Author: David Schleicher


Post-Election Post 3: The Election and the Failure of Fiscal Commissions

For the last week, the media has been focused on the Petraeus scandal (which, admittedly, is a pretty solid sex scandal, complete with a classic New York Post headline, although “Cloak and Shag Her” does not quite reach the epic heights of, say, the Post’s Spitzer scandal masterpiece.) Now it is focusing on the conflict in Israel.   But attention will soon return in full to the impending “fiscal cliff” or the huge amount of tax increases and spending cuts that will automatically occur in January unless legislation is passed.  I won’t venture any thoughts about the substance of these negotiations, but I will discuss what the election can tell us about the likely success of different procedures Congress might use to come to a deal.

One solution that frequently gets made to either the tax or spending parts of the cliff is a “kick the can” solution, in which some cuts and tax increases are made today and then a commission of some sort – a blue ribbon panel of experts or congressional leaders – will propose a more lasting solution in due time.  Over the past 30 or so years, we have seen some version of the same strategy in lots of areas (perhaps the most famous is the BRAC base closing commission) in lots of different procedural forms.  The concept is that the commission will bring some proposal to Congress that it would not have come up with on its own but that will be able to get a majority vote.  Of course, the fiscal cliff is a product of such commissions – first Simpson-Bowles and then the Super Committee – each of which were tasked with coming up with some kind of grand bargain on taxes and spending but failed, the latter despite the upcoming unattractive to both sides sequester spending cuts that were intended to drive them to make a deal.  Yet the idea of a successful commission, full of sober gray-haired wise men, still dominates the fantasies of at least some of Washington’s budget elite.

One lesson we can take from the election is that such a fiscal commission is unlikely to solve the problem.  The argument – continued below – requires a little bit of positive political theory.  But the basic idea is pretty simple.  The success of commissions is predicated on the idea that there exist latent majorities in Congress that are not reached because of the agenda control of Speaker and Majority Leader.  Whether this is due to Arrovian cycling or Weingast-style distributive politics or something else, commissions are meant to create a focal point or new cycling choice that Congress would not reach on its own but that can get a majority vote.   In the 1970s and 80s, there was a great deal of space for these types of commissions to work because the differences between the parties on most major issues were not so clearly defined, party line voting in Congress (and the electorate) had ebbed, and preferences on a number of issues did not track the main dimension of partisan competition.

But the election produced more polarized parties and majority (and minority) caucuses in Congress with Members that are very similar to one another and that agree on a greater number of issues (i.e. preferences are more unidimensional).  The result of this is that there are likely few latent majorities.   While Congress may decide to create a commission or a panel of experts, or some binding targets or some other fixed procedural tool, such methods are unlikely to create a long-term deal.  The election (and the several elections that proceeded this one) created a very strong party system.  And the result of such a system is that there are few (and maybe zero) deals other than those that President Obama, Sen. Reid and Rep. Boehner can make, on the fiscal cliff or anything else.  Commissions, Gangs of Senators, etc. are tools that may have worked in previous Congresses and on certain types of issues, but they are unlikely to play a useful role in today’s Congress.

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A quick thought on hot spot policing and agglomeration economies

Over on Slate, Matt Yglesias, one of the nation’s leading voices on urban economic issues, notes that “hot spot” policing, or sending more police to specific high crime areas, actually seems to reduce crime and not just displace it, contrary to the expectations of some.  This is one of the findings in Frank Zimring’s fantastic book on crime in New York City, The City That Became Safe, which discusses how crime fell in New York faster and for longer than it did anywhere else in the country (you probably know about the murder rate, but here’s an amazing fact: auto theft fell by 94% from 1990 to today! AOL dial-up usage hasn’t fallen that far from its peak!).  One of the answers Zimring gives is that the police focused resources on specific problems, particularly outdoor drug markets.

Yglesias notes that, while it makes sense that “hot spot” policing would just displace open air drug markets to other places, it does not.  He doesn’t offer a theory why.   Here’s one – drug markets feature heavy gains from agglomeration.  For those of you who don’t know, agglomeration economics is the field that studies why economic behavior tends to clump together in cities, despite higher rents (Here’s the great Ed Glaeser, who with Paul Krugman, is the best known scholar in the field, explaining the basic types of gains from agglomeration).   Two agglomeration based stories can help explain why open-air drug markets exist and why disrupting them may reduce overall crime.  The agreement among dealers to locate in a specific place creates market depth, which allows consumers to pick among them, getting gains from specialization (different dealers may have access to different types of drugs, or drugs of different qualities and prices) and insurance (buyers know someone will sell them drugs in a big market, as opposed to counting on the reliability of a single drug dealer if they go to his corner).  And there is surely a great deal of learning among drug dealers, about how to avoid cops, how to deal with tweaking clients and the like.  And there are some economies of scale in providing common services, like security.   When a drug market gets displaced, the assumption that some other place will just pop up in equal size ignores that it is difficult to coordinate all of these people to show up in some other park (there isn’t a drug dealer trade group to house these negotiations, after all).  There are reasons to co-locate but coordinating everyone to move to one place is just really hard.

As Dan Rodriguez and I show in our piece The Location Market, the type of thinking that led people to believe shutting down open-air drug markets would have no effect pervades urban economic policy.  For instance, one of the central arguments for the congressional Height Act, which limits the height of buildings in Washington D.C., is that, if there are no skyscrapers in downtown DC, economic activity will move spread easily from K Street to Cleveland Park or Anacostia.  But it doesn’t – restricting supply just causes rents just go up downtown, which is now one of the most expensive office markets in the country.  The reason is that lobbyists want to be near other lobbyists.  Co-location provides easy access to “upstream and downstream linkages” (from restaurants set up for deal making to access to a deep market for temps) and most importantly information spillovers or learning from peers (As Rodriguez and I write, “A lobbyist talking to another lobbyist about congressional procedure is producing information spillovers that will improve the listener’s productivity at work. A lobbyist talking about congressional procedure to just about anyone else is a bore.”)

Effectively, the reason hot spot drug policing might work is the same reason the Height Act is bad.  Real estate is all about location, location, location.



The Party Is Not Over: Of SuperPACs, Saddlebags, and the Survival of the Parties Post-Citizens United

This is the second post in a series discussing how the 2012 elections revealed the strength of political parties in modern politics, and that the way we understand how our constitution and election laws work has yet to catch up with our ever-strengthening party system.

Much has been made of the role of money in our first post-Citizens United Presidential election.  And rightly so.  Despite the fact that the actual changes Citizens United made in campaign law seemed small to some experts, it is undoubtedly the case that there was a huge increase in spending in 2012 (and in 2010).   Most independent political spending was done on behalf of Republicans.  In the aftermath of the President’s re-election, many have asked whether that money was wasted or was a case of rich guys getting conned by political consultants.  Some big spenders have begun asking serious questions, particularly of the biggest of SuperPAC, Karl Rove’s Crossroads and its 501(c)4 affiliated-entity Crossroads GPS. (There was apparently a post-election conference call between the biggest Crossroads donors and Rove, which I imagine went something like the famous Saddlebags scene in Tom Wolfe’s A Man in Full.)

It is very hard to determine whether any given amount of money was spent well or poorly during an election, or even how much different types of campaign spending matter to determining election results.  But one thing we can say is about who got the money.   The answer is independent groups that are run by party regulars, SuperPACs that look, smell, and act a lot like political party organizations.

When Citizens United (and its sister case, Speech Now) came down, many political scientists and election law experts were worried that independent spending would have a centrifugal effect on our politics, with every separate cause and rich person’s issue getting its own SuperPAC.   Campaigns would be run on issues decided by the whims of rich folk and the rent-seeking interests of corporations.  The voices of parties and candidates would be lost in the din.

This type of worry is rooted in the ideas of the Responsible Party Governance school of thought.  RPG scholars (and those influenced by them) argue that ideologically-coherent programmatic parties are necessary for popular governance.  If parties are ideologically consistent, both down-the-ballot and over time, voters can develop clear senses of their approaches to governance even without knowing very much about any given issue or candidate.  Using party as a heuristic for what a candidate will do has become ever-more effective as the parties have become clearer and more polarized.  Further, parties can be held accountable for failures, as they last longer than any given election.  And, if strong enough, parties can actually get important legislation through our convoluted constitutional structure.   The structural worry set off by Citizens United was that it would weaken the parties, and therefore weaken the ability of voters to control government.

But what the 2012 election showed is that this worry was overblown, at least for now.  SuperPAC money came into elections, certainly, but it flowed almost entirely into big, generalist Superpacs associated with the parties or the Presidential candidates.   There are legal and formal distinctions between the Republican Party organization and Crossroads, but there are few functional ones.  Karl Rove ran the Republican Party and then he ran Crossroads.  Crossroads did the things we’d imagine a Party would do.  It tried to impose party discipline by refusing to spend on Todd Akin’s Senate race.  It spent money down-ballot and well as on the top of the ticket.  It funded get out the vote operations.  Rove now says Crossroads is going to get involved in Republican primaries to help out candidates who will do well in general elections.  Priorities USA, the biggest Democratic SuperPAC did less of this activity because it was smaller and because the Obama campaign had so much money, but it played a central role in Democratic Party messaging.  There were some issue-specific ad campaigns and a few rich guys that ran ads on their own terms, but they were few and far between – the big money was with the party-organization-like SuperPACs and 501(c)4s, and the SuperPACs associated with candidates.

For those who actually read their RPG scholarship, this was not a total surprise.  E.E. Schattschneider, the central figure in RPG scholarship around the middle of the last century, argued that people who think interest groups dominate parties are mistaken.  The reason is simple: there are only two parties and thousands of potential interests.  Because of our system of first-past-the-post vote counting, single-member districts and Presidential elections, there is an effective limit on the number of parties.  If an interest group decides to go its own way, or to switch sides, the parties are okay with seeing them go – there are always other sources of cash.  The financial industry switched from supporting Obama in 2008 with a majority of their spending to being almost exclusively pro-Romney in 2012.  And Obama was still able to run a campaign.  Interest groups need the parties far more than the parties need any individual interest group.

This doesn’t mean campaign money doesn’t influence the substance of politics. It surely does.  And the relation between the parties and these “shadow parties” is still up in the air – Heather Gerken has characteristically been several steps ahead of the rest of us in exploring this question, and the excellent journalist Reihan Salaam is on the case as well.   But whatever effect money is going to have going forward, it is not likely to be to sideline the parties.   And that’s as true post-Citizens United as it was before


Lessons from the Election, Part 1: The Arkansas Legislature and the Decline of State Democracy

I’m going to do a few post-election blog posts on what the results can tell us about some of structural changes we’ve seen in American politics and their implications for constitutional and election law.   The theme of each of them is going to be that both popular and scholarly understandings of issues in politics – be they about federalism, campaign money, or Congressional commissions – have not caught up with our modern, ideologically coherent, highly polarized political parties.

The place to start is Little Rock, AK, where voters gave Republicans control of the state senate for the first time since Reconstruction and where control of the state house of representatives is still up in the air.   With Arkansas going Republican, there are now zero Democratic controlled legislatures in the deep south.  At the same time, in New York, the Republicans lost control of the State Senate for only the second time in my lifetime (although they may win it back, sort of, through party switching.)  Here’s a map of state legislative control, provided by the really excellent political scientist Steve Rogers:


Look familiar? Outside of the industrial Midwest and Florida, it looks a lot like the Obama/Romney map.  (Notably, if you want to understand how Republicans held the House of Representatives despite Democrats getting many more votes in House races, look to the same states and the effective gerrymanders engaged in by legislatures in states like Ohio and Pennsylvania, where you see such differences.)

With the fall of the Arkansas Democrats and the New York Republicans, what you can see is that the legislative vote follows a party’s popularity in the state on national issues.  Rogers also shows that shocks in party support that only affect national policy affect state legislative elections as well.   He writes: “Presidential evaluations and the national economy matter much more for state legislators’ elections than state-level economic conditions, state policy outcomes, or voters’ assessments of the legislature.”   On election day, this trend was confirmed in a big way.

For more on why this occurs, and what this tells us about American federalism, continue below the fold

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How to Write a Festschrift Piece and thoughts on “very meta” legal scholarship

Early in my teaching career, I overheard a student say to another student when leaving my class that it was “very meta.”  I wasn’t sure exactly what she meant in this context, so I asked her the next day.  She said that, as I was teaching I would occasionally do things like engage in a bit of Socratic questioning about the purposes of the Socratic method, or begin lectures with why I thought the issues was best left for lectures, allowing students to see behind the Wizard of Oz like-curtain of authority that shields a professor’s pedagogical moves from scrutiny.   (Best part: I’m paraphrasing, but she really talked like this.  I assume she majored in some field heavy in critical studies.)  I wasn’t trying to open a debate, really – one can’t have referenda on a class’s structure without seriously undermining its success – and explaining why I was using the Socratic method didn’t stop me from doing so.  But the act of revealing the contingent nature of why I was teaching in a certain way but then going ahead and doing it anyway turned out to be a pretty effective method for both providing the traditional goods of a law school class and giving students with some necessary critical distance.

One thing I’ve noticed recently is that a number of recent pop songs have adopted a roughly similar tack: using lyrics that both embody and explain the formal expectations of their genres.  For instance, Lil Wayne’s I’m Me is in most ways a pretty run-of-the-mill track, full of Weezy’s clever boasts and sick flow, but in the chorus, he reveals that he knows his song follows a format.  In part, it goes: “Baby I’m me, so who you? You’re not me, you’re not me.  And I know that ain’t fair, but I don’t care.  I’m a ….. Cash Money Millionaire.”  Which basically describes the chorus of most rap songs.  I’m Me provides all the ordinary goods you expect from him and does so without apology, but this track also criticizes itself by laying bare in the chorus how conventionally the song meets the genre’s expectations for content.  One is left both enjoying the work and thinking about why one enjoys it – a win all around.  The Japandroids’ Younger Us does roughly the same thing for indie rock   After all, indie rock aimed at people in their thirties is almost always actually about how much fun the listeners had in their twenties when they listened to less smart versions of roughly the same thing.   Fun’s song We Are Young is almost a perfect version of this move for the pop anthem.   Are there any pop anthems that can’t be reduced to a claim that the singers and listeners are young and that that being young is, well, pretty fantastic?

I had never attempted to do this in my scholarship, to make clear in the text the strategic, intellectual and other reasons for the structural decisions that determine the form an academic article takes.  But in a recent festschrift for the great Heather Gerken, I thought I might give it a go.  Here’s a link to my piece From Here All The Way Down, or How to Write a Festschrift Piece.    (An added bonus — It may also be the only law review article in history to include references to each of the following: Kanye West’s Big Brother, John Updike’s Hugging the Shore, Welch’s Grape Soda, the band Deep Purple, Whit Stillman’s The Last Days of Disco, Volume III of Robert Musil’s The Man Without Qualities, and Tone Loc’s Wild Things and Other Hits, among other things.)

A sample appears below:

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A brief essay on polarization and constitutional structure

Every election season, experts sound off on the effects of the increasing polarization of our political parties.   By virtually every standard, polarization has increased dramatically since the 1970s – whether you look at Congressional voting patterns, elite popular opinion, or language used by partisans – the parties are moving ever further apart.  This year’s leading entry in this field is Thomas Mann and Norman Ornstein’s new book, It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism.  It argues that the American constitutional system is a poor fit for our newly polarized parties, particularly for what they describe as the one-sided polarization created by the radicalization of the Republican Party.  A system with two legislative houses, a filibuster and a weird appointment process just can’t work when the parties, and particularly when one party, would rather bicker and blame than work together to govern.   Legal scholars have contributed a great deal to this literature as well: Sandy Levinson’s great new book Framed and Rick Pildes’s fantastic Jorde Lectures from 2008 address the conflict created by the exigencies of modern politics and modern parties and our constitutional structure.

I think this literature is extremely useful for understanding our politics.  Mann and Ornstein provide an important counterpoint to arguments by Responsible Party Government scholars of the 1950s who argued that clearly defined parties would provide voters with clearer choices, allowing popular governance even where voters have limited knowledge about many issues and politicians, and that strong, ideologically coherent parties are the only tool that can allow majorities to overcome the difficulty of getting legislation through our multi-step legislative process.

You can read these arguments and come to your own conclusions.  But what I want to do here is bring some comparative perspective to this disagreement.  My somewhat-fleshed out but still quite provisional argument proceeds in two parts: (1) Polarization in the United States can be understood as the way our political system integrates changes in popular opinion that are similar to what we have seen in other countries and that have resulted in radical parties in proportional representation (PR) systems and minority governance in Westminster systems; (2) These changes have been difficult for other constitutional/institutional systems to deal with as well.    I’ve used blog posts to do some of this work before – see this and this – but current politics provide more ballast and flesh for this argument.

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Sports and Elections: There’s Actually Research!

Howard’s last post was largely about superstition (not that there’s anything wrong with that, or at least not anything that can be pointed to by someone who will still break out an old Anthony Mason “Mase in Yo Face” t-shirt for good luck during key Knicks games.)   But there’s actually some really interesting research on the effect of sports on election results.  Andrew J. Healy, Neil Malhotra & Cecilia H. Mo used college football results to test the effect of politically irrelevant information on voter behavior.  They “find that a victory by the local college football team in the ten days before Election Day leads to a significant increase in incumbent vote share.”  College basketball results during March Madness had a similar effect on support for the President and perceptions of national success — voters in areas with teams that made it to the FInal Four were more likely to think the country was going in the right direction.

For the voting research, this is an important result, as it shows that non-political information has a real effect on elections and that this interacts with the well-supported finding that voters’ are extremely myopic (e.g. they care much more about the economic performance in the 4th year of a President’s term than the 3rd).   For Howard’s purposes – the results most likely to the help the President —  what he should root for, I think, is for teams in swing states to win (assuming pro and college sports have similar effects). He should probably root for the Cincinnati Reds.  In football, Cleveland (ouch), Cincinnati, Carolina and Green Bay.  Also, Washington isn’t a bad choice, given how many fans they have in NoVa.

If you’re interested in how election laws can be shaped to mitigate the effects of this type of irrational behavior, check out my new paper with Chris Elmendorf, Informing Consent: Voter Ignorance, Political Parties and Election Law


Thanks for having me, and a quick thought about Nate Silver’s effect on Washington chatter

I want thank Danielle and all the other great people here for having me.  I apologize for the late start and it may be a few more days before I really get going.  But once I do, I’ll be blogging about a few election law and election related things, some local government law and land use things and probably a few random thoughts.

But I want to start by talking about something truly important: Washington gossip.  One of the great joys of being an election junkie used to involve collecting political information.  You could monitor local newspaper to find poorly reported on polling data, you could constantly check Charlie Cook’s and Larry Sabato’s predictions (Is NY-13 in play? MA-06? Wow!).  Or, even better, if you were enterprising enough, you could sometimes score unreleased newspaper or campaign insider polling.  We scholars had another advantage; we could knowledgably discuss models that showed the importance of economic factors in Presidential elections and the uselessness of polls early in election cycles, revealing our superior remove from the vagaries of the news cycle.  All of this would allow you to have something to add when conversation turned to the campaign, a necessary survival tool for living through election season in D.C.   People here talk about elections like their jobs depend on it, and this type of insider chatter played an important role.  As partisan rhetoric heated up, predictions and related gossip was a topic about Democrats and Republican could talk about safely over cocktails, as you could be analytical without actually having to argue.

This, though, has been totally ruined by Nate Silver.  (To be fair, there are few others who contribute, like the excellent Nate Cohn and a few of the great new political science blogs like The Monkey Cage and Mischiefs of Faction.)  While he’s been in the news a great deal since he broke onto the scene in 2008, the innovations in Silver’s modeling techniques this cycle really deserve notice.  Particularly, he has successfully and innovatively incorporated economic fundamentals into his poll-of-polls modeling techniques, drawing on a long political science literature as a method for improving the model’s predictive force early in the cycle and reducing the sensitivity of the model to short-run spikes in opinion or sampling error.  The result?  His model is better than your intuitions and, in aggregate, probably better than even carefully sourced insider information.  Particularly if you pair it with the prediction markets and Vegas odds, there’s not much new one can add to these conversations any more, as everyone reads Nate Silver, and he provides a clear, easy to understand number reflecting the best information about each candidate’s likelihood of winning.  Want to sound off about the effect of a convention speech on the public? He’s got the data on when these things are bounces and when they are real and how you can tell the difference.  Want to talk about debates? He’s got you covered. Want to know much to freak out?  He let’s you know – you should freak out exactly 7% more today than yesterday.  Even on Twitter, where overreaction to each drip and drab of polling data is the expectation, the authority with which Silver’s analysis speaks makes the early responses to polls look extremely small, even when they come from leading journalists and political insiders.   Of course, you can always can note that everyone else is overreacting, but that’s nothing more than a pose, and no fun besides.

While many people have written about Silver since 2008 – check out this great recent New York Magazine profile — almost no one has noted how he has single-handedly ruined political conversations in D.C.  In a post-Five Thirty Eight world, the only way to have one up in an election-based conversation is if you’ve checked the site since the last time he updated it and the person you’re talking to hasn’t. Outside of that, if you’re still talking about this stuff, you’re almost certainly doing something wrong.

The effects of the death of this type of chatter are only beginning to be felt.  It might lead to, I don’t know, substantive conversations about the issues.  And who knows where that could end up?