The Volokh Conspiracy

Some conservative and libertarian groups have long suspected that the Internal Revenue Service has targeted right-leaning non-profits for extra scrutiny, but such allegations were always difficult to prove (and often sounded a bit conspiratorial).  Now, however, the head of the IRS division that oversees tax-exempt organizations has admitted her division targeted “tea party” and “patriot” groups — and apologized for it.  In addition, the IRS apparently asked some groups for donor lists, even though such requests are usually contrary to IRS policy.  (Hat tip: Rick Hasen, whose first comment was”Wow.”)  As they say, just because you’re paranoid doesn’t mean people aren’t out to get you.

UPDATE: The New York Times offers a decidedly different view. [To be fair, this editorial is from last year.]

SECOND UPDATE: Hasen has posted the IRS statement. “Mistakes were made.”  Hasen comments: “This is not one of the best days for the IRS.  Conservatives are absolutely right to call for a congressional investigation of this one, even if it turns out to be an isolated problem.”

THIRD UPDATE: Here are excerpts from some of the relevant  document requests, and a Congressional inquiry about some of these requests from last year.

when he says, “Like many liberal American Jews, when he looks at Netanyahu he sees a conservative Republican and he fails to understand how a Jew can be a conservative Republican. I think he looks at Netanyahu in much the same way he contemplates Eric Cantor, the Republican ‏(and Jewish‏) house majority leader. Like many liberal-leaning Jews, he might simply not understand how a Jew could be a Republican.”

But if Obama truly understands so little about Israel that he reduces things to “Netanyahu = conservative Republican” (something the Washington Post actually did quote an administration official as saying), as if Israeli politics somehow map on to an incredibly different American political scene, and truly has been so cloistered on the left that the idea of a Jewish Republican is somewhere between anathema and beyond his comprehension, Goldberg is not doing Obama any favors in pointing these things out. I actually doubt that Obama actually thinks these things, but I don’t doubt that a significant number of “liberal American Jews,” some of whom are or have been Obama advisors, do, and that there views filter down to journalists like Goldberg as Obama’s.

UPDATE: Put another way, there are some liberal Jews who are strong partisan Democrats who are both appalled by the notion of conservative Republican Jews and extremely resentful that (a) an influential group like AIPAC maintains strict partisan neutrality, which has the effect, given the baseline, of pushing the Jewish community and its donors effectively to the right; (b) there is a group of wealthy Republican Jews, exemplified by Sheldon Adelson, working for “the other side.”

There is little that can be done about “a” (JStreet is the attempt to do so) and nothing that can be done about “b” (though liberal Jewish groups did launch an abortive attack on Adelson last Summer). But given that Netanyahu has American friends and supporters from groups (a) and (b), one can take out one’s resentments on Netanyahu, entirely aside from one’s views on whatever policies he’s pursuing. We saw a fine example of this last Summer, when some were accusing Netanyahu of openly siding with Romney, and, when challenged to produce any evidence that this was true and failing to do so, kept insisting it was true nevertheless. (It was especially amusing to hear that Netanyahu was openly siding with Romney because they met when Romney came to Israel, when it turns out that Netanyahu met with Obama when he came to Israel in 2008, and lavished fulsome praise on him. Does that mean that Netanyahu even more openly sided with Obama in 2008?) So Netanyahu becomes a stand-in for all one’s Jewish or pro-Israel bogeymen, which, in my opinion, has not well served the Obama administration.

Imagine in 1983, if you had told a Republican political operative that in 30 years:

(1) Crime will no longer be an important political issue;

(2) The USSR will have dissolved, and a Republican president will so botch a foreign war that the Democrats will have a clear public opinion advantage on foreign policy;

(3) That same Republican president will have presided over the beginning of the worst recession since the Great Depression;

(4) The Republican Party will favor cutting Medicare and privatizing Social Security, with Democrats almost  uniformly opposed, while there has never been as many senior citizen voters;

(5) African Americans will vote even more Democratic than they do today, and the Asian American and Hispanic populations will be much larger and will also vote overwhelmingly Democratic;

(6) The evangelical wave of the 80s will have waned, and the number of non-religious, non-church-going voters will have tripled.

He would likely think the GOP would be virtually extinct.  Instead, you tell him that the GOP controls 30 governorships, the House of Representatives, has a chance at taking the Senate in the next election, and, though it lost the last two presidential elections, surely can’t be written off for 2016.  He stares at you in disbelief, no?

Whatever else one might say about the Trillion Dollar Coin, it would certainly set the stage for the ultimate heist movie.

Maybe an “American Buffalo” needs Mamet, but this would write itself. In my version, a disgruntled Treasury worker swallows the coin, then goes on a hunger strike, holding the economy hostage until his demands are satisfied.

Also, it better be pretty big. Otherwise all hell would break loose if someone accidentally dropped it somewhere....

Voters in the Spanish province of Catalonia yesterday gave a large majority to pro-independence parties, who now command 2/3 of the seats in the regional parliament. The practical impact may be attenuated, because the secessionist movement is weakened by being spread across four parties: separatists can’t unite.

Madrid vows to resist any split. Spain apparently only likes two-state solutions when they involve other people’s states. And they are not alone in that. [UPDATE: More on this in the comments.]

Secession in the U.S. has historical baggage that leads it to be associated with reactionary and regressive tendencies. Interestingly, the historical valence of Catalonian separatism is progressive and Communist. The region was a hotbed of Anarcho-Syndicalism in the early 20th century. It was one of the last Republican strongholds in the Civil War (yes, the other one, and the other Republicans). Separatis movements through Spain were suppressed after the war. Orwell’s memoir that provides the title for this post criticized the Soviet domination of the anti-Fascist forces. So if opponents of secession in the U.S. may be the legatees of Lincoln, are the unionists in Spain followers of Franco?

UPDATE: The E.U. has been coy about whether it would accept a Catalan state, and as readers noted, EU rejection would put the kibosh on independence. The EU’s reaction is predictable: it is a country cartel, many of whose members face similar separatist drives. It wants to discourage this kind of thing, and I expect its threats of exclusion will mount as independence seems more likely.

On the other hand, part of the ideology of the Union is its continental nature, its scope – thus the persistent expansion to include even unlikely or remote members. Another part is its inevitability – that is why minor retrogression, like Greece dropping the Euro, is threatening. Thus having non-EU pockets within the union is a challenge to the notion of Europe. I think after some bluster, Brussels would put Catalonia on the (often long) road to accession. Anyway, the EU needs more solvent members, rather than fewer. So my advice to Catalan secessionists (who may not read this, and haven’t asked) would to be to tough it out and not go wobbly.

Only reporting results which represent a change.

U.S.  Senate. Gains: Indiana (Donnelly replaces Lugar). NM  (Heinrich replaces Bingaman). ND (Heitkamp replaces Conrad).

Senate losses: Mass., Warren defeats Brown (-.5 with NRA C-rated Senator replaced by an F). Virginia, Kaine replaces Webb.

Senate net: +1.5. Ted Cruz’s win in Texas won’t change Senate voting patterns, but the former Texas Solicitor General will be an outstanding and very well-informed leader on Second Amendment issues.

House losses: AZ 9. CA 7 (C-rated Lungren ousted), 26, 36 (Mary Bono Mack), 41, 52. FL 18 (Alan West), 22 (Bloomberg-funded extremist wins), 26. Il  8, 18. MD 6. MN 8. NH 1 & 2. NY 18, 24.

House gains: AZ 2. IA 3 (incumbent vs. incumbent). NC 13 (F-rated incumbent retired). OH 16 (incumbent vs. incumbent).

House net: -12.5.

Governor Loss: Montana (although not officially called yet; winner Steve Bullock has a B- rating). Waiting for results in WA, a possible gain.

Ballot issues. Strengthen Louisiana state right to keep and bear arms, to require strict scrutiny. Win, very important reform, that will be a model in other states. Constitutional right to hunt  and fish passes overwhelmingly in Kentucky, Nebraska, and Idaho.

In short, as Barack Hussein Obama, the Juan Domingo Peron of the 21st century, leads America to fiscal collapse, you can at least keep your guns.

From the little information available out there, it looks like Libertarian presidential candidate Gary Johnson is getting about 1% of the vote, and doing so pretty consistently nationwide. This constitutes the Libertarians’ best showing since 1980, when they had a well-funded campaign (unlike this year) thanks to self-funded VP candidate David Koch, and also received 1% of the vote. Ron Paul, when he ran as the Libertarian candidate in 1988, only managed to pull in about .5% of the vote.

What this shows, I think, is that Johnson is a talented politician–something that should have already been apparent from his two terms as a Republican governor in blue-state New Mexico. Instead of ignoring him, scheming to ban him from the debates, and so on, the GOP should have embraced Johnson and used his energy and talents to their advantage once he was inevitably eliminated from the GOP primaries. Instead, they drove him to the LP. It’s too bad on both accounts. For the GOP, I could see Johnson being a Rand Paul type figure, but more popular among the secular, urban types that normally get turned off by the GOP. Meanwhile, Johnson ha doomed himself to marginality by hitching his star to the LP.

Like Ilya and Randy, I wish the LP would close up shop, and its activists devote themselves to libertarian causes in other ways. Unfortunately, Johnson’s reasonably good showing is likely to delay that day.

As the results come in tonight, I will blog here about the results as they affect the Second Amendment. In an article last week for National Review Online, I previewed all the Senate and Governor races, and all the competitive House races. Election night starts with a net +3 for the Second Amendment in the Senate, regardless of which party wins the Senate races in New Mexico, North Dakota, and Indiana. In all these states, both major party candidates are strong on Second Amendment issues, so the winner will replace retiring anti-gun Senators (Bingaman in N.M., Conrad in N.D.) or an anti-gun Senator who lost in the primary (Lugar in Ind.).  To summarize the rest:

The three gubernatorial races that are close and that feature major differences between the candidates on Second Amendment issues are Washington, Montana, and New Hampshire.

. . . In four states — Arizona, Massachusetts, Nevada, and Virginia — there are serious risks that Senate seats could be taken by new senators hostile to gun rights. Plausible opportunities to gain seats for the Second Amendment exist in Maine, Missouri, Ohio, and Wisconsin. In these eight swing Senate states considered together, the possibility of a net loss probably exceeds the possibility of a net gain.

As for the U.S. House, a rough estimate would be that if the net gain for Democrats is x, then the net loss for gun owners will be about one-half or two-thirds of x. In swing districts, most candidates are unwilling to forgo the 5 percent of the vote that can be lost by opposing Second Amendment rights. So, in these districts, candidates of both parties tend to support the Second Amendment. Thus, the net change in House composition on the gun issue tends to be smaller than the net party change in any given year.

In addition, Louisiana has a ballot referendum to strengthen the state constitution’s right to arms. Idaho, Kentucky, and Nebraska will vote on adding the right to hunt and fish to the state constitution.

For those who can’t get enough election speculation, Sean Trende, whose work I think highly of, examines the relevant information and concludes that the national polls are more likely to be correct than the state polls (he was ambivalent on this before). He concludes that it’s going to be a very tight race, decided by slim margins in a handful of states, but estimates a 60% chance of an Obama victory. Even before I read his column, I gave my one and only real prediction of the election: the final national popular vote will be closer to the Real Clear Politics National Polling average of a .7% Obama margin than to Nate Silver’s estimate of a 2.5% Obama margin. I feel better about my prediction knowing that Trende seems to agree.

The recent national poll news is overall bad for Romney, suggesting a reversal in momentum in favor of Obama. The one possible saving grace is that this momentum may primarily be an artifact of increased Obama support in Northeastern states where Romney was not competitive to begin with. The Pew poll, which shows Obama up by three–his best current result–states: “Another notable gain for Obama, perhaps reflecting Hurricane Sandy’s effect on the race, comes in a region he was already secure in: the Northeast. He has increased his lead over Romney from nine points (52%-43%) to 21 points (56%-35%) there over just the past week.” A very rough calculation suggests that this surge of support in the Northeast could account for approximately 1.5% of the 3% point lead. If other polls showing an even tighter race are getting similar results, it leaves open the possibility of a repeat of 2000–an Obama popular vote victory resulting from blowout victories in the Northeast, and a narrow Romney electoral college majority, with Romney squeaking by in either Ohio or Pennsylvania. Another wildcard is whether any hurricane-related gains by Obama will dissipate as the hurricane fades in the news, except for stories about those who are still suffering. A final wildcard is whether state polls are properly sampling early voters–from what I’ve read of pollster methodology, anyone who says that they voted early is automatically put down as a “likely voter.” I can easily imagine people who don’t really want to be polled but are too polite to hang up telling pollsters they already voted in the hopes that this will signal an early end to the interview. (UPDATE: And, though I haven’t checked the figures myself, others who claim to have say that the polls are substantially overestimating early voters compared to the known early voting figures–which would benefit Obama in the polls).

We’ll find out tomorrow. Meanwhile, I agree with Ilya (and Intrade) that Obama is about a 65-70% favorite.

UPDATE: It’s worth noting that in 2000, before the election everyone was talking about the possibility of Bush winning the popular vote and Gore winning the electoral college. Of course, it turned out to go precisely the other way.

FURTHER UPDATE: The new Politico poll, conducted Sunday and Monday, strongly favors Romney. The headline number is 48-48, but the internals tell an even better story: (1) Romney leads independents by 14%; (2) Romney’s 47% is 44% definite, 4% probable (I assume this is something like 43.7 plus 3.7&, rounded down to 47%); Obama’s is 44% definite, 2% probable, 1% lean (rounded); (3) Obama’s disapproval rating is 53%; (4) Number 3 suggests that the undecideds will break against Obama.

IDB/TIPP also has a new poll out, showing a 1+% Obama margin. It’s a very odd poll because it shows Romney and Obama almost even in the West, and also almost even in the South. (By contrast, the last, pre-hurricane iteration of the poll, much more plausibly, showed an Obama landslide in the West, and a Romney landslide in the South. The poll also shows a 17% Romney lead among Catholics, compared to only 1% pre-hurricane, which seems like an implausibly large shift. Maybe these anomalies balance out, maybe it’s garbage in, garbage out. In any event, the ultimate result is very similar to the final pre-hurricane poll.

The final Rasmussen poll, conducted Saturday-Monday, still has Romney +1.

FINAL UPDATE: Nine “final” major national polls show the popular vote within 1% in either direction. Two show Obama with a 3% lead. Nate Silver, heavily weighting state polls, gives Obama a 2.5% popular vote margin. If the final popular vote comes closer to the 2.5% Obama margin than to RCP’s .7% Obama margin, kudos to Silver. My “money” is on the national polls.

I thinking about doing a post on my election prediction, but Ted Frank has written a post on his election prediction and I agree with almost every word. Bottom line: Obama is a 60-40 favorite. Before the hurricane, I would have said “tossup.”

Continuing the series of posts examining how libertarian-leaning folks should vote (assuming they think it’s worth voting at all), Reason has published essays on the libertarian case for Obama (Mike Godwin), Romney (Robert Poole) and Gary Johnson (Nick Gillespie). Some may also be interested in this post by law professor Brad Smith explaining why he will vote enthusiastically for Romney, and this essay by Shikha Dalmia arguing Romney is the most protectionist GOP candidate in ages. Then again, perhaps Katherine Mangu-Ward is correct, and libertarians shouldn’t vote at all.

UPDATE: Reason board member Manny Klausner e-mails to note that he is enthusiastically voting for Gary Johnson, but also encouraging libertarians who live in battleground states to vote for Romney if the election looks like it will be close. He writes:

It seems to me that the WORST possible move for a libertarian would be to vote for a statist candidate who may win the election — and doesn’t need your vote to win. In my view, this implicates the voter in the bad policies pursued by the candidate once they take office. To me, the only exception to this is a close election where your vote arguably could be decisive, so that voting for the lesser of the evils might well be appropriate.

Moreover, on the issue of drug policy — a high priority for libertarians — I’d point out that a libertarian in a non-battleground state emphatically should not vote for Romney, who shows no sign of doing anything other than supporting the counterproductive war on drugs. Voting for the Gary Johnson/Jim Gray ticket is a commendable way to express dissatisfaction with the War on Drugs — a “cure” that is far worse than the disease.

I generally agree with this sentiment, but would also note that the Obama Administration has pursued the drug war most vigorously while the Republican VP nominee has expressed some sympathy for allowing states to decriminalize marijuana for medical purposes, if not more broadly. In all likelihood, however, neither Presidential candidate is likely to alter the drug war’s current course.

Recent polling results present the possibility that Mitt Romney could win the popular vote but lose the electoral vote. Would this matter? It shouldn’t. We’ve seen this before, and it is not at all unusual for a President to be elected with less than 50 percent of the popular vote, as some voters support third-party candidates. Should President Obama be re-elected, there’s no question some GOP partisans will complain and right-leaning pundits will dredge up old quotes from Democratic politicians calling for replacing the Electoral College with a national popular vote system. But Barack Obama would still be the president, and he would be no less “legitimate” than if he had won the popular vote as well.

Does the Electoral College system allow for the election of a president who does not enjoy majority (or even plurality) support? Yes, but it would be a mistake to assume that a candidate’s failure to get a majority of the popular vote on election day means that the candidate does not enjoy majority support. One consequence of the Electoral College system is a distortion of popular vote totals, particularly in electoral strongholds. So the “winner” of more popular votes cast under the Electoral College system would not necessarily have won under a national popular vote system.

The electoral college encourages attention on winning contested states, not maximizing turnout nationwide. Each candidate focuses turnout efforts in states with closely divided populations, devoting fewer resources to “safe” states. This means the Romney campaign has no incentive to trawl for every vote in Texas, and the Obama campaign can take it easy in states like New York. (Under a national popular vote system, however, the incentives would be quite different, as every vote would count.) Because some of these “safe” states have large populations and are not particularly politically competitive, even down ballot, we have no assurance that the final vote totals in such states reflect actual voter sentiment. Just think about it: someone who cares about the outcome of the Presidential race is far more likely to vote if they live in Ohio than if they live in Texas or the District of Columbia. It also means that there is less attention to provisional ballots, the need for recounts, etc. in less competitive jurisdictions. Under a national popular vote system, this would not be the case.

The bottom line is that popular vote totals are not independent of the rules under which they are cast. Dividing up the vote into states, each of which awards its electoral votes separately, alters the popular vote total. So if a candidate wins a majority of electoral votes while losing the national popular vote, this does not mean this candidate would have lost the election under a national popular vote system, and it does not make the prevailing candidate any less “legitimate.”

Nate Silver has a curious post up today. He points out that Obama is leading Romney by an average of 2.3% (according to Real Clear Politics, slightly more according to other averages) in Ohio polls. He then goes through all recent examples when there were at least three polls in a state ten days before an election. He shows that with one exception, these polls accurately predicted the winner in every case in which the winner was ahead by at least 1.5 points.

Okay, but this is a small data set, includes state polls with a greater than 2.3% lead that wound up being decided by razor thin margins in favor of the poll leader, and that also leaves much important information out. For example, in 2004 Bush was behind in the Ohio polls by .9%, but actually won by 2.4%, a spread of 3.3, more than the current Romney-Obama margin. That especially pertinent datum appears nowhere in the post. [Silver's chart does tell us that Bush won, but isn't pertinent to discuss Ohio specifically, and also to point out that he won by 2.4%, a 3.3% spread, and not, say, .1%, a 1% spread?]

And isn’t the broader issue how often state polls are off by at least 2.3%? Just for example, Silver’s chart shows that Bush was leading by .9% in Florida in the polls 2004. He actually won by 5.0%, a difference of 4.1%. That didn’t change the “outcome,” but isn’t it very relevant to how secure a 2.3% lead in the polls is? [I randomly chose this as the first and only non-Ohio poll vs. outcome I looked up. It may be a huge anomaly. If so, Silver surely has the data at hand to tell us that.]

If I were investigating the issue, I’d want to know three things: (1) How often are the state polls ten days out off by at least 2.3%? (2) How often are state polls ten days out off by at least 2.3%, favoring the leader?; and (3) Very specifically, how often do the state polls favor an incumbent president by at least 2.3% more than he gets on election day? And of course, it would also be useful to know if Ohio polls specifically tend to underestimate the Republican vote (they also did in 2008, but only by about .8%) This would, I think, overall tell you a lot more about how significant the 2.3% lead in Ohio is than what Silver tells us today.

UPDATE: Obviously, one would rather be in Obama’s position in the polls than in Romney’s. I just don’t see why if we’re trying to measure just how much better a position it is, we’d use a cruder measure (how often candidates overcame deficits) with a smaller dataset over a more specific measure with a greater dataset (e.g., my number 2 above), even if it’s just for discussion in a blog post as opposed to being his formal forecast model.

And of course, none of this has any effect on the outcome of the election–I don’t understand those who think Silver is intentionally biasing either his model or his blog posts, as if he could somehow wish Obama to victory by giving encouraging news to Democrats who follow politics closely. Not to mention that he has a strong reputational stake in accuracy.

But I find the “horserace” aspect of this election (as opposed to the typical election year pablum emanating from both candidates, which I find just depressing, and as opposed to their actual policies, which are worse than depressing from my libertarian standpoint) especially interesting, and find it fun to discuss. If you are such a partisan that the only thing you have contribute in the comments is to call either Silver or me partisan idiots, please don’t comment. Substantive comments, including and especially those that explain, logically, why the author concludes that Silver has the better take on this, are most welcome.

I think David is absolutely correct in his post below that judicial appointments are a big issue for most libertarian-leaning law professors, and on this issue Republican presidents (and their judicial nominees) have done far more to advance libertarian legal views than Democratic presidents. I would add two points to David’s analysis. First, even on those issues where libertarians are more “liberal,” Democratic nominees have not been clearly superior to Republican ones. The most speech protective justice on the Court is Anthony Kennedy. The least speech protective is likely Justice Breyer. On criminal justice issues, the formalism of some conservative justices often leads the to embrace pro-criminal defendant holdings, as we’ve seen in Fourth and Sixth Amendment cases. In this regard, a Justice Scalia or Thomas is often more “libertarian” than a Justice Breyer. There are no paragons of a libertarian jurisprudence on the Court, but in the past thirty years Republican nominees have come far closer than Democratic nominees.

While judicial nominations may overshadow many other issues for libertarian law professors, I think there’s another factor at work. Recent Democratic presidents have tended to be quite disappointing on those issues where libertarians have “liberal” views. Many libertarians had high hopes for President Obama, but he has disappointed them on a range of issues, such as executive power, civil liberties, foreign adventurism, government transparency, drone strikes, and the drug war. He has expanded and entrenched many Bush Administration War on Terror initiatives and has also been disappointing in areas President Clinton was a pleasant surprise, such as trade and the federal budget. Even where I support the President’s policy preferences, as with gay marriage, the administration has been disingenuous.

Reasonable libertarians may disagree as to whether any of this justifies supporting Mitt Romney (as opposed to supporting Gary Johnson or staying home), but I think it is particularly difficult to make a libertarian case for reelecting Obama.