a single scholarship over four years. Meanwhile, the fans have to eat all of the negatives associated with the system when all the best schools use that same strategy. And a collective action problem sets in: no BCS team can afford to not pursue the best talent while all the others do so.

Solution: make all scholarship offers 4-year slots, and 4-year commitments on the part of the schools.  You recruited John Wall and he left after one year? Guess what — you’re down a scholarship for the next three years, while his slot sits empty. Under this system, the schools pay part of the price for the externality. In theory, a new market would be created in which the one-and-done player is no longer such a hot commodity, and recruiting a series of them is especially unappealing. My sense is that this would bring things to a better (but not perfect) equilibrium. Would schools still take one-and-done players? Sure. But not as quickly as they do now. Things like transfers and career-ending injuries could easily be accounted for with a few simple rule tweaks.

Are there potential downsides here? Yes. The biggest problem is that the schools’ interests and the interests of the top players’ might diverge more than ever. It wouldn’t be a great situation if the school and the coaches were giving top players misinformation or other bad advice related to decisions about staying in school or leaving school. But it’s a trade I’m willing to make; the one-and-done system is killing the BCS leagues. And this solution is much better, I think, than other proposals, which are either pipe dreams (return to the days of no-freshmen allowed to play) or perhaps cures worse than the disease (raise the NBA minimum-age to 21).

2. Make all stationary fouls in the last two minutes automatically intentional. A generation ago, the twin problems of stalling by winning teams and fouling by trailing teams had gotten so out of hand that the NCAA took two drastic steps: they put in a shot clock, and later they added a double-bonus, so that most of the fouling at the end of the game did not results in 1-and-1 free throw trips, but instead in 2-shot trips. The shot clock solved the problem of the teams holding the ball for minutes at a time, which was absolutely killing the game in the early 80’s. Think back to the 1983 title game, when Houston got the ball, what, one time in the last two and a half minutes of a single-possession game? That’s not even basketball. And it also allowed teams to not start fouling so early, since in a 1-point game with a minute left, they were definitely going to get the ball back. The double-bonus made for a nice counter-point to this; when teams did start to foul (which is inevitable once the shot clock is turned off), there was not as much of a reward for doing so. It is much harder to come back under the double-bonus rules than under the old endless 1-and-1 rules.

But it’ss time to face facts: as well as the shot clock and double bonus have worked, the end of a close college basketball game is as awful as often as it is exciting. Unless the game is a 1-possession game right to the very last buzzer, you end up watching a whole lot of intentional fouls, court walking by tired players, timeouts, and commercials. When you are actually at the arena, all the energy of the game deflates. And note that this is often  a problem even in the games that have great finishes. Because in order to mount the comeback that leads to the game-winning 3-pointer, teams often start fouling with 90 seconds or more to go, when they are down 6 or 7 points. It’s annoying, to say the least.

Now, I’m not knocking the strategy. Teams are almost certainly correct to start fouling early. What needs to happen is that we need to reduce all incentives for doing so. The truth is that we’ll never stop the fouls once the shot clock is turned off; no matter how stiff the penalty for fouling, if the alternative is watching the other team run out the clock, the incentive will always be to foul. So what needs to be minimized is all the intentional fouling that occurs before the shot clock is turned off. If we could get the game in a situation in which teams didn’t start fouling in earnest until there were less than 35 seconds left, that’d be a major improvement.

But to get there, the refs have to start calling intentional fouls. Not flagrant fouls. Intentional fouls. The problem at the end of the game is that everyone is intentionally fouling, but the refs don’t call intentional fouls. So let’s force them to.  How about this: any foul in the last three minutes in which the offensive player is simply holding the ball and standing there is an intentional foul. Ditto if he’s dribbling without attempting to attack the basket. Furthermore, any foul in the offensive backcourt after possession is gained is an intentional foul. This won’t reduce fouling to zero — there will always be logic to foul when the shot clock is off — but it will punish teams so severely that it is barely worth it.

3. Restructure the NCAA tournament to give first-round byes to the conference champions. This is my most radical suggestion, but I don’t see any way around it. If we agree that the NCAA tournament has begun to overshadow the regular season in both BCS league and smaller leagues, and has more or less destroyed the importance of the conference tournaments in the power conferences, then the only possible way to reverse the situation is to make the NCAA tournament more responsive to teams doing well in the conference regular seasons.

Now, there’s a history here. Once upon a time, only the conference champions were allowed to play in the NCAA tournament. You’re damn right the regular season mattered back then. And, because of that, most conferences didn’t hold conference tournaments at the end of the year to decide who would receive their one bid to the tournament (the ACC was an exception).  But then the one-bid-per-conference rule was discarded in favor of expanding the tournament, and at that point all incentive was lost to not hold a conference tournament, since they are potentially very profitable for the conferences, and then you end up where we are today: everyone but the Ivy League gives their automatic bid to the conference tournament winner.

Now, the most obvious solution is to just go back to the one-bid-per-conference rule. But that’s obviously not going to happen. A second option would be to ban the conference tournament. Also not going to happen, and has the added problem of not solving anything at the BCS level, since all those conferences have multiple teams as locks for the NCAA tournament before the conference tournament even begins. What you need is a way to revitalize the regular season in the big and small conferences, without killing the conference tournaments.

Solution: automatic bids, and automatic first-round byes for regular-seasons conference champions. You heard me. Give both the Big East champ and the America East champ a first round bye in the NCAA tournament. Before we address the issue of small-conference champs getting byes, let’s talk about the math. It’s ridiculously simple. Right now you have 31 conferences with an automatic bid, and 37 at large bids, for a 68 team field. All you’d do here is give out 31 bids/byes to the regular season champs, 31 bids to the conference tourney champs, and 34 at-large bids. If a team won both the regular season and conference tourney title, then that’s one less conference tourney bid and one more at large bid (see below for the problems this creates.) Then you have 32 byes (for the regular season champs plus, say, the single-best non-champ), and a first round that features all the at-large bids and all the conference tourney champs that didn’t win their regular season.

Positives: a renewed emphasis on the regular season, in both small and big conferences. An expanded tournament tournament, but one that doesn’t favor the BCS schools. Continued meaning for the conference tournaments, and thus the possibilities for teams that were not good during the regular season. Negatives: an expanded tournament, which many do not like. First round byes for obviously inferior teams. Weird incentives for conferences to either get numerically smaller, or to rig their conference tournaments.

It’s the last point I want to take up here, because I know someone will bring it up if I don’t. Syracuse won the Big East. Under this system, isn’t it in the Big East’s interest to have them not win the conference tournament? Yes, but that’s already the case. We don’t see conferences tanking their tournaments to get an extra team in the NCAA tournament that otherwise would not have made it, do we? No we do not. Now, this could potentially be a problem in the lower conferences, since it could mean the difference between one bid and two bids every single time. A remedy for this might be to preference teams who win both their regular-season and conference tournament with seeding consideration.

Another objection might be that we’re biasing the system toward the smaller conferences. In effect, we’re giving regular season champs in the small conferences byes, while making the at-large teams from the bigger conferences play an extra round. To which I say: that’s a fair trade in my book. If all the BCS at-large teams have to play a small conference tournament champ, or another at-large team in the first round, that’s a very small contribution to be made in order to fix the entire regular season of college basketball. Think about it: when was the last time anyone really cared what happened on the last weekend of the regular season? Unless you follow Ivy League hoops, you probably can’t think of it. This would change all that. And it would be a change for the better.

Some things I enjoyed from this week:

1. First things first: if this doesn’t leave you crying with laughter, I’m not sure we can be friends. A children’s song featuring an inspired performance by Brian Johnson of AC/DC.

2. Seth Masket, John Sides, Brendan Nyhan, and friends have a new academic article out with more evidence that the ACA vote hurt Democrats in the 2010 election.  Condensed discussion on Seth’s blog and on John’s blog. As I’ve written about in the past, I think it’s important to remember that, although no individual Member wants to lose, sometimes trading seats for policies is definitely in the best interest of a party.

3. Adam Serwer on AG Holder’s explanation of when the U.S. government can kill you. I actually care a lot more about the issue of indefinite detention than I do about targeted assassination of U.S. citizens abroad, but that’s kinda like saying I care a lot more about my kids than my nieces and nephews. Ugh. “Trust us.” Never.

5. What I would give to be 14 years old in the age of advanced sports metrics. I could read and think about this stuff all day. And I might as well plug the blog of an old Yale friend of mine, Ben Morris’ Skeptical Sports, which I think is some of the best independent work going in the genre.

6. Jamelle Bouie has been tearing it up on his new blog over at The American Prospect. Fellow libertarians should give him a try, he’s a smart liberal who brings a libertarian sensibility to a lot of issues. In that sense, I really liked this piece, because it reminded everyone that technology changes culture, culture is prior to the state, and that’s both good and right.

7. Ezra Klein and Seth Masket make a similar point: Romney is not some underfed bird with a clipped wing, so everyone in the MSM stop pretending he is. In related thinking, read Jon Bernstein’s post predicting this fall.

8. I have not read Matt Yglesias’ new book yet, but I will soon. I don’t always agree with Matt, but I’m more or less of the mind that he’s the best blogger in the world; I am just constantly amazed at the quantity of super-high-quality writing that he gets done every single day. I can only assume that it’s just as good or better when he has time to sit down and really think about it.

9. I decided (rightly or wrongly at the time) months ago that Romney had this thing wrapped up. So I just can’t get all jazzed about Super Tuesday or the upcoming states. But I did like Nate Silver’s assessment of Santorum’s chances if Gingrich drops out.

10. Here’s my two cents on the Kevin Drum-inspired debate over what the best Star Wars movie is: I like Episode IV the best. I just can’t find a single (more than minor) flaw with it. There’s just nothing that bothers me about it. And that’s not true of any of the other films. My problem with the consensus pick (Empire Strikes Back)  is two-fold: first, too much psuedo-humor. I just don’t like the hyperdrive breakdown storyline. Second, I think the whole Hoth/Wampa sequence is weak. (In fact, I’m with Bernstein (and against Masket) on the merits of the Jabba sequence in ROTJ: this was always the single-best 15 minutes of the Star Wars saga for me. It’s certainly the one I wore out our VCR tape re-watching over and over again in when I was 6.) And, of course, Drum’s attempt to minimize the Ewoks is absurd.

Earlier this week, Rick Hansen wrote a piece arguing that Congress should legislatively end the caucus nominating system. Jon Bernstein wrote a great piece in response, arguing against further regulation of party nomination. I wrote a piece two days ago both endorsing and going further than Bernstein: in theory, I don’t believe there should be any public regulation of — or even public recognition of the existence of — the political parties. And certainly not any state favoritism accorded them on a preferential basis.

Shortly after I wrote that, Scott Lemieux reacted to Bernstein’s piece, and came down on the side of at least the status quo, but leery about the possibility of unequal access to the nomination process if the parties were allowed to simply do their own thing:

Primaries, as the Supreme Court noted when it struck down the Texas Democratic Party’s all-white primary, have always been subject to state regulation and intertwined with the general election process. Given that we have an electoral structure that limits voters to at most two viable choices in most elections, primary and general elections cannot be neatly separated. Barring a greatly accelerated economic recovery, any nominee chosen by the Republican Party has a reasonable chance of being president of the United States. For many House and some Senate elections, the process of candidate selection is the only practically meaningful election given the ideological makeup of some states. Thus, the government has an interest in ensuring some level of fairness in the candidate selection process, and, in general, the electoral system would benefit from more uniform federal regulations rather than more decentralization.

Bernstein has since responded, clarifying his point of view about the ok-ness of current regulations:

In my reading, not only are political parties necessary for democracies, but  parties must be both permeable and internally democratic for a polity to be truly democratic. So, contrary to Glassman, I do think there’s an important state interest in limiting the extent to which parties are conspiracies of some against the whole … [b]ut “internally democratic” can cover a very wide range of practices, and I’d want to see a very light regulatory hand.

So: if parties design procedures which give activists (and other party actors) more influence and voters-as-just-voters less, that’s fine with me as long as those voters can, if they choose, become activists. But I’d have a very big problem with anything that says that some groups can’t become active party members, whether explicitly or implicitly, and I’d be okay with the state stepping in to prevent that.

I should clarify my position, because I actually don’t think I disagree all that much with Bernstein or Lemieux, at least not in how current practice is structure. I’d make three points:

1. If the state is going to control the ballot access, then the White Primary has to be barred by law. I don’t think there’s any question that the White Primary cases were correctly decided by the Supreme Court.  By the time they took place in the 1940’s, the state had long been deeply involved in the inner workings of primary elections: they controlled the ballots, the ballot access, had laws governing corruption in primary election, and — most importantly — the bar on blacks participating in the primary was state law. That’s ridiculous. Therefore, I find it perfectly reasonable that the parties should be subject to, at the least, regulations necessary to ensure that individual citizens have the opportunity to participate on an equal basis. Once the state is involved — and especially when they take actions that diminish the market forces that incentivize a private party system to behave optimally on its own — then state-mandated open participation makes complete sense. On this, I think I agree with Bernstein and Lemieux.

2. That said, I think equal opportunity is a very, very low threshold. The only thing I would require of the parties in regard to equal opportunity would be non-discrimination among individuals in regard to participation. I would still leave it up to them to determine what “participation” actually meant. I’m fine if parties want to have primaries. I’m fine if they want to have non-discriminatory caucuses. But I’d be fine with stuff a lot more restrictive than that: if a party only wanted to allow people who had been registered members of the party for 5 years or more to vote in a primary, I’m all for allowing  it (although I wouldn’t personally be in favor of it). If they wanted to restrict primary participation to people who attended a monthly county meeting, same thing. Ditto if they required a certain amount of canvassing on behalf of the party to participate. Again, so long as these things were applied equally, I’d be ok with it in the modern environment.

3. Furthermore, I don’t think  the state inherently needs be involved with the parties. As I said, under the current arrangements, it would be crazy to reverse the White Primary decision. But the current situation — in which the state regulates the ballot access — is what freezes us into the two-party system we have. The Democrats and the Republicans are not going anywhere, and it’s directly because of state-given advantages they have. It’s like two businesses that have effectively used the government to create an oligopoly. In theory, the role of the state in regard to parties should be the same as the role of the state in regard to business: encourage open competition, and ameliorate situations in which market failures occur. Remember, the market is not beloved by the players. Just as individual businesses have no incentive to encourage market competition (but instead have strong incentives to stifle it), political parties have every incentive to discourage party competition.

And thus what you have in the current environment is exactly what the two existing parties want: permanent existence as state-run institutions. There’s no chance of replacement by a third party. But people get the reason wrong all the time for why that is the case. It’s not because no one can seem to organize a third-party outside of the existing parties. It’s because there’s no way for insiders within the party to effectively bolt and get on the ballot. That solves a lot of problems for the parties: minority dissenting opinion doesn’t really have to be taken too seriously, disgruntled losing candidates don’t need to be mollified, and shutting people completely out of the process only stands to lose votes, rather than threatening your long-term existence.

And that’s the real danger of things like the White Primary; with the ballot access locked up by the state, the market has no ability to react, and the entrenched status quo is easily perpetuated. The parties certainly respond to market forces in regard to gaining voters; but they have little incentive right now from market forces that threaten their own existence, and thus their own internal regulations tend to be created in response to things other than basic market forces.

Now, none of this is not to say that market failures don’t exist. Even an utterly private party system in Texas in 1940 might not have been able to save African-Americans who wanted to participate. They were perhaps too small a minority operating in a one-party system. Even if the state didn’t control the ballot access, it’s not clear they could have achieved meaningful participation. So the state may have had to step in anyway.

But I’m less sure of that than most, and I’m dubious about whether it would be a problem today under an utterly private party system. In much of the south, there was no Republican party to vote for in the general election. But that had nothing to do with market forces; it was directly the result of the state itself destroying the market, quite purposefully. Not only was the state explicitly trying to keep African-Americans from  voting, but the threat of private and/or state violence was discouraging African-Americans and their white allies from even trying to form a Republican party to compete with the one-party white democrats. You could imagine that in a situation where there were zero ballot access hurdles (i.e. print up your tickets and hand them out to your friends) and the state was ensuring everyone’s right to vote in the general election, African-Americans and their white allies could have easily put together a Republican party that was not only competitive, but very quickly the majority in many district across the South.

And if that happened, the Democratic party would have, by necessity, needed to respond to market forces and start trying to attract African-American votes. And presumably that would have eventually led to ditching the White primary. The point being that we shouldn’t assume the problem was inherently with the party system, given that the entire state apparatus of the South was conspiring to prevent African-Americans from voting in the general election. Which was clearly out of bounds, both legally and under any normative theory of voting and parties. So I’m disinclined to learn that the lesson of the White Primary is that no private party system can create equal opportunity because you are bound to get things like racial discrimination. I’m just not sure it follows.

But, of course, it did. The White Primary was real, and not only African-Americans but also aggregate public choice suffered from its existence. So we have to be wary of it. But I’d be less wary of it today than 70 years ago. If we completely privatized the party system now — and I mean completely — I have a hard time imagining we’d see very much in the way of systematic racial discrimination. Mostly because of the reasons stated above: the state generally has a commitment to universally protect the right to vote in the general election, and if it could do that at an acceptable level (I know many people think it currently does not), then I think market forces under an privatized ballot system would almost certainly destroy the possibility of a White Primary cropping up.

In fact, I think discrimination would be the least of our worries about private parties. Although I support the idea of deregulating the party system, I worry a lot about corruption. If you truly want to privatize the parties, you need to get rid of all laws punishing corruption in party activities or primaries. You have to force the parties to hold their own elections, in private dwellings, and count the ballots on their own. In effect, you have to make them do it privately. And that could result in a real mess, and it’s the main reason I retain some skepticism about deregulation; I think the possibility of vote buying and election fraud and the like would almost certainly raise the appearance of impropriety over the parties, if not an actual massive problem. And don’t think this wasn’t an issue in the 19th century, it was. The parties tended to use the caucus/convention system for just this reason; organizing a state-wide private vote without the help of the government is really hard.

Which is probably an odd way of saying that while I think normatively there should be no relationship between parties and the state, in practice I think we should simply move toward a system that lets parties behave more like, well, parties. And the first thing I’d do on that count is get rid of all open primaries. They go against the very spirit of a party system, and I can’t think of any legitimate purpose that they serve, except to weaken the control of the co-partisans over the nomination, in favor of mass participation. But that mass participation only serves to render the parties something more like an extra layer of elections, rather than a coherent group of like-minded political actors.

[Two rocking chars sit on a front porch. In one, there’s an older man, maybe sixty. In the other, a young boy of about 12. Both are drinking lemonade. It’s still afternoon, but the July sun is starting to set.]

BOY: Grandpa, tell me about the [election of 1860 / GOP nomination of 2012].

GRANDPA: Oh, geez, big guy. That was quite some time ago. I wasn’t much more than your age back in those days. But what a contest! What do you want to know?

BOY: Well, nothing in particular, I guess. Just what happened.

GRANDPA: Well, let me see. There were four major candidates by the time we got around to serious votin’. Other names had been tossed around, including some bigger names. A Senator. A Governor or two. But none of them panned out. Never made it to the dog days. [see here, and here]

BOY: Who were the four candidates?

GRANDPA: The strongest one of them, the fella who ended up winning, he wasn’t really a politician by trade. A politico, yes. But not really a career elected official. He had held a high office for one term, but didn’t stand for re-election. Now, don’t get me wrong, he had been in and around national politics for years, but just not as a candidate. Oh wait, let me see … scratch that, he also lost a Senate election at one point too. [see here, and here]

BOY: How’d he end up win—

GRANDPA: Hold on. Slow down. We’ll get to that. You see, it’s not usually the case that we have four candidates. Most of the time, it’s just two. But that year was special. People couldn’t decide who they wanted to support. Many of them — heck, more than half of them — knew they didn’t want the fella who ended up winning. But that didn’t add up to them being able to settle on one of the other men.

BOY: Wait, the fella that won — he didn’t get more than half the votes?

GRANDPA: Ha. No he did not. Not even close. Across the nation, he got something like 40% of the vote. He lost a lot of states, and even in the states he won, he didn’t always get half the votes. [see here, and here]

BOY: Well, then how did he win?

GRANDPA: Because getting half the votes — that’s not the way the system works!

BOY: It isn’t? I thought this was a democracy. Doesn’t the majority rule?

GRANDPA: No! In many cases, the plurality rules. A majority against you — so long is it is divided — often isn’t enough to stop you. Trust me, more than a few people messed this up at the time. All ranting and raving about how this fella couldn’t attract the majority of the national electorate to back him, how he couldn’t win in certain parts of the country, especially down south. None of it mattered, because politics is a numbers game, and the numbers that matter are not votes, but electors. [see here, and here]

BOY: Electors?

GRANDPA: Yeah, you know. Electors. Delegates. The men who really make the decision. They are the key. Every state got a handful of them, roughly in proportion to their popular strength. And those states got to hand them out in whatever way they saw fit. Under law, of course. [see here, and here]

BOY: And different states did it differently?

GRANDPA: That’s right. They could hold an election. They could have the elected officials decide. Whatever they wanted. But more importantly, they could also hand out the electors by any formula they wanted. Back that year, some states gave the electors out proportionally. But a lot of states just gave all their electors to whoever got the most votes. [see here, see here]

BOY: Even if they didn’t get the majority of the votes?

GRANDPA: That’s right! And that was the key. The fella that won, he didn’t sweat not having a majority of the vote in most of the states, because he knew — just as his opponents knew — that so long as he got a plurality in a lot of those winner-take-all states, he was gonna get all the electors. And that meant that 40% of the national vote could easily translate into a landslide among the electors.

BOY: That’s funny math.

GRANDPA: Well, it cut both ways, the winner-take-all system. In a multi-candidate field, 40% of the national vote could turn into a landslide victory if you spread it around right. But it can also turn into a landslide loss if you didn’t spread it around right.

BOY: Huh?

GRANDPA: Think about it. If you lost those winner-take-all states by a very slim number of votes, you got nothing. So your 40% in a state might have translated into 25 delegates, while my 39.99% translated into zero.

BOY: Did that really happen?

GRANDPA: You bet it did. The fella who ran second in the national vote, he ran into that problem in a bunch of places. In some places the fella that won got 35% of the vote and he got 32%. One state in particular — I can’t remember what it was — he lost by less than 1% of the vote. And neither of them got close to 50% of the votes in that state — the other candidates ran fairly strong. [see here, and here]

BOY: But if all the other candidates were opposed to the winner, why didn’t they organize together and run one candidate against him?

GRANDPA: That’s a good question. And there are a bunch of answers. For one, it might not have mattered. Because the voters who supported the other candidates weren’t exactly 100% united against the guy who won. A fair number  of them thought of him as their second-choice. So if one of the opponents had dropped out, a lot of his voters would have drifted toward the winner. It’s just wasn’t necessarily the case that any individual opponent could have beaten him. A lot of people have been fooled by this over the years — thinking that any single opponent could have won — but that’s not true.

Second, some of other candidates thought they could win. Couldn’t blame them for trying! Although the math of the election was pretty obvious, in retrospect, from the get-go, a lot of people thought it was a wide open field. Including the other candidates.  So none of them really wanted to give up until it was clear they were beaten, and by that point they were all beaten.

It was also probably the case that at least one, and maybe all, of the candidates weren’t even trying to win, just trying to keep the main fella from getting a majority of the delegates.  To get the vote into a brokering situation, where they thought they might have more leverage. And in that case, it sometimes would be correct for everyone to keep running in opposition. You know, you beat him in that state, I’ll beat him in this one, and so forth.

BOY: But that still doesn’t explain the situation. There aren’t usually 4 candidates. What happened?

GRANDPA: Well, it was a crazy time. Tension had been building within the system for a while. You see a war had occurred about a decade earlier, and it left an incredible political mess in its wake. A pretty strong cleavage had developed within the electorate, and there was a somewhat radical movement afoot that threatened to shake up the traditional political alliances. So you had this new radical grassroots element threatening to capture things, and the traditionalists and the old guard trying to resist it. [see here, and here]

BOY: So it was a gradual thing?

GRANDPA: Kinda. And it was definitely coming to a head that year. But a few events actually created the long, drawn-out, multi-candidate race. You see, the Supreme Court had just a few years prior issued a decision, and that decision had really opened up the floodgates. Totally rearranged the playing field and the candidates’ calculus. [see here, and here]

BOY: Must have been some decision.

GRANDPA: Indeed. But that’s not all. Two of the opposition candidates, as well as their respective followers, really hated each other. And again, this is another reason they couldn’t simply combine. They had been part of the same movement years before, but the events of the decade, as well as their personal animosity for each other and respective egos, had driven them apart. [see here/here, and here/here]

BOY: Wow, they must have really hated each other.

GRANDPA: Yup. One of them was strongest in the South, the other ran well in the old west, east of the Mississippi. What some call the Midwest now. And while some people deny it, it was pretty clear that the one fella took that Supreme Court decision and more or less used it as a sledgehammer to try to destroy the other fella.

BOY: What about the fourth candidate, you haven’t said anything about him?

GRANDPA: Well, he was never really considered a serious contender. He had a base of support among a very narrow strip of the electorate, but it really wasn’t enough to make much difference. And his platform was also really orthogonal to the rest of the candidates. Sure, it dealt with the pressing issues of the day, but not in a way too many voters were considering them at that point. He only got about 10% of the vote.  [see here, and here]

BOY: Why didn’t people gravitate toward the guy who won? What didn’t voters like about him?

GRANDPA: Well, it was partially an artifact of the 4-way race. More choice just reduces your percentage. Still, I appreciate your question. It was largely two things. As with all candidates, some voters just didn’t like him. But a lot of the voters who were on the fence, voters who might have voted for him, simply didn’t trust him. He had been kinda late to his positions, I guess, and that made him somewhat unpalatable to those who might have been his base, and slippery to everyone. But mostly people were searching for something that simply wasn’t available. All our political heroes of the previous generation — the men who had held the disparate strands together in the past — had died. But their shadows loomed large over the election. [see here, and here]

BOY: I see. So the stakes were pretty high?

GRANDPA: They were. The nation was more or less deadlocked over some fundamental issues, and whoever won the election was going to have a pretty big hand shaping the future.

BOY: I would have loved to see the campaign!

GRANDPA: Honestly, that was the strange part. The campaign seemed utterly detached from reality. There was a lot of debate, of course. And everyone was saying things related to the keys issues. But it didn’t seem like anyone wanted to wrestle with the fundamental problems at hand. In a lot of ways, it felt like the same old song and dance. The confetti came out, the rallies were held, and the past allegiances determined the outcome. Some people saw that we were on a precipice, but mostly it was just politics as usual.

BOY: Who’d you vote for?

GRANDPA: Wasn’t old enough to vote, but great-grandpa voted for the guy who came in fourth. Ha! [But, then again, maybe he cared about the union first and foremost? -ed]

BOY: So it was pretty memorable, I guess, grandpa.

GRANDPA: Yes. It was one hell of a contest, not one I’ll soon forget. Quite different than anything I ever read about that came before it, in form if not in substance, at least. And boy was it consequential. Wow.

BOY: Why, what happened after the election?

GRANDPA: A lot. But that’s a story for another time…

I have not yet voted today in the Virginia primary, and I’m really on the fence about whether I should.

This may surprise some of my regular readers, since I’m generally an unabashed romantic about election day. But I’m also a firm believer that the structure of the presidential primary election system in Virginia (and elsewhere) is fundamentally flawed, in at least two ways:

1. It is oppressively difficult for candidates to get on the ballot; and

2. Citizens who are not registered members of the party are allowed to vote in the party primary.

Let’s take the second concern first, since it’s as symptom of a more general problem. I’m a believer that the political parties are private entities, not public utilities. As Jonathan Bernstein wrote in an excellent piece this morning, party nominations are fundamentally different from general elections, and should not be regulated or held to the same standard:

But party nominations are different. They are how parties govern themselves, and the parties should be trusted to know what works best for themselves. Hasen writes, for example, that caucuses are poor organizational tools for the parties. That may be true—but shouldn’t it be up to the party to decide? It should be up to the parties to decide whether they would prefer a relatively high-turnout delegate selection scheme that would put more influence with mass electorates or a system that empowers smaller, more dedicated groups of party activists. The parties are also best positioned to figure out which influences they prefer (including second-order influences; mass electorates give more power to the media, which parties might not like). More to the point, it’s the parties who have everything at stake here, so they should be the ones to choose.

I could not agree with this more, and I’ll even go further: normatively, there should be no relationship between the parties and the state. As far as I’m concerned, the political parties do not, and should not, exist in any public sense. They are simply private tools of political organization, and the state should neither preference nor malign — or even acknowledge in any way — their existence. In a perfect world, I’d get rid of it all. No public money to parties, no access rules, no requirement to hold a primary, no Ds and Rs next to their names on official congressional documents, and so forth.

And I’d start by scrapping the Australian ballot: getting the state out of the business of printing ballots, out of the business setting deadlines for running for office, and out of the business of controlling ballot access. Just a free market sphere outside of the formal political system. Parties can have primaries, can have caucuses, can have neither. Just figure out your candidates (or not) however you want, print up some ballots, get them to your supporters, and have them come drop them in the box. Most votes wins the office. The state is not involved until they collect the privately-produced tickets.

Still, I understand that we’re working in a second-best situation. Breaking: we don’t live in a perfect world. Corruption was part of the reason the states took control of the ballots. (However, I think it’s been fairly well shown that the parties themselves were complicit in this: the state ballot solved the problem of party bolting for them, minimizing the risk that third-party candidates could arise or win elections.) And things like the Democratic white primary are really creepy. (Although I’d be fine with a party that, say, restricted primary participation to people over 21, at their own peril).  But, theoretically, I think those downsides are outweighed by the downsides of the state having control of the ballots. If you can’t hold your party together, you don’t deserve the artificial hand of the state helping you suppress the dissenters. And if you want to bolt a party and start printing your own ballots a week before the election, that strikes me as fundamentally much closer to the democratic ideal.

But here I am. The state of Virginia allows anyone to vote in the primary. While much of the talk is about whether outsiders (i.e. independents and Democrats) will affect the outcome, I don’t personally feel comfortable voting in a party election in which I’m not part of the party in any meaningful way, and in which I almost certainly wouldn’t be eligible to participate if the state did not have control of the ballots. I’m not part of the Republican Party. My ability to directly influence their nomination system is, in my mind, not legitimate. Now, there’s a very good practical counter-argument: the rules are what they are, and even if I disagree with them, I’m still allowed to play by them. No different than opponents of Super PACs setting up their own this election cycle. Or of any reformers taking advantage of current rules, as is. My influence on national politics is enhanced if I participate, and my ability to change the system is not enhanced by not participating. Therefore, I should vote in the primary.

So I’m torn. Except that there is another issue: the ballot access requirements. And this just gets my blood boiling.

The only people on the Virginia GOP ballot today are Romney and Paul, because the absurdly high threshold required to qualify for the ballot was not met by Gingrich, Santorum, or any of the other candidates:

Virginia law requires that any person appearing on a party’s presidential primary ballot receive signatures from at least 10,000 Virginians who are duly registered to vote with a minimum of 400 signatures required from each of Virginia’s 11 congressional districts. The Virginia State Board of Elections (SBE) required that these signatures be placed on official petitions which were circulated by Virginia residents, and that these petitions be filed with SBE by December 22, 2011. The political parties in Virginia are responsible for the counting of those petition signatures and the state Republican Party certified to SBE that only two candidates met the requirements for ballot access: Ron Paul and Mitt Romney.

That’s more or less the definition of unfair. I get that the state has to limit ballot access in some sense — otherwise we’d have hundreds of people on the ballot — but any system in which a well-funded major national candidate struggles to get on the ballot is more or less bankrupt. Oh, and before you mention it, there’s no write-in possibility:

Virginia election law (§ 24.2-529) does not permit write-in votes for primary elections. No ballot issued during the Republican Primary on March 6, 2012 will contain an area where a write-in name may be included. In the case of electronic voting equipment, the option for a write-in vote has been disabled. In the case of paper ballots, if a name is written in a blank area on a ballot, or a name is scratched through and another is inserted, it will not register as a vote. In no way will defacement of an official ballot be tallied as a vote for any person other than those candidates currently listed.

And in this case, I do feel like not voting has an impact on possibly changing the law: if voter turnout is pathetically low today — in what is (at least popularly believe to be) still an undecided nomination process, then maybe the state legislature will consider rethinking the ballot access requirements for the presidential primary. Because today, for all intents and purposes, the election in Virginia is more reminiscent of some banana republic than a centuries-old democracy. And don’t start in with any civic duty nonsense today. I don’t see any way in which it’s my civic duty to participate in a primary for a party I’m not a member with a nomination slate choice that is not reflective of the existing candidates.

Still, I’m quite up in the air about this. My instinct is to still go vote. So I’ll  leave it up to the readers. Should I vote today?