Another Cut at Two Presidencies

My colleague, Prof. Klunk, wrote what has become one of the more popular posts on this site–an investigation of whether or not there are two presidencies. His post is about Aaron Wildavsky’s version of the two presidencies theory, the idea that there is a “foreign policy” presidency and a “domestic policy” presidency.

In this post, I want to explore a different two presidencies theory–advanced by Jeffrey Tulis–and use it as an excuse to pontificate about last night’s State of the Union Address. (I apologize in advance to Tulis. I probably will do his argument some disservice here.)

In the Rhetorical Presidency, Tulis argues that there are two constitutional presidencies–an uppercase “Constitutional” presidency and a lowercase “constitutional” presidency. (An abbreviated version of the argument can be found in Michael Nelson’s The Presidency and the Political System.) The “Constitutional” presidency refers to the presidency as it was conceived by the men who wrote the Constitution. This presidency is a limited presidency in which the president draws his authority from the Constitution and does not lead public opinion. Indeed, the Founders designed the presidency in order to limit the potential influence of a given president on the political system. The office exists within a separation of powers system, with the the three branches pursuing different objectives and performing different functions. The president’s function is to administer the laws that Congress passes. This presidency is a very limited presidency from a contemporary perspective. In the Richard Neustadt’s phrasing, the president is “an invaluable clerk,” someone whose actions are needed for the federal government to run effectively but who–by virtue of the constitutional limitations on his power–yields little independent influence over its direction.

The “constitutional” presidency, in contrast, is one in which the president draws his authority from his ability to lead public opinion in addition to the authority granted to the president by the Constitution. This vision of presidency demands that the president take an active role in determining the government’s direction. It is a rhetorical presidency–one in which the president must take the pulse of public opinion, turn that vague opinion into concrete policy proposals, and then actively work to convince the public (and thereby Congress) to support it. The lowercase “constitutional” presidency requires the president to be more than a clerk; it requires the president to be a leader.

Tulis argues that the two constitutional presidencies ultimately conflict with each other. The “constitutional” presidency demands an activist president that seeks to lead the public–and thereby the government–with bold policy proposals. The “Constitutional” emphasizes the institutional limits on the president’s ability to do so.

So what does this have to do with the last night’s State of the Union? I think President Obama’s speech last night was a perfect example of the tension that Tulis talks about.

On the one hand, there are a lot of things that President Obama would like to do. Using the example that a lot of people are talking about today, President Obama would like to raise the minimum wage. There’s actually a fair amount of public support for doing so. According to a November 2013 Gallup Poll, 76% of respondents said they would support raising the minimum wage to $9 per hour (the proposal from last year’s State of the Union). People are also still worried about their financial situation and the direction the economy is going. So here’s a case where President Obama can potentially be a leader by taking a proposal that has popular support, turning it into a concrete policy proposal, and then advocating for its passage.

But given current levels of partisan disagreement in Congress there’s no chance that Congress will actually raise the minimum wage. The House Republicans, for strategical political reasons and because of sincere policy beliefs, are not at all interested in raising the minimum wage. President Obama knows that. Everyone in Congress knows that. The talking heads on cable news know that (if they are being honest). Really, any reasonable political observer knows that the president’s proposal is basically dead in the water.

The end result is that because we (the public) expect the president to be a leader, President Obama has to get up in front of the nation and give a speech full of bold policy proposals that cannot be enacted because the Republicans control the House and they are not interested in passing his proposals. He has to create the appearance of being influential in a system where he actually has only a limited amount of influence.

Are the New Republican Primary Rules a Problem for California in 2016?

The Republican National Committee recently enacted a number of changes to the rules governing its primary process. (Rules changes are a frequent occurrence, and the specific changes are generally a response to the received wisdom about what went wrong last time.) Frontloading HQ has a good round up of the changes.

The general thrust of the rule changes is to compress the primary calendar for the Republican Party. Instead of a process that lasts from January to July, as happened in 2012, the party is trying to get everyone to hold their nominating events between February and May. Here are the big changes in the rules:

  1. The RNC increased the penalties for states that schedule their nominating events before the primary window opens on March 1. (Iowa, New Hampshire, Nevada, and South Carolina will all still be allowed to have earlier events.) Last cycle, Florida, Michigan, Minnesota, and Arizona (among others) all scheduled their events in violation of party rules. This cycle, the penalties for doing so will be greater.
  2. States that hold their primaries in the first part of March will have to allocate their delegates on a proportional basis. (Although, that’s not too hard to do and it doesn’t change the results that much. Again, see Frontloading HQ.)
  3. The RNC plans to schedule its nominating convention in July rather than August. (The belief is that Romney was hurt in 2012 because he couldn’t spend general election money until after he was formally nominated.)
  4. The RNC now requires that states pick their delegates to the nominating convention at least 45 days before the convention begins.

It’s really these last two changes that matter for California. In 2012, our presidential primary took place on June 5. Although we like to pretend that we know the results the day after an election, the results for this election were not certified by the Secretary of State until July 13–38 days after the election. If the same 45-day rule had applied, the earliest the RNC convention could have been held and for California to be compliant would have been the end of August.

Assuming the same patterns and no changes in the date of California’s 2016 primary, California would be in compliance only if the convention were held in the middle of September. But the RNC wants to hold the convention in July. So something is going to have to give. Either California will have to move its presidential primary date earlier, or the RNC is going to have to let California designate its delegates late.

My guess? We move our primary forward. The last time neither party had an incumbent presidential nominee, 2000, California moved its primary forward to March 7. In 2004 and 2008, when the Democratic Party did not have an incumbent candidate, the primaries were respectively held on March 2 and February 5. Only in 2012, when Barack Obama was running for re-election did the state keep its presidential primary at the June date.

That said, we allocate our delegates on a winner-take-all basis. If you get more votes that the next person, you get all of the delegates. Assuming we move the primary to the first part of March as we have in the past, then the California Republican Party will have to change how it allocates delegates to the different candidates.

Update: Frontloading HQ indicates that there is an exception to the 45 certification requirement for states that are controlled by Democrats and therefore may not be inclined to move the primary just to abide by RNC rules (e.g., California). That said, I still expect California to move its primary to March in order to be influential in the Democratic primary process.

The Voting Wars Come to California

Rick Hasen calls this kind of thing voting wars, the extension of partisan conflict into the voting process. Last week, the California Secretary of State certified a ballot initiative for circulation (meaning its sponsors can begin to collect signatures) that would require every California polling-place voter to present a government-issued photo identification and every postal/absentee voter to include information from a government-issued identification (e.g., the last four digits of a Social Security number) in order for their vote to be counted. Never mind that the evidence for the kind voter fraud this requirement addresses is basically non-existent and that these kinds of requirements tend to discourage minorities, poor people, and the elderly from voting. Interestingly, this petition comes shortly after California enacted a new law (SB 360) that allows the state to experiment with new voting technologies (hello, internet voting!) in an effort to help more people to vote.

Here’s the official synopsis:

ELECTIONS. VOTER IDENTIFICATION REQUIREMENTS. INITIATIVE STATUTE. Prohibits citizen’s vote at the polls from being counted unless he or she presents government-issued photo-identification. Establishes provisional voting for citizens at the polls who fail to present government-issued photo-identification. Requires that provisional ballots and mail-in ballots be deemed invalid unless the accompanying envelope contains the citizen’s birthdate, and citizen’s identification number or last four digits of driver’s license, state identification card, or social security number. Requires that election officials verify this information prior to opening or counting ballot. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Increased local government elections costs and decreased state fee revenues, potentially in the range of tens of millions of dollars per year. Potentially increased state funding (about $100 million) to local governments, offset by an equal amount of decreased state funding to local governments in future years. (13-0039.)

Be sure to look for it at a supermarket or mall near you. Then, walk away without signing the petition.

More Adventures in Bad Chart Making

December 2, 2013 2 comments

I still think Andrew Gelman does this kind of thing better, but it’s hard not to comment on the following chart from the Washington Post’s Sean Sullivan:

oimgThe larger point that Sean is trying to make is important: There has been a significant decline in the production of federal legislation. That said, this chart is horrible. Among the many problems:

  1. It is incredibly problematic to include the current Congress (113th) in the chart. Doing so exaggerates the trend in an unfair way. Every other Congress has been completed. We haven’t even made it to the end of the first session of the 113th Congress.
  2. The chronology is reversed. Reading left to right, we travel backward in time from the current Congress to the 105th Congress (1997-98). Time series should go forward.
  3. Only Congress nerds (and I am happy to be one) know the dates for each Congress. Everyone else has to rely on tables like this one. If you are going to make a time series, use commonly known labels for the time periods.
  4. Why separate the two sessions of each Congress instead of stacking them? The overall trend would still be there (if anything it would appear stronger), and people would still be able to see that most of the action has come in the second session of each Congress.
  5. Don’t stagger the axis tick labels. If the labels won’t fit horizontally, rotate them.
  6. Why start the y-axis at 20 instead of zero? Is the difference that large? Starting the axis at 20 because that’s what Excel defaulted to is just lazy.
  7. Label your axes in ways that people will understand. What does “Public laws enacted” mean? Why not just say “number of laws?”

Here’s another stab at the chart using the same data:

CongressionalProductivity

A Reduced Filibuster

The Senate Democrats did it. Presidential nominations for executive appointments and lower court seats can no longer be filibustered. Instead, these nominations will be subject to a simple majority vote. I agree with Ezra Klein–today’s vote effectively ends the filibuster as an institution in American politics. The Senate, from this point forward, will be more like the House. I don’t know if means the ability to move the previous question will be reintroduced in the Senate, though.

Here’s some of Sarah Binder’s take:

1.  Is today’s change as landmark as reporters say?  Yes, this is big.  Jeremy Peters in the New York Timesargues that “The change is the most fundamental shift in the way the Senate functions in more than a generation.”  Peters is probably correct.  To be sure, Senate majorities have nibbled away at parts of the Senate’s Rule 22 (the cloture rule) since the threshold was last changed in 1975.  Some of those changes (such as imposing and then reducing a post-cloture debate cap) were achieved by following the formal rules of the Senate.  Others (such as banning filibusters of motions to proceed to particular nominations) were changed by mini-nuclear options, if you will.  In contrast, this is the first reform of Senate rules that changes the number of votes required to invoke cloture.  And the Democrats did it in an institutionally-gutsy way.  Senate majorities will still have to go through the steps of filing for cloture (I think!), but now a simple majority suffices to end debate to bring the Senate to an up-or-down vote on nominees.  This is what Senate Republicans called for 2005; Harry Reid has delivered it.  (Careful what you wish for.)

4. Will GOP senators retaliate by blowing up every remaining bridge in sight? This has historically been a viable threat that has undermined majorities’ efforts to go nuclear.  But such retaliation clearly did not dissuade Reid and his colleagues from going forward.  As he said on more than one occasion, how much worse can the Senate get?  Or as Greg Koger has suggested, senators are already exploiting the least costly avenues of obstruction.  To be more obstructive would likely begin to impose more costs on the minority that they might not want to absorb. Hanging around the chamber to cast votes just to slow down the majority might not be worth it for the minority.  And at some point, the risk of being tagged as obstructionist could hurt GOP senators in 2014 (though this remains to be seen of course).

This really is big. It’s difficult to understate how significant this change is and will be.

The Beginning of the End of the Filibuster?

The Senate is currently debating whether to impose the “nuclear option” on presidential nominees for executive branch offices and for  nominees to the district and appellate courts. Nominees to the Supreme Court would, for now, still be subject to the filibuster. Senate Democrats threatened to make similar changes at the start of the current Congress and again over the past summer. (See here for a quick summary of the timeline.) Each time, however, they were able to reach a deal with the Republicans to allow some nominations to proceed without changing the rules.

While there will be protests that Senate Democrats have broken the rules if they do restrict the use of the filibuster (this is currently Mitch McConnell’s favorite talking point), most observers agree that it can be done. Gregory Koger, for example, writes:

Bottom line: a simple majority has—and has always had—the power to restrict filibustering if senators are willing to take extreme measures to achieve their goals. Although parliamentary rules are discussed as if they are LAWS (with “rules” and “precedents” and “rulings from the chair”) in the final analysis the rules can be interpreted however a majority of the legislature prefer.

The basic logic of filibuster reform is this: Is it worth enough for me today, as I sit in the majority, to lose the filibuster in the future should my party become the minority? Am I willing to give up the potential to obstruct in the future so that I can get my way today? (Yes, there are reputation and potential electoral costs that I will incur if I change the rules, but these are relatively minor. PR wars happen all the time over bigger issues that have little to no effect on elections.)

It’s unclear what the outcome of this change would be. Would Senate Republicans follow through on the MAD (mutually assured destruction) aspect of the nuclear option and grind the Senate to a complete halt by obstructing everything else? Honestly, the reason the Senate Democrats are willing to even discuss the nuclear option is that over the last five years the Republicans have already largely adopted this policy. Yes, there is more that could happen in the way of obstruction, but the level of Republican obstruction has become so great that Democrats feel it is now worth paying the price.

I do think, however, that any change in the filibuster today would signal the beginning of the end of the filibuster has we have known and loved it. If it is okay to change the filibuster today because of minority party obstruction of nominees, it becomes easier to change the filibuster tomorrow because of minority party obstruction of a bill.

BTW, my go to sources for analysis of any such proposal are Sarah Binder and Gregory Koger, both of whom have written extensively on the filibuster (see here, here, and here for examples of Binder’s work and here, here, and here for examples of Koger’s work). They don’t always agree on their analysis.

It’s always fun to talk with the national media

November 15, 2013 1 comment

I did a quick interview with NBC News last week, and the piece is finally up here.

My contributions:

“The effect [of Prop. 14] was to remove all minor parties from the ballot, because almost none of the minor parties are going to be able to meet these rules,” said Keith Smith, an assistant professor of political science at the University of the Pacific in Stockton.

Limiting party power?

Meanwhile, the Republican and Democratic parties are also trying to find their way in this new system. Smith says parties can still be influential, even with the majority runoff system.

“The logic behind Prop 14 gets only part of the polarization [story] right,” he said. “It completely leaves out all of the other partisan actors like the parties, affiliated groups, and activists.”

The point I was trying to make in the second part is this: The gerrymandering and the primary stories about polarization are built on a theory of elections that includes just two sets of actors–candidates and voters. Candidates, in these stories, are able to take extreme positions because they are electorally secure. They do not have to worry about losing to someone from the other party. Voters are then left choosing among extremes.

The gerrymandering solution is to make legislative districts more competitive. The hope is that by constructing districts that either party can win, candidates will have to compete for the center in order to win the election. The primary solution is similar. By opening up primaries to all voters, not just those within a given party, the hope is that candidates will have to compete for the center.

Both stories, however, miss a lot of the complexity of modern electoral politics. In particular, both stories miss the role of party organizations, activists, and benefit seekers, all of which push candidates and voters toward more extreme positions. As long as the party label is important in electoral politics and as long as the parties, activists, and benefit seekers try to influence who can have that label legitimately, then electoral reforms like redistricting commissions and the top two system will only have a limited impact on partisan polarization.

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