The Volokh Conspiracy

The most commonly used scores for ideological distance are DW-Nominate scores, based on representatives’ actual votes. These measures reduce various flavors of “liberal” and “conservative” to a single metric, but they are the scores most widely used and trusted by political scientists and political commentators because they measure virtually all the actual votes in a careful and rigorous way. As many people have noted, there used to be lots of ideological overlap between the parties, and lots of moderates in both parties, but there is less overlap, and in particular there are fewer moderate Republicans. I decided, like some others, to look at this in light of the upcoming Senate. Beyond that, it is interesting to compare it to the Senate from 10, 20, and 30 years ago (the 108th, 103rd, and 98th Senates), so I use the DW-nominate constant scores, which provide comparable scores among the members of different Congresses. The numbers are striking, particularly on the Republican side. Just ten years ago, in the 108th Senate, there were 10 Democrats with DW-Nominate scores between −.3 and -.2 (the more negative, the more liberal), and 8 Republicans with DW-Nominate scores between .2 and .3 (the more positive, the more conservative). And there were 6 Democrats between −.2 and 0 and 7 Republicans between 0 and .2, which is probably a better reflection of what we mean by truly moderate Senators (again, with all of this measuring the distance of Senators from their colleagues past and present based on their voting records).

In the upcoming Senate, we have to do some extrapolation because we don’t have DW-Nominate scores for those who are new to the Senate (and the DW-Nominate constant scores for the House cannot simply be applied to the Senate). But Boris Shor at the University of Chicago did some calculations, about the ideologies of the Senate candidates based on their votes (where applicable) or their stated positions via VoteSmart, and as it turns out it seems pretty clear that the new Republicans in the 113th Senate are at least as conservative as the median Senate Republican in the 112th. And for my purposes, all that matters is that these new Senate Republicans will not be among the most liberal members of the Republican Senate caucus. In light of the numbers and everything we know about them, I’m willing to make that assertion about Ted Cruz, Jeff Flake, and Deb Fischer, three of the most conservative Republicans running for Senate seats this past election. The Democrats are trickier, in that there are four new Senators who will caucus with the Democrats (including Angus King) who might be among the most conservative Senate Democrats: Joe Donnelly, Heidi Heitkamp, Angus King, and Tim Kaine. In light of Donnelly’s very moderate voting record (almost perfectly the midpoint between Republicans and Democrats, according to Shor’s numbers), he in particular looks like he will be among the most conservative Democrats, but others in this group might also end up being quite moderate. To avoid making unwarranted assumptions, in the numbers below I put only one of these four, Donnelly, between −.2 and 0, and the remainder more than −.3 away from 0. If I am wrong in placing these four, that still doesn’t change the number very much. And, more importantly, it doesn’t change the really interesting and striking story — the dramatic drop in the number of moderate Republicans.

Here are the numbers for the new Senate:

Democrats between −.3 and -.2:               12

Democrats between −.2 and 0:                  5

Republicans between .3 and .2:                 3

Republicans between .2 and 0:                  1

So here’s the change in a single chart:

Note that the National Journal’s numbers for ideology tell a similar story.

The lightest red bar is of course the most striking change. And it is remarkable that there is now just one Republican Senator with a score of .2 or less. Note that the Republicans who are third and fourth most likely to vote with the liberals (after Susan Collins at .107 and Mark Kirk at .225) are Lisa Murkowski (.241) and Thad Cochran (.292). That’s right — the voting records show that Thad Cochran is to the left of all but three Republicans in the Senate.

I will bet anyone (in jurisdictions where it is legal) that the Supreme Court will reverse the Sixth Circuit in Coalition to Defend Affirmative Action v. Regents.  Indeed, my main question is how badly the Coalition to Defend Affirmative Action loses.  My guess is that they get maybe two votes on the Supreme Court.

When Ted Olson and David Boies brought a challenge to California’s Proposition 8 against gay marriage, lots of gay marriage supporters said the litigation was a mistake, because it was too soon.  I don’t recall seeing the same pushback against this Michigan litigation (that is, I don’t recall advocates of affirmative action saying that this litigation was too soon).  I suspect the reason for this difference is that gay marriage advocates believe that time is on their side and affirmative action advocates don’t. But if the groups spearheading the Michigan litigation believe they’ll be in the same position, or in a weaker position, in the future, that still doesn’t explain bringing this litigation if they don’t think they’ll win in the Supreme Court.  So I’m guessing that the Michigan groups bringing this litigation think they will win in the Supreme Court, or they think that the litigation will bring them other benefits (like moving public opinion in their favor) that will outweigh the costs of losing in the Supreme Court.  I’ll take the bet against both propositions.

An article I coauthored came out in the Journal of Legal Analysis that might be of interest, and that I’m pretty jazzed about.  Here is the abstract:

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding either ideological breadth or a new member to the majority coalition results in an opinion that is less likely to be overruled, criticized, or questioned by a later court. Our findings contradict the conventional wisdom regarding the coalition-building strategy of a rational and strategic opinion author, establishing that the author has an incentive to go beyond the four most ideologically proximate Justices in building a majority coalition. And because of later interpreters’ negative reactions to narrow coalitions, the law ends up being less ideological than the Justices themselves.

In other words, building a broader coalition – either ideologically or numerically – is associated with fewer negative reactions.  A simple example: array the Justices on an ideological spectrum from 1 to 9 (it doesn’t matter for these purposes whether the most conservative is 1 or 9).  Justices 2, 3, 4, and 5 have joined a draft opinion, and Justice 1 has written a memo indicating that he would join if the opinion was changed in some specified ways (this is standard practice in the Supreme Court), and Justice 9 has written a similar memo proposing different changes that, if made, would cause him to join.  The point of our data is that there is an advantage to choosing to accommodate Justice 9 over Justice 1.

I put the origin of the paper in the final footnote:

For what it is worth, the conventional wisdom among the fellow Supreme Court clerks of one of the authors was that the Justices who stopped accommodating their colleagues once their opinions had garnered five votes were the strategic ones. They kept their majority opinions closer to their ideal holding by refusing to budge once they had a majority, and this seemed like the strategically sophisticated course to take. The data in this article, however, suggest that we were too hasty in our judgment. Maybe seemingly profligate accommodation is the most strategic policy of all.

District Judge Robert Jones, who enjoined Nevada’s “None of These Candidates” as likely unconstitutional (see my post from a few hours ago), responded to the 9th Circuit’s order and Justice Reinhardt’s concurrence in particular here.  I agree with the commenters that he was probably better off remaining silent, since he does not justify his delays in dealing with this expedited request for an injunction.  But I also note that he accused Judge Reinhardt of breaking the rules.  Judge Jones says:

The undersigned was quite surprised when Judge Reinhardt contacted my Chambers through the Ninth Circuit Clerks Office and requested early entry of the order granting preliminary injunction, in light of a preliminary hearing date set by himself on the Defendants Emergency Motion to the Ninth Circuit for Stay Pending Appeal. I am not even sure if Judge Reinhardt was on the motions panel for the month of August, 2012, which panel is designated each month to hear all early motions in a case. Such contact for the purpose of influencing the lower court’s decision and earlier entry of its order, in order to establish appellate jurisdiction is an inappropriate judicial activity.

Translation: ”You say I engaged in misconduct?  I say you engaged in misconduct!”

And for good measure, Judge Jones ends by saying: “Judge Reinhardt’s separate decision to impugn the integrity and motivation of the undersigned judge, together with his contact to Chambers through the Ninth Circuit Clerks’s Office, was an example of assumption of power by one individual which is not acceptable in our judicial system.”

I have a feeling things may be a bit frosty the next time these two cross paths.

I am finally returning to blogging a bit.  From the “judicial smackdown” files: A week ago, a district judge agreed with arguments that Nevada’s 36-year-old statute requiring a “None of These Candidates” option on the ballot for statewide elections is likely unconstitutional and issued an oral preliminary injunction.  That’s pretty remarkable – on what basis does he think there is a good argument that this statute is unconstitutional?  We don’t know, because he didn’t issue a written opinion.  His failure to issue a written opinion is also pretty remarkable, because the state made clear (repeatedly) that September 7 was the deadline for it printing ballots.  And lest you think he had no time because the case had just come in the courthouse door, he had been sitting on the request for a preliminary injunction (which repeatedly requested expedited treatment) since mid-June.  Anyway, the 9^th Circuit has responded with its own remarkable action.  Two days ago a unanimous three judge panel (including Reinhardt from the left and Bea from the right) granted Nevada’s emergency motion to stay the district court’s injunction.  More striking is Judge Reinhardt’s concurrence, which states flatly (and repeatedly) that the district judge’s actions could be explained only as an attempt at evading appellate review, by issuing an oral order shortly before September 7 and the written opinion afterwards, at which point the ballots would have been printed.  The quotation in the title of this post is representative of the harshness of the concurrence.  Essentially, Reinhardt is accusing the district judge of bad faith and malfeasance.  I must say that I have had a hard time coming up with a persuasive charitable explanation for the judge’s timing (maybe it’s too hot in Nevada to do much over the summer?).  But that is one harsh concurrence.

H/T to Rick Hasen.

Update: from a commenter, here is the district judge’s harsh response to Reinhardt’s harsh concurrence.

Newt Gingrich said today that he would ask John Bolton to be his Secretary of State, and many bloggers (as well as Keith Olbermann) have responded by saying that he broke the law in doing so.  I think they are wrong — indeed, pretty clearly wrong.  As Mitu Gulati and I pointed out in a paper entitled “Mr. Presidential Candidate: Whom Would You Nominate?”, the relevant statute is ambiguous and, more importantly, applying the statute to a public promise like this one would violate the First Amendment.

And, as the title of our article suggests (and as we discuss at some length in the article), a presidential candidate identifying whom he would appoint is valuable to voters and should be encouraged.  Indeed, in this specific case Gingrich has conveyed useful information to voters.  Newt (and all other presidential candidates), please tell us more about whom you would nominate!

For what it’s worth coconspirator Eugene provided us with excellent comments on our draft and disagreed with our policy prescription, but I don’t recall him disagreeing with our legal analysis on this point (though Eugene can set me straight if I’m misremembering).

The statute, 18 U.S.C. § 599, provides in relevant part:

“Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both.”

As we note in our article, there is a textual ambiguity in the statute: the trigger for the statute is “procuring support in his candidacy.” Is this trigger procuring support from the public for his candidacy or instead procuring support from the potential nominee (or perhaps the potential nominee’s associates) for his candidacy?

For those of you interest, I quote below the relevant portion of our article (sans footnotes; if you want to read it with the footnotes, click here):

We do not dwell on these arguments regarding statutory interpretation because any attempt at applying this statute to a candidate’s promises would violate the First Amendment.  In Brown v. Hartlage, the United States Supreme Court confronted a state statute very similar to § 599.  A candidate for county commissioner had promised to lower commissioners’ salaries if elected, and the Kentucky Court of Appeals found that this violated the following state statute:

“[W]hen a candidate offers to discharge the duties of an elective office for less than the salary fixed by law, a salary which must be paid by taxation, he offers to reduce pro tanto the amount of taxes each individual taxpayer must pay, and thus makes an offer to the voter of pecuniary gain.”

The Supreme Court reversed, unanimously.  The Court treated this regulation of candidates’ speech as subject to strict scrutiny (one in a long line of cases so finding), and it invalidated this statute because it failed the first prong of a strict scrutiny inquiry: the identification of a compelling state interest.  The Court noted that there was a plausible claim that a promise to accept a lower salary would reduce voters’ taxes, but it found that the state’s interest in preventing vote-buying was not implicated because “Brown did not offer some private payment or donation in exchange for voter support; Brown’s statement can only be construed as an expression of his intention to exercise public power in a manner that he believed might be acceptable to some class of citizens.”  As the Court emphatically stated:

“Candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote.  The fact that some voters may find their self-interest reflected in a candidate’s commitment does not place that commitment beyond the reach of the First Amendment.  We have never insisted that the franchise be exercised without taint of individual benefit; indeed, our tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare.  So long as the hoped-for personal benefit is to be achieved through the normal processes of government, and not through some private arrangement, it has always been, and remains, a reputable basis upon which to cast one’s ballot.”

In Hartlage, there was at least a plausible interest that the state could articulate (avoiding vote-buying), even though it was unpersuasive.  It is difficult to see any legitimate—much less compelling—interest that the government would have in preventing corruption via prohibiting the naming of cabinet or Supreme Court nominees.  Put differently, it is hard to fathom what the state’s interest would be.  In Hartlage, there was a benefit to voters in the form of reduced taxes, but here there is no benefit to voters other than the likely nomination of appointees whom they would like to see in positions of power—and there is no conceivable state interest in preventing that from happening.

The government might have an interest in prohibiting concealed promises from candidates to potential nominees.  Secret promises give no information to voters, so their only benefit is a private one to the candidate and/or to the nominee.  That underscores the implausibility of any government interest in preventing the public naming of nominees in advance.  There is no corrupting element.

A different way to come at this question is to consider why the First Amendment is treated as placing a high value on electioneering speech.  One reason is because an active and full debate among candidates helps voters make more informed choices.  The voters are the customers choosing among products in the marketplace of ideas.  Reading the statute to prohibit the public disclosure of prospective nominees results in the implicit (and sometimes explicit) bargains between presidential candidates and prospective nominees being pushed underground.  And that in turn prevents voters from being able to evaluate the competing bargains that the different candidates have struck—the opposite of what First Amendment values push toward.  In effect, this occurred with Earl Warren’s appointment to the Supreme Court in 1953.  Dwight Eisenhower reportedly promised Earl Warren that he would be appointed to the Court as soon as a seat opened up.  The public, though, had no way of factoring this promise into their decision as to whether to vote for Eisenhower.

It is simply impossible to imagine any compelling interest for the application of § 599 to our proposal, much less a compelling interest to which application of § 599 would be narrowly tailored.  And it bears noting that in the years since Hartlage, the Court has, if anything, raised the First Amendment bar for regulations on campaign speech.  For example, the Court has held that a prohibition on candidates for judicial office “‘announc[ing] his or her views on disputed legal or political issues’” violates the First Amendment, despite the obvious state interest in avoiding the appearance of impartiality. The bottom line, then, is that application of § 599 to our proposal would run afoul of the First Amendment...

The D.C. upheld the constitutionality of the health care act today (Silberman and Edwards reached the merits and voted to uphold; Kavanaugh found no jurisdiction and did not reach the merits).  Silberman’s opinion reads to me like the opinion I would expect from Justice Scalia upholding the act — notably, that one can distinguish activity from inactivity, but such a distinction is novel and not grounded in doctrine; and that “Appellants’ view ... expresses a concern for individual liberty that seems more redolent of Due Process arguments.”  Indeed, I will make a bold and perhaps foolish prediction: if Scalia is assigned the majority in the health care act case, my guess is that it will bear a considerable resemblance to the Silberman opinion.  Let me add that I think Scalia or Kennedy is the most likely author of the majority in the case.  And, yes, I do think Scalia (and Kennedy, for that matter) will vote to uphold the act.

With this blog post I’m returning to blogging after a long hiatus.  This one is on a topic that is not particularly relevant to my interests, but I find it remarkable: According to a new report on obesity in the U.S., the state with the lowest obesity rate today (Colorado) would have had the highest obesity rate in 1995.  And we are long past the point when we switched from the term “adult-onset diabetes” to “Type 2 diabetes,” in significant part because the disease has become so common in children.  One other tidbit: for most of human history, poverty has been positively correlated with being underweight.  Now poverty is positively correlated with obesity.  As you move down the income scale, obesity increases.  The same, by the way, is true of education (less is correlated with more obesity).  See pages 20-21 of the report.  Whatever the causes are, the results really startling.  I suppose the only good news is, to paraphrase Herbert Stein, this rate of increase cannot go on forever: at this rate, we’d hit obesity rates of 110% of the population in a couple of generations.

I have written at short and great length about the desirability of opening up more wireless frequencies to flexible uses, and in particular freeing up spectrum currently devoted to television broadcasting.

Now those opposed to indecency are helping the cause. As I noted in an op-ed yesterday, the Supreme Court’s decision in FCC v. Fox affirms indecency regulations that make life worse for local stations.

Much ink has been spilled about the possible demise of print newspapers. Local broadcasters have been a bit better off. Their viewership has long been declining, but they had an ace in the hole – coverage of local events. If people wanted to witness live local events, they needed to watch a local television broadcaster. But that has started to change. Viewers, and thus advertisers, are being siphoned off by websites covering local issues and new local offerings from cable providers.

And now some local stations are halting coverage of live local events out of fear of FCC indecency fines that the Supreme Court upheld in FCC v. Fox. The FCC has long emphasized the importance of helping local broadcasters, but more recently it has focused on indecency – ruling that even a fleeting expletive can subject a broadcaster to fines in the tens of thousands of dollars for each fleeting expletive.

National networks can afford tape-delay systems, but many local broadcasters cannot. The problem, as Justice Breyer noted in his dissent in Tuesday’s opinion, is that the FCC’s indecency policy “places all broadcasters at risk when they broadcast fleeting expletives, including expletives uttered at public events.” And, indeed, some stations have responded to the FCC’s policy by ending their coverage of local live events.

Viewers who want to see live coverage of a contentious city council meeting, or (more likely) a celebration of a local sports team’s victory, thus may have better luck with a locally oriented website than with their local broadcaster, since the First Amendment forbids indecency penalties for the website but not for the broadcaster.

The Supreme Court in FCC v. Fox did not rule that the FCC’s policy was consistent with the First Amendment, so the courts still have to address the argument (made by Justice Thomas in a separate opinion) that there is no basis for lessened First Amendment protection of broadcasters. But as matters stand right now, local television broadcasters have a new disincentive to airing live local events – and viewers have less reason to watch local broadcasters.

As I suggested above, this is probably for the best. Only 14% of households rely on over-the-air television broadcasting (86% subscribe to cable or satellite). The government could reclaim and auction the spectrum used by broadcasters –- as it has auctioned most other frequencies –- and use a small fraction of that money to subsidize cable or satellite for those who cannot afford it. The reclaimed airwaves could then be opened to other uses that would allow for new and enhanced cellular and wireless internet services on newly plentiful frequencies. Many telecommunications policy analysts have long favored this option as the best fiscal and technological policy, but so far little has happened. Maybe the FCC’s revulsion at the “f-word” can achieve what fiscal and technological arguments couldn’t.

A number of commentators have asserted a causal relationship between Obama’s presidency and the stock market’s decline in the past couple of months — that the market has plunged because of Obama’s plans (see a short compilation here). But wait a minute — with today’s gains, the markets are now about where they were when Obama was inaugurated (the S&P 500 is up 2% since then, the Dow is down 2% since then). For all those who were so sure that the market was down because of Obama, I’d be interested to know how they explain the upswing. I’m not holding out hope, though, that they will say either that the downswing and the upswing were caused by Obama or, more sensibly, that they were wrong to be so confident about the cause of the downswing. (Of course, the reverse could also be true — people who donwplayed the causal connection might now trumpet the upswing. But I hope they won’t be so foolish.)

Fun note: since Michael Boskin’s article “Obama’s Radicalism Is Killing the Dow” appeared on March 6, 2009, the markets are up almost 20%. Time will tell (and I’m not holding my breath, given the unpredictability of the markets), but it may be that Boskin’s pessimistic message was a perfect (reverse) signal — the exact time to buy.

I was happily surprised to see that Michael Bennet has been tapped to replace Ken Salazar as a Senator from Colorado. I knew Michael from law school and working in DC thereafter, and he always struck me as very smart, able, and all-around impressive. What makes his appointment so surprising is that he is so tremendously ... nice. People like that aren’t supposed to get ahead, least of all in politics. They’re the ones who get stepped on by the ambitious, ruthless climbers who reach the top (or so the movies suggest). In most every way Michael’s personality is totally unlike the stereotype of an average politician. For this reason, I would never have expected him to run for the Senate on his own. I am not saying that because he is nice he will be a better Senator, nor am I suggesting that anyone should support him on that basis. But I do find it striking that he was chosen. I also think it is not coincidental that he was appointed, rather than having to run for the office.

This also raises larger questions about differences between the sort of people who get elected and those who get appointed. I recall that, after a couple of scandals in Arizona (remember AzScam?) resulted in the appointment of a bunch of state representantives to replace those who were caught in the scandals, someone analyzed the appointed legislators versus the elected ones and found the appointed superior on most every metric (no, I no longer recall the details). This is most relevant (post-17th Amendment) to the selection of state officials, notably judges. The variation among states is wide, with some (e.g., Texas) electing almost everyone above dogcatcher, others relying heavily on appointments, and still others having appointees who then run for election when their term is up (the closest analogue to Michael’s position). Co-conspirator Eric and my colleague Mitu Gulati have done some work comparing judges who are subject to different kinds of appointments, though I can’t recall which of their papers are still in the “Don’t cite or circulate this” stage.

Anyway, I guess that sometimes nice guys do finish first.

You can look at the electoral maps for all previous presidential elections at sites like this and this. The electoral map that bears the closest resemblance to the predictions for 2008 is 1896. And it is a pretty close resemblance. There is one small difference, though: the parties have flipped. The core of the Democratic party in 1896 was the South and the Interior West (the plains states west to Nevada, but not including California and Oregon). The rest of the country went to the Republicans. I’m not the first to note this inversion, and political scientists have competing arguments about its significance, but it is striking that the core of the Republican party is now the same area (South and Interior West) that once were the core of the Democrats.

What’s on your mind?

I generally don’t post my scholarship on this blog, but this essay is a bit different — short (12 pages) and (I hope) modestly amusing while trying to make a serious point. So, with apologies for the shameless self-promotion, here is an essay entitled Roasting the Pig to Burn the House: A Modest Proposal, and here is the abstract:

This essay addresses the question whether one should support regulatory proposals that one believes are, standing alone, bad public policy in the hope that they will do such harm that they will ultimately produce (likely unintended) good results. For instance, one may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. I argue that television broadcasting is such an industry, and thus that we should support new regulations that will make broadcasting unprofitable, to hasten its demise. But it cannot be just any costly regulation: if a regulation would tend to entrench broadcasting’s place on the airwaves, then the regulation will not help to free up the spectrum and should be avoided. Ideal regulations for this purpose are probably those that are pure deadweight loss – regulations that cost broadcasters significant amounts of money but have no impact on their behavior.

Am I serious in writing all this? Not entirely, but mostly. I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic. I am proposing a second-best –- a fairly cynical second-best, but a second-best all the same. I would prefer not to go down this path, but if that is the only way to hasten the shriveling of television broadcasting’s spectrum usage, then it is probably a path worth taking.

A number of newspapers noted that the major stock market indices closed at their lowest levels since 2004. What I think is more remarkable is what this means for 10-year trailing returns. As of yesterday’s close, the S&P 500 increased by a paltry 6.25% over the last 10 years – roughly a .45% return per year. (The Russell 2000 index did better, reflecting small cap stocks’ outperformance of large caps over the last 10 years.) And what’s really striking is that October of 1998 was a trough in the market, and the S&P 500 rose 50% in the following two years (before, of course, precipitously falling). The bottom line is that, over a 10-year period, you would have been better off investing your money in just about anything other than the stocks of major U.S. corporations.