The 9th Circuit Court of Appeals has struck down Proposition 8, effectively legalizing gay marriage in California.

For the libertarian reasons I’ve outlined in depth here and also defended here, I don’t think this is the optimal way to address the issue of marriage inequality; it takes a set of special government preferences (for heterosexual married couples) and extends those benefits to a wider group of people (heterosexual and homosexual married couples), while leaving enormous pools of people short of the benefits (single people, people who prefer polygamy, and the huge and growing group of long-term monogamous cohibatators).

It’s kind of like if the civil rights act had said “no discrimination against blacks” instead of “no discrimination on account of race.” Not a bad thing, by any means, but hardly a statement of universal equality on the issue of human sexual relationships.

I believe the only legitimate solution to this is to completely decouple marriage and the state. In other words, abolish all state benefits for any marriage, — gay, straight, polygamous, or otherwise. Anything short of that leaves in place a system in which the state preferences, incentivizes, and legitimates some human relationships over others. Human sexual relationships exist prior to the state, and the state has no business promoting some and not others.

My brother-in-law and his girlfriend live virtually the exact same lifestyle my wife and I do, in all respects. Why we should have a myriad of financial government benefits that they lack, simply because we signed a piece of paper the state wrote, is a question that has no plausible legitimate answer. Allowing homosexuals to sign that same paper is certainly benevolent, but hardly equal.

The Sunlight Foundation has slogged through two quarterly House Statement of Disbursements reports to produce a nice piece on staff turnover in the House. Endlessly interesting to think about. Go read it.

I don’t mean the following as a harsh critique — I really liked the study and, having done my share of research in the Statements of Disbursements, I have a professional respect for anyone who dares sit down with them — but I have three concerns:

1. I’m not sure I buy into the theoretical importance of turnover, per se. Here’s the SF’s theory:

Retention rates affect how well members of Congress can do their job, since they rely so much on their staff. And as any manager in the private sector knows, high turnover undermines organizational effectiveness. Hiring and training new staff takes substantial time, and institutional knowledge is frequently lost in the process.

Offices with less experienced staff and less institutional knowledge will generally be less competent. This makes it harder for members to execute their legislative priorities and makes them more likely to rely on lobbyists and special interests for guidance. It may also make it more difficult for offices to adequately serve constituent needs.

I’m skeptical of this turnover-effectiveness link. It makes sense in theory, but I’m not sure how applicable it is to the Hill, which is a strange employment market / work environment if there ever was one.

One feature of the Hill job market is that lots and lots of people who leave an office on the Hill do so in order to take a job in another Hill office. It’s probably the exception to hire from the outside for anything but the entry-level staff assistant jobs. I think it surprises a lot of people how much hill staffers jump around, especially at the lower levels. Some people seem to think that most hill staffers grew up in the district for which they work, but that’s not at all the case. It’s not uncommon for someone to have interned at one office, caught on as a staff assistant at another, and landed as an LA at a third office. My experience/intuition is that senior staffers do less of this, but it’s still common. The culture of the Hill makes it more or less normal for everyone to always be looking (or at least open) to a new job in a different office.

Now, even if the turnover is strongly driven by people moving around a lot, that’s potentially bad for the individual Member offices. But I don’t think it’s quite as bad as the study suggets. Despite co-existing like 500+ small businesses on the same campus, the individual Member offices tend to have a lot of functional and cultural overlap. And they are definitely completely intertwined professionally. Enough so that if your education LA leaves, you don’t exactly have to reinvent the wheel to hire a senior staff assistant to fill that role, whether you get him fr0m your own office or another. There’s enough commonality to the Hill (the campus, the day-to-day happenings) and the individual offices (chains of command, typical job description of the education LA) that, yes, it’s a transition, but no, it’s not a huge shakeup to an office. In fact, many policy staffers spend as much time talking to staffers from other offices as they do talking to staff from their own office.

What it comes down to, I think, is that I’m not sure the individual offices can be seen as different firms for the purposes of asking how turnover affects them. The institutional knowledge and/or experience with an individual office is not nearly as important as institutional knowledge of the Hill as a whole. Think about it this way: if I had a legislative director who had been on the Hill for five years, all of them in my office, and then he left and I replaced him with a senior policy adviser who had been on the Hill for 7 years in three different offices, that might actually be a net positive for my office on the experience and knowledge dimensions. For the Sunlight study, it’s simply more bad turnover. Same thing with our education LA. If you get someone making a lateral move who already covered education, the deadweight loss strikes me as almost nothing. It’s not a similar job in new circumstances; it’s really the same job with a new supervisor.

Again, this doesn’t damn the study at all. But the key variable I think we want to know is missing: how many people, in aggregate, are leaving the Hill and being replaced by new faces that have no Hill experience. My intuition is that it would be much more interesting to get a feel for total Hill turnover. I’d much rather see, for instance, the total number of years on the Hill for the staff of an office. Turnover might proxy that, but we really don’t know. After all, if we want to measure experience and institutional knowledge, we should measure experience and institutional knowledge, not how that knowledge and experience is moving around within the system.

2. The study cuts through the 2010 election, comparing employment data from before and after. Unfortunately, the 2010 election — in which 90+ House members were replaced by new freshmen — was an unusual event for Hill employment. Not only were there 90 offices worth of staff looking for jobs, but they were disproportionately on one side of the partisan divide. As a result, you had the following employment situation: lots of Democratic staffers in the Member offices and committees out of work, with a very tight market for Democratic Hill jobs, and lots of Republican job openings in both the offices and committees, but very few Republican staffers out of work. Result: lots of Democratic staffers leave the Hill; lots of Republican staffers get promotions to go work in a new office; and lots of Republican staffers come to the Hill for the first time.

In short: lots of turnover. In fact, perhaps — and this is just a guess — some of the highest turnover in history. Now, this doesn’t damn the story about relative turnover between offices, but it does gum things up a bit. I would guess that it has something to do with the partisan turnover differential in the study. The cascading effect of all the job openings in the new Republican offices probably churned up a lot of turnover, and almost certainly a disproportionate amount, among offices that existed both before and after the election.

3. I don’t think staff spending is a good measure of representational effectiveness. The SF study notes that higher paid staff are less likely to turnover. That seems about right. And it probably follows that a member could slow down turnover by increasing his staffers’ pay. But it doesn’t follow from this that an individual office can more effectively represent its constituents by increasing staffer pay. And that’s because offices are working on a fixed budget, the Members Representational Allowance (MRA). Any increase in money devoted to staff has to be balanced against the corresponding loss of resources for other office activities.

What else does the MRA fund besides staff? Three general categories: office expenses like office supplies and district office space leasing, travel back to the district for the Member and staff, and franked mail for constituent communications. To the degree that any individual Member is maximizing his budgetary efficiency, an increase in staff pay will generate a resource loss on this side of the ledger. And if a Member is maximizing his efficiency, then he has already struck the balance he thinks proper. And if you don’t think Member are maximizing their budgetary efficiency, well, that only raises the question of whether more money can actually solve anything. I suppose one response would be to increase the MRA for the purpose of increasing staff pay, but that’s quite a hard sell in the current budget climate (the MRA has been cut in recent years).

Quite unexpectedly, I found myself in a very interesting situation Sunday morning: listening to an overtly political sermon at church. Based on the reaction I saw in the congregation, I think it might be a very big deal. It was absolutely the talk of the congregation on the way out of the building when church let out.

Now, I grew up in a unabashedly milquetoast Methodist church. My grandfather was the pastor when I was a boy, and my uncle wast the pastor when I was older, and I cannot remember either of them ever giving an even remotely political sermon. These days — despite more or less subscribing to an agnostic Quakerism in my personal beliefs about theology and church institutions — I go to a suburban Catholic church, since my wife is part of the One True Church and, only God knows how, my kids ended up part of it too. On average, pretty much any Catholic priest will tend to be slightly more political in his homilies than some pastor at a  liberal Methodist outfit in upstate New York, but your odds of running into what I ran into yesterday — an all-out political assault from the pulpit that you might associate with conservative evangelicals or fundamentalists — are extremely low at a Catholic mass at a not-particularly-conservative Catholic church. So part of the reaction and buzz was probably due to the unusual nature of the message.

It definitely took me aback. I was out in the hallway walking around with Abigail, who had gotten restless in the pews, and we were listening over the PA system as the homily started. And right out the gates, the normally-restrained priest — whom I had never really heard give a political sermon of any sort — just started going to town on the Obama administration, over the HHS decision to leave in place the rule requiring church-affiliated institutions to offer birth control services as part of employee health packages. And he didn’t let up. He talked about church and state, the founders, the role of Catholics in building this country, and even, if I remember correctly, called the decision a “slap in the face.” Abigail and I nearly ran back into the pews at that point, because I wasn’t going to miss this rest. When I sat down,  I leaned over to Sarah and said, “Can you believe this? I’ve never heard anything like this here,” and she was in complete agreement.

Now, I’m not particularly interested in the substance of the debate. I’m personally very supportive of birth control access, particularly to the degree it lowers the abortion rate. And I know only a few Catholics (and no Protestants) who are absolutely against artificial birth control. As a libertarian, I’m not a huge fan of government dictates over health policy like this, but that’s a general complaint and has nothing to do with the church’s particular issue here. What I am interested in, however, is the political power of the church to swing voters over things like this. Like I said, the vast majority of Catholics I know are probably happy that birth control can be part of their health care plan, and while many of them probably have reservations about forcing Catholic hospitals and schools to offer it to their employees, I don’t think it’s a big enough issue to affect the vote of very many.

On the other hand, if you can convince a lot of Catholics to vaguely understand themselves as catholic voters, and then convince them that the Obama administration is anti-catholic, that strikes me as potentially a very big deal. For both ideological and socio-cultural reasons, Catholics have long been a strong part of the Democratic coalition. And definitely have (in the past) supported Democratic candidates at a greater rate than the rest of their demographic backgrounds would suggest. It’s also true that Catholics in America — particularly older Catholics outside of the northeast — still identify with past anti-Catholicism and the group solidarity that came with such discrimination. Yes, Kennedy was elected 50 years ago; but he’s still the only one who made it, in a nation that’s about 1/4 Catholic. In effect, I think it’s probably easier to get Catholics to think of themselves as religious group members for the purposes of voting, in comparison to, say, Methodists or whatever.

Now, that’s just conjecture. But if it’s true, what I saw on Sunday is not good news for the Obama administration. Walking out of the church, all people were talking about was the homily. I heard one man say, “Obama had to choose between the Catholics and his other supporters. And he didn’t choose us.” I overheard someone else say, “It’s like he’s doing this just to spite us.” I heard a lot of people — including my wife — express complete surprise that the new rules might force Catholic hospitals to make tough choices, or even shut down if they didn’t want to bend their beliefs. Put it this way: I’m fairly confident 80% of the people in that church on a given Sunday couldn’t even tell you what the homily was about. But yesterday, it was pretty clear that all of them got the message. And the message was “Obama is making unnecessary and unprecedented decisions that hurt the Catholic church’s ability to help people.”

That’s exactly the attitude that Obama can’t afford to foster. Now, I don’t want to make too big a deal out of this. In part because I’m obviously dealing with one anecdotal account of one mass on one Sunday a year before the election. And also because who knows how much mileage Obama will get from other groups who are happy about the decision. And maybe this will all fade by the election anyway.  But it sure seems like something that might cause an unexpected problem for the President. Like I said, I’ve never seen a political discussion at this particular church before. But what I did see on Sunday was not a good sign for the Democrats.

After the Giants got their final first down last night, setting up first and goal, I tweeted the following:

Twenty years ago, neither team manages the clock correctly in this situation.

I was both right and wrong. The situation was the perfect moment to put the modern advance in sports strategy on display. There was just enough time left to almost run out the clock, given the two Patriots’ timeout remaining. The Giants were down exactly two points — down three and they’re trying to score a TD, down one and they’re arguably trying to score 8 to get a full touchdown lead. And the defense was being coached by a man who was almost certainly aware of the strategic implications. That it happened in the Super Bowl was almost too good to be true. If both teams had played 1st down perfectly, it would have become the poster-child for the advancement of strategic thinking in football.

As it turns out, the Patriots did play it (almost) perfectly — they opted to let the Giants score on second down, so they could get the ball back (they probably should have done that on first down, to preserve their other timeout). The Giants, on the other hand, arguably made two mistakes. One was Bradshaw not being able to stop himself on the 1-yard line. The other was the decision to run the ball at all; they could have just knelt on it three times at the seven at kicked a 24 yard field goal with very little time on the clock.

But let me be crystal clear here: with 1:09 left, 1st and goal, down two, opposition with 2 timeouts, it is absolutely correct strategy NOT to score a touchdown. Whether you try to get closer than the 7-yard line is debatable — it depends on the relative success rate of 24 yard field goals vs. 18 yard field goals, as well as the probability of fumbling in both scenarios — but you certainly don’t want to get in the endzone.  The theoretical math is very easy: if you kneel three times, you will be able to kick a field goal with, at most, about 20 seconds left on the clock (and probably less, since the kneel-downs take more time than you think, and can be prolonged). Even if you do run a real play, you absolutely stop on the 1 yard line and do the same thing. If you score the touchdown on first down — which you will if your opponents are correctly letting you score —  the opposition will be down either 4 or 5 with about a minute to go, with two timeouts. So the question is simple: which is more probable — missing what amounts to an extra point, or Tom Brady leading a touchdown drive in 1 minute with two timeouts?

It’s not even close. You kneel and kick. Or stop on the 1 yard line.  League wide, 99.4% of extra points were made this year. The Giants were 45 for 45. You think Brady has less than a 0.6% chance of leading a TD drive with a minute and two timeouts? Not a chance. According to the NFL win probability stat, the Pats had a 4% chance to win when they got the ball back. And they only had 1 timeout as it turned out. And win probability doesn’t take into account the individual team, or whether or not you have Tom Brady. Here’s the thing: football is a zero-sum game. If Belichek was correct to let the Giants score, then by definition the Giants were wrong to get into the end zone there. And vice-versa. By the above math, the Giants gave the Pats  roughly 24-1 odds to win, when they could have made it roughly a 199-1 chance. That’s right: by getting in the end zone, the Giants increased their chance of losing roughly eightfold. (This math doesn’t include what the Pats could do with 10-15 seconds and no timeouts, down 1, after your field goal and the ensuing kickoff. But that’s virtually negligible, especially without a timeout to get the kicker on. They are basically reduced to a hail mary from their own 20. If you want to give them a 1% chance of winning that way, go ahead, it doesn’t change the strategy).

After the game, Coughlin admitted he didn’t send in the order for Bradsahw to try to stop on the 1-yard line — that was Eli. Instead, Coughlin said he actually wanted the touchdown there, arguing that no kick is ever guaranteed. Bradsahw said basically the same thing. That’s almost the perfect expression of risk-averse coaching, which is a huge problem in the NFL. If you deviate from conventional wisdom — no matter how much it increases your probability of winning — and it doesn’t work out, you get killed by the media and popular opinion. Consequently, coaches have incentives not to maximize their chances of winning, if doing so has them implementing unconventional strategies that will be criticized (nad possibly get them fired) if they fail. If the Giants had somehow blown a field goal and lost the Super Bowl after Bradshaw knelt on the one, Coughlin would have been (incorrectly) buried by the media. But if they score the TD and then the Pats come back and win, that would have been (wrongly) seen as not quite so bad: we did everything we could, but they beat us.

It’s horrible logic, but it still holds in popular perception. Let me repeat: the Giants hurt their chances of winning last night by scoring that TD; the actual outcome doesn’t matter when evaluating the strategic decision. But perhaps the conventional wisdom about these things will not hold for much longer. Last night definitely exemplified how dangerous the traditional decision can be, and there’s actually a debate going on today in the popular press that leans toward kneeling and kicking.  Twenty years ago, that debate would not even have existed; no one would have dared even consider not getting the TD.

[I promise to get  back to the libertarian-blogging next week; I just got less writing time than I hope these past few days.]

I’m still quite stunned by the GOP primary contracts at Intrade.

As of this writing, you can buy Romney for 89 cents on the dollar. Now, let me be clear. I’m not saying that’s a solid value play. I’m saying that’s an incredible value opportunity, a potential 21% annualized return on any money you invest now (the contract expires at the convention, which is just under 7 months away).

It’s even scarier to see it expressed as a time series. Here’s a graph of Romney’s Intrade closing prices since December 28, when I made a public declaration that the race was, for all intents and purposes, over.

Systematic investment of $10 a day into this contract ($380) since then would have a current equity increase of 9.5% and a potential annualized return of over 40%. I’m not saying I did this. But I’m not saying I didn’t. What I am saying is that the South Carolina Gingrich surge has had an absurd effect. Is it really less likely that Romney wins the nomination now than it was just before the Charleston debate? Insane.

So what is going on here; why is Romney so seemingly undervalued.  I see a few things. First, two legitimate issues:

1. There’s some (small) chance he loses the primary. This isn’t a risk free investment — Romney could still be beaten, straight-up — but the odds of that are simply nowhere near 11%. Not a chance. But they are something. I don’t think they are greater than 1-2%. So let’s call it that, 2%.

2. Something could happen to Romney. People do die, and massive scandals do happen. Upon occasion. One way to estimate the marginal probability  is to look at President Obama’s Intrade number for winning the Democratic nomination, which may incorporate things like the probability of death or massive scandal, but certainly does not include any chance of losing the nomination in a competitive primary. The President’s number is 97.7%, which means that it’s probably safe to say that in the case of the GOP primary, those last 2.3% are systemic, not anything to do with Romney himself. I have the 97.7% line marked in red on the graph; that shaves another 2.3% off his chances.

And now, three irrational issues (i.e. money-making opportunities):

2. Market distortions, mostly longshot bias. That 2.3% from above isn’t all about something happening to Romney. It also contains at least one market distortion: longshot bias, which I wrote about last month.  This is a well known empirical finding of economics research into gambler behavior: gamblers like to bet on longshots rather than favorites, in part due to psychological utility of hoping for big paydays and in part due to cognitive misunderstanding of large numbers. The upshot is that it attenuates the odds whenever the odds are set by the market, be it at the Saratoga Race Course or on the Intrade political market. But, as I said, this is built into the 2.3% we’ve taken from Obama’s Intrade Odds. That’s why the red line on the graph is labeled “Act of God + longshot bias.”

Still, there are a few other market distortions worth noting here: for instance, the market might itself have an influence on the outcome of the race, and thus partisan backers of one candidate or another might have reasons to manipulate it. I don’t think a lot of people are looking to Intrade to see if the race is over, but would it really be that bad of an investment for the Gingrich or Santorum campaign to spend a few thousand dollars driving down the price of Romney? It’s not a huge-volume market. It couldn’t hurt. If there are voters or journalists out there who are using Intrade as a cue, then it might actually be a very smart strategy.

3. Actors incentives to continue to make it a race. As I’ve written before, virtually everyone — but particularly the media — has a strong incentive to portray the race as not over. That is probably playing a role here, even if its just putting a hint of doubt into people’s minds.

4. The polling. There was a long (and wonderful) nerdfight earlier this year on the internet over the relative importance of polling and, on the other hand, fundamentals like money, organization, and party actor endorsements in predicting the outcome of elections. My personal opinion is that in primaries, both are relevant, but fundamentals are more important. Others disagree. But anyone who puts more weight on polling is bound to see the race as still not in the bag. And that’s probably a sizable percentage of people, even in the chattering class. I mean, just look at that graph. It follows the media narrative and state-by-state polling to a ridiculous degree.

So, in sum, I think it’s something like this: Romney is at 88.7 right now. If he were a lock absent the act of god, he’d be around 97.7 or so, but that contains the longshot bias, so there’s some value in there. But call it 97.7  So we have to explain about 9% among other market distortions, actors actively trying to make a race where there isn’t one, people putting too much reliance on polling and not enough on fundamentals, and Romeny’s actual chance of losing the election in some way other than death. I’m of the mind that the vast majority of the 9% is illusory (as I said, I would estimate his true chance of losing at less than 2%). How you divide up the rest is probably a question of philosophy, or at least a better social scientist than I.

But make no mistake about it, this thing is over. And people who refuse to believe this are handing out cash right now on Intrade. Not, of course, at the 21% annualized return we discussed above, that would be if we knew Romney was 100% to win. But by the back of the envelope we’ve done here, it’s at least a 12% annualized return, plus (12/7) * whatever the longshot bias is. Needless to say, my recommendation is, as it has been, BUY.

There’s a long and well-known literature in political science that say Members of Congress have three goals: re-election, increasing their internal power within the legislature, and making good public policy for their constituents (For example, see Fenno). In general, the re-election goals takes primacy, because without it, the other two become unattainable. And contrary to what your cynical uncle says, that’s probably a good thing: if Members did not concern themselves with getting re-elected, both the theoretical and practical underpinnings of republican representation tend to fall apart. This is not the kind of political science that is much up for debate; at this point it’s more or less self-evident to everyone. But it does leave a whole bunch of black boxes, namely how do you achieve any of those three goals?

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

How Members make decisions when these goals come into conflict is perhaps the most interesting aspect of congressional behavior. Still, this doesn’t tell us much about the actual fieldcraft of power accumulation in a legislature. Imagine you are a freshman backbencher in a legislature, doesn’t matter if it’s Congress or just the town council. How do you go about becoming powerful?

I think there are two general strategies and skills: adding value and extracting value. Both are consequences of the institutional context of a legislature, which I think has the following key features: power is distributed asymmetrically, Members have long-term repeated interactions, and very few people can make things happen without help from others. Consequently, Members — even powerful Members — need to bargain with others in order to achieve any of their goals. This results in what James McGregor Burns calls “transactional leadership,” the trading of something of value in return for something of value.

So when I say adding value, in the most basic sense this simply means your vote on the floor. And on the bare face of it, this is all the freshman backbencher has at his disposal to bargain with. Is there another Member who’s help you need? Almost assuredly there is. What can you give them? Well, you can be loyal to them with your vote. This is, as most people know, a very common relationship between the leaders of a legislature and their partisan freshmen. The freshmen provide loyal votes — even if it goes somewhat against their constituents or their own thoughts on good public policy — and in exchange the leadership provides all the usual resources that come from holding a position of power in the legislature: desired committee assignments, help moving district-related legislation or earmarks, opportunities to speak on the floor or sponsor high-visibility bills or amendments, and perhaps help raising campaign funds for the next election. And so on and so forth.

But, of course, votes are not the only way that a freshman can add value, they just happen to be the formal power that comes with the office. Outside of the formal power lies an endless list of resource externalities that can be translated into added value. This includes personal attributes of individual legislators: are they smart? hard working? politically savvy? natural leaders? All of these things can add value to someone else’s pursuit of a policy agenda, which can result in transactional benefits to the possessor of the qualities. If you are capable of working endless 20-hour days to help someone else achieve their goals there is little doubt that you will build up an enormous amount of chits from them for future use. Even more importantly, you will develop a reputation that brings future clients to your door looking to put your value-added to use for them, and willing to trade you some present or future chits for that value.

But freshmen backbenchers can also develop resources that can create value added. Two examples of this are fundraising prowess and policy expertise. Both of those are highly desirable types of added value, and both (within limits) can be developed without relying on others. If you can begin your legislative career by raising twice as much money as you need for your first campaign, you will have cold hard campaign cash to donate to other Members. If you can turn yourself into an absolute wonk within key policy areas, you will be helpful in developing legislation, and in selling it to other Members and the public. Both of those commodities are highly desired by other Members, and you will be rewarded handsomely.

In short, in order to accumulate power, you need to provide scarce resources to those who are in positions to help you in return. But that’s not good enough: providing resources in exchange can get you things, but to develop long-term power, you need to trade immediate resources for continuous power. Logrolls to get your preferred legislation are certainly nice, and certainly can help you get re-elected. Loyally voting for the leadership can do the same. But they do not help you accumulate internal legislative power (at least not beyond the power that flows from pure seniority). What you need to do to accumulate internal power is trade immediate added value for lasting power. Tireless work on a bill in return for strong consideration for a good committee assignment. Loyal votes even in the face of your constituent preferences in return for an entry-level role in the caucus. These are the types of things that can get your power snowballing — using your added value in exchange for things that can themselves generate value added. To use an economic analogy, it’s the difference between labor and capital. Wages are good, but owning the company is better.

And that brings us to extracting value. As a backbench freshman, you definitely have your vote. But what is your vote worth? What can you get in exchange for it? Those who can get a lot are good at extracting value; those who cannot get much, or who give it away free, are not. Seems like a simple principle, but it is sure as hell not easy to put into practice. Maximizing the value of your resources is incredibly tricky; it’s like being good at poker, you need to be able to play the game well, and you need to be an astute reader of people and possibilities. Some people are good at it, and get a lot in return for their added value; others are fantastic at it, and get a lot more in return for their added value.

Creating value where there seems to be none is even trickier. There are those, however, — former Rep. Rostenkowski comes to mind — who were masters at extracting value by creating it, whether it was from other legislators or external political players like lobbyist and party actors. Rosty had a simple maxim on how to extract value out of thin air: figure out what the hell you want to do on some issue, and then get someone to reward you for doing it. That’s where the value is, precisely because there’s no downside; you already made your decision because it was the best thing for you, period. Now go get someone to pay you off for doing exactly what you were going to do anyway. No fuss, no muss. Every time you make a decision, someone was hoping you would do what you did. Get them to pay for it. Even if it’s just a tiny favor. Plain and simple.

This is one reason why I have always believed that the effects of political lobbying are overrated. Legislators have every incentive to string lobbyists along even if they already agree with them. Lobbyists provide all sorts of resources to legislators: information about policies, talking points for speeches, entire bills that can be introduced, staff support that can be called upon in a pinch to augment existing human resources. And so legislators love being lobbied hard. By all sides of an issue. And the upshot is twofold: first, legislators have a strong incentive to be coy about their positions on various decisions. Indecision — at least the appearance of indecision — is the key to maximizing extracted value. Second, extracting maximum from thin air requires a credible threat to make an alternative decision. You can’t pretend you are on the fence about something if you are not. People with 100% pro-choice ratings aren’t great at extracting value from thin air on abortion issues.

Which creates a dual-track system for approaching decision making. If you are faced with a legislative choice, figure out what you want to do. If you have no credible commitment to do the opposite, then your only chance to add value is to marshal what resources you have (your vote + the external resources you possess) and work to maximize your future rewards based on your immediate help. If you do have a credible commitment to do the opposite, then you might be better off sitting on the fence and seeing what offers come your way for you to do what you were going to do all along. Obviously, the moderate Members of a legislature spend a lot more time doing the latter, simply because they are much more often in the position of having a credible commitment to go either way on an issue.

A while back, there was a movement afoot to require Members of Congress to certify that they had read a bill prior to it being voted upon, stemming from concern that Members sometimes did not know what was in legislation that they were passing. There are lots of reasons to think such a requirement would be silly, but from my perch, the one that comes to mind first is that legislation is often written in very technical and referential language. This is one of the reasons that bills in Congress are usually required to have committee reports attached to them — so that Members and the public can have a plain-language explanation of the contents of the legislation.

There’s is a good reason that the bills themselves iare not drafted in plain language: bills must be precise and consistent. Both the House and the Senate have Offices of the Legislative Counsel, which work with Members and Committees to draft legislation. Members or staff can come to Leg Counsel with plainly written ideas for laws, and Leg Counsel will work with them to translate their ideas into precise legislative language, or to help them determine which aspects of existing law need to be revised in order to accomplish with the bill what they intend.

At any rate, I thought it might be useful to read through a very short bill today, to illustrate how complicated it can be to understand a bill if all you have is the legislative text itself. Below is the full text of H.R. 3835, which was debated in the House this afternoon under suspension of the rules, and is expected to pass when voted upon (the record vote was postponed by the Chair under rule XX, clause 8). The bill would extend the current pay freeze for federal employees for an additional year, as well as extend the pay freeze for Members of Congress. Give the bill a read through, and then I’ll go through it with annotations below (I’ve removed the title, sponsor, session, and referral information from the bill).

*************************************

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. EXTENSION OF PAY LIMITATION.

(a) In General- Section 147 of the Continuing Appropriations Act, 2011 (Public Law 111-242; 5 U.S.C. 5303 note), as added by section 1(a) of the Continuing Appropriations and Surface Transportation Extensions Act, 2011 (Public Law 111-322; 124 Stat. 3518), is amended–

(1) in subsection (b)(1), by striking `December 31, 2012′ and inserting `December 31, 2013′; and

(2) in subsection (c), by striking `December 31, 2012′ and inserting `December 31, 2013′.

(b) Application to Legislative Branch-

(1) MEMBERS OF CONGRESS- The extension of the pay limit for Federal employees through December 31, 2013, as established pursuant to the amendments made by subsection (a), shall apply to Members of Congress in accordance with section 601(a) of the Legislative Reorganization Act of 1946 (2 U.S.C. 31).

(2) OTHER LEGISLATIVE BRANCH EMPLOYEES-

(A) LIMIT IN PAY- Notwithstanding any other provision of law, no cost of living adjustment required by statute with respect to a legislative branch employee which (but for this subparagraph) would otherwise take effect during the period beginning on the date of enactment of this Act and ending on December 31, 2013, shall be made.

(B) DEFINITION- In this paragraph, the term `legislative branch employee’ means–

(i) an employee of the Federal Government whose pay is disbursed by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives; and

(ii) an employee of any office of the legislative branch who is not described in clause (i)

*************************************

Ok. That’s not so bad. The whole thing is just 245 words. Let’s go through it section by section. The first few line are the title and enacting clause:

 To extend the pay limitation for Members of Congress and Federal employees.

 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This portion reports the title of the bill, and then adds the enacting clause, which is required by Title 1, section 101 of the U.S. Code. Neither are themselves part of the legislation or any resulting law. After the enacting clause, the text of the bill begins:

SECTION 1. EXTENSION OF PAY LIMITATION.

(a) In General- Section 147 of the Continuing Appropriations Act, 2011 (Public Law 111-242; 5 U.S.C. 5303 note), as added by section 1(a) of the Continuing Appropriations and Surface Transportation Extensions Act, 2011 (Public Law 111-322; 124 Stat. 3518), is amended–

(1) in subsection (b)(1), by striking `December 31, 2012′ and inserting `December 31, 2013′; and

(2) in subsection (c), by striking `December 31, 2012′ and inserting `December 31, 2013′.

And here we have run into the first problem of legislative drafting: our bill is achieving its objectives by altering existing legislation, which itself has already been altered. The Continuing Appropriations and Surface Transportation Extensions Act, 2011 added a Section 147 to the Continuing Appropriations Act, 2011, and we are now amending that added section. (As a side note, “Public Laws” are just sequential numbering of enacted legislation, so “Public Law 111-242” was the 242nd piece of legislation enacted by the 111th Congress; citations such as XXX Stat. XXX are references to the Statutes At Large, the official legal and permanent evidence of all the laws enacted during a session of Congress (see 1 U.S.C. 112); citations such as X U.S.C. XXX are references to the U.S. Code, which is a consolidation and codification of the general and permanent laws, organized by topic and updated to reflect amendments. Only some of the U.S. Code is “positive law,” however. More on that later).

And so we need to reference other law in order to understand the plain text of the bill. Here’s the referenced section 147 from P.L. 111-242, as added by P.L. 111-322:

Sec. 147. (a) For the purposes of this section–

(1) the term `employee’–

(A) means an employee as defined in section 2105 of title 5, United States Code; and

(B) includes an individual to whom subsection (b), (c), or (f) of such section 2105 pertains (whether or not such individual satisfies subparagraph (A));

(2) the term `senior executive’ means–

(A) a member of the Senior Executive Service under subchapter VIII of chapter 53 of title 5, United States Code;

(B) a member of the FBI-DEA Senior Executive Service under subchapter III of chapter 31 of title 5, United States Code;

(C) a member of the Senior Foreign Service under chapter 4 of title I of the Foreign Service Act of 1980 (22 U.S.C. 3961 and following); and

(D) a member of any similar senior executive service in an Executive agency;

(3) the term `senior-level employee’ means an employee who holds a position in an Executive agency and who is covered by section 5376 of title 5, United States Code, or any similar authority; and

(4) the term `Executive agency’ has the meaning given such term by section 105 of title 5, United States Code.

(b)(1) Notwithstanding any other provision of law, except as provided in subsection (e), no statutory pay adjustment which (but for this subsection) would otherwise take effect during the period beginning on January 1, 2011, and ending on December 31, 2012, shall be made.

(2) For purposes of this subsection, the term `statutory pay adjustment’ means–

(A) an adjustment required under section 5303, 5304, 5304a, 5318, or 5343(a) of title 5, United States Code; and

(B) any similar adjustment, required by statute, with respect to employees in an Executive agency.

(c) Notwithstanding any other provision of law, except as provided in subsection (e), during the period beginning on January 1, 2011, and ending on December 31, 2012, no senior executive or senior-level employee may receive an increase in his or her rate of basic pay absent a change of position that results in a substantial increase in responsibility, or a promotion.

(d) The President may issue guidance that Executive agencies shall apply in the implementation of this section.

(e) The Non-Foreign Area Retirement Equity Assurance Act of 2009 (5 U.S.C. 5304 note) shall be applied using the appropriate locality-based comparability payments established by the President as the applicable comparability payments in section 1914(2) and (3) of such Act.

And now you can probably see the rabbit hole into which we are descending. The referenced law is itself full of references to other laws! We won’t go any further down the unraveling; instead I’ll simply explain Sec. 147 to you: certain federal employees, as defined in various sections of the U.S. Code (5 USC 2105; subchapter VIII of chapter 53 of title 5;  subchapter III of chapter 31 of title 5; 22 U.S.C. 3961; and section 5376 of title 5) cannot receive an adjustment in pay during calendar year 2011 or 2012 under the standard annual adjustment system of Title 5 of the code, or any similar statutory adjustment in the Executive Branch agencies. Nor can senior-level employees receive an increase in their basic rate absent a promotion.

And so the bill we are currently working with — which specifies that the relevant end dates of the freeze will be changed from December 31, 2012 to December 31, 2013, simply extends the freeze for an additional calendar year. Ok, on to the next section:

(b) Application to Legislative Branch-

(1) MEMBERS OF CONGRESS- The extension of the pay limit for Federal employees through December 31, 2013, as established pursuant to the amendments made by subsection (a), shall apply to Members of Congress in accordance with section 601(a) of the Legislative Reorganization Act of 1946 (2 U.S.C. 31).

On its face, this subsection seems to simply say that Members of Congress will also not get a pay increase in 2013. But what’s that reference to section 601(a) of the LRA of 1946 and 2 USC 31? It’s a pointer to the section of the Code that says, in reference to the formula for adjusting Member pay:

In no event shall the percentage adjustment taking effect under subparagraph (A) in any calendar year (before rounding), in any rate of pay, exceed the percentage adjustment taking effect in such calendar year under section 5303 of title 5 in the rates of pay under the General Schedule.

In other words, the current bill’s application of the pay freeze to Members is more or less a fig leaf; current law already requires that any increase in Member pay be less than the increase in pay for federal employees. Therefore, the extension of the freeze in subsection 1 automatically extends the freeze on Member pay, regardless of whether subsection B is included. There’s nothing wrong with restating the Member pay freeze, but it is not necessary. (For my previous writing on Member pay, see here.)

As a sidebar, here’s a good question? Why do bills and laws sometimes reference old laws, and sometimes reference the U.S. Code? The answer is that the old laws are legal proof of existing law, but the U.S. Code — which is a compilation and rearrangement of the laws to ease finding and allow for amendments — is not always legal proof of law. Starting in 1926, Congress began enacting whole titles of the Code as “positive law” and repealing the underlying statutes. But only some of the Code has been enacted into positive law. In those cases, bills can directly amend the Code; the Code is law. But for areas that the Code is not yet positive law (such as Title 2), bills must reference the actually Acts, and Code citations are merely for reference.

Alright, onto the next portion of subsection (b):

(2) OTHER LEGISLATIVE BRANCH EMPLOYEES-

(A) LIMIT IN PAY- Notwithstanding any other provision of law, no cost of living adjustment required by statute with respect to a legislative branch employee which (but for this subparagraph) would otherwise take effect during the period beginning on the date of enactment of this Act and ending on December 31, 2013, shall be made.

(B) DEFINITION- In this paragraph, the term `legislative branch employee’ means–

(i) an employee of the Federal Government whose pay is disbursed by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives; and

(ii) an employee of any office of the legislative branch who is not described in clause (i)

This section is, presumably, trying to make sure that the pay freeze extends to the legislative branch. There are many provisions of the U.S Code that deal with the Executive Branch as distinct from the Legislative Branch. Whether the definition of employee under Title 5 falls into this category is debatable; this may be another fig leaf to reiterate that the proposed law is also being applied to congressional employees. But it also may be relevant; there may be employees in the legislative branch who are not covered by the definition of employee under Title 5 (although it doesn’t look that way to me).

Now, the current bill at hand came up today under suspension of the rules, so it was never reported out of committee, and therefore does not have a committee report. If it did have one, the explanation of the bill would likely say something like this:

“Section 1 of the bill would extend the current freeze on federal employee pay adjustments through 2013. The current freeze is set to expire at the end of 2012. It would also specifically apply the freeze to Members of Congress and employees of the Legislative Branch.”

And that is one of the reason why the House requires Committee reports to describe the provisions of reported bills, and more or less all you need to know as to why we don’t require Members to read the actual text of the bill (or certify that they have done so) prior to voting on legislation.

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

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

Part Zero: Building a deck in Fairfax county, VA (1/30/2012)

Consenting Adults

Pretty much any libertarian theory must start with the some variant on the basic ideas of the autonomous individual and the harm principle. Now, as you may already know or may come to find out, I’m a pretty pragmatic libertarian, but I do certainly believe in these two concepts. Simply stated, every individual exists prior to their interaction with other individuals or the State, and no individuals’ behavior should be restricted by others or by the State unless it is causing harm to others. There can (and should) be an ongoing debate over what constitutes “harm,” but there can be no doubt that if the actions of an autonomous individual can be agreed to be not causing  harm to others, then it’s really none of our business what he or she is doing.

And so we must arrive at the conclusions that when an adult is not harming others, he is free to pursue his own happiness unencumbered by other individuals or by the State. And therefore, it is none of your business and none of the States business as to which cereal I eat for breakfast, what kinds of clothes I wear, which books I want to read in my free time, or what solitaire game I play with my deck of cards. Now, you can argue that I can harm you (or the State) simply by not maximizing my industry or health or economic output, and therefore everything I don’t do that I should do is a harm to others (or the State). But that’s a theory of fascism, best I can tell. And I doubt anyone wants to object to my theory by promoting fascism.

Following from this, as well as from human nature, we must also thus accept that individuals will have different conceptions of happiness and thus different private strategies for pursuing that happiness, and none of it is of any concern to the rest of us. I might enjoy playing my piano in all my free time. You might enjoy reading books. Someone else might enjoy growing vegetables in a garden to make snacks. And someone else might enjoy growing pot to smoke.  People will lead different lives. We are free, of course, to negatively judge people for how they choose to spend their autonomous non-harming time, but we are not allowed to restrict them from choosing how to spend it. Not as individuals and not collectively as the State.

Following from this, quite naturally, is the first principle of the State: whatever else the State may do, it should not be in the business of promoting or discouraging any particular conception of happiness, or any particular choices a non-harming autonomous adult might make in pursuit of that happiness. And this brings us to a first political principle: all State bans on the private non-harming activities of the individual are presumptively illegitimate. In particular, all “for your own good” bans are obnoxious to libertarianism. If someone want to spend their free time smoking cigarettes all day in their own backyard, or eating ridiculously fatty foods, or drinking absinthe until they pass out, those all seem like pretty silly ideas to me. But who are we to judge? And so the State’s role in a non-role: there should be no restriction under law.

Nor should there be any discouragement. If the State cannot choose between competing conceptions of happiness or the good life, it follows that it should not discourage or encourage any particular conception of the good life for the non-harming autonomous individual. I don’t doubt the success of public health campaigns — particularly the anti-smoking campaign — in the second half of the 20th century in America. It isn’t a question of whether the government can influence the non-harming behavior of adults; it can. But that is precisely the problem. Handing the keys to private happiness to the will of the collective majority is wr0ng. But public health is at least plausibly defensible; perhaps adults should know about the dangers of tobacco so they can make informed decisions about their private activities. What is not defensible is the next step: manipulating the taxation system to preference one conception of the good life over another. As much as it makes me sick to think about smoking cigarettes, excise taxes employed to reduce consumption of so-called “vice” products are indefensible. And so are, obviously, outright bans.

Why, you might ask, should the State not take a position when there are competing conceptions of happiness? I would say for at least three reasons. First, the distinction between “taking a position” and promoting/discouraging and banning are not very clear. And the latter is clearly not acceptable. Second, the state taking a position on such an issue is itself a harm; to burden me with additional obligations in order to enjoy my autonomous non-harming activity is wrong. Finally, the State is supported by collective taxation; it should not be discriminating among competing conceptions of the good in order to spend collective money promoting one or the other.

Naturally, it follows that if one autonomous individual can undertake any non-harming activity he wishes, then two autonomous individuals may undertake any activities they mutually desire, so long as they do not harm anyone else. This is where, as a policy matter, I completely diverge from the conservatives, and the basis of why I do not think of myself as a conservative. It strikes me that Lawrence v. Texas is the most important libertarian SCOTUS decision of our age; if the State were allowed to regulate the non-commerical sexual habits of consenting adults, then it would seemingly follow that the State could regulate a good deal of the private habits of the non-harming individual. And that would be horrible.

Which brings us to gay marriage. I don’t think there’s an issue out there that so clearly illustrates why I’m a libertarian rather than a liberal or a conservative. In a nutshell, conservatives are wrong because there should be no State restrictions on intimate human relationships between consenting adults. But liberals are also wrong, because the solution to the situation is not to allow homosexuals to obtain the State preferences afforded heterosexuals, but instead to get the State completely out of the business of granting preference to any arrangement(s) of human intimacy over any other. Anything short of that commits the State to promoting a particular conception of the good life, or to discouraging other conceptions.

Let me explain.

I. How gay marriage gets misunderstood

It’s easy to get lost in the all the high-minded talk about marriage from both the pro-gay marriage crowd and the anti-gay-marriage crowd. Most of the rhetoric is wrapped up in things like love, tradition, equality, western civilization, freedom, and the such. That’s understandable from a political lobbying point of view, but it’s not really a good way to think about what is actually at stake here: selective government benefits.

Right now, anyone who is legally married (whether straight or gay) in the United States has access to a myriad of public benefits from their home state. Here’s a list of several dozen:  tax breaks, estate planning benefits, sick days from work to care for your spouse benefits, medical benefits, consumer benefits, etc. Etc. Etc. The list goes on and on. In addition to these state level benefits, straight couples legally married in the United States can get similar benefits from the federal government (such as social security, tax breaks, etc.)

Since only a handful of states have gay marriage (or civil unions that are identical to gay marriage) and the federal government does not recognize gay marriage at all, gay couples do not have the same access to these benefits that married straight couples can receive. Thus the claim of inequality.

What is emphatically not at stake here is the right to live a married life. Ever since Lawrence v. Texas was decided by the Supreme Court, it is not possible for a state or the federal government to punish someone for homosexual conduct. Thank God. Short of the selective government benefits, gay couples may mimic the lifestyle of any straight couple without any worry about public repercussions: they can have a public wedding ceremony, put rings on their fingers, cohabitate, and even bicker with each other over who should take out the garbage. In essence, gay couples have complete and total access to marriage as it exists outside the sphere of the state. Prior to Lawrence v. Texas, this was not the case. But it is now. No government in our nation can punish you for living a married, homosexual lifestyle. All they can do is deny you the selective benefits.

So the cause of action here is simple: one group of people (heterosexuals who declare themselves married)  can get a set of selective benefit from the state if they sign some forms. Another (homosexuals who declare themselves married) cannot. The latter group would like the selective benefits of the former group. In effect, they want in on the party. It can be cloaked in as soaring rhetoric as you would like but, in the end, what we are talking about here is tax breaks and visitation rights. Nothing more, nothing less.

II. The relationship between marriage and the State

But this raises a fundamental libertarian question: why do these selective benefits exist at all? And what about the heterosexual (or homosexual) couples that would like to live a so-called traditional married lifestyle (i.e. long-term monogamous cohabitation) but don’t really feel like signing up with the state? Where are their benefits? Even more to the point, what about heterosexual (or homosexual) couples who don’t want to agree to one of those three pieces (long-term, or monogamy, or cohabitation), but would surely like them some visitation rights at the hospital?

Or even more to the point, this: why should the government let my wife visit me 24 hours a day at the hospital, while my unmarried friend cannot have anyone visit him 24 hours a day? It’s nonsensical. And it can be dressed up in any of the lingo currently being tossed around in favor of gay marriage: is someone less deserving of love and companionship when they are sick, simply because they aren’t married? Should they really have to go it alone at 3am at the hospital because they don’t have a husband?

So the question becomes this: what should the relationship be between the state and marriage? State and federal law says “lots and lots of selective benefits.” I say ” nothing.”  Marriage is fundamentally not a government institution. It existed prior to government selective benefits for married couples, and it will exist long after we do away with those selective benefits. What marriage is is this: a private arrangement between private citizens. Some people think it’s a religious arrangement, others just a contract between consenting adults. But whatever it is, it can be achieved without the existence of the selective benefits.

And note that this is historically true. Selective government benefits for married couples are a (relatively) new phenomenon. Five hundred years ago, this isn’t how it was done. And 500 years isn’t all that long when you are talking about an institution that pervades a decent chunk of human history

III. The advantage of removing the state from heterosexual marriage

None of this would be all that important if there weren’t one fundamental wrinkle: the development of the selective government benefits is having a corrosive effect on marriage and human relationships. This falls into two general categories:

1) The state has a monopoly on the marriage contract. Right now, if you want to get married in the state of Virginia and get your hands on those selective government benefits, you have to play by the state’s rules. One of those rules is “no gays need apply.” But there are tons of other rules, mostly regarding how the marriage might legally end and what happens to the joint possessions of the parties when it does. Once upon a time there were other rules (i.e. husbands could not be charged with raping their wives, etc.), but many of them are gone. Some remain: those regarding debt, pre-marriage property, liability, etc. And, of course, the most important one: adultery is a criminal offense in Virginia if you are married.  In any event, your marriage in the state of Virginia will be just like mine. One size fits all.

But what’s the point of that? Why can’t my wife and I have a different marriage contract than you? Why does the public get to set the terms of any dissolution of my marriage? And why does it have to be uniform? In effect, what is going on here is that the government is saying the following: if you want our selective benefits, you have to play exactly by our rules. This is not only a bar on gay or polygamous relationship, but it’s a bribe on heterosexual relationships: go with our marriage contract or be denied the benefits. Thanks, but I’d much rather write my terms of life with my wife.

So here’s a trade I propose: the state drops all selective benefits, and we’ll all write our own contracts. And just like the state of Viriginia will enforce a premarital financial contract (i.e. a prenup), they can enforce our marriage contracts. And then, without the bribe of the selective benefits to straights or the bar against non-traditional marraiges, we’ll let a thousand flowers bloom: gays can write up their contracts, polygamists can write up theirs, and I’ll write up mine. Maybe you’ll put in a bar on adultry, maybe I wont. Maybe your wife will change her last name. Maybe I’ll change mine ( can’t do that in VA right now! Go cavaliers!).

2) People (especially homosexuals) have come to equate marriage with state recognition. Nothing makes me sadder than to see a gay couple on TV crying because they “can’t get married.” Why? Because it’s obvious that they aren’t crying because they can’t get at those selective government benefits. They’re crying because they don’t feel that their marriage is valid if the state won’t approve it. This, of course, is complete pap. Their marriage is perfectly valid the minute they proverbially stick some rings on their fingers and begin living the lifestyle of whatever they believe “marraige” means. But that’s an intellectual take on what is obviously a highly emotional thing. And I hold the government responsible: the public through its elected officials has created a situation in which two people, engaged in an utterly non-governmental insitution, are made to feel excluded by the fucking government. As if anyone needs the government to bless their marriage. It’s heartbreaking. But it’s real. Your fault, big brother.

IV. Addressing conservative objections

So, everyone right-wing ideologue and his brother are reading this and having the same thought: wait, Matt, the state has an important role to play in all this, because marriage is a positive for society and the state has a vested interested in promoting things that are positive for society. If we encourage marriage, it will be for the benefit of all.

Leave aside that it’s an odd thought for a conservative to be arguing the positive role of government. I take issue with each clause of the above statement. Let’s start with the first one: marriage is a positive for society. Two objections: what’s your proof and, more importantly, who cares?

On the proof question, conservatives love to raise all sorts of stats about how children do better in school or are happier or whatever in a two-parent household. Probably true, but it’s not good enough proof, because the comparison that is most important isn’t how kids with married parents do vs. how kids with single parents do. Undoubtedly, the former do better. The true comparison is how kids of married parents do vs. kids of unmarried-but-cohabitating parents do. Because as we’ve shown above, state marraige is nothing but a set of selective benefits. But conservatives want to make the case that marriage — private marriage prior to those benefits — is worth promoting. And so an apples to apples comparison would be that marriage itself, not two-parent households, is the key. And if the key is two-parent households, then the state should, on its own terms, be promoting co-habitation, not marriage. Or else conservative defenders have to address the causation issue (more on this below). (Also note that the comparison should be betweeen (married parents minus the selective benefits) and cohabitating parents, since that would be a true prior-to-government proof of the benefit of marriage).

But let’s assume the conservatives are right that marriage is a positive for society. Who cares? There are a million things that would be positive for society that we wouldn’t dare directly incentivize: brushing your teeth, not eating ice cream, running a few miles a day, getting enough sleep. Why? Because these are all in the domain of stay the fuck out of my life. Whatever the benefits of marriage might be for society — and I’m skeptical they amount to much if anything — they need not take precedence over any other potential benefit.

Why? Because of the second clause: the state has a vested interest in promoting things that are positive for society. In a word: No. The state has a vested interest only in collective action of what individuals would collectively like to achieve but cannot, or will not, do privately together. The state has a vested interest in national defense. In policing crime. In building roads. In ensuring universal access to the democratic process.  Plausibly in regulating national economic affairs.  But in promoting marriage? Please. I’d write more, but you can go look up your favorite libertarian theorist at this point. If you disagree, little will convince on this point, but maybe…

…a eureka moment is possible on the third clause: If we encourage marriage, it will be for the benefit of all. Again, in a word: No. It will be for the benefit of those who get the selective benefits and would have chosen the exact same marriage arrangement if the benefits had not existed. Everyone else — everyone else — will pay a price, either in benefits or freedom. Single people will not benefit. Gays will not benefit. Polygamists will not benefit. Straights who wanted a different marriage contract will not benefit. And you can sure as hell believe that some of the people who would not have otherwise gotten married will not benefit.

This is the crucial point. Whether or not we incentivize marriage, a hell of a lot of people are still going to get married. The only place we can make a difference is on the margins: for the conservatives who want to make the good-for-soceity argument, the marginal marriages have to either (a) benefit those who got married on the margins, or (b) benefit society as a whole. I doubt either is the case. My guess is that people who get married for the selective benefits who otherwise would not have gotten married have massive rates of divorce.  That’s clearly not good for them. And that’s probably not good for society (and, at least, a deadweight cost in the size of the legal fees). In addition, you have to guess at how many people get married on the margins: it can’t be many. It should be none.

A better world is one in which intimate human relationships are defined and executed not by the government, but by the parties involved. That’s called freedom. It’s not a world where someone takes your one-size-fits-all marraige contract and submits to it because they want to go visit their boyfirend at the hopsital when it’s not visiting hours. That’s called cruelty.

V. Addressing liberal objections

The liberal objection to my idea goes something like this: getting the state out of heterosexual marriage won’t provide real equality for gays, because the inequality is prior to the state. State recognition would legitimate homosexuality as “normal” and would promote tolerance in private society as it enforced it in public society. Decoupling marriage and the state would be like decoupling education and the state in the south after Brown v. The Board of Education; it would be equality on paper, but nothing else.

For me, the short (and callous) argument is: too bad. I’m sympathetic to the Brown comparison (which is closer to reality than you might think; South Carolina and other states flirted with abolishing or defunding all public schooling as a way to avoid integration), but both not convinced and unconcerned even if convinced. It’s just a bridge too far: legal equality exists under law; not in people’s heads. I concede that law can change attitudes; I’m not such a libertarian as to think that anti-segregation laws did not improve private race relations, or that Lawrence v. Texas didn’t improve attitudes about homosexuals. But I also believe that equality can run both ways. If the state is handing out benefits, then equality can be achieved by equalizing the benefits, even if its a downward equalization.

But, in reality, these liberal arguments are too clever by half. True equality would mean equality for the cohabitating, for the polygamists, and for those who are single who just want someone to sit by them at the hospital at 3am. Recognizing gay marriages does nothing for these equalities. In the end, it’s still just selective benefits for a few more selected people.

VI. Addressing the conservative-gay objections

My favorite objections to my position is the Andrew-Sullivan-esque critique: that marriage is a wonderful institution, should be promoted by society, and that getting gays to marry is a conservative victory: more good-for-society marriages! Most of my responses to this are above in my thoughts on the general conservative objection. But I also do not think any political resolution of gay marriage will be legitimate unless polygamy and other non-heterosexual relationships are legalized.

Many people — including Sullivan himself — bristle at this. Especially liberals, because they fear that equating gay marriage with polygamy means political death for gay marriage. That may be reality right now, but in the long run it’s not the correct course of human freedom to continue to insist that traditional marriage was wrong about its gender specificity, but correct about it it’s monogamy component. Easing the transition of thought necessary to make the leap to a true freedom of intimate human relations could be jumpstarted by abolishing the selective benefits. I presume it’s a lot less scary for everyone if they know that the polygamist at least won’t have some special benefits that single people don’t have.

If human beings want to construct personal relationships, I see little reason to tell them they can only do so with one other person. I personally don’t think polygamy works that well in practice, but who am I to judge. The stereotypical negative vision of polygamy is a bunch of teenage girls in Utah forced into a marriage they don’t want. But those marriages were underwritten and protected by a territorial government itself promoting polygamy; under a private contract world of marriage, children would be ineligible to create legal marriages.

We can’t stop polygamous relationsihps from existing in private right now. If we just kill off state marriage, we won’t even have to do anything to bring equality to polygamy. It will just be so.

VII. Implementing the idea

So what is to be done? Here’s my three-step plan:

1) Repeal all selective government benefits for married couples. Abolish state marriage licenses. This means everything: no tax breaks, no special hospital visitation rights, no more social security benefits for widows. No more power of attorney. None of it.  Abolish the very definition of state marriage.

2)Arrange for the government to enforce all otherwise-legal marriage contracts. Write statutes directing the courts to enforce all legally-written marriage contracts. Straight? Of course. Gay? Sure. Polygamy? Bring it on. The only exception I would make would be that  no one could write a contract that violated other laws (i.e. husband can beat wife without recourse). A tough call would be contracts that called for perpetual marriage with no exit. But I’d be inclined to allow them. And other things that make people squirm — contracts that allowed one partner to practice adultry but not the other; contracts that put all marriage property into one partner’s name or gave one partner all property upon dissolution — I would be fine with. Welcome to the world of freedom. A contract is a serious piece of business.

3) Continue to allow private marriage discrimination. Should private entities be allowed to offer selective benefits to married people under their own definition of marriage? I say, with a lot of reservations, yes. Could a university that received federal funds define marriage its own way and provide married student hosing only to those who fit the definition? It’s a tough call, but I’m persuaded that it’s the right one right now. But I’m open to being convinced otherwise.

There’s been quite a lot of debate lately about the Constitutional definition of a “recess.” This has brought on even more confusion over a already often-confusion question of Senate procedure, because a “recess” is also a legislative term under Senate rules. While the Constitutional “recess” is contemplating a break in Senate session generally, a “recess” under Senate rules is a more narrow idea.

So bearing in mind that this discussion has nothing to do with recess appointments under the Constitution, here’s a question I often get asked:

At the end of a day, why does the Senate sometimes adjourn and sometimes recess?

The answer is that there are different procedural consequences to doing one or the other, and thus strategic reasons for the majority to prefer one to the other.

First, a little background. What is a recess and what is an adjournment?

A recess is simply a temporary halt to activity on the floor. Everything stops, and when the recess ends, the Senate resumes from where it left off. A recess might last 10 minutes or it might last days. The length of time does not matter.

An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off.  Regardless of whether the adjournment is for 1 minute or for three weeks. Instead, a new legislative day is created.

Wait, what’s a legislative day?

There are two types of “days” in Congress: calendar days and legislative days. A calendar day is exactly what is sounds like: one day of the year, as we normally think of it. So if today is January 27, in two calendar days it will be January 29.

A legislative day, however, is different. A new legislative day begins only when the chamber returns from an adjournment. And at the beginning of a new legislative day, there are certain things that  happen, under the standing rules of the House and Senate, precisely because it is a new legislative day. Much of it is routine business: the reading of the previous day’s journal, filing of reports, delivery of messages from the House, etc. But there are also consequential things: for instance, in the Senate, for the first two hours of each new legislative day, motions to proceed are not debatable, and therefore cannot be filibustered.

So a successful motion to adjourn creates a new legislative day, while a successful motion to recess does not. Consequently, if the Senate continually recesses instead of adjourning at the end of business each calendar day (which is quite common), it might be January 27, but legislative day January 5. (The House routinely adjourns at the end of a day’s proceedings. As a result, the House’s calendar days and legislative days are almost always the same.)

This can have certain consequences. Some procedural events are triggered by calendar days. For example, a cloture motion must lie over two calendar before a vote can be taken on it. So if you introduce a cloture motion on Tuesday, it cannot be voted on until Thursday. However, some procedures are based on legislative days. For example, under rule XIX, no Senator can speak more than twice on any one question on the same legislative day.

So back to the original question: why choose recess over adjourn, or vice versa?

Well, as the previous paragraph indicates, one reason to choose a recess would be to try and smoke out a small group of Senators filibustering via floor monopoly. If the Senate doesn’t adjourn, then each Senator could only speak on the motion to proceed twice, meaning they would have a limited number of opportunities for breaks. (This is actually a poor tactic to break a filibuster). But that’s a rare situation. More common is that the majority leader might prefer to recess to avoid the routine business required on new legislative days, if he just wants to pick up where things left off, or if he fears that hostile Senators might use the business for purposes of delay.

On the other hand, there are procedural advantages for the Majority Leader to create a new legislative day by adjourning. If he wants to skip a lengthy debate on the motion to proceed, he can adjourn, create a new legislative day, and then call up a bill under the provisions that make the motion to proceed non-debatable during the first few hours of a new day. This is a dangerous maneuver, however, since opposition Senators could then object to consent requests and force the reading of the journal and the other pieces of routine business normally dispensed with, in an effort to eat of the two hours before the motion to proceed could be given and voted upon.

The majority leader can also use adjournment to regain control of the floor if he has lost it for any reason. This famously happened to Senator Byrd when he was majority leader in the 1970s. He lost control of the floor to opposition Senators, who were bent on wrecking his plans for the day by moving to other business. Byrd made a motion to adjourn (which is non-debatable and takes priority over virtually all other things) for one minute. Backed by the majority party, he won the vote. The Senate adjourned for one minute. A new legislative day was created, and as majority leader, Byrd was entitled to priority of recognition from the chair, which he accepted and then went on with his business.

Newt Gingrich, yesterday, made some news while speaking near Kennedy Space Center in Florida:

“By the end of my second term,” Gingrich promised if elected, “we will have the first permanent base on the moon and it will be American.”

Of course, this is not just primary season retail politics for Gingrich; he’s been interested in a permanent moon colony since at least 1981, when he introduced H.R. 4286, the National Space and Aeronautics Policy Act, in the House, which among other things, set forth provisions for the governing of space territories, constitutional protections for space colonists, and a statehood process for space territories. You can read the full bill here (the portions regarding space territories and statehood are on the last page, but the whole thing is a good read).

Now, I wrote my doctoral thesis on the institutional structure of the statehood process and the political construction of western states in the 19th century, so I have a strong natural interest in this kind of thing. And that sucker clocked in at almost 700 pages, so I’m not exactly searching for things to say about all this. But let me start with one meta-comment: I’ve spent more time than anyone in their right mind thinking about the formation and division of territories,  the relationship between provincial statehood movements and the Senate Committee on the Territories, the politics of partial territorial admission, and the relationship between the flawed Constitutional statehood process, the desperate attempts to fix it, and the tragic politics of the 1850’s. I really thought I’d considered statehood politics from every conceivable reasonable angle.

But I swear, in all those years, I never once thought about the moon.

So my first question about Gingrich’s “Northwest Ordinance for Space” is whether its internal process for producing new states is any good. But before I get to that, a little background is necessary.

One of the conclusions of my dissertation is that the Founders made a pretty serious error in drafting the statehood clause of the Constitution. Various proposed plans had been suggested between 1776 and 1787 for how best to add the inevitable new western States to the federal union, and there were three key questions any such plan had to answer. Two were substantive —

• Q1: What are the new territories/states going to look like geographically (i.e. size, shape, location)?
• Q2: Is there a required population for admission? If so, what is it?

— and one was procedural:

• Q3: How much ad hoc legislative discretion should there be over the answer to questions #1 and #2? (i.e. Are the terms of the process locked in the Constitution, or left to Congress? If there’s a required population for admission, is statehood automatic upon reaching it, or does Congress have to vote on it?)

The scatterplot below plots six major proposed statehood plans on two dimensions: how much discretion Congress has over the size/shape of new Sates, and how much discretion Congress has over admission in relation to the population of the would-be State.

This table describes the basics of each proposed plan:

As can be seen, the actual plan adopted in the Constitution is the most radical of all the plans, giving Congress complete discretion over admission, with no Constitutional minimum requirements for size and/or population requirements for new states, or any guarantee of statehood for a territory regardless of how large the territorial population became.

This arrangement caused significant tensions in the 19th century. The rapid expansion of the country, combined with the discretion handed to Congress over state admissions, created a massive political football out of statehood.  For example, consider the period from 1812-1821. The United States went from a 17-state union to a 24 state union in just nine years. The incorporation of these new political communities radically altered the balance of power in the national government, without there ever necessarily being a shift in political ideology or allegiance among the citizens of the existing states. Few, if any, individual elections in American history have had such a profound effect on the ideological composition of the national government. Can you imagine if 9 years from now we had 40 new Senators? Almost unthinkable. But utterly normal during the first half of the 19th century. And thus the intense concern about statehood from all existing interests.

The plan in the Constitution was also seen by many as hopelessly broken. Throughout the antebellum era, there were calls for Constitutional amendments to alter the statehood clause and remove the ad hoc discretion of Congress over admission. The most famous proposals for this were the Crittendon and Douglas plans on the eve of the war. Most people know these proposals because they added Constitutional guarantees to protect slavery where it already existed, as a means of appeasing a South teetering on the brink of secession. But the plans also radically reshaped the statehood process, a reflection of the trouble that the issue of slavery in the western territories had caused between 1848 and 1860. Both the Douglas and Crittendon plans took away all congressional discretion over admission; specific sizes were proscribed for territories, and as soon as those territories reached the federal ratio of representation (i.e. U.S. population divided by current number of Representatives), they would become States.

Of course, the Founders almost certainly did not expect Congress to have so much discretion. Every other plan proposed prior to the Constitution provided for either specific population thresholds for admission,  specific geographic requirements for the size and/or shape of the new states, or both. Under some of the plans, as soon as a territory had the requisite population, it simply became a state, no vote necessary. And therefore, much less political manipulation of the process.

But the Founders made a fatal mistake. There was indeed a specific plan all set to go in 1787 — the Northwest Ordinance — that proscribes a quite regulated statehood process for the old northwest. Under the Ordinance, precise fixed boundaries were drawn up for three territories, with Congress have the discretion to add up to two more. Each territory would be eligible for statehood upon reaching a precise absolute population, 60,000. Neat and clean.

The problem was that the Northwest Ordinance wasn’t made part of the Constitution, nor was any specification of the statehood process. Instead, Article 4, section 3, simply states:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

The entire process — so carefully thought out and specified in previous proposals — was reduced simply to a grant of power to Congress. Now Congress did pass the Northwest Ordinance as federal law as one of the first official Acts of the new government in 1789, but that was soon proven to be a worthless solution, because no federal law can constrain the terms of  a future federal law. Laws that admitted a state or otherwise structured the territories in ways that would have violated the terms of the Ordinance had it been a constitutional provision were perfectly fine, because each individual law superseded the Ordinance.

And so the statehood process throughout the 19th century was constrained only by norms, and those norms were routinely broken; states were admitted with tiny populations (Nevada), states far greater in size than had ever been imagined were admitted (most of the west); states were admitted without ever having been territories (California); territories were divided just prior to admission, leaving part of the territory a non-state (Michigan, Minnesota, many others); and seemingly obvious candidates for statehood were delayed for political reasons (Utah, many others).

Which brings us to the Gingrich Plan. The terms regarding statehood are as follows:

Whenever any such [space community] shall have acquired twenty thousand inhabitants, on giving due proof thereof to Congress, they shall receive from Congress authority with appointment of time and place to call a convention of representatives to establish a permanent constitution and government for themselves.

Whenever any such community shall have as many inhabitants as shall be in any one of the least numerous of the United States such community shall be admitted as a State into the Congress of the United States on an equal footing with the original States.

There are four quick points I’d make about this plan.

1. It suffers from the same problem as the Northwest Ordinance vis a vis the Constitution. As a piece of federal law, it would hold very little weight, as Congress would still have full discretion under the Constitution to simply write new laws on an ad hoc basis to alter its terms.

2. It does not specify a boundary requirement for the space territory. In fact, it doesn’t even presume the space territory is on physical land; perhaps a space station with 20,000 residents could apply to be a territory! Again, Congress could easily write another law creating multiple territories and overriding this, but theoretically under the Gingrich Plan, as soon as 20,000 people were residing in space, they could form a territory.

3. The population threshold is based on the Jefferson Plan of 1784. Four population thresholds have been proposed in the past: no population requirement (Constitution, Continental Congress plan); a fixed absolute number (Northwest Ordinance, Bland Plan); the federal ratio of representation (Douglas plan); or the population of the least populous state, as proposed in the Jefferson Plan.

4. It does not give Congress discretion over the admission. Once the population threshold is reached,  “such a community shall be admitted” — but that, again, that’s not a Constitutional provision, just a federal law, so it could be overwritten easily by a new statute.

So overall, I’m not a big fan of this arrangement of a statehood process. If these terms were put into the Constitution as an amendment, it’d be better, but even then I’m not crazy about it. I’d like to see the geographic issue constrained at least a bit, or perhaps completely rethought given that this is space we’re talking about.

Ok, I’ll shut up for now. Perhaps tomorrow we’ll get into territorial politics and how that would shake out in space.

With a tear-filled goodbye, Representative Giffords resigned from the House this morning. Which raises the question, how do you resign from the House?

Under modern House practice and precedent, you write a letter to the executive of your State indicating your intention to resign, and you submit to the House, also by letter, notification that you have sent such a letter, as well as a copy of the resignation letter. You can see copies of Representative Giffords’ letters to Governor Brewer and Speaker Boehner here. Under the terms of Giffords’ letter, her resignation will be effective at the end of the day.

Given the particular circumstances of Rep. Giffords’ resignation, other floor activity also took place today. Several speeches were given on the House floor this morning — procedurally accomplished by Representative Pelosi seeking unanimous consent to speak out of order, and then yielding to Majority Leader Cantor, Minority Whip Hoyer, and Representative Wasserman-Schultz —culminating in Rep. Wasserman-Schultz reading Giffords’ resignation letter in the well, after which Giffords personally delivered the letter to Speaker Boehner, who was presiding in the chair. About 10 minutes later, the letter was official laid before the House, and read once again by the Clerk.

Why does the resignation procedure matter? A few reasons. First and most importantly, the Constitution provides for the filling of vacancies in the House, which can occur by death, resignation, expulsion, declination, or the House declaring a vacancy. Without a formal resignation, the state of Arizona cannot issues writs of election to fill Representative Giffords’ seat, and without a vacancy the House cannot seat a new Representative. Second, the resignation of a Member triggers clause 5(d) of House Rule XX, which instructs the Speaker to announce that the whole number of the House has been adjusted. This is important for determining any numerical threshold that relies on a fraction of the total Membership of the House, such as the Constitutional quorum to do business. Since August 3, the House has had a whole number of 434 (due to the vacancy of the 1st district of Oregon). Upon the execution of Rep. Giffords’ resignation at the end of the day, the number will be reduced to 433.

As many very smart people will undoubtedly tell you today, the State of the Union address doesn’t really matter much. Brendan Nyhan reminded us last year that the instant polling is worthless, that that President doesn’t actually often get an approval bounce, and that unlike a debate there’s no chance of an unscripted moment. John Sides reminded us that any policy or agenda effects from the speech are small at best. And Ezra Klein notes today that the one dimension on which the address may have a strong impact — laying out the President’s policy agenda — is basically a non-issue in an election year with a divided Congress. In short, there’s very little reason to believe that a single speech given by the President should draw even a fraction of the attention that the State of the Union address does; it’s the over-hyped political event of the year.

Let me tell you why the State of the Union address does matter.

It matters because of what it symbolizes. The State of the Union address is the only regular non-electoral event on the American political calendar that brings our democratic government together as a whole. In a system of separate institutions sharing power, in which the ambitions of men are pitted against each other in hopes of producing a common good, the SOTU reminds us that fundamentally we are not a nation of competing political parties, or of divergent ideologies, or of irreconcilable  interests. At our core we are a unified republic, a collection of people who quite naturally disagree about policy but concur that the best way to resolve those disagreements is through a republican government elected by a democratic vote of the citizenry, under a constitutional system that balances the capacity of government with limits that protect the liberty of the people to seek their own happiness.

When the President slowly walks down the aisle, shaking hands with Representatives and Senators as the entire House chamber stands in applause, some people choose to cynically see it as a facade, a kabuki theater in which animosity is suppressed in service of outward appearances. I choose to see it differently; this is the power of the democratic system of government on full display. For it matters not why they are all clapping, only that they are, indeed, all clapping. The ties that bind us are not on display often in politics but, when they are, they time and again prove that our republic is not a government of men, but one of ideas and institutions and, most importantly, laws. They clap not only for the man who must shoulder the burdens of the nation in a lonely office down the street, but for the office itself, and for the powers we have chosen as a republic to place in it, long ago in the 18th century and still today.

This is, in part, why it shook so many people — both inside and outside of Congress — when Representative Wilson interrupted the presidential address to Congress in September 2009. The concern was not fundamentally about what was said or the effect it had on the delivery of a speech; it was over and done in mere seconds. The issue was that a very small hole, but a very real hole, had been punctured in the unity — and in the power of that unity — that the joint session presidential address symbolizes for our nation. The trivial interruption became acutely important because of what it symbolized, and because of the way it struck at the greater symbolism of the address itself. Anyone who says that Members are polite at the State of the Union because it is politically disadvantageous not to be are missing the point; while that’s probably true,  it’s not the potential partisan reaction of the citizenry that inspires the civility. If those were the concerns, I think you would actually see more  incivility, since someone would probably stand to profit;  instead, the civility is inspired by the systemic concerns of a fragile republic, concerns that do not divide, but actually unite, virtually all citizens.

It matters because of the way it reflects our system of government. The other event that brings the entire government together as a whole is the quadrennial inauguration of the President, which inevitably becomes a celebration of the Presidency. Despite taking place at the Capitol, there’s no way around the fact that the modern inaugural suggests a presidency far out of line with the actual powers of the office under the Constitution. In some ways, it feels more like the coronation of a new king than the implementation of an election. Now, don’t get me wrong. I love inauguration; the pageantry and the symbolism of it are striking, beautiful, and full of many of the same republic-reinforcing features as the State of the Union address. It’s a wonderful event. But, to me, it’s like Christmas to the State of the Union’s Easter; more important in popular practice, but not nearly as important philosophically.

The State of the Union address, on the other hand, portrays a more basic and correct understanding of the foundations of our republic. The executive is invited to come to Congress by the leadership of the legislature, at a time satisfactory to them. If he accepts, he leaves his residence and comes to the institutional heart of the republic, the chamber of the House of Representatives. He then waits at the door of the chamber until he is introduced by the agents of the legislature, who then lead him down the aisle, where he is received by the elected Representatives of the people and the States. He passes by the Justices of the Court, members of his government, and finally he ascends onto the House dais, where he is again introduced and received by the legislature.

He then begins to talk. What he says may or may not matter, but the way in which he says it sure does. He does not tell the legislature what he is going to do in the following year, for there is very little he can do. He tells the legislature what he believes needs to be done, and then he asks the legislature to do it. In the endless string of presidential debates it can often feel like the President has the ability to wave his hand and enact a policy. But the State of the Union Address reminds everyone that the President of the United States can no more make a law than he can walk on water; never is it more evident how our system of government works. The President comes and visits the Representatives of the people, and he pleads with them to do what he thinks is right for the country.

 It matters because of how it makes you feel. There are people out there who won’t watch the address tonight because of reasons like “it’s boring” or “I don’t follow politics.” This is totally reasonable on one level, but it also makes me sad, because none of things worth watching in the State of the Union address are  related to contemporary partisan politics. And if you watch it for the right reasons, the non-partisan reasons, you should get chills up and down your spine if our republic is doing well in cultivating its democratic citizenry. Now, take this with a grain of salt; I’m a hopeless romantic sucker for political pageantry. But this isn’t the mundane cerebral pageantry of going to vote. This is the mighty chorus of a republic in action. Do not underestimate its ability to play with your heartstrings.

The State of the Union evokes many emotionally responses, which are as varied as the sensory stimuli that produce them. And it’s those sensations that stick with us. There’s the oozing of power that you can almost feel through your TV as the camera surveys the House chamber. There’s the massive flag hanging vertically behind the dais. There’s the absolutely thundering sound that mass applause makes in that room. There’s the visible security everywhere, and the often-repeated reminder that the a Cabinet official is not present, because someone must think about the unthinkable. There’s the packed feeling of the House chamber, which is obvious even when accounting for the fact that it looks much bigger on TV than it actually is in reality. There’s the inspiring visual of all the Representatives standing in applause at once. There’s the striking visual of half the Representatives doing so while the other half sit stony-faced. And then there’s the President, standing alone at the podium, fulfilling a Constitutional duty as old as the republic itself.

I’ve never been in the House chamber for a joint session presidential address. The closest I came was several years ago, when I had an office in the Capitol and could therefore gain access to the House wing after it was closed off to everyone but ticketholders and those with a local office (which today will occur at either 5:30pm or whenever the House recesses, whichever is later). My office was only about a 15 second walk from the House floor, and after milling around a bit in the hallway as Members and ticketholders came to the floor, we sat in the office and watched the address on TV. Most of the time, you couldn’t tell it was taking place just around the corner. But when the full force of chamber-wide applause was unleashed, it felt  like a cannon exploding in the near-distance, powered by the all the energy of the republic. Over and over again. I don’t remember much from that speech, but I remember exactly what it felt like to listen to it.

It made me proud. And hopeful. But mostly it made me thankful. Because the thunderous and genuine applause of a semi-sovereign republican legislature is not a sound that many in human history have ever heard. Nor is it one that many humans are allowed to hear in the modern world. But to those who have heard it — in person or on TV — it is the most basic reminder that fortune has bestowed upon you a great gift, in the form of a government worthy of genuine celebration.

It doesn’t matter what Obama says tonight. You don’t even have to listen.

But watch the State of the Union address. It’s important.

Four things I wanted to write about in-depth today, but didn’t have the time.

1. I continue to believe that the Gingrich rise is a mirage. As I suggested on Twitter Saturday, buying up Romney on Intrade right now at 70% to win is not a sound investment. It’s a freakin’ gold mine, a license to print money.  And virtually nothing that happens in Florida would convince me otherwise. The only question I have is how big the bubble inflates before Gingrich pops; you might be better waiting until you can get Romney for 50 cents on the dollar! For good reads today on the surrounding issues, check out Jon Bernstein here and Seth Masket here and Nate Silver here and John Sides here.

2. The Civil War and Compensated Emancipation. In response to some comments by Representative Paul, Ta-Nehisi Coates is blogging about whether the civil war could have been averted by compensated emancipation. Coates asks:

3. Here’s my quick (but completely impractical) Super Bowl fix: stop having the game at a neutral site. I’m a big Giants fan, and I think it’s just such a travesty that the game in two weeks is going to be indoors among a bunch of neutral fans that bought tickets a year ago. How much better would it be — and again, I say this as a Giants fan — if the game was going to be in New England, with all the New England season-ticket holders there, and with the distinct possibility of a blizzard. The “we can’t play in cold weather” defense has been out the window ever since they awarded the game to Giants stadium for 2014, so I don’t want to hear that. And regardless of any theorizing to the contrary, nothing draws bigger ratings than a playoff game in terrible weather conditions. Some people think it’d be unfair to give homefield to the team with the better record, because the conferences don’t have balanced schedules. But that was the argument in the 70s for not giving the better team homefield in the conference championship games (remember, the ’72 Dolphins played the AFC title game on the road), and that has seemed fine every since they switched it to a better-record situation.

Now, of course I know the economics of the Super Bowl seem to make it impossible if you want to keep the same revenue, but it would make for such a better football game, and I think that might increase the TV ratings.  What we’re talking about here is a vestige of the early days of the NFL-AFL merger that has grown into a mega-cash cow. But even that seems like a mirage. Maybe the TV ratings would suffer, but I doubt it; the real issue here is that you can’t have all the Super Bowl parties and all the other events setup in town if you only have two weeks notice on location, and you can’t get all the hotels for all the people coming in to sit in the expensive seats. But the TV ratings are what really dive the money, and I think the feel of the home crowd — not to mention the possibility of absolutely awful weather — would entice viewers. There’s a reason that the conference championship games are often much more compelling than the Super Bowl. It’s not rocket science.

4. The GOP in Florida. I’ll be live-tweeting the debate again tonight. Come follow me at @mattglassman312 to join the fun!

Presidential candidates like to talk about what they will do on their first day in office. Here’s Newt Gingrich, from last night’s debate:

John, I just think if you’re going to raise immigration, I want to make the point that on the very first day that I’m inaugurated, I will issue an executive order to the Justice Department to drop the lawsuits against South Carolina, Alabama and Arizona.

Here’s Mitt Romney, from the 10/11 New Hampshire debate:

And on day one, I have indicated, day one, I will issue an executive order identifying China as a currency manipulator.

And here’s Romney’s website:

On Inauguration Day, he will submit a jobs package to Congress consisting of at least five major proposals and will demand that Congress act on the package within 30 days, using every power at his disposal to ensure its passage. He will also take immediate and specific steps within his sole authority as president by issuing a series of executive orders that gets the U.S. government out of the economy’s way.

Seeing as day one is exactly one year from today, it’s worth pointing out that there might be something of a messaging problem with all these Day One actions next year: January 20th, 2013 is a Sunday. And by tradition, America does not hold public Presidential inaugurations on Sundays.

So whoever is President next year will almost certainly be sworn in privately on January 20th, but will not take the oath of office publicly on the west front of the Capitol until Monday, their second day in office. Which raises the question: if you want to do something on your “first day” next year, do you do it Sunday afternoon or Monday afternoon?

If you do it Sunday, then you are definitely doing it on your first day. But it would be quite awkward to have a big signing ceremony or other publicity event (which the new President would almost assuredly like to do for something like an executive order stripping away parts of the ACA), when you haven’t taken the public oath, and many in the public might not realize you are even President. On the other hand, doing it on Monday would you mean you weren’t really doing it on the first day, giving the partisan press a nice opportunity to mock you out of the gate.

Obviously, this is not a big deal, but I think it’s kind of an interesting historical aside. So, now, how about that history. Where did this all come from?

The first time an inauguration day fell on a Sunday was in March 1821, when President Monroe was to begin his second term. He consulted Chief Justice Marshall on whether the inauguration should be pushed off to Monday, to account for the Christian Sabbath. Prior to the 20th amendment, it was an open question as to whether the term of the president ended at noon on March 4th or at the stroke of midnight at the conclusion of March 3rd.

That may seem like an odd unknown now, but it did not particularly bother the antebellum political class. But it did bear directly on the Sunday inaugural issue, as it provided a logic for the delay of an inauguration. Marshall’s reading was that the term technically started at midnight, and thus advised in a letter to Secretary of State Adams that while a President might in an emergency situation take the oath right at the stroke of midnight on the 4th, the usual practice was to take it around noon on the 4th, meaning there had traditionally been a 12 hour window with no one able to legally execute the office.

Marshall further argued that the Constitution only says that the President must take his oath before he “enters on the execution of his office,” and so a delay is not fundamentally improper. He also noted that an interval of several hours or even a few days without an executive authority would not be problematic, although it would be preferable to take the oath as soon as conveniently possible.  And so, Marshall’s bottom line was in favor of waiting until Monday, unless some official duty should require Sunday. Monroe accepted this advice, and was sworn in for his second term on Monday, March 5.

Of far greater potential concern were the two following cases (1849 and 1877) in which the Sunday inaugural fell upon a President-elect, rather than upon a sitting President commencing his second term. In 1849, outgoing President Polk was waiting at the Capitol to sign bills on the night of March 3rd. House and Senate action continued past midnight, but Polk signed the legislation at 6am on March 4, under the constitutional theory that he had taken the oath around noon in 1845, and thus his four-year term did not expire until the same time on March 4, 1849.

The only problem with this theory is that it places the term with the oath, meaning that when Taylor did not take the oath until noon on March 5, he might argue his term would last until March 5, 1853. Congressional leaders dismissed this theory, arguing that Taylor could have taken the oath any time after noon on the 4th, when his term — but not his ability to execute his office — officially began. These events locked-in the “noon on the 4th” reading of when the terms began and ended under the old calendar.

In 1877, the winner of the disputed election was not even known until March 2, and even then there was much continued dispute over whether Hayes was the rightfully winner. The Sunday inaugural complicated this — if Grant’s term ended at noon on March 4 but Hayes did not take the oath until March 5, GOP leaders worried that the gap might give the Tilden supporters room to make some monkey business. Out of an abundance of caution, the private Hayes oath was administered on Saturday night, March 3.

Since 1877, Sunday inaugurations have only fallen on second-term Presidents, and public inaugurations were held on Monday, for Wilson (1917), Eisenhower (1957),  and Reagan (1985). In each of those cases, the President took a private oath on Sunday, and then participated in the public (but technically unnecessary) ceremony on Monday. Wilson was conducting diplomatic business on Sunday — the Zimmerman telegram had been revealed three days earlier — and chose to leave no doubt in anyone’s mind that he could lawfully discharge the office int the afternoon, despite the opinion of the State Department that he could conduct his business while putting the oath off until the Monday public ceremony. Eisenhower and Regan followed suit, in precaution of anyone questioning their competence to discharge the office on Sunday.

It, of course, remains to be seen if we will have a first or second-term president next year. In either case, it seems an iron-clad lock that the oath will be administered prior to noon on Sunday, so there is absolutely no disruption in the ability to execute the office. Now that the 20th amendment begins and ends the terms precisely at noon, there’s no gray area; if the President is not sworn in prior to noon, no one can execute the office at 12:01. For instance, the Obama inaugural ran a bit late, so he didn’t take the oath until 12:06.  And so even for public inaugurals on the 20th,  the President-elect may choose to take the oath prior to noon in private, such that there were be a legal President at exactly noon if the public ceremony does not run right on time. (Of course, absent such a move, the president-elect could always quickly take the oath if an action had to be made while the band was playing or whatever was going on that ran through 12pm).

Poor South Carolina. Too small to be a nation, and too large to be an insane asylum.

-varously attributed (often to James Petigru or Andrew Jackson)

My wife is going out with some friends tonight, and assuming (god willing) that the girls go to sleep fine, at home it’s just going to be me, the GOP debate, and my liquor cabinet. I don’t know any drinks that are particular to South Carolina, but down Dixie way you have to assume bourbon is involved. So maybe an Old Fashioned is in order, or perhaps a Bourbon Stone Sour.

I’ll probably just be drinking straight from the bottle by the time they are finished with the questions on executive power. We could call that drink a Modern Whig: chug bourbon, smash bottle, use glass to slit wrists. Cheers!

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

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

So Rick Perry is officially out. We hardly knew ya (venn diagram aside).

The conventional wisdom outside of Capitol South metro station, where I learned of the news, was that this is bad for Romney. I don’t buy it. Mostly because I’m 99.44% confident the race is already over regardless of what happens in South Carolina. But also because I don’t think former Perry supporters in South Carolina or Florida are going to break in a way that can possible hurt Romney; for this to have an affect on the outcome, you have to either believe that Gingrich is a viable candidate to defeat Mitt, or that Santorum is going to siphon off the vast, vast majority of Perry voters. I do not think either is even remotely realistic. As John Sides has pointed out, and as Nate Sliver wrote several days ago and further explicated today, the conservatives just aren’t all that anti-Romney, nor are they united in support of the anti-Romney idea; Romney is actually the second choice of a great many of them.

More interesting to me is the timing of Perry’s drop-out, and the timing and choice to endorse of Gingrich. As I wrote last week, the decisions of political actors are often strategic rather than sincere, in the sense that they are not undertaken for the most plainly obvious reason. That is to say, the timing of Perry’s dropping out and his decision to immediately endorse, and immediately endorse Gingrich, were almost certainly strategic decisions designed to maximize Perry’s utility across his various goals (or more precisely, Perry’s beliefs about what will maximize his utility across his goals), rather than a reflection of the fact that he just realized he can’t win and that he thinks Newt would be the best President and he just feels like saying that right now. Although we think of dropping out as an endpoint, it is in fact just another decision within the context of a career for a political actor, one which needs to be carefully considered if the actor wants to maximize his future political opportunities, value, and influence as a policymaker, candidate, party member, or entrepreneur.

We can never know precisely what Perry’s goals or utility function are, but we can makes some educated guesses: he’d probably like to influence national politics toward his preferred policy outcomes, whether it be by influencing the outcome of the nomination race or by influencing a future presidential administration; he’d probably like to enhance (or at least not devalue) his future influence and/or political prospects; he’d probably like to enhance (or at least not devalue) his future private sector financial opportunities; and he’d probably like to enhance his personal and professional reputation. None of these goals are unique to Perry; in fact, they are pretty standard political goals. Of course, this is not an exhaustive list; there are almost certainly personal or otherwise idiosyncratic goals of Perry’s that we simply cannot identify.

These goals, regardless of what they are, severely constrain a political actors choices of action, since maximizing many of them depend on external factors. For instance, once conservative party insiders and outsiders started calling on Perry to drop out, staying in the race began to hurt Perry’s standing among them and thus hamper a variety of his future goals. This is no different than the internal mechanisms of the legislature that constrain Senator behavior; it is rare indeed for individual Senators to hold up the floor of the Senate with endless objections to unanimous consent requests. This is because their available actions (as dictated by the institutional rules) are constrained by exogenous factors like leadership, which can reward or punish behavior. So Perry’s strategic decisions today are not only likely to be maximizations of his own utility for achieving his own goals, but also strongly influenced by the changing motivations, goals, and actions of other actors.

Which brings us back to the three basic questions: why did Perry drop out today? Why did he endorse Gingrich? And why did he endorse Gingrich immediately? I don’t have any insider information to answer any of these questions, but we can make some conservative deductions about all of them. All three decisions are, of course, connected in some ways, but for ease of argument, let’s discuss them separately. First, why drop out today? Note that this is actually a biased way to think about the decision. Once it’s more or less clear you can’t win (and thus your decision over the timing of dropping-out becomes purely strategic), every day that you don’t drop out is actually a decision to stay in. It’s naive to think that the Perry campaign was not in negotiations with the Romney, Gingrich, and Santorum campaign regarding his decisions, and while we can’t know the exact motivations of any of the campaigns, my guess would be that the Romney camp wanted him to stay in (or perhaps an unlikely drop out and endorse Romney), while the other two camps wanted him out and endorsing them as first preference, followed by out without an endorsement, and followed in some order by staying in and getting out to endorse the other guy.

From Perry’s perspective then, he wants maximize the credible influence his dropping out or staying in has on the nomination regardless of direction, plus maximize the influence he has in pulling the nomination or nominee toward his policy preferences, plus maximize the immediate or future consideration he can get from the other candidates, while minimizing the animosity he might get from party members for staying in. By dropping out today, Perry has theoretically influenced the South Carolina primary. This might have been done specifically in service to Gingrich, or perhaps in service against Romney; we don’t know. It is likely, however, that Perry was running out of time for his dropping out and/or endorsement to be influential at all; once Romney clearly locks things up, none of the other candidates would have any reason to offer Perry and immediate or future consideration for dropping out (although Romney could clearly have benefited from a deal with Perry not to drop out). So I would guess that Perry’s decision to drop out now is an attempt to influence South Carolina, likely arranged with the Gingrich campaign, and perhaps horse-traded for future consideration that was perhaps bid up by offers from Romney to stay in, or from Santorum to get out in his favor.

Second, why did he endorse Gingrich? As with dropping out, strategic endorsement decisions are often  a mix of  factors: ideological preferences, potential political influence with the candidate down the road, specifically bargained horse-trading, and personal relationships and loyalty. (See Matthew Green’s fine paper on endorsements in House leadership races for more on some of these dynamics). It’s quite possible that Perry has a personal relationship with Gingrich that made the endorsement choice a no-brainer; likewise, he could very well believe that Gingrich maximizes some combination of policy preferences and ability to win the general election that maximize Perry’s future national policy utility function. Also possible is that Gingrich simply offered a better deal to Perry; perhaps Perry would like to be get out of electoral politics and be Interior Secretary or the head of DHS, and Gingrich made a private commitment to such in exchange for an endorsement. At any rate, don’t assume that Perry simply finds Gingrich’s policies closest to his; that’s certainly important, but it’s only one factor of many that go into these sorts decisions.

Finally, why endorse Gingrich now? The first thing to remember is that Perry probably didn’t just arrive at the endorsement decision this morning. The timing of the endorsement has little or nothing to do with that; the Perry and Gingrich campaigns could have had cross-endorsement deals worked out for weeks or months now. The key to the timing for Perry is twofold; first, maximize the impact of the endorsement and, flowing from that, maximize the return benefit, because this is Perry’s last real opportunity to affect the nomination race itself. The timing was up against the same hard-wall as the dropout — Romney was going to credibly sew this thing up soon, and Gingrich and Santorum were only going to trade top-value for it when their own goals could still be maximized, and whether those are winning the White House or something else, it obviously meant prior to Romney locking things up.  But the Gingrich campaign had two important developments this week: an apparent mini-surge in South Carolina, and the potentially harmful interview with Gingrich’s ex-wife on TV tonight. Both point toward getting a large piece of good news out ASAP.  If Gingrich thought he had no chance in South Carolina, he might have held back a Perry nomination until Florida, for example. The debate may also have been a factor; if Perry gets out now, that’s more airtime for Gingrich in the medium he (at least believes he) has a relative comparative advantage.

Having said all this, we don’t know when Perry sincerely decided to give up the campaign, and that would be a helpful piece of information in teasing out these strategic possibilities. If he figured it out this week, then whatever moves he is making are probably not as sound (from his point of view) as if he has been acting strategically since just after New Hampshire. But I would reiterate that that decisions about dropping out and endorsing are often highly strategic decisions. Yes, it’s very personal for a candidate to end a campaign — I’ve sat through any number of concession speeches where candidates were virtually crying, and they sure as hell weren’t running for President — but political actors at the national level are very good politicians, and they did not get where they are by wasting a lot of opportunities. And the decision to drop out and endorse is a very good opportunity to get some big-picture political benefit out of what is so obviously a short-term failure. When Perry said in his speech that he was making a “strategic retreat,” I assure you, he wasn’t kidding.

In protest of SOPA and other pending legislation seen (quite rightly) as detrimental to Internet freedom, a number of prominent websites — including Wikipedia, Tumblr, WordPress, and Craigslist — are going dark today (the wikipedia pages on SOPA and the politics of it are one exception; they remain available today). On the merits of the legislation, I completely agree with the concerns of the websites (see this Sullivan post for some entry points to relevant writing). On the merits of going dark for a day, I’m much more torn. In fact, I think it’s probably a bad idea in the long run.

On the one hand, it seems like the perfect protest maneuver: lots and lots of people use Wikipedia on a daily basis, and when they try to access it today and instead get a blank screen and a message to call their Representatives , I would imagine that quite a few phones are going to be ringing on the Hill. And that’s just Wikipedia and some other huge but not enormous sites. Imagine if Google decided to take part? The potential leverage seems incredible. So in the immediate sense, this is direct action at its finest, and even raises the spectre of the long-mythologized general strike. I don’t think it’s an exaggeration to say that the participation of Google and Facebook and Amazon in something like this could actually credibly threaten to hinder the U.S. economy.

But that’s kind of the problem. Everyone sort of understands that the Internet is a game-changing technology, and that those with a lot of clout on the Internet have quite a bit of latent political power in their hands. But that’s the key: so far the power has really been latent; the main political uses of the Internet to date have been to lower transaction costs for private political organizing — like-minded people using it to find each other and discuss politics, political parties and candidates using it to raise money and get their message out, and government and private groups using it to disseminate information about policies, pending legislation, and political news. In other words, right now the Internet is serving only as a passive conduit for political, as well as commercial and social activity. It is a stable platform on which people engage in other activities; a playing surface on which to perform or a canvas upon which to create. It is a wonderful tool of politics and commerce, but it’s core state of being has, thus far, not in and of itself been recognized as political.

That is to say, what has not yet happened to a significant degree  is the use of the Internet itself as a political or commercial weapon. Until today. The problem I foresee is that direct action of this type by major websites is almost inexorably going to start us down the road toward government regulation of the core Internet sites as public utilities. In fact, it’s almost baked into the cake: if there’s any political value in Wikipedia going dark for a day, it’s directly correlated to how vital Wikipedia is to our daily existence as a nation. But that very vital-ness will be the basic argument for significant public regulation of the sites. In fact, I would suspect that this might be one reason Google is not participating; a day without Google would almost surely upend the Internet enough to get the attention of Congress; unfortunately, I don’t think the only, or even most likely, congressional response would be to bag SOPA. Instead, what I think you are likely to see is calls for public control over the core functions of the Internet, beginning with the very idea of search, with all the calcifying and anti-entrepreneurial effects that flow from the bureaucratization of a previously organic ecosystem.

I also think the major websites are deluding themselves if they think they will automatically hold the high road in a political fight after they begin down the direct action road. I don’t think a battle between the websites and the government will come off as a worker – management dispute; the labor strike is a bad analogy. One might try to analogize today to the early railroad workers’ strikes in the 19th century. But the workers aren’t on strike; this is more like if  the railroads themselves went on strike. The correct analogy is probably J.P. Morgan or other financiers bargaining hard with the government over bailouts in the late 19th century. That’s type of power play is not something that particularly bothers me — in fact, I think this move by the websites is a brilliant tactic in the short-term. But I know that it will bother a heck of a lot of people, and I can relate to the fear it presents; there’s something slightly unsettling to the idea that a handful of companies hold the keys to the smooth flow of internet commerce. And I don’t think it’s much of a limb to go out on to say that there’s no lack of a potential audience for a political movement against powerful evil companies. And make no mistake: when the regulations come, that is exactly how it will be portrayed.

And look, I’m a libertarian. I want the Internet to remain as free and private and as far outside the reach of public regulation as possible, forever. Part of doing that is stopping SOPA. But part of doing that is also being careful about exposing the political power that resides with the major Internet players. Taking down websites is certainly the right of any website owner, and I’m 100% against anyone who claims they do not have the right to do so. But just because you have the right to do something does not make it a wise thing to do. One the veil is removed and you are recognized as a political actor, you are likely to be treated like one. And I’m very concerned that whatever victory is earned today will be Pyrrhic; the dawning of the political power of the Internet is going to bring a governmental response, one way or another. And that is almost certainly a negative for the future development of the Internet.

When you get off the DC subway at the Capitol South metro stop and head up the escalator, you never really know what you are going to encounter at the top. Some days, it’s the pro-life protesters. Other days it’s the Lyndon Larouche crowd. Sometimes it’s religious proselytizers. Or a worker’s union. Or a conspiracy theory group. Occasionally it’s a charity raising money. And now and again it’s a protest or other group that you can’t even really discern. But there’s really never a week that goes by without some sort of organized group  at the top of the Capitol South escalator, and in the nice weather it can be day after day with no perceivable end. It’s undoubtedly the most popular metro station at which to hold a political protest or conduct grassroots lobbying efforts.

The reason it’s so popular is pretty simple: location. Capitol South’s placement on 1st street SE between C street and D street is extremely close in proximity (less than 50 yards) to the three House Office Buildings, and not far at all from the Capitol Building. In addition, the station is directly across the street from the Republican National Committee headquarters and the National Republican Club.  For comparison purposes,  Union Station  — which is the closest metro stop to the Senate side of the Capitol — is almost a quarter-mile from the Senate Office Buildings.

Consequently, three groups of attractive protest targets are heavy users of Capitol South and the surrounding 1st Street area. First, a large number of House staffers use the station as part of their daily commute. Second, GOP Members and party-related staff are constantly moving between the Hill and the RNC/NRC, as well as often congregating on the sidewalks out front of the NRC. Finally, a large number of tourists pass through Capitol South directly prior to going into one of the House Office Buildings to pay a visit to the office of their Representative in Congress.

Beyond proximity to the Hill, Capitol South has some unique features that make it even more  advantageous as a spot to convey information. First, there’s a great signal-to-noise ratio; the vast majority of all the traffic coming up the escalator at Capitol South is heading toward the Hill for one reason or another, and there’s almost no reason to be a pedestrian on that block of 1st street if you aren’t going or coming from the Hill. Compare this to Union Station, where the vast majority of people passing through are not going to the Hill. Second, Capitol South only has one real exit (again, unlike Union Station); if you set your protest up at the top of the escalator, it’s basically impossible for anyone to get on or off the subway without receiving your message. Just about the only disadvantage of Capitol South (from the protestor point of view) is that it’s not a physically big area; you can’t fit more than a few dozen protestors in there before it becomes a complete mess.

All of this make the top of the Capitol South escalator a fine place to try to get your political message to people who might be in a direct position to influence political outcomes on the Hill: House staffers heading to work, party people heading from the Hill to the RNC, tourists who are about to go stop in at a Representative’s office, and so on.  The causal mechanism isn’t rocket science: grassroots lobbying and protests need to be visible to policymakers and to those who can influence policy makers. Many groups are reliant on free media to cover their protests as a middleman, but one way to be visible is to skip the media and try to directly prime, either consciously or subconsciously, the policymakers  and influencers themselves, on their way to the Hill. There’s no question that this is the strategy.

What is a question is how well this works? I often wonder coming out of Capitol South, do these protests actually influence staffers, or are the protestors just wasting their time? I go back and forth on the answer to that, and I think it probably has some effect. But even if you could say for sure, getting a firm grip on the magnitude of the effect is almost impossible: lobbying effectiveness in general is really difficult to measure, in part because we can’t ever use random-assignment to isolate the variable, but also because there’s no clear definition of what success means. It’s not like product advertising, where you have a bottom line of sales revenue for each product. In the world of Hill lobbying, you are almost always competing against an amorphous counterfactual, and therefore it’s never clear whether the claims made by any lobbying group are actual effectiveness or just goalpost-moving of the imagined alternative outcome.

On the other hand, it’s pretty obvious that those doing the protesting/lobbying outside of Capitol South believe that they are being effective. And there’s a neat little indirect way to (very roughly) ballpark some concrete numbers associated with those beliefs: the cost of advertising inside the Capitol South station. The DC Metro contracts with CBS Outdoors to sell advertising in all Metro subway stations. As described in their DC media kit and rate book, you can buy a variety of different kinds of subway advertising, including individual platform ads such as banners, posters, or floor graphics; rail car advertising such as interior posters or exterior branded cars, or packages that place your platform or rail advertising into many stations or whole fleets of rail cars. This should be familiar to anyone who has ridden the DC Metro, or any other metropolitan subway.

One other thing you can do is something called “station domination,” which allows you to buy up every single advertising spot in a given Metro station. A full station domination package is currently offered at ten DC stations: Capitol South, Metro Center, Convention Center-Mt Vernon, L-Enfant Plaza, Farragut North, Navy Yard, Pentagon, Regan Airport, Union Station, Federal Triangle, and Gallery Place. Looking at the Capitol South Station Domination factsheet, you can get a sense of how it works: you get a total of 45 advertisements, including two massive floor graphics, huge Pylon faces, dozens of monster-sized banners and platform ads, and a bunch of other stuff. As described by CBS Outdoor, the goal is “total station saturation. Creation of a total “experience” incorporating traditional media and non-traditional displays.” Station domination buys are offered in 4-week blocks.

Here’s the thing: station domination is ridiculously popular at Capitol South. Anyone who commutes through there will instantly recognize what I’m talking about: one day you get off the Metro, and every single sign is for the same defense contractor; a few weeks later, you come down the escalator and every single sign is for a green energy group. Most recently, I got off the subway car, and it was vote4energy.org that had decided to dominate the station. It really does dominate the station; these ads are huge. And they are everywhere. Here are some photos I took of the advertising:

A floor display

A typical pylon ad

But the most interesting thing is the relative cost of the ads at various different stations. A four-week buy of station domination ranges in cost from $30,000 at Navy Yard and Reagan airport up to $130,000 at Metro Center and $150,000 at Pentagon. Capitol South costs $125,000. But, of course, this doesn’t take into account traffic at the various stations; Metro Center is a hell of a lot busier than Capitol South. Thankfully, CBS Outdoors not only provides the rate information in their media kit, but they also provide an estimate of the traffic circulation at 9 of the 11 stations where station domination is offered. The chart below reports the relative costs of station domination at the seven regular stops, with the figures reported normalized into cost/1000 daily circulation, based on a 4-week buy and not including production costs. (Navy Yard and Mt. Vernon Sq. are excluded because their traffic varies significantly based on Nats’ games and conventions. Neither is particularly expensive).

I think this chart is pretty remarkable. At five of the stations, the normalized cost is almost identical. But then the cost at Pentagon is more than 2.5 times the cost at the “regular” stations, and the cost at Capitol South is more than 4 times as much as the regular stations. Now, there aren’t a ton of conclusions you can be certain about with just this data, but it seems like a pretty strong inference that advertisers are willing to pay an enormous premium to advertise at the two places where you might get a very large political bang for your buck: Congress and the Defense Department. What further inferences flow from that? Probably all the usual suspects, depending on your point of view about the positives and negatives of lobbying.

One thing is worth reiterating: as mentioned above, none of this proves anything about the effectiveness of conducting lobbying or protest activities at Capitol South; at most it indicates that lobbying and protest groups believe there is strong value to conducting their activities there. But we kinda already knew that, intuitively. On the other hand, it’s quite striking to see the premium attached to the ad buys at Pentagon and Capitol South, relatively to the amazingly stable baseline cost at other major subway stops.

[update to clarify, based on Tom’s first comment]

Happy Martin Luther King Jr. day to all!

Like many people, I believe the true greatness of America can be found in its ability to wring moral justness, albeit slowly, from a system of government that, ex ante, preferences neither the good nor the right, but instead just the popular. And I also believe, like many, that this greatness has had no better expression than in the twin battles to secure the basic liberal rights of African Americans: the multi-generational crusade against slavery in the 19th century, and then the century-long battle that followed, for universal civil rights and against the segregation of the races. There are no greater products of America and American democracy than the abolitionists and the civil rights protesters, many of whom faced grim danger and horrific opposition, often with nothing to personally gain but the peace of heart that comes with a morally just society. Those movements are also a testament to the wonders of democratic government; ideas — no matter how unpopular at first — can and do matter.

Unfortunately, as a libertarian I end up having to defend myself for these beliefs not only to people who want to poke holes in libertarianism as an ideology (You’re a libertarian? If you were in charge we never would have ended slavery!), but also from libertarians themselves, many of whom seem to have a misguided understanding of why having a limited government is valuable in a capitalist democracy. The basic economic role of government in a libertarian society is to ensure the proper functioning of a free market, which includes, by definition, equal opportunity and access for those who wish to participate in the market. Even the crazy radical libertarians understand that government is necessary at some basic level, for instance to enforce private contracts and suppress violence in defense of private property; without those two things, it’s obvious that a market society won’t function.

And it should be equally obvious that the market can’t function efficiently if entrepreneurs cannot get a hotel room or a meal while traveling on business because of the freaking color of their skin. So even setting aside all sense of moral right and wrong and prioritizing absolutely no vision of the good life, any libertarian opposition to civil rights laws is deeply flawed, on market terms alone. If you disagree with this, I don’t think you’re a libertarian; you’re probably an anarchist. (None of this is to discount the moral arguments against slavery or segregation; I happen to think those are stronger than the market arguments. But I think it’s important for the purpose of diffusing radical libertarianism to show that for market reasons alone, civil rights are necessary.)

But what about the heavy-handedness of government, you say? Shouldn’t libertarians oppose laws that force people to provide commercial goods on a non-discriminatory basis? Isn’t that anti-liberty? To which I’d say a few things. First, the state was deeply involved in segregation; even if you somehow believe that private discrimination in public accommodations is an unfortunate price to pay for a society of liberty, there is absolutely no way that any libertarian can justify the use of the state governments in the 20th century to actively promote Jim Crow laws. Remember, it was the state of Louisiana, not the railroads, that wanted segregation in Plessy; it was the southern states that mandated the schools and the drinking fountains be segregated; and it was the states that classified people based on their race, not the market actors. That’s the state being heavy-handed. Requiring the opposite — non-discriminatory business practices — pales in comparison, mostly because the natural market is non-discriminatory to begin with; you’re swimming with the tide, rather than against it. Stripping the states of the power to enforce racial discrimination isn’t an anti-libertarian move; much to the contrary, it was the essence of libertarianism — the individual was unleashed from the enforced discrimination of the state. If you disagree with this, I don’t think you’re a libertarian; you’re probably just an ardent federalist, which I suppose is a common conflation.

But what about the private restaurants and hotels, you say? Shouldn’t they have been able to continue on discriminating in their clientele? For sure this was not the simple decision that ending state discrimination was, but it’s hardly any less of a no-brainer. As said above, the state has a positive role to play in the market, be it in enforcing contracts or preventing violence. Entrenched irrational racism is most emphatically a market distortion, if not an outright market failure, and a universal solution to the distortion — via positive federal law — also helps break the collective action problem for businesses, many (or most) of which would prefer to serve all possible customers, but must individually fear boycotts of the majority if they are the only ones who dare privately break from the cultural racial code. Again, all of this is to say nothing of the basic moral justness argument; but that argument need not be raised if anti-civil rights libertarianism can be defeated on its own terms.

Now, I’m a pretty pragmatic libertarian. I happen to believe that the state has an important secondary role in a capital society — buffering the pain of the natural market losers. A free market inherently creates winners and losers via the risk/reward system, and while that’s a necessary consequence of a dynamic market economy, it seems quite obvious to me that such a market can be only be optimized in a civilized democracy if the community is prepared to collectively provide a minimal standard of living to those who do not fair well in the market. By this, I do not mean corporate bailouts or massive redistribution of wealth. I simply mean that a wealthy society has a minimum responsibility to care for its poor such that they do not become permanent non-participators in the market. Unemployment insurance, food stamps, child health care, and free basic public education all fall into this rubric. I don’t like minimum wage laws, but only because I think government should provide those benefits directly; rather than force employers to pay certain wages, just let the market pay what it will, and use the government to directly support the poor when necessary. Same thing with housing vouchers and such nonsense; just give the poor money directly, they can make market-decisions about its best use, certainly better than the government can.

At any rate, the point here is that pretty straightforward: the civil rights movements of the 19th and 20th century were unabashedly victories for liberty, and those who complain otherwise are probably not libertarians; I would guess that they are actually reactionary conservatives, seeking cover for their crazy ideas. You see this on many of the contemporary libertarian fronts that intersect with racial injustice, such as police misconduct toward racial minorities or any of the many flavors of racial nonsense that intersect with our crazy drug laws. At the root of these issues are a basic confrontation between liberty and conservatism; libertarians know that the level of arbitrary power handed to the state cannot possibly justify whatever minor benefits (if any) flow from the war on drugs; conservatives dismiss such things with nonsense appeals to law and order and cultural decay and all that pap. To confuse or conflate the two may be politically helpful to liberals, but it is dangerous for libertarians.

Some things I enjoyed reading this week:

All about what would happen if you fell onto a  lava pool (hint: you wouldn’t sink). Follow-up here.

Pizza and subway fares in New York rise in price together.

Kevin Drum on file-sharing and theft, with good follow-up by Megan McCardle.

I liked this Jon Bernstein post on different ways of “knowing” things.

Seth Masket nails the correct response to the Hillary-replace-Biden meme: who the hell wants to b Vice President?

Andrew Rudalevige had a nice post on the 75th anniversary of the Brownlow Commission report.

Brendan Nyhan on media and expectations in the primaries.

I don’t know why I was captivated by this slate.com piece on Rick Ross and faux-gangster-ism in rap. But I was.

Turns out the red-wine-is-good-for-you studies were faked. Why am I not surprised.