I’ve been thinking a lot about the recess appointments since the OLC opinion was released yesterday. (Not that I wasn’t thinking about it a lot before; for past posts of mine on the topic, see here, and here, and here, and here). I’ve been reading a lot on the internet. I’ve talked to a bunch of people. I even forced myself to listen to some talk radio, because I wanted to see what the far right’s reaction was to the opinion. What I came away with was a sense that some perspective is needed, all-around. As much as I’m whig-ging out about this, there are reasons to believe it’s not as consequential as some think. To wit, three points:

1. The current political-institutional situation is quite rare. We are in a very rare form of divided government right now. There have only been three instances since world war 2 in which one party has controlled the Senate and the other party has controlled the House: the 107th Congress after Jeffords switched parties (2001-2002); the first three Congresses of the Reagan presidency (97th-99th Congresses, 1981-1986); and the famous “do-nothing” 80th Congress (1947-1948). If the Democrats controlled the House right now, the Senate would have had a traditional adjournment for about a month right now, making a recess appointment obviously constitutional, if not loved, to everyone.

If the Republicans controlled the Senate, the Cordray nomination may very well have been outright rejected already in an up/down vote. Even if that was the GOP playing hardball and rejecting all nominees, you’d have a much more clear-cut institutional standoff. Instead, we have the awkward situation where it appears that the bare majority of the Senate probably wants the nominee approved, but can’t adjourn to allow for a standard recess appointment, and thus the majority of the Senate is trapped in a classic position of having to suppress their institutional prerogatives in order to get their desired policy outcome. That’s more or less the blueprint for how the President sucks power away from the legislature. But, as I said, the good news is that it’s a pretty rare structural situation that we are in.

2. Another thing that makes this a rare situation is that the CFPB is a new entity. Somehow in discussion of all of this, it has been lost that recess appointments aren’t necessary to temporarily fill a huge number of executive branch positions. The Vacancies Act allows the President to fill a large number of vacant PAS (i.e. Senate confirmed) positions with “acting” officers, who can serve in the position (in most cases) for up to 210 days. One of the exceptions to the Vacancies Act is that it doesn’t apply to new positions, which means that the President can’t fill the CFPB via the Act. It also doesn’t apply to judicial nominations. And while the Vacancies Act has its own problems and constitutional concerns, it has the virtue of being congress-approved law that the President can use to fill vacancies even when efforts to thwart recess-appointments are in place.

3. Recess appointments aren’t as great of a presidential weapon as some say. Jonathan Bernstein wrote a thoughtful post yesterday about the OLC memo, and his most important point was that recess appointments have limitations. He writes:

I don’t think that recess appointments are much of a threat to the Senate’s role. As a presidential weapon, they lack punch. On judicial nominations, recess appointments are massive surrenders for the president since they involve trading a lifetime slot for a short-term one. And even in the executive branch, recess appointments have real disadvantages over regular confirmed nominations.  Recess appointments at best are a weapon for presidents to use in negotiating with the Senate, not a potential replacement for it.

I’m more concerned than he is (but there aren’t a ton of people as whiggish as me), but the point about the judicial appointments is excellent and very important. That judicial appointment power of the presidency is a long-term power, and using recess appointments to appoint federal judges, while a nice solution to all the vacancies and thus the caseload issue in the federal courts, does not enhance the president’s power all that much.

And now one thing I have to get off my chest [warning: cranky whig-blogging ahead].

4. I am not a big fan of reading into what the majority of the Senate wants. I disagree with Bernstein (and the OLC, and many others) when he says this:

[M]y sense is that it’s a close call if the majority of the Senate insists that they are not in recess while the president believes that they are for all practical purposes, but that it’s a much less close case when the majority of the Senate agrees with the president and only the House (and the Senate minority) disagree.

I certainly understand the logical case for this — the House is not contemplated as having a role in nominations, and therefore shouldn’t be able to prevent recess appointments by forcing the Senate into staying in session after the Senate minority has filibustered the bare majority’s desire to have a nominee confirmed — but I’m not willing to give up on the idea that the House and Senate rules are exclusively a matter for the House and Senate, and that the Constitution is plainly clear on this point. So what if a majority of Senators want to go home? The Constitution says that cannot do that if the House does not agree, and it matters not why the House does not agree and it matters not why they want to go home. The House can force them to stay there, and while they are there, they are in session. (Now, maybe the argument that the House is in pro forma session would be strong, but I think most people want to make the case that even if the House was passing legislation and was there around the clock, that wouldn’t legitimate a pro forma Senate session as a real session.)

And so what if they aren’t conducting any business? God knows there’s no rule in the Constitution that says things have to be accomplished during a session of Congress for it to actually be a session. How many days go by where the Senate floor is merely the host to speeches, punctuated by endless and lengthy quorum calls, with the actual movement of legislation tied up in negotiations. The argument seems to be that during a pro forma session held together by a UC, the Senate can’t possibly get itself into executive session to advise and consent, and therefore it’s not in session. I think that’s false: there’s nothing in any UC that can’t be broken by a subsequent UC; if a second Senator shows up to the pro forma session, he can theoretically move a new UC to go immediately into executive session and consider the nomination. Instantly. Which is emphatically NOT the case, for instance, if the Senate has adjourned sine die for the session.

But more importantly, the only judge of the contents of a UC, or the existence of the UC, or anything else related to the session should be the Senate itself. Article I, section V. If the Senate wants to pass a resolution saying that pro forma sessions aren’t actual sessions under the constitution for the purpose of recess appointments, well fine. And I get the idea that the President is not without basis for judging what is an isn’t a constitutional recess. And this current case is certainly the maximal test: the majority doesn’t even want to be in session. But even in the maximal situation, we create an odd constitutional situation if we say some Senate sessions aren’t actual Senate sessions: the Senate would currently not be in session under the recess clause, but it would be in session for the “can’t adjourn” clause. That’s a weird gray area being occupied. Did we inadvertently just destroy the “can’t adjourn” clause? I don’t know, and I don’t know if that even matters in practice. But we should figure it out.

Still, there’s a lot of worries to come still, down the road. What happens when the Senate and President are in true conflict, as the undoubtedly will be over this, as soon as one party controls the Presidency and the other controls the Senate. Who can and/or will say what the limiting principle is: what if the Senate shows up for half an hour and receives communications? What if they show up for an hour and pass a resolution? At some point, in order to continue this recess appointment game, the President is going to need to claim that he is the primary judge of whether the Senate is in session or not. And that will be patently absurd under the Constitution.

So to me, even in the maximal case we are currently in, the Senate needs to be considered in session when it says it’s in session. And the UC plainly says it is in session. Again, if the Senate wants to declare itself not in session for the purposes of the recess clause but in pro forma session for the purposes of the “can’t adjourn” clause, I would be willing to accept that. But this has to be a formal decision of the Senate. Not the majority leader’s stated preferences in news conferences; the actual preferences of the Senate. Right now, the Senate has officially declared itself in session. And therefore, I would defer to that reading, even if the President and 53 Senators are saying otherwise. I know the majority wants out, but again, they don’t want out bad enough to undue the filibuster. And therefore, they should have to live under the rules as applied.

Besides, there are plenty of other options available to the pro-appointment actors that do not require new readings of the Constitution. For one, if the majority of the Senate wants this nomination so badly, they are free to try to change the Senate rules and eliminate the filibuster. But they have not even tried that, probably because the majority of the Senate prefers to have the filibuster than to have the Cordray nomination. Given that, it seems to me that the majority wants to have its cake and eat it too; they want to preserve the filibuster, but they also want the Cordray nomination. And thus the resorting to the recess appointments.

But set that aside too. The president has the authority under Article II to break a deadlock between the chambers over adjournment. I honestly have no idea how that works — I don’t even know if the clause has ever been used — but its existence suggests that there’s a constitutional mechanism for dealing with the current situation that doesn’t include setting a precedent of allowing the President to judge the importance of the business being conducted in the Senate.

The Office of Legal Counsel at the Justice Department has released the recess appointment opinion that it produced for President Obama. First off, good for them. Those opinions aren’t inherently public, but in a matter such as this, it’s definitely to everyone’s benefit for the President’s cards to be laid on the table.

As most observers (including me) expected, the argument put forth is not that the President can make recess appointments during recesses shorter than three days; instead, they argue that pro forma sessions of Congress are not valid interruptions of intra-session recesses for the purposes of the Constitution’s recess appointment clause. Consequently, the recent appointments actually occurred during a 20-day intra-session recess, which they argue is plainly long enough of a recess under the constitution as previously interpreted by federal court rulings.

I highly recommend reading it if you are interested in the current debate. It’s a clear and well-written opinion, and not too long (23 pages). Although I disagree with their conclusion regarding the nature of the pro-forma Senate sessions, it’s not an implausible argument; this is a vague Constitutional issue with little court guidance, and there is plenty of room for competing interpretations. One thing that I would stress, as I wrote last week, is that OLC opinions on inter-branch constitutional disputes are emphatically not like court rulings written by judges that have the force of law; they are more like briefs written by attorneys for one of the parties to the matter.

In particular, when reading OLC opinions, you should not lend a lot of deference to appeals to precedents from previous OLC opinions, which this opinion has in spades. It doesn’t matter how many times and for how many years the executive branch has claimed it has a power under the constitution; it’s just a claim. And Senate Legal Counsel could just as easily churn out the opposite opinion ad nauseum, with equally little controlling power. This is not to say that previous claims of power aren’t important, they are. But they are simply not authoritative precedents. They are arguments. To its credit, the OLC recognizes this (pg. 4), noting that the question at hand is a novel one, and that there are substantial arguments on both sides that may eventually result in litigation over the appointments.

As a substantive matter, I don’t think the President should be deciding whether a gavel-struck session of the Senate is real or not.  But my larger concern is that there’s no limiting principle articulated. At some point, a future Senate may decide to further up the gamesmanship, say, by leaving the Senate in one massive quorum call every time they break from conducting business, whether it be overnight or for three weeks.  What then? I’ve said it jokingly several times, but maybe it’s only a half-joke: if this were a farcical comedy, the end result would be a partisan Supreme Court decision upholding a partisan Supreme Court recess appointment that took place during a quorum call.

I guess my point is that everyone is already playing hardball with recess appointments. The Senate has plainly been playing strategic hardball with the pro forma sessions for the past several Congresses. And now the House is playing hardball by not agreeing to adjourn, and thus forcing the Senate to hold the pro forma sessions. But I think it’s a little rich for OLC to be calling out the House and the Senate  for coming up with a innovative hardball maneuver, and then declaring it out-of-bounds; everyone has been playing hardball on this for quite some time. Presidents have been using recess appointments strategically for 200 years; there’s very little normative need to fill those jobs during a 20 day recess, especially when you consider these offices routinely sit unfilled for weeks during the normal confirmation process. The Cordray nomination was being processed in the Senate for five months. It can’t wait another two weeks? Of course it could. But this is hardball, and I don’t begrudge the players. But let’s not pretend these recess appointments aren’t strategic.

So it’s not obvious to me that the President upping the hardball ante is going to result in anything except further hardball from Congress at some point down the road. And while that’s perfectly legitimate for both sides to do, it can have wide ramifications. As we drift further and further from any defensible normative arrangement of the recess appointment power, the arguments and actions of the political actors will probably tend to become more and more about raw power and raw interests. Again, there’s nothing inherently wrong with that, but when the actors seek short term advantage by undermining previous norms, such practices can have negative-sum effects on the institution if universalized. And they can also have spill-over effects to other issues or practices. As I’ve said, this may be a fight that ultimately brings on reform of the confirmation process that is satisfactory to all parties, but I worry that it may be just another step in the breakdown of the norms in favor of institutional hardball.

Last week, Nate Silver ran a nice piece on Rick Perry not dropping out of the GOP nomination race, examining whether Perry’s decision was personal/emotional or strategic, and discussing the consequences of each possibility. Jonathan Bernstein distilled and augmented the argument, helpfully framing Perry’s motivation as either personal, strategic but wrong (i.e. thinks he can still win but can’t), or strategically sound. I don’t really disagree with anything in either post, but I think there is some value in taking a wider view of these sorts of political choices; both Nate’s and Jonathan’s analysis implicitly convey that Perry’s strategic reason to stay in was “winning the nomination.”  This, I would suggest, artificially constrains how we should think about political goals, institutional incentives, and strategic choices made by political actors.

First, some theoretical considerations. A large proportion of political actions — perhaps all — can be made either sincerely or strategically. A sincere political action can be thought of as one which is undertaken to achieve the plainly obvious outcome: a citizen stands for election because he wants to win the office, a voter pulls the lever for the candidate because he wants him to hold the office, a legislator introduces a bill because he wants it to become a law, a committee holds a hearing on the bill to gather information about it, a majority party brings the bill to the floor because they want to enact it, another legislator offers an amendment to the bill because he wants to improve the legislation, a Senator speaks at length on the measure in order to articulate his position and win some converts to it, the President issues a veto threat because he doesn’t like the legislation, and 240 legislators vote in favor and 195 vote against it because the policy is either good or bad for their constituents.

Strategic political actions, on the other hand, make use of sincere mechanisms in order to achieve alternative ends: a citizen stands for election because he wants to raise his business’ profile in the community, a voter pulls the lever for the candidate because he wants to send a signal to a misbehaving dominant party, a legislator introduces a bill in order to lay down a position marker on an important policy, a committee holds a hearing in order to garner publicity for a policy position, a majority party brings a bill to the floor in order to force a difficult vote upon the minority, a legislator offers an amendment in order to make a bill unpalatable to current supporters, a Senator speaks at length on the measure in order to prevent a final vote, the President issues a veto threat to enhance his bargaining leverage over parts of the bill, and numerous legislators vote for or against a bill in order to win leadership or other support for their own legislative priorities.

There are those — particularly novice political observers — who bristle at strategic use of the institutional rules of the political system, but there’s no reason to be alarmed about it. Democratic systems of government are in the business of harnessing self-interest for the common good, and self-interest on the part of voters and elected officials who represent those voters implies taking maximum advantage of the available choices.  To do anything less as a voter would be sub-optimal for your interests; to do anything less as a legislator would be sub-optimal representation for your constituents. Besides, there’s no cure. Sincere and strategic actions look identical; no set of rules that govern political behavior can eliminate strategic action. Even if you could, removing those motivations would be akin to removing the profit motive from a market economy. If the preferences of the voters or legislators are resulting in sub-optimal policy outcomes, blaming political actors for strategic use of the institutional rules misses the point; it is the rules themselves that are the problem, not the actors.

While most of the above is more or less obvious, it is often disregarded when observers assess the political strategies of presidential primary candidates and offer advice on the same. Read enough political commentary and you start to get the sense that politicians simply aren’t very good at decision-making. Why did Tim Pawlenty drop out of the GOP race so early? He could be winning right now. What is Rick Perry still doing in the race? He has no chance. Why was Herman Cain campaigning in Alabama in November? He should have been setting up a field operation in Iowa. Why won’t anyone attack Romney on the issue of health care? It’s his Achilles heel. Why does Ron Paul have no presence in South Carolina? He can’t just skip early states. Such criticism is sometimes correct — politicians are human and make many errors — and sometimes wrong — commentators make lost of errors, too. And defaulting to incompetence is often a better bet than bestowing strategic brilliance.

Many times, however, the criticisms are not right or wrong; instead, they simply miss the mark because they aren’t aiming at the right target. A very simple theory of political action says that strategy is derived from goals, rules, and resources. Once you know the latter three things, you can rationally arrive at optimal strategy for any situation, at least in theory (and allowing for personal/emotional biases that often affect such decisions). The problem in the case of presidential primary nominations, however, is that a lot of critics assume the candidates are behaving sincerely with respect to the goal — i.e. trying to win the nomination — when in reality many candidates are behaving strategically in seeking the nomination, and are actually trying to achieve some other goal. Without knowing what those alternative goals are, it is very hard to both judge candidate choices, as well as offer advice.

The bottom line is there are lots of reasons to run for President of the United States, and only one of them is to become President of the United States. There’s a long list of alternative reasons: to get picked Vice President of the United States; to raise awareness for an issue; to represent a regional and/or radical ideology; to become a Secretary in the next President’s cabinet; to join the list of potential candidates four years later; to expand your network of fundraising; to challenge your party’s orthodoxy on one or more issue; to increase your private sector market value as a commentator or author. And so on and so forth.

People seem to intuitively understand this about certain candidates. Ron Paul, for example. While I’m sure Mr. Paul would love to be President, most people are in agreement that his current purpose is to influence the Republican party in a libertarian direction, and to raise awareness of particular libertarian issues. But people often understand this and still disregard the strategic implications: since Paul is not actually trying to win the Presidency, his decision-making calculus at any step in the process may result in radically different strategic choices, choices that may even look utterly absurd to an observer who naively assumes Paul is trying to win the nomination. Same thing with what Jonathan Chait calls the business-plan candidates: if you are primarily running for major party nomination as a way to enhance your private-sector ambitions, your campaign might, for example, take a national tact rather than one that reflect the serial calendar of primary states. Again, this may look strategically absurd to unaware observers.

People often make similar mistaken assumptions about the goals of candidates who are primarily running for the sincere reason of trying to win the nomination and the Presidency. A lot of strategic advice from observers tends to not only assume the sincere goal is the true goal, but also that the sincere goal is the only goal. And consequently, the criticism and advice offered to the candidates reflects a win-at-all-costs mentality that simply doesn’t exist among most candidates. Again, on one level most people intuitively understand this: candidates for primary nomination have at least one secondary goal in mind — winning the general election — that constrains their possible actions. And so people usually build that fact into their strategic advice. But as mentioned above, there are dozens of reasons to run for President, and all of those reasons can be fallback goals for people primarily trying to win the nomination. And therefore a lot of the no-holds-barred aggressive advice you hear (and this is applicable across many political situations) doesn’t compute: politics is a repeated game, and slash-and-burn techniques tend to work poorly in the long-run.

And so virtually all campaign decisions, from the macro (whether and when to drop out) to the most micro (how hard to attack the frontrunner during the foreign policy portion of the debate) are colored, at least in part, by goals that are not only unrelated to winning the nomination, but also are not known to the public. Which, in turn, makes it supremely difficult to judge the tactical choices being made by the candidates. Even when potential alternative goals are known, there’s no way to judge how candidates weigh them against each other. Ron Paul may run as a third-party candidate in order to achieve the goal of  influencing major party policy, but what if one of his goals is getting his son elected President someday? Does that affect his strategic calculation?  Maybe. Jon Huntsman may want to be President, but he may also like to serve in the Romney administration. Does that constrain his strategy in next week’s debate? Again, quite plausibly. Rick Perry almost certainly would like to be President, but he might also have policy preferences that can be advanced by either helping a particular candidate get elected, or by trading his influence to help any given candidate get elected.

And none of these thoughts are mutually exclusive. It’s not hard to imagine someone like Perry coming out of Iowa thinking well, it’s really long odds now, but that’s better than nothing, and definitely better than the embarrassment of dropping out.  And besides, if I stay in at least I might be able to prevent that pompous Gingrich from winning South Carolina. And that wouldn’t be the worst chit to have in my pocket during the Romney administration, especially if I can influence his immigration policies. In my personal experience, this sort of deep political strategizing is more common than most observers think. Candidates at all levels of politics can be romantics about their chances of winning far past the point of any viability; anyone who gets this far almost certainly feels like fate is on their side. But most candidates can also credit their career success to harnessing opportunities and salvaging victories even in defeat. And all of this serves to remind us how complicated political strategy can be, and how little we can sometimes say absent a full understanding of the goals of the actors.

Mock the results from Dixville Notch at your own peril. Statistics never lie:

When Huntsman shocks the world tonight with 30% of the vote, don’t say you weren’t warned.

The continuing public debate over the constitutionality and propriety of President Obama’s recess appointments last week is something that I think is quite healthy for a democracy. One of the few things we can say for certain about the issue is that the Constitution is vague on the matter, and therefore open to a variety of  interpretations that are equally plausible. Don’t listen to anyone to tries to convince you that this is a settled matter with a definitive answer. It’s not. Ditto for anyone who tries to tell you that it’s a prospectively easy court opinion to write; my inclination (against my normative wishes) is that the Obama recess appointments are constitutional, by one logic or another. But I think it’s far from an open-and-shut case, and I can easily imagine an opinion to the contrary.

In my mind, all of this means that optimal political and legal adjudication of both the immediate matter of the Cordray et. al nominations, as well as the use of recess appointments in the future, requires a full and vigorous debate over the normative, constitutional, institutional, and political issues surrounding the current appointments. Although I don’t think it’s true of all political debates, this is one in which I think having more voices and more opinions is an unqualified benefit; and so i applaud the volume and diversity of writing that has sprung up on the topic in both the popular press and the blogsphere.

That said, one thing that is bothering my whig antennae is the deference that opinions of the Attorney General, as well as the Office of the Legal Counsel at the Justice Department, are receiving among commentators. Here’s Lawrence Tribe, writing in the New York Times last Thursday:

Past practice also points the way. Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session […] Since 1867, 12 presidents have made more than 285 such appointments, without constitutional objection by the Senate. And attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.

Here’s Stephen Bradbury and John Elwood, writing in the Washington Post:

In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”

Here’s Tim Noah, pushing back against the 1921 Daugherty opinion:

The problem is that although Daugherty broadened the definition of the term “recess,” he also affirmed … that he didn’t envision a recess lasting three days: “[A]n adjournment for five or even 10 days [cannot] be said to constitute the recess intended by the Constitution.” Daugherty’s caveat is also cited in [a] 1992 memoissued under Attorney General William P. Barr.

Here’s John Yoo, arguing against the constitutionality:

In the past, attorneys general and presidents have thought that an adjournment would have to be longer than at least ten days to become a “recess.”

Here’s Jonathan Bernstein, responding to Yoo on his blog:

As Yoo knows (since he refers to it in his article), the current three-day minimum standard is derived from a Clinton-era Justice Department opinion. Not the Senate. The Justice Department.

But here’s the problem I see: none of these opinions of the Justice Department are in anyway binding on constitutional matters that affect the legislative branch as an institution (note that this is emphatically not the the case for constitutional questions strictly within the executive branch, where Justice Department opinions bind agencies absent court rulings otherwise). Bernstein very correctly points out that the Senate is not the sole arbiter of what constitutes a recess for the purposes of Article II of the Constitution. But by virtually identical logic, it should be obvious that the opinion of the Attorney General is hardly the last word either.

In fact, common sense tells us that the Justice Department is going to have a much strong pro-President opinion, on average, than any definitive Court ruling on the matter. The Attorney General works for the President! Even worse, most of the opinions and memorandums of the Justice Department rely strongly on previous opinions and memorandums of the Justice Department. It’s not a stretch to say that many or most of these citations to Justice Department opinions are simply reiterating Justice Department precedent stemming from the 1921 Daugherty opinion. So while many commentators are presenting these opinions as a long and continuous cannon of rulings on the matter, it could just as easily be described as a series of self-serving executive branch precedents, stacked up on top of each other.

Now, there’s nothing wrong with the opinions as arguments. They are certainly important documents to consider when thinking about the issues surrounding recess appointments, and many of them are both well-written and thoughtful. As a historical resource for guiding deliberations or informing us of past thinking, they are useful. But they cannot be mistaken for court decisions on the constitutionality of the current recess appointments. As they relate to the ultimate constitutionality of any given recess appointment, they are, at best, the foundation of the arguments that the executive branch would bring to court. And they should be treated as such: thoughtful opinions and memorandum, produced by the executive branch for use by the executive branch, with the full understanding that they were not written by, or for, the legislature.

But wait, you say,  hasn’t the Senate signed on to certain Attorney General opinions in the past or otherwise validated executive branch action, like int he 1905 Judiciary Committee Report on the TR appointments? To which I answer: sure. But the Senate can surely validate an action at one point in time and change it’s mind at another. It would be striking indeed to come up with a theory of recess appointments in which Senate precedent — which can be, and occasionally is, overturned by a bare majority of Senators — was binding not only on a future Senate, but also on questions of the constitutional powers of that future Senate. At the very least, a contemporary Senate can actively disagree with its own past precedent, even if inaction was interpreted as an endorsement of the precedent (which itself is not inherently true.)

But wait, you say, aren’t the terms of recess appointments, as pointed out by Noah and Akhil Amar, often negotiated by the Justice Department and the Senate? To which I say, again: sure. But while the Senate and President can come to agreements on recess appointments, nothing they do can violate or alter the Constitution, simply because they agree. Consider the legislative veto: numerous Presidents signed bills into law that put in place legislative vetos, but that did not alter their fundamentally unconstitutional character, as decided in Chada. Both the Senate and House agreed to the Line Item Veto Act in 1996, but that did not render it constitutional. The Senate cannot consent to violate the Constitution, even if that violation results in a disadvantage for the Senate. (Note that the Senate certainly can violate the constitution and choose not to attempt to enforce the constitution; but even in that case, any individual with standing could challenge the Senate’s selfless actions as unconstitutional.)

But wait, you say, don’t the federal courts rely on such opinions and memorandum when consider the constitutional questions involved? To which, I say, again: sure. But that still doesn’t make them any more authoritative than a good law review article on the topic. And to the degree to which the Courts are deferential to an OLC opinion in an inter-branch dispute, I think that’s an error. The existence of such Justice Department opinions is probably, at least in part, constitutive of any lawsuit that was filed against a recess appointment. That it would also become the reasoning for the court opinion on the matter would rest solely, in my mind, on the strength of its arguments, not the province of its origin.

And look, again, I’m not trying to say the Justice Department opinions and memos are worthless. Far from it. They are some of the best-informed legal writing we have on the subject, especially in the absence of a lot of competition or definitive court rulings. My point is that we shouldn’t give them, on their own, as much weight as many commentators have been giving them this week. And I don’t say this as a legislative branch patriot; the same logic would hold for opinions and memorandum of the Senate Legal Counsel (or House General Counsel, for matters in their purview). These are entities whose primary function and activities are to serve an individual branch of the government. In cases of inter-branch disputes, their opinions can be interesting, helpful, and ultimately persuasive. But we should not mistake them for controlling court decisions.

So there’s been a huge amount of writing about the recess appointments since I took it up from the Whig perspective on Wednesday. There appear to be four different playing fields on which this is being discussed/argued. To wit:

1) The Constitutional Question. Is the recess appointment of Cordray legal under Article II of the constitution?

2) The Normative Question. When should a recess appointment be available to the President?

3) The Institutional Questions. What caused this? How will it affect future inter-branch conflict over nominations and confirmations?

4) The Political Questions. Will the public legitimate this? Is this good strategy for Obama? How should the GOP respond? How will it affect domestic politics in 2012?

These are all excellent questions to ask, argue about, lobby the public over, and adjudicate.  But I see two problems with the current conversation. First, conclusively answering any one of the question doesn’t give you either the answer, or a solid argument, for any of the other question. Whether the recess appointments are judged legitimate by the public has little or nothing to do with whether they are constitutional, and whether they are constitutional has little or nothing to do with whether they are normatively desirable. And you can be damn sure that whether they are normatively desirable has nothing to do with whether it will be accepted as publicly legitimate. So don’t tell me it’s constitutional because the CFPB is popular, don’t tell me it’s a good idea because it’s  constitutional, and please don’t tell me the public won’t accept it because it’s a bad normative idea.

Second, and conversely, people seem to want to ignore some questions completely when they address others. And while the answers to some questions aren’t arguments for others, the fact is that all these issues are intertwined. For example, your answer to the normative question is at least partially dependent on your assessment of the institutional question; if the result of the current situation is that Presidents increasingly sidestep the Senate in making future appointments, that is almost certainly going to affect your normative view of Obama’s actions. Similarly, I don’t think the political questions and the institutional questions can be separated; as I wrote earlier in the week, institutional change is often driven (or not driven) by short-term politics. In the end, they are largely the same thing.

With all this in mind, I’ll make two quick points:

1. The normative question and the constitutional questions are inevitably in total conflict. I wrote this Wednesday, but I think it’s worth repeating given how the arguments have progressed: the  length of time under which the Senate needs to be in recess for a recess-appointment to be constitutional is already way shorter than any normative rationale can justify. The conflicting values here are congressional control of the executive branch and the judiciary vs. the smooth functioning of the government. Both are hugely important. But the span of court decisions flowing from the strategic use of recess appointments has whittled-down the time period needed for a recess to qualify to the point where the debate is over whether 3 days or a week is enough time under the constitution for a valid appointment.

But even if the constitutional minimum is a full week (and there’s good reason to believe it’s a lot shorter than that), I don’t think there’s a possible normative outlook that can justify that, or at least one that justifies that and doesn’t justify an even shorter time-period. The regular-order process of nomination and confirmation already takes longer than a week. If we had true normative concerns about executive branch officials being missing over a one-week period, we’d probably have temporary recess appointments for all regular nominations, so that the jobs could be stocked while the confirmation process took place in the Senate. But we don’t. Instead, we quickly confirm the very few key positions (like Secretary of State), and the rest sit and wait out the process.

What’s the upshot of this? I see two. First, as far as the constitution is concerned, and as much as it pains my Whig heart to say it, I think we pretty much have to concede that, realistically, the President has the authority to make a recess appointment whenever he wants. The legal issues have been completely divorced from the normative issues, and trying to read a normative position into the constitutional jurisprudence is a fool’s errand. Following that is a second point: we should  focus normative energy on the institutional questions. Just because something is constitutional doesn’t make it a good idea. And it also doesn’t make it inevitable that the actors who hold such constitutional powers will use them; political and institutional incentives can be arranged to constrain the constitutional actions of political actors. This is obvious and routine in politics, but something that people tend to forget in these sorts of constitutional stand-offs. But I think it’s especially important here, because…

2. The politics of this seem headed directly toward rearrangements of institutional power. I joked on Twitter this morning that the ultimate end of all of this is probably going to be a pro-president Supreme Court decisions that upholds a GOP recess appointment to the Supreme Court that was made during a Senate quorum call. That’s overblown humor, but I do think things are headed in a slippery direction here. Now that the precedent has been set to use recess appointments during periods of pro forma sessions of the Senate, the Senate’s available responses will be to either (a) accept the President’s ability to move recess appointments more or less at will; (b) stay in actual session for much tighter periods of time; or (c) find some political ways to constrain the President from using the recess appointments.

Obviously, choice C is preferable. But I don’t think we’re going to find out the true extent of this tit-for-tat game until the Senate and the Presidency are controlled by different parties. That may induce real fireworks. Right now, the co-partisanship of the two institutions is probably enough of a restraint on President Obama, but I don’t expect that to hold under an Obama second-term with a GOP Senate or under a GOP Presidency and a Democratic Senate. I would suspect in either of those cases, we will see a rise in recess appointments, to which the Senate may respond by freezing confirmations, to which the response may be more recess appointments. And while we don’t know where that would lead, it seems to me that the President would have the upper hand in the dispute.

But wait, you say, what about a solution in which the regular order nomination/confirmation process was reformed, such that the norms against filibustering nomination returned and recess appointments did not become any more common than they currently are? That would be an excellent outcome, of course, and it’s certainly a plausible solution. But it would also be a major reversal of course in what seems to be an ever-escalating game of constitutional hardball. And the Presidency is a real wildcard in any constitutional hardball game, I think. Internal congressional hardball can easily become a negative sum game for the institution after a series of small positive wins for individuals/parties, which might imply a leviathan-enforced type of internal reform bargain. But a Presidential-congressional battle would tend to be zero-sum game, and one that historically has not been won by the legislature.

So as a Whig, I’m worried. But as someone who studies the legislature institutionally, I’m getting the sense that this is a big enough disruption of the equilibrium to bring on some institutional change. There’s no solid way to predict, one way or another, if and when that will happen. But is certainly seems like all the ingredients are coming into place.

You know, when you write a blog you are just constantly surprised at what topics flop and what topics get people talking. Much to my surprise (but warming to my upstate heart), my post on favorite-longshot bias ignited a burst of interest in both the mighty Saratoga Race Course and what it was like to grow up in its shadow.

Luckily, I blogged a 6,000 word essay on all things Saratoga, on my old local upstate blog, Oh, SmAlbany!, back when I was a graduate student who didn’t feel like working on his dissertation. The essay is in three parts — one on the cultural relevance of the track to the local area, one on how to spend a day at the track, and one on how to enjoy downtown post-track. And it’s got a bunch of great pictures!

The entire thing appears below after the jump (click “read more” if you are on the main page)… Continue reading →

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

One thing you become quite familiar with at Saratoga, virtually by intuition, is the economic concept of the favorite-longshot bias: horse bettors seem to vastly prefer betting longshots rather than favorites, independent of the true odds on the horses. And since the odds are set by the betting market at the track, this creates an attenuation: horses that should be massive longshots by their true (but unknown) odds of winning (like 150-1) end up selling as only big longshots (perhaps 75-1), while horses that should be ridiculous favorites by the true odds (say, 1-9) end up going off for much less (perhaps 1-2).

As a result, most longshots are absolutely horrible bets (since their pay odds are vastly less than their true odds), while there’s usually a fair amount of value in just betting the favorites (because they pay much better than their true odds would imply). And despite having a century-old reputation as the “graveyard of  favorites” — just ask Man ‘O War, whose only career loss came at Saratoga to, yes, a horse named Upset — savvy horseplayers at Saratoga know that longshots are still for suckers.

Favorite-longshot bias has a long-known and well-documented empirical history in the economic study of the gambling world: using past performances, it has been shown over and over again that bets on longshots lose much more money, on average, than bets on favorites. For example, in the linked study of 6 million horse races between 1992 and 2001, bets on all 100-1 or bigger longshots returned -61%, while bets on all favorites returned -5.5% and utterly random bets returned -23%. Uninformed betting is expected to have a negative return because of the state’s take from the prize pool, which in NY is 16% on win bets. But that only highlights how good blindly betting the favorites can be: if the state wasn’t removing 16% of the prize pool, blindly betting the favorites would generate a significant positive return!

There are two theories about why gamblers tend to behave this way. The first is known as “risk-love.” In this view, gamblers are rational utility-maximizers, and get utility from the excitement of the risk of the longshots, whereas betting the favorite, well, sucks. Anyone who has ever cashed a winning $2 bet at Saratoga for a return of $2.40 (and thus a profit of 40 cents) knows how that feels. The other theory is behavioral: people are not good at discerning between two extreme sizes. And thus gamblers don’t distinguish between 200-1 and 100-1, they are cognitively the same odds. And therefore bettors systematically take 100-1 prices on 200-1 true odds.  And the betting market responds.

I say all this because longshot bias is at least a partial explanation of what you see on Intrade right now, for both the Democratic and GOP nomination markets. Let’s start with the Democratic market:

Intrade Democratic Nomination Market (1/5/2012)

Obama: 94.5
Clinton: 3.0
Biden: 0.5

These prices reflect only the functioning market — where there are actually sellers and buyers — and does not include candidates who have no current offers to buy at any price. As a reflection of the true odds, this seems certifiably insane. I would guess the odds on Obama are much closer to 99.5 (leaving a tiny amount of space for death, massive scandal, or incredible political turn in the party), which means the sum of the true odds of all other plausible candidates can’t be more than 0.5. I would suspect that neither Clinton’s or Biden’s true odds are greater than 0.1.

But the observed odds are easily explained by favorite-longshot bias. Right now, in order to bet Obama, you are effectively laying approximately 17-1 (i.e. bet $17 now and return $1 profit this summer). That might be a nice investment strategy — it looks like a pretty darn stable 5.5% return to me — but it’s absolutely no fun as a gamble. Conversely, Biden at 0.5 looks like a horrible financial investment (a 1 in 200 chance Joe B is the nominee? No way.), but one heck of an exciting gamble — think of the psychological utility you could get from $10 on Biden, which could get you dreaming about two grand every time President Obama has to go the doctor. The Democratic market seems very much to be reflecting a risk-love bias.

Now, let’s turn to the GOP market:

Intrade Republican Nomination Market (1/5/2012)

Romney: 79.9
Gingrich: 5.1
Santorum: 4.8
Huntsman: 4.8
Paul: 2.4
Perry: 2.0
Jeb Bush: 0.3
Bachmann: 0.1
Chris Christie: 0.2
Sarah Palin: 0.1
Paul Ryan: 0.1
Mitch Daniels: 0.1
Buddy Roemer: 0.1

This market strikes me as equally biased, but somewhat different. The existence of the true mega-longshots at 500 or 1000 to 1 seemingly presents a greater possibility that cognitive misperception, rather than risk-love, is at work here, at least for the most extreme candidates. Does Chris Christie have a 1 in 500 chance of being the nominee? I doubt it, but he might very well have a 1 in 5000 chance (0.002%) and definitely a 1 in 50,000 chance (0.0002). Ditto with Bush, Ryan, and Daniels. Those all look like terrible, terrible bets.

But, of course, that’s not the interesting question. What we’d love to know is how the favorite-longshot bias is affecting Romney’s price and the price of the other top tier and second tier candidates. This is, of course, seemingly an imponderable, since we can never know the true odds and we don’t have millions of past performances to empirically examine like we do in horse racing. Still, anyone who’s ever stared up at a 1-4 favorite on the Saratoga board and even passingly thought to themselves “this just isn’t worth it for that return” can probably relate to someone who’s irrationally passing on Romney right now on Intrade.

And the instant you have that feeling, you have proof there’s at least some marginal value in Romney due to the favorite-longshot bias. Now, marginal value is not actual value. Romney’s true odds may be lower than 79.9 for fundamental reasons that are not being captured by the market. But so long as any bettors are passing on Romney in favor of another candidate because it’s just no fun to bet the big favorites, there’s a market distortion that can theoretically be capitalized on.

I’d sure as hell be one pathetic Whig if I didn’t write about recess appointments today. But you already knew that.

Here’s the backfill: last month, the Senate failed to invoke cloture on the nominations of Caitlin Halligan to the D.C. Court of Appeals and Richard Cordray to head the new Consumer Protection Board. Subsequent to that,  there was a lot of criticism about this use of the filibuster, as many observers pointed out that it was being used to deny confirmation to an agency head as a protest against the agency itself, which, while probably not unprecedented, seemed to be a clear strategic escalation of the use of the filibuster. Steven Benen called the tactic “extortion politics.” Jonathan Cohn likened it to antebellum nullification, echoing Tom Mann’s assessment from this past summer. That’s probably, as Seth Masket noted, a bit overheated, but there’s little doubt that it reflects a crumbling Senate norm and a shift toward what Jonathan Bernstein calls hardball (and which I wrote about here).

Numerous observers suggested and/or urged President Obama to respond by using a recess appointment to fill the vacant offices, which would circumvent the Senate entirely. The Constitution, in Article II, section 2, clause 3, says:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting commissions which shall expire at the End of their next Session.

And today, the President announced that he will do exactly that, filling the vacancy in the Consumer Protection Board with Cordray, and using similar recess appointments to fill three slots on the NLRB.

The problem and controversy can be discovered from just a plain reading of the text, which raises two puzzling issues: first, do the “vacancies that may happen” have to occur during a recess, or can a vacancy that occurs during a session also be filled? Second, what constitutes a recess? As you might imagine, how these questions are answered has a big impact on both the balance of power between Congress and the Executive, as well as Congressional-Executive relations.

The first question was resolved in the 19th century after numerous court decisions: it does not matter when the vacancy itself was created. The latter question — what constitutes a recess?— is still of much dispute, and is one of the reasons that today’s action by the President is controversial. President Obama is making an appointment during a three-day intra-session recess of the Senate; if allowed to stand, such a precedent would go beyond even the most expansive current reading of the clause, one offered by the Justice Department on behalf of the executive in the past — that the Senate must be in recess for at least three days before a valid intra-session recess appointment can be made. (The President is also apparently arguing that the Senate is not even really in session — insert Whig head explosion here — but we’ll get to that in a minute.)

Ok. There’s a lot of spurious partisan writing out there about this, so let’s talk turkey. Bear in mind I’m a whig with a general inclination toward Congress over the Executive, but I’m coming at this from a good-faith point of view.

1. There are two fundamental values in collision here. The first value is legislative control of the Executive Branch of the government. The Founders were quite clear that the Senate should play a role in the appointment and installation of Executive Branch officials. No one disputes this, nor does anyone really question the propriety of Senate confirmation in contemporary times. It’s an excellent check on the President, and a sensible way to share powers between the political branches.

The second value is smooth and continuous functioning of the government. While Congress may be out of session for long periods of time in any given year, the government of the United States operates continuously. If a vacancy exists in the Executive Branch, then there are certain functions under law which may not be able to be executed. Under the Constitution, only officers of the United States may take substantial executive action, and absent a sitting Senate, the only way to create certain officers of the United States is through a recess appointment. Again, the Founders recognized this and sensible allowed for it in the Constitution. However…

2. History and the Founders may no longer be a helpful guide. Every partisan and their radical brother spent today looking for juicy Founder quotes about recess appointments. But a lot of the Founding thought is no longer relevant, because the structure of the congressional calendar is starkly different than it was in the 19th century, in two ways. First, the recesses between sessions of Congress (inter-session recesses) have dramatically shortened. Whereas Congress would often not meet from March until December in odd-numbered years or from June to December in even-numbered years, contemporary Congresses often have inter-session adjournments of only weeks or even just days. So while the President was routinely presiding alone over the government for months on end in the 19th century, virtually necessitating recess appointments, that is very rarely the case now. In that sense, the most pressing reason to even have recess appointments at all — months on end with no Senate session — is gone.

Second, the number of intra-session recesses has grown significantly in the 20th century. During the 19th century, Congress would often sit in Washington for the duration of a session, with few or no recesses of a week or more. Due to advances in transportation technology and the almost year-round sessions, contemporary Congresses tend to include numerous recesses of substantial length, including an annual August recess that may last close to a month or longer.

This raises some interesting normative questions: does a two-week congressional recess really create a disruption in Senate availability such that the smooth and continuous functioning of the government might be in jeopardy if there is an Executive Branch or judicial vacancy? Maybe, but bear in mind that many appointments submitted to the Senate take longer than that to confirm. Even more to the point, if the recess appointment clause was intended to be used during intra-session recesses, why does it allow the appointments to stand until the end of the next session, effectively allowing a intra-session recess appointment to last up to two years? It seems almost certain that such wording was used with inter-session recess appointments in mind, such that they would last only for the duration of one (i.e. the next) session of Congress.

Now, court decisions have rendered most of the questions these facts raise legally moot. After a long list of 19th century court cases, both inter-session and intra-session recess appointment are perfectly constitutional, although they occupy very different footings. President Obama could have appointed Mr. Cordray yesterday at noon, in the brief  interlude between the first and second session of the 112th Congress, and leaned on the precedent of Teddy Roosevelt’s 160 appointments on December 7, 1903 for inter-session appointments, which seemingly require no span of time to be constitutional. But instead he chose to appoint him today — most likely because this will now allow Mr. Cordray to serve for virtually two years (the next session of Congress not ending until noon on January 3rd, 2014) — raising the question of how short a time period constitutes an intra-session recess long enough to qualify for a recess appointment. That’s tricky because…

3. There’s no solid answer to the question of what constitutes an intra-session recess. The Constitution simply doesn’t tell us what counts as a recess and what doesn’t. No number at all. No guidance at all. So all we have is our normative intuition on the political side, and court decisions on the legal side. The problem is that the court precedents tend to defy most reasonable normative evaluation. I don’t think there’s any question that an appointment can wait two weeks; lots of stuff sits vacant for two weeks while the Senate is considering a nomination. But the courts have upheld an appointment made during a Senate recesses of 11 days, and in the 2004 case challenging President Bush’s appointment of William Pryor, the Eleventh Circuit more or less endorsed appointments during recesses of that length or even shorter (the Supreme Court did not hear the case).

One potential hard deck is the 3-day period contemplated in the Constitution for either chamber to adjourn without the other chamber’s consent. That might suggest that the Founders didn’t think recesses of one or two or three days were of serious length (this, of course, assumes that the Founders thought any intra-session recess was of appointment-worthy length, but as noted, that ship has sailed), and indeed the Justice Department itself presented this theory while defending a Clinton recess appointment (attached to a longer recess) in 1993. But without further court guidance, this is an imponderable; our normative intuition says things like “when the Senate recesses overnight, that’s not recess-appointment worthy,” but again, our normative intuition might say the same thing about a two-week recess.

4. On the other hand, President Obama doesn’t seem to making an argument for intra-session appointments during recesses less than 3 days. Based on what is emerging from the White House, it seems like the President’s argument here is not that an intra-session recess appointment is valid during any recess of any length. Instead, the President seems to be making a much more troubling argument: that a two-minute pro forma session of the Senate which includes a unanimous consent order to conduct no business is not really a session of the Senate, and therefore the Senate has currently been in recess for several weeks at this point, clearly within the safe-harbor of court rulings on intra-session recess appointments.

As Stephen Smith points out in a comment on an very good Sarah Binder piece on the topic, this is an argument that might very well be a loser in the federal courts. The Senate unambiguously has control over its own agenda (via the Constitution, Article I, section 5) and the courts would be virtually a lock to not “look behind” the Senate’s own assessment of whether or not it was in session, leaving it clear cut that the chamber has been in session every third day. But set that aside. Whatever the merits of Obama’s argument in the courts, it’s certainly an affront to congressional authority; the Senate can consider whatever it wants whenever it wants, and no Presidential decree about what the Senate is considering and not considering can alter the meaning of the Constitution. The President is certainly welcome to hold his own interpretation of the Constitution, but he is not welcome to interpret the Senate rules on behalf of the Senate.

In the bigger picture, however, this raises the political specter of the pro forma sessions. Such sessions have largely come into play only in the last few years, as first Senate Democrats used them to avoid an inter-session recess in which President Bush could make appointments, and then Republicans followed suit to prevent inter-session appointments by President Obama. Most recently, the House Republicans have been using the constitutional provision that prevents either chamber from recessing without the other’s consent to keep the Senate in session. Some have suggested that this is a bridge too far, that if the Senate wants to stay in session to prevent recess appointments, fine, but when the House is forcing them to, that’s over the line. I’m sympathetic to that argument, but I think it ultimately fails. The House need not justify its own proceedings, nor explain why it remains in session. Just as the Senate rules are the prerogative of the Senate, so the House rules are the exclusive province of the House.

In any case, given that the House can prevent Senate adjournment for more than three days simply by not agreeing to such a recess, then control of either chamber may give an opposition party the ability to block recess appointments, assuming no court is going to bless recess appointments made during recesses shorter than 3 days. This may be good or bad, but it certainly is consequential: the growing backlog of Executive Branch and Judicial vacancies can be partially mitigated with recess appointments; if that safety valve is shut off, the Senate might find itself under even more intense pressure to find political or institutional ways to increase the speed of confirmations, or to reduce the number of positions requiring confirmation altogether. In this way, the President’s actions today are potentially bringing on a crisis, or at least a dilemma of sorts: the Senate may be loathe to give the President expanded recess appointment power, but at the same time unable to move traditional confirmations with the necessary speed. That’s a recipe for institutional change; Obama’s actions may be the exogenous shock that jumps starts them.

5. As usual, the partisan divide is working to the advantage of the Presidency at the expense of Congress. If you glance around at the political press releases or the blogsphere, it’s quite obvious what the alignment is over this issue; Democrats and liberals are supporting the President’s actions, and conservatives and Republicans are opposing it. The normative arguments can be filled in quite easily; Democrats are defending the need to get the agency running and decrying the GOP strategy of filibustering the Cordray nomination, while Republicans are worried sick about Presidential power grabs and are trying to defend the prerogatives of the Senate. We can’t say for sure, but it’s likely that in the converse situation, the arguments would be perfectly reversed. I’ve looked in vain for a process hawk among the Democrats or a Republican argument for a smooth-functioning government, but I’ve yet to find one. So don’t delude yourself — this is almost certainly policy preferences disguised as a normative process debate. But as I wrote yesterday, that’s not surprising.

The problem, however, is that I’m not sure how many Senators would favor each position in a vacuum. That is, if everyone was blinded to the specifics of the situation and the party/ideology of the President was unknown as well as the nomination in question, how many Senators would choose the smooth operation of the government (as manifest by the President being able to fill appointments willy-nilly for vacancies upon which the Senate has yet to act) over Senate control of nominations (as manifest by significant delays in appointments but lack of presidential workarounds). My inclination is to think that most Senators would choose the latter. And that’s worrisome, because the likely outcome of the current situation (as was the outcome under Bush) is that the ability of the President to circumvent the Senate will be enhanced.

There’s no need to be a slippery-slope alarmist here, but the trend is nevertheless worrisome. What we don’t want to end up in is a situation in which it has become the norm for the President to use recess appointments as the primary mechanism of filling the judiciary or the Executive Branch with judges/officers. Obviously, we’re still a long, long way off from that. But we shouldn’t disregard the possibility. For one, as discussed above the conditions and context are ripe for Presidents to seek to expand this authority; Senate confirmations have slowed considerably, and the past 20 years have seen an increase in the use of the filibuster in the nominations process, as the norm against such a practice has dissolved. It wouldn’t be hard for President Obama or any future White House occupant to make the political argument that recess appointments are necessary; it’s not like the President was out there on the stump today giving nuanced constitutional arguments. Instead, he just made a political argument in plain English: there’s an agency here to help people, and it can’t start helping them until it has an agency head. Therefore, I’m appointing one under my constitutional authority. Period. That’s a powerful political argument, and one that should scare a Senate institutionalist.

6. Still, the Senate has weapons of its own. While recess appointments are unilateral actions, it’s not the case that the President is playing strictly unilateral hardball here. Even if the recess appointment power was construed to allow appointment during any recess of any length, the President would still be strongly constrained in his actions. This is, after all, a separated system of shared powers, and there are lots of overlaps. Given that the Senate has the power to disregard the President’s agenda, or cut funding to his priorities, or any other of the myriad powers that overlap between the branches, an equilibrium definitely exists that is different than “the President does whatever he wants.” One tactic Congress has used in the past, and which is currently federal law for certain situations, is to deny pay to recess-appointed officers. But any tactic could be used. Of course, the same partisan and ideology cross-winds mentioned above tend to mitigate these powers, so it’s unknown how far toward the Presidency such an equilibrium would land.

How about a lawsuit that stopped the appointment, would that be a good thing for the Senate? On balance, I think it would be. I don’t think the Senate can condone a Presidential maneuver that allows the Executive to make judgments about whether or not a plainly-happening Senate session is actually a session. Having the courts slap back the President on that one (or make him walk back the argument in briefs) might be worthwhile. And it seems like a winnable case, as the 3-day adjourn consent window might just prove to be the magic bullet the courts need to make a firm ruling. On the other hand, all that would do is institutionalize the strategic pro forma session game, and do little to defuse such hardball. Perhaps a better outcome would be…

7. One possibility is that today’s action could (eventually) trigger Senate confirmation reform. There are lots of ideas floating around for improving the confirmation process in the Senate, ranging from bills to reduce the number of Executive Branch positions requiring confirmation all the way up to altering the Senate rules regarding the filibustering of Presidential nomination. And while none come without side effects (and potential unintended consequences), pressure may be growing for such action. If the alternative is a world in which recess appointments become more common as an everyday substitute for routinely filibustered nominees, the Senate may decide that it prefers strong influence in nominations over minority rights in confirmations. Again, I’m not saying we’re there yet — today is just one nomination, and by next week you probably won’t remember it — but as with so many things in the Senate right now, it certainly feels like the cords of institutional stability are growing taut, with no indication of when (or even if) they may snap.

8. As a last thought, don’t let the partisans fool you. Recess appointments have been used strategically and regularly by Presidents since the 1790’s; this isn’t something that was invented by President Obama. Or President Bush. Virtually all Presidents have routinely made recess appointments. On the other hand, today’s action by President Obama is almost certainly an unprecedented extension of the recess appointment power, and it is, while perhaps constitutional, nothing to waive away like so much nonsense. It’s true that this is just one appointment on one day, but these sorts of presidential actions tend to become the precedential basis for future actions, especially when they go unchallenged.

Update (8:35pm): Somehow I failed in all of this writing to link to any of Jon Bernstein’s various posts on the matter over the last few months. That’s an obvious oversight, and I recommend starting with his excellent post from today, which has jumping off points for his older stuff. I disagree slightly with his take (he’s somewhat more receptive to the idea that Obama’s actions today are reasonable, constitutional, and good), but I agree with the thrust of his piece, especially as it regards the possibility of this propelling institutional reform in the confirmation process.

Happy New Year!

I’m not going to comment much on Iowa/caucuses today, because it’s so far from my field of competence that my thoughts probably have no marginal value, and definitely none in reference to the value of your time. I do want to, however, point you toward a few posts that I think are definitely worth reading: Nate Silver did his final prediction round-up here, Jonathan Bernstein explained how to think about Iowa here and here, Brendan Nyhan made a key point about media coverage here, and Ezra Klein had a nice distillation of everything already mentioned here. For a bit more whimsy, you might also want to try Dave Weigel’s post on the twitter cliches of Iowa coverage, which got me laughing.

I’d also refer you to Bernstein’s election day patriotism post. That stuff always gets me. As you probably know, I’m a total romantic sucker for the pageantry and symbolism and raw logistics of the democratic process, even the messy parts. But I’m also a pretty hard-nosed realist about the fragility of open societies and the difficulty of instituting and maintaining a stable democracy. It’s absolutely a blessing for modern America that such a government has been handed down to us, and it’s a triumph for human freedom every time another nation of people successfully unshackles from authoritarianism and realizes such a system.** I don’t think there’s any question that democracy is objectively the least-worst real-world system known to man. And so while I’m a huge supporter of citizens criticizing our political leaders and government institutions and electoral processes, I also think it’s important that people remember how fortunate we are to live under such an imperfect form of government. And there’s no better time for that than election day.

This also brings me to what I want to discuss today: institutional reform. And I mean that in the widest sense possible — everything from the above-mentioned toppling of dictators in favor of democracy all the way down to changing chamber rules in Congress or the partisan primary calendars. Now, there’s always a lot of talk about institutional reform, but I can’t really remember a time when it seemed so constantly at the forefront of the political agenda. Maybe I’m just a hammer seeing a lot of nails, but I feel like it has become a secondary story to just about everything: in foreign policy, you’ve got the shakeout of the U.S. leaving Iraq, plus the Arab Spring in Egypt and elsewhere, all encased within a continuing debate over whether regime change is a legitimate or successful basis for a foreign policy of the United States. Back at home, we’ve got the ever-more-simmering debates over the filibuster in the Senate, the quadrennial rancor over the primary process for presidential nominations, and, oh yes, seemingly everyone and their radical-moderate brother trying to undo the partisan tension in Washington.

In the abstract, it seems great that there are well-organized efforts to deliver institutional change to American politics; it’s almost certainly the sign of a healthy democracy (or at least a sign against a democracy in fast decay). But it’s hard to get enthused when you read the specific reform proposals of such outfits as No Labels or Americans Elect. In fact, it’s rather depressing. Take the 12 point action plan of No Lables, for example. All of their proposals tend to fall into one of three categories: ultimately useless ( i.e. having Members of Congress not sit by party during the State of the Union address; barring Members from taking pledges; off-the-record bipartisan gatherings; joint leadership committees; 5-day congressional workweeks; nonpartisan fiscal report to Congress), plausibly good but not exactly novel (i.e. end the filibuster; presidential question time; anonymous discharge petitions), and horrible ideas and/or dangerous cures and/or unconstitutional (no negative campaigns; automatic confirmation of presidential nominees absent Senate up/down action; blocking Member pay until appropriations are done).

And those are just the proposals, forget about how on Earth you’d get them implemented. And this leads to the question at hand: why is institutional change so difficult? I would suggest that, with the broadest brush, there are three answers to this question: conflicts between normative values and strategic self-interests; the wide scope of institutional reform; and biases against change. I think that most people assign greater weight to the latter (the anti-change biases), but my sense is that the first two are much more fundamental. Let’s take a closer look:

1. Conflict between normative values and strategic self-interests. In a nutshell, the idea here is that your reform proposal might be a great idea that everybody loves in a vacuum, but it’s almost certainly going to result in political outcomes that are different than they otherwise would have been. And therefore, it’s going to make political actors consider how the outcomes differ in the short-run and weigh that against the normative long-term value of the reform. And you will not get much support for your reform from short-term outcome losers.

This isn’t rocket-science, but I don’t think you can overestimate how important it is in all situations of potential institutional change. It’s almost so obvious that it goes unspoken. After all, the implicit purpose of institutional reform is to affect how fixed preferences are translated into outcomes. If the outcomes aren’t going to change, then your proposed reform isn’t good or bad, it’s just a waste of time, like the proposal to have Members sit in a bipartisan fashion at the State of the Union Address. But when the outcomes are going to change, in many cases the normative value of the reform ceases to even be a consideration among political actors or voters. Interests dominate. (And that’s probably a good thing, but it’s definitely a consequential thing). Like Bryan said, the people of Nebraska are for silver and I’m for silver, I’ll look up the arguments later.

Similarly, trying to assess the normative value of an institutional change is really hard, because of the strategic interests of the actors. Good government altruism aside, institutional change is often proposed specifically for the purpose of adjusting particular outcomes. Again, this is so obvious it’s barely mentioned. But it has an important effect: the normative value of the reform itself is difficult to gauge. Is it being proposed for pure intentions, or to shift short-term outcomes? Likewise, the motivations of the short-term winners are going to be questioned: do they really think it’s a good idea to get rid of the filibuster and have some other state besides Iowa go first int he primary process, or will those things just help them pass their current legislation and give their preferred candidate a better chance at the nomination and their home state more say in the process?

Consider something like the voting age. It would be (and was) a significant institutional change to raise or lower it. And there might very well be strong normative arguments for letting 14 year-olds vote, or for returning the constitutional maximum-minimum voting age to 21. But there’s little chance such normative arguments would play the role of anything but just that, arguments. Much more likely is that the outcome of such a move would be a prime consideration of any supporter or opponent. How would a lower or higher voting age play out? It’s not obvious, but the general intuition is that a lower age might help liberals, while a higher age might help conservatives. And you can bet dollars to donuts that one sentence would be a better predictor of opinion than almost anything else. And the normative arguments would simply flow from there.

And thus the situation almost always becomes one in which normative values cannot be trusted: they may be genuine or they may be strategic rationalizations for underlying short-term interest winners. From the point of view of an individual political actor or voter, the inability to trust the normative information creates an incentive to rely on an evaluation of the strategic outcomes. And thus, when universalized, you end up in a situation where everyone may be safer relying on their interests to evaluate a reform, rather than normative concerns. Which reduces institutional change to a process fundamentally about short-term outcomes, which are guaranteed to be in conflict.

This is one reason that reformers sometimes propose blind or random change. For instance, one popular suggestion for abolishing the filibuster is to have the abolition take place 12 years down the road, when no one knows which party will be in the majority in the Senate or who will control the Presidency. The appeal of such a suggestion is obvious: it is explicitly trying to remove the short-terms strategic interests calculation from the decision-making process. By blinding the political actors from knowledge of how the reform will affect outcomes, people are bound to put more weight on their normative judgements about the value of the reform. Proposals to randomize the primary calendar offer the same benefit: with the exception of the existing winners (like Iowa and New Hampshire), strategic support based on outcome is less likely to jeopardize the success of the reform.

Of course, the converse is also true. Without short-term winners, it’s often hard to find people who will work hard for institutional change. There are definitely people out there who just want to Do The Right Thing, but they are (1) rare, (2) hard to identify, and (3) not usually backed with a ton of money or resources or hard-working volunteers. Now, I’m not trying to discredit reform or reformers here. But it’s simply true that even the normatively best reformers are usually sponsored and midwifed by the sweat of those who stood to benefit from the short-term changes to the outcomes.

2. The wide scope of institutional change. None of what was said above, of course, is either groundbreaking or limited to institutional change. It’s just as plausibly applicable to policymaking as it is to the electoral and institutional structures which provide the rules for policymaking. And as I’ve written about before, one of the fundamental blind spots of democracy is the difficulty of dealing with issues that entail long-term benefits but short-term costs.

But institutional reform is particularly tricky because any individual change has the ability to affect a whole array of policy outcomes.  And therefore, those who perceive the short-term outcomes to be against them can be quite diverse indeed. This is often carried through the reality of varying intensity of preference among political actors. Consider the filibuster: when Senators contemplate whether or not to abolish it, they are not just thinking about whether their party is currently in the majority or whether they want the current policy agenda to pass, but instead they are thinking about the individual policies most dear to them that they do not want to change.

In effect, changes to current institutional arrangements do not just have the ability to create short-term losers, they have the ability to transform everyone into a short-term loser at the same time. This partially explains why serious filibuster reform has failed to get a majority vote in the Senate the few times it has successfully been brought to the floor. Most Senators don’t want to reform the system, regardless of who the short-term winners will be, because they worry (perhaps correctly) that they will be made a short-term loser because reform will endanger the outcomes they care most about.

3. Biases against change. This is perhaps the most commonly-cited reason that institutional change is difficulty. There are at least two flavors. First, there’s the institutional structure itself: most institutional reforms are going to require supermajority support at some point or another, or at least will run into multiple veto-players along the way. A bare majority is rarely good enough for serious institutional reform. In one sense, it’s odd that we even call this a bias. Because it actually makes strong normative sense. It’s would be a strange world indeed where the a bare majority could always adjust the rules of the game willy-nilly. And that’s as true for meetings in a church basement as it is for amending a national constitution. So part of the bias is simply a different bias we have, one that favors majoritarianism.

Second, there seems to be a cognitive bias in most people against extreme negative outcomes. And therefore, people will usually take mildly worse average results to avoid uncertainty that will yield better average results but also high variance that may occasionally result in strongly negative outcomes. As discussed above, institutional reform is resides in the world of uncertainty; not only are there unintended consequences to any institutional change, but information about those consequences is very difficult to trust. Therefore, actors are likely to judge the status quo more favorably than it might deserve. Marginally improving things is great, but unless the status quo is highly untenable, individual actors often prefer to maintain it rather than choose an alternative that might results in strongly negative results.

Of course, all of this leaves the $64k question: how does institutional change actually happen? That’s best left to another post. Maybe next week.

__________________

**Please don’t mistake me for a neo-conservative here. I’m not interested in using war to build democracies. In fact, I’m not really interested in war at all. Or in trying to build democracies through destabilization of non-democratic regimes. I simply mean that we should cheer without reservation when it happens, or modestly help when asked.

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Ron Paul, 12/31/11

I’m reasonably confident (i.e. I’ll lay you 30-1 or 40-1, i.e. I think there’s a 97%+ chance)  that Mitt Romney is going to be the 2012 GOP nominee for President. Now, I could be wildly wrong in my estimation. And regardless of whether Romney wins or not, we’ll never know for sure. Unless you assign a 100% or 0% chance of something occurring, any observable single-trial result will plausibly conform to your estimation.

So leave that aside.What I want to talk about here is why the race appears so much tighter than that. And the reason is simple: virtually everyone involved has an incentive to portray the race as still wide open. Let’s take a look:

1. The media. This is the most obviously biased actor. Uncertainty is the press’ best friend in elections. You can’t sell advertising during debates that no one wants to watch, and no one wants to watch a debate for a race that is over. Ditto for election night coverage in individual primary states. No one is going to watch the returns if there is only one competitive candidate. So political news ratings/sales will be higher if the horse-race continues until late spring or (god help us) to the convention (which it won’t). Therefore, the press has every reason to play up the competitiveness of the race, even after everyone else has more or less conceded it is over.

2. The Democrats. President Obama and other political opponents obviously have an interest in the GOP primary actually being drawn out, because it would sap the collective resources of the candidates. But Democrats also have an incentive to portray the race as competitive even if it is not, for at least three reasons. First, it ties the reasonable and stronger candidates (like Romney) to the unreasonable and unelectable candidates. If GOP voters can’t choose between Mitt Romney and Ron Paul, then it might reason that Romney is similar to Paul, or that GOP voters think they are both reasonable candidates, or both. Second, it fosters the belief that GOP voters don’t really like their best candidates, or that the party is caught in some sort of civil war. Either of those beliefs might turn off moderate voters. Finally, there’s the plausible meta-possibility that pretending an election is close may actually make it closer, or at least draw it out (but more on this later.)

3. Iowa and New Hampshire. If the race were over and everyone knew it, then there would be a lot of downsides for the early primary states. Candidates wouldn’t be visiting constantly and making promises, local politicians wouldn’t have the chance to appear with candidates and make endorsements, and local media wouldn’t be able to host debates, sell advertising, and make more money. I mean, you don’t see President Obama prancing around Iowa and New Hampshire non-stop for the Democratic nomination, do you? One of the advantages of going first in the sequential primaries is to have leverage in choose between competitive candidates. But a second reason is to extract promises from whoever ends up winning the nomination, and that’s a whole lot easier if the race appears competitive.

4. Later Primary States. Same logic applies here as above. Many of the benefits of holding a primary are only conferred if the primary is competitive. But again, that threshold is met not by the race being undecided, but by the appearance of the race being possibly undecided.

5. Pollsters. There was a long (and wonderful) nerdfight earlier this year on the internet over the relative importance of polling and fundamentals 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 throws the lion’s lot with polling needs to believe that the race is still at least somewhat competitive, because Romney doesn’t have anything near a majority in the national polls, and can be found to be losing in state polls in Iowa. If the race is over right now, then the polls are rendered very blunt instruments of analysis.

6. The non-Romney candidates. The basic link here is resources. If the race is over and everyone knows it, you will not be receiving much in the way of donations, volunteers, endorsements, or anything else that can help you win. That’s probably also true if you have less than a 2% chance and everyone knows it. But what if you have a 2% chance and everyone thinks you have a 25% chance? Now that’s a situation you might want to create. Sure, you’re still a longshot. But at least you will have a compelling answer on the phone when someone wants to know why they should give you $2000.

7. Romney. At first glance, this seems ridiculous. And on one level, it is: if Romney has a 85% chance of winning, he might be better off convincing everyone that he has a 100% chance of winning, which would dry up his opponents fundraising and give him that last 15%, which would plausibly allow him to turn his attention to the general election and begin his pivot.

But what if Romney does indeed have a 98% or 100% chance of winning the nomination right now, he knows it, but everyone else (see above) is pretending it’s not true? He can’t just go out and say it or act on it in any way, because he could conceivably hurt himself. No voters want to hear it, everyone else would be denying it, and he would sound arrogant. So at the bare minimum, Romney has to play along with the competitiveness thing for now.

But he also has to consider resources. The primaries are an excellent opportunity to mobilize volunteers in various states, gather data like phone numbers, expand your fundraising base, and get people excited. A continued primary season aids this; by the time you get to the last primaries, it’s not really possibly to mobilize and activate a large cadre of volunteers. Now, at some point (rather early, I would say) the benefits of turning to the general election outweigh the benefits of being able to highly mobilize resources in sequential primary states. But that doesn’t happen, I don’t think, until after all the other actors stop pretending the primaries aren’t over. And so at least until then, Mitt has the incentives, just as they do, to publicly see this thing as a race.

8. Political Junkies. You really think my wife would put up with me talking and writing about this endlessly if I admitted it was over?

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11

A quick word on Ron Paul, then some links and my schedule next week.

Given all the stuff that’s come out over the past few days — and it’s just way too much to link to, just get on the internet or twitter and open a few doors — I don’t think any libertarian in good conscience can continue to support Paul as a candidate in any capacity. I certainly can’t. There’s no reasonable doubt left that Paul willfully lent his name to some mixture of very ugly segregationist thought crossed with the conspiratorial ideology of an anti-government militia man. Now, people can change (i.e. Bobby Byrd) and you can associate with ugliness for the greater good (i.e. northern Democrats during the 20th c.), and those sorts of rationalizations are fine as far as they go. But I’m not running a party and Ron Paul’s not a serious candidate. So I’m done with him. I was probably going to vote for Gary Johnson in the general anyway. So that’s fine.

But that doesn’t mean there’s not room for regret. All this makes me very sad for what could have been. For all the grave-dancing going on around the Internet right now by liberals and conservatives alike, I’m not afraid to say that the discrediting of Paul comes with some very serious negatives for the Republican party and for America. He was more or less the only person on the debate stage this year who cared one bit about civil liberties or the prospect of reversing the unsustainable American empire. And for voicing that, I’m grateful to him. To the degree that his positions on those issues are marginalized, and to the degree that Romney and Gingrich and whoever else is left do not have to grapple with them, it’s our loss.

I thought Jonathan Bernstein had a nice take on why different people support Paul, and what the revelation of these newsletters means for those people. I definitely fall into the camp that thought of him not as a serious candidate, but as a positive force in the party and a protest vote against what I believe is a conservative ideology gone off the rails. Needless to say, his economics were beyond kooky and many of his positions too extreme for my pragmatic libertarianism, but I admired his foreign policy honesty and loved his civil liberties stances. It’s the endless frustration of a thinking libertarian to have to deal with racists and conspiracy theorists and plain old crackpots. How we have now gone 10 years down the post-9/11 road and still haven’t been able to find a libertarian politician who can credibly fight for the mantle in either party makes me shudder that it might not be possible. And so we’ll keep waiting. For who, I do not know.

But I do know that it will never be Ron Paul.

Anyway, here are a few links from my reading this week:

I haven’t really written on the payroll tax battle per se, and that’s because there are just a million good takes things to read. I suggest starting with Sullivan’s roundup, and branching out from there.

Here’s my old grad school friend Tom Pepinksy on exogenous variation in comparative politics.

Polls is magic, says Roger Simon. You are a moron, says Seth Masket. John Sides agrees.

Here’s a libertarian cause that is uniting the conservatives and liberals: stopping SOPA.

Matt Yglesias asks why we subsidize college at all, rather than just make transfer payments to the poor. Good point.

Kevin Drum looks at the disaster that was the LA school district trying to get rid of junk food in the lunch room.

Blogging will be spotty over the next week — we’re headed up to northern New York for Christmas — but I’ll definitely post the remaining entries in the GOP Candidate Venn Diagrams series, and probably a few other items. Happy Holidays to all and safe travels.

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11

“The Republicans? They’re just the opposition. The Senate is the enemy.”

-variously attributed (usually to former Speaker Tip O’neil)

There’s really nothing quite like a good inter-chamber standoff on the Hill. Most of the time, I think, inter-chamber conflict is overstated; many of the disputes are partisan rather than chamber, and the chamber leaders tend to have good bargaining relationships. But when things break down, they can really break down. And that’s when you can start seeing some real fireworks, as staffers speak their minds and/or defend their respective institutions.

Now, the current politics of the payroll tax — with the House Democrats and most of the Senate pitted against most of the House Republicans —  isn’t a strictly House vs. Senate issue. A classic inter-chamber fight would have the same party in control of both House and Senate, mitigating the partisan dimension.  And we’re nowhere near the inter-chamber acrimony of the early 90’s. But many of the underlying structural and institutional factors that create classic chamber disputes are visible here, and thus it’s worth reviewing what exactly those factors are. To wit: why do two legislatures, democratically-elected by the same nation, regularly not see eye-to-eye on public policy?

Let’s break the factors into three categories: structural, institutional, and social-cultural.

Structural Factors

1. Different Member time horizons. Representatives face re-election every two years; Senators every six. As the Founders well-knew when they intentionally created this arrangement, this would put the Representatives much closer to the short-term passions of the voters, in two ways: first, new Representatives would be elected in response to temporary popular passions, while those same passions would pass over Senators not up for election; second, existing Representatives would need to more closely monitor, relative to Senators, the temporary popular passions of the people as they considered how to beset represent their constituents. Representatives are, on average, more attentive than Senators to short-term constituent positions and concerns. They tend to go home more often, they are less likely to reside in Washington, and the often dedicate a larger percentage of staff to constituent relations.

2. Different electoral cycles. This follows from the time horizons, but isn’t always appreciated. All of the Representatives are up for election next year, but only 1/3 of the Senate seats will be contested. Neither of those facts are products of the length of the term; we could elect half of the membership of the House each year, and we could elect all Senators every six years. There are two upshots to the existing arrangement. The first is compositional: only 1/3 of the Senate is composed of people elected in 2010, but the entire House was elected then, including a sizeable number of freshmen. The second aspect is prospective:  every Representative will stand election next fall, and waiting for each of them will be an opponent who is both cognizant  — and constitutive  — of the prevailing popular passions.  Not every Senator will face that test. And the entire Senate will never face that test at the same time.

3. Different constituencies. This is more or less self-explanatory, but there are a couple of sub-points here. First, there’s the Madisonian idea of larger constituencies producing more moderate Members, due to localized extremism that is washed out in aggregation. But there’s also the question of district construction in the House — i.e. gerrymandering — that is not a factor in the Senate. House districts drawn to protect incumbents may end up producing more ideologically extreme Members on both sides, while still tending to wash out the vote at the statewide Senate level.

The Founders institutional solutions for their normative desires didn’t always work out, but these, for the most part, did. The famous analogy is the Senate as  the “cooling saucer” for the “hot tea” produced in the House, which is allegedly how Washington explained the chambers to Jefferson upon his return from France, having missed the Constitutional Convention. As Madison wrote in his convention notes, “the use of the Senate is to consist in its proceedings with more coolness, with more system and with more wisdom, than the popular branch.” One intriguing aspect of this that is relevant right now is that the “Senate as saucer” theory implies House action and Senate resistance, which naturally fits with the inertia of the federal legislative process. But Madison doesn’t contemplate the opposite: Senate demands for action and House resistance. What happens when the hot tea has the inertia of inaction on its side?

Institutional Factors

1. Majoritarianism vs. consensus. The Rules of the House and the Rules of the Senate strongly influence policy outcomes in each chamber. Most people are now familiar with the key difference: the House is structured to allow a majority to work its will; the Senate is structured as to require supermajority consensus for positive action. This goes beyond the issue of the filibuster in the Senate. For example, House rules allow the majority to easily alter the rules, which in turn makes controlling the amendment process quite trivial. In the Senate, on the other hand, special rules cannot be written by the majority, meaning that the amendment process is usually negotiated by unanimous consent, which gives the minority much more leverage over the substance of the deliberations.

2. Leadership power. While it’s true that the power of the leadership ebbs and flows over time in the House, in general the backbench Representatives have less individual institutional power in the House than in the Senate. Part of this is simply a numbers game: less Senators means greater opportunity for less senior Members to hold powerful committee slots. But it’s also a product of the rules (for example, consider how important unanimous consent agreements are), the structural features of the chamber (i.e. staggered time-horizons) and the chamber culture. The party caucuses in the House usually have an easier time keeping their backbenchers in line, and they can usually afford to lose a few. In recent decades, this has grown more stark, as leadership power has increased in the House while decentralization has perhaps individual power in the Senate.

Remember, these factors are independent of the structural factors. Even if both chambers were composed of Members chosen by identical electoral systems, these factors would create a situation in which the partisan majority in the House could routinely pass its legislative agenda in a pretty clean form, while the Senate would need to accommodate wider points of view, if it could pass the legislative agenda at all.

Social-Cultural Factors

1. Citizen perception. It may be the case that citizens have different preferences for Representatives and Senators. That is, an individual voter might choose one candidate for House, but would not choose the same candidate for the Senate. I don’t have any empirical evidence for this (though it probably exists), but there’s an easy theoretical circumstantial case to be made: the Senate has a set of responsibilities that the House does not have — judicial and executive branch nominations; treaty ratification — and voters might weigh these responsibilities when assessing candidates. If this is the case, then you might find that, independent of structural and institutional factors, Representatives and Senators elected by identical constituencies might not agree on policy, if those policy disagreements correlate with voter choice discrepancies for the respective offices.

2. Chamber patriotism. There’s an old joke on the House side of the Capitol that involves a Representative winning election to the Senate. It varies in its telling, but the punch line is always  and now the average IQ of both chambers has increased.  It’s a joke that can be retold often: historically, about 30-40% of Senators in any given Congress had previously served in the House. Of course, as I wrote in this blog post, the joke is hardly ever told on the North side of the Capitol; the number of Senators who go on to serve in the House is very small.  The last Representative to have previously served in the Senate was Claude Pepper, who served in the Senate from 1936 until 1951, and in the House from 1963 until 1989.

What independent effect might this have? It’s just speculation, but my guess is that in a situation where you have two aggregate groups that are ostensibly equals in terms of power, but are structurally designed such that most individuals would prefer to be in one rather than the other and that virtually all individuals who change groups go one direction, you are bound to occasionally end up with the dual emotions/feelings of superiority and jealousy. And those two feelings can be powerful players in political outcomes, independent of the structural and institutional factors that gave rise to them.

Newt Gingrich, 12/19/11

Jon Huntsman, Jr., 12/20/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11

A few interesting things on the House floor today:

1. The House adopted a special rule today (H.Res.502; here is the committee report from the Rules Committee) to take up the Senate amendment to the payroll tax bill and to disagree with the amendment and propose a conference. Last week, I brought the full-court geekery explaining special rule layover waivers and the special rule process in general. H.Res.502 is a nice compliment to that discussion: section 5 of the rule specifically waives the chamber rule requiring a two-thirds vote to consider a special rule on the same legislative day it is reported from the Rules Committee from now until January 15th, which is two days before the second session of the 112th Congress is scheduled to start.

Since the House was originally scheduled to close the 1st session of the 112th this week and is unlikely to take up major legislation other than the payroll tax and related items, the waiver more or less gives the House flexibility to act quickly on such deals between now and the start of the second session. As noted last week, the chamber rules allow same day consideration in the last days of a session, but that provision is often ineffective since (as is the current situation) the the session adjournment date is rarely known in advance.

2. I thought Jordan Ragusa’s post today regarding the House move to reject the Senate amendments and propose a conference was quite good (although I mildly disagree that the conferees matter much in this situation; they are almost certainly just proxies for the chamber leaders). Steve Benen was a bit annoyed this morning about the procedural method that the House was using to take up the issue, but, as Jordan points out, it wasn’t an unusual procedural action. Is the politics frustrating? Sure. But are the tactics some sort of convoluted invention? Not at all.

3. Representative Edwards (D-MD) raised a question of privileges of the House and offered a resolution (H.Res.504) disapproving of comments Representative West (R-FL) made earlier this week about the Democratic Party. Such a motion is privileged for consideration but only requires immediate action by the chair on the matter if it is offered by the majority leader or minority leader. When offered by anyone else, the chair can postpone ruling on whether the resolution qualifies for consideration under the chamber rules for two days. The chair did postpone, but only until after the debate on H.Res.501. Upon taking up the question of privileges again, the chair ruled that it did qualify, and the resolution was read in full by the clerk. Debate on the resolution then proceeded under the one-hour rule. Representative Price (R-GA), however, immediately moved to table the resolution, and the motion to table was agreed to, which kills the resolution.

4. A lively colloquy was held between Minority Leader Hoyer (D-MD) and Majority Leader Cantor (R-VA). A colloquy is nothing more than a back and forth discussion between two or more Members, accomplished procedurally in the House by a Member gaining the floor for some period of time and then yielding to the other Member as necessary for discussion. The floor leaders regularly have a colloquy at the end of a workweek to discuss the upcoming schedule, but today was different because the colloquy occurred in the middle of a series of votes, which meant that most of the House membership was in attendance for it. This led to some cheering and mild booing as the leaders discussed the upcoming schedule.