Fruits and Votes » US Senate

Planted by MSS
Planted in: AMERICAN POLITICAL REFORM; Bicameralism; POLITICS/POLICY; US Senate

The filibuster in the Senate that just defeated a defense bill because it contained, among other things, a measure to open up part of the Alaskan National Wildlife Refuge to oil drilling, may look to some like nothing more than irrational obstructionism. However, the issue is largely one of procedures, and their abuse.

The party that currently has the majority of seats in each house has failed, despite those majorities, to obtain passage of an ANWR drilling measure. So it decided to use the gambit of an end-of-session conference report on a “must-pass” appropriations bill to force the wavering members of its own caucus in line. This is precisely the same tactic being followed with the “Patriot Act.” As far as their own caucus goes, it has worked, but the Senate is not–yet–a majoritarian body by design, and the other party was not buying in to the gambit.

This is not the first time, and it will not, sadly, be the last time that a party with the seat majority has used a conference report–which can’t be amended on the floor (i.e. is “fast-tracked”)–to pass a provision that there is no issue-specific majority on. But it is an abuse. A conference committee should not be able to act as secret “third chamber” to ram through by majority vote a package that contains within it provisions, non-germane to the basic underlying bill, for which there is not, in fact, a majority.

The Republican leadership faces a choice on this issue, as well as on the “Patriot Act” and other issues: compromise or polarize. Once again, it has chosen the latter, calculating (perhaps correctly) that a narrative of “national security” will resonate more with the electorate than one of “abuse of power.”

Propagation: Seeds & scions (1)

12 December 2005

US Supreme Court to hear DeLaymander case/Frist and Byrd spat on ‘nuclear option’–on anniversary of Bush v. Gore

Planted by MSS
Planted in: 12 Dec.; US House; US Senate; US Supreme Court

The United States Supreme Court has agreed to hear a challenge to the mid-decade redistricting in Texas in 2003, which was engineered by US House majority leader, Tom DeLay (R-Tex).

Meanwhile, in the last two days Senate Majority Leader Bill Frist (R-Tenn.) and senior Democrat Robert Byrd of W.Va. have engaged in a verbal skirmish surrounding the possibility that a filibuster by the party with the minority of seats in the body could prompt the party with manufactured majority of seats to “go nuclear” and unilaterally abolish the right of filibuster. Even though there has been no filibuster threat thus far, Frist on Sunday said “the answer is yes” when asked if the Republicans would change the rules to stop a filibuster of Samuel Alito’s confirmation. Byrd today responded on the floor of the Senate: “If he ever tries to exercise that, he’s going to see a real filibuster if I’m living and able to stand on my feet or sit in my seat. If the senator wants a fight, let him try it.”

Interesting that both of these matters would come precisely at the fifth anniversary of Bush v. Gore. These cases all tie together and provide a trifecta of one party using dubious manipulation of law and rules to solidify its grip on the levers of federal power.

In Bush v. Gore, the Supreme Court handed the presidency to America’s (and probably Florida’s) Second Choice. As my remarks on the Senate filibuster allude to, Republicans are also America’s Second Choice in Senate elections since 2000 (thus the filibuster currently prevents a minority party from acting like a majority party). And in the House, while the Republicans had the plurality (not majority) of votes in 2004, they lost votes compared to 2002, yet gained seats. The net gain is accounted for by the DeLay’s blatant and extraordinary mid-decade partisan gerrymander. (About halfway through an LA Times article there is a good quick summary of that redistricting.)

How will the Court rule on the Delaymander case? The case is similar to one in Pennsylvania in which a 5-4 ruling rejected the notion that an excessively partisan redistricting plan violated equal protection. (The first-linked story, from Bloomberg, has an overview.) Justice Kennedy sided with the majority in that case. Rick Hasen, quoted in both the Bloomberg and Times stories, suggests “One possibility is that Justice Kennedy has come to a firmer conclusion as to how to deal with these cases.”

New Chief Justice John Roberts will hear the Delaymander case. We can probably predict where he comes down on the matter, given that Roberts helped prepare the Republicans’ case in Bush v. Gore.

As for Samuel Alito–who will be on the Court by then if either there is no filibuster or the Republicans nuke it–we know he does not object to legislative malapportionment. Is it a stretch to think he considers partisan gerrymandering to be just fine, too?

I think we know how this is going to turn out.

[UPDATE: Scott Lemieux, at LGM has his usual perceptive analysis, asking whether: (1) The Delaymander is so ourtageous that it will be the case that prompts Kennedy to develop, with the 4 dissenters in the Pennsylvania case, a standard for unconstitutional partisan gerrymanders; or (2) Kennedy is ready to go with Scalia and argue that all partisan gerrymander cases are non-justiciable. Althouse believes the latter: "Perhaps it will use this occasion, however, to set a clear standard for bowing out of these controversies altogether."]

[Scott also notes that Alito's vote, which we can assume, as I did above, to be that the gerrymander is constitutionally permissible, will not affect the balance in the case, given that he replaces O'Connor, who voted with the majority in the Pennsylvania case.]

[Don't miss Rick Hasen's post on this topic.]

Propagation: Seeds & scions (0)

10 December 2005

A time bomb under American democracy

Planted by MSS
Planted in: AMERICAN POLITICAL REFORM; US Constitution; US Senate

Those are the words in an excellent post at Make My Vote Count. Of course, they refer to the US Senate and its malapportionment and the fact that it will only get worse unless something is done about it. But what can be done, given that the Constitution explicitly bans any amendment that would deprive states of equal representation. A time bomb indeed.

The day before the same folks discussed the other body in House of Horrors. Scary stuff, indeed.

Propagation: Seeds & scions (3)

20 September 2005

Federalism and Constitution Day once more

Planted by MSS
Planted in: US Constitution; US federalism; US Senate

OK, I relent. I was not going to say any more about this issue.

But Steven posted the other day a further clarification of a point he and I have been bouncing forth and back and forth again, with Scott also getting into the mix (and all of us making appearance in the comments to Scott’s post).

The main question, as I see it, is to what extent does Congress violate the principles of federalism when it imposes its policy will on the states through earmarks, mandates, and the like, outside its enumerated powers? My answer is, not at all, because the very principle of federalism is that the central and state governments each have their independent sovereignty and they are free to enter into mutually beneficial relationships or not, as each side sees fit. If states don’t want the mandate, they can refuse the cash and approach the policy their own way, with their own funds.

Steven, in his “fourth time” post, agrees that there is no real “federalism” issue raised when Congress sees a problem that states are more capable of administering and offers money in exchange for states addressing the problem under terms set down by Congress. He uses food stamps as an example (see the fourth paragraph of the just-linked post), and it is a good example. (As an aside, I am quite sure that he is right that this is an aspect of federalism that is not well taught in our schools, including, I would note, our universities. Outside of my classes, of course.)

So, what is Steven’s objection?

…what I find irksome is when the policy relationship entered into between the state and federal governments can then be used by the feds to adjust its demands on the states. Byrdâ€™s rider in the appropriation bill is just that sort of ex post alteration to the contract…

But wait a second! This is the problem, I think: seeing policy bargains between sovereign institutions as contracts. That is the wrong analogy. It is an ongoing series of transactions, not a relationship governed by any single transaction as formalized as the word contract implies. A contract, properly understood, requires a neutral third-party enforcer. (Regular contracts among citizens and corporations, for example, being enforced under the government’s contract laws.)

Transactions between governments in a federation, on the other hand, are exchanges between independent authorities with only weak third-party enforcement. The judiciary can be involved if there is a question of constitutional jurisdiction, but it is not as if every individual transaction between federal and state governments is subject to judicial review. Besides, the judiciary in question is part of the federal government, even if the purpose of Senate confirmation procedures is to involve an institution that, at least in theory, represents states. (Increasingly it represents the party with the manufactured majority of seats, rather than the states, but that is another thread.)

I find it interestingâ€”and it is a theme I am developing with coauthors on two projects, one on Mexican presidentialism and federalism, and the other on the US in comparative perspectiveâ€”that the founders of the US Constitution were very explicit, in the Federalist Papers, about the transactional relationship they were setting up between the executive and the legislature: Institutions with separate agency that would have to work together to accomplish their respective goals. However, they did not elaborate a similar transactional relationship between national and state governments. They appeared to think of the levels as having a more separate existence.

Yet the very logic of the separate yet overlapping institutions of federalism mandate a theoretically almost identical transactional relationship as that between the separate but overlapping branches of any one level. If the founders did not foresee it this way, it is only because they imagined greater separation of tasks between the levels of government than between the branches of the federal government.

Yet, in their wisdom, the founders did not bar Congress from carrying out other functions beyond those explicitly enumerated. This allowed the functions of the federal government to grow without overtaking the sovereignty of the states. Each level still has to bargain with the other. And, because congressional power originates in part from the states (at least in theory), congress does not make laws in some sort of hypothetical vacuum in which the same interests arising out of the states are somehow not represented at the federal level.

Propagation: Seeds & scions (1)

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