pageok
pageok
pageok
Dec. 2, 2008 -- a Huge Day in American Politics?

So the Senate is split 56-40, with four races not yet decided. Minnesota and Oregon appear to be very close, with Republican Sen. Norm Coleman less than 1000 votes ahead of Democrat Al Franken, and Republican Sen. Gordon Smith less than 1000 votes ahead of Democrat Jeff Merkley. Convicted Republican Sen. Ted Stevens has a bit greater lead than his challenger, Democrat Mark Begich — a bit over 3000 votes, out of over 200,000 votes cast — but it still seems too close to call.

This leaves Georgia, and apparently Georgia is one of the few states that requires a majority to win rather than a plurality. Republican Sen. Saxby Chambliss now seems to be at 49.9%, with Democrat Jim Martin at 47% (Libertarian Allen Buckley had 3%). So unless Chambliss goes over the 50% mark (not impossible, but not certain), there'll be a runoff December 2.

If the Republicans lose all three of the other races, the runoff will be tremendously important, since it will mean the difference between a filibuster-proof 60-40 Democratic majority and a filibusterable 59-41 majority. But of course even a 41+-member minority can only successfully filibuster to the extent that all the members stay on board. If, for instance, relatively liberal Republican Senators such as Olympia Snowe or Susan Collins (both from Maine) — or for that matter Norm Coleman or Gordon Smith, who are often seen as fairly liberal as Republicans go — refuse to go along with a filibuster, a 57-43 Democratic majority might prove very different from a 58-42 majority.

So we might have a very high-stakes (and likely very expensive) race in Georgia on Dec. 2. To be sure, the odds seem to favor Sen. Chambliss, especially since the electorate swelled likely as a result of the Obama candidacy, and many of those voters aren't likely to turn out on Dec. 2. (The Georgia Presidential turnout this year was about 3.8 million this year, as opposed to about 3.3 million in 2004.) Still, I can't imagine that either the Republicans or the Democrats will take this lightly, especially if two or three of the other races break against the Republicans.

UPDATE: Hans Bader points out that Republican Sen. Gordon Smith is now 1000 votes behind.

corneille1640 (mail):
The "filibuster proof" majority is largely a chimera. Because each senator is responsible to a geographically bound constituency, his interests may diverge from those of the party. Almost anything controversial enough to provoke a filibuster could probably (in my guess, "usually") muster at least one from the other team to vote against cloture.
11.5.2008 6:00pm
Nunzio:
I still find it astonishing and cool that with so many votes cast in races like those in Minnesota or Oregon for the Senate (or the 2004 Washington Governorship or 2000 Florida for President) that they can be closer than a student government election at a university.
11.5.2008 6:00pm
corneille1640 (mail):
Of course, if I had read Mr. Volokh's post more carefully, I would have seen that he addresses the very issue I raised in my comment. Mea culpa.
11.5.2008 6:01pm
tvk:
corneille1640:

For most substantive issues, yes you are right. But not so for process or structural issues, that simply benefit one party or the other. The most obvious would be a vote to ban the Republican/Democratic party, which is obviously not possible even with 60 votes. But several analogous issues, all of which have constitutional implications and potential problems there, but work "partisan entrenchment" strongly in favor of Democrats, e.g.:

1. Reinstating the fairness doctrine and crippling conserative talk radio.

2. Statehood for DC and entrenching two permanent Democratic senators.

3. Mandating that the census incorporate estimates of uncounted citizens.

4. A federal statute prohibiting felon disenfranchisment.

5. Mandatory voting in federal elections.
11.5.2008 6:16pm
Steve:
But there are Democrats who oppose the fairness doctrine, and Republicans who support statehood for DC, so those aren't very good examples. Even card check has at least one Republican supporter.
11.5.2008 6:32pm
Minnesota Reader:
It's unclear whether the Minnesota race will be very clear much before the Georgia run off. The Minnesota recount won't even begin until after our state Canvassing Board certifies the initial results on November 18. Then there will need to be a manual recount of about 2.9 million votes.
11.5.2008 6:35pm
GMUSOL05:

2. Statehood for DC and entrenching two permanent Democratic senators.


Would this not require a constitutional amendment? I don't have my U.S. Constitution in front of me, but I would think that making D.C. a state would take significantly more than making Guam or Puerto Rico states, as D.C.'s status as a "non-state" is explicitly defined in the constitution.
11.5.2008 6:35pm
Oren:

I still find it astonishing and cool that with so many votes cast in races like those in Minnesota or Oregon for the Senate (or the 2004 Washington Governorship or 2000 Florida for President) that they can be closer than a student government election at a university.


This is a sign that politicians are correctly positioned symmetrically from the political "center of mass" of the populace. If it were a landslide, that would indicate (to me) that the losing candidate should have moderated.

GMUSOL -- this is the internet. Everything is "in front of you"

Section 3. New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

At most, you can argue that Maryland (having ceded DC to the Feds) must consent to such an arrangement.
11.5.2008 6:42pm
GMUSOL05:

GMUSOL -- this is the internet. Everything is "in front of you"


Not when you factor in laziness. I went and read the section you cite, concerning the District, Article I, Section 8, which is less specific and explicit than I remembered. However, I think I disagree that Maryland ceding that portion of itself to the federal government for use as the "District" means that it must consent to that portion of itself being designated a new state.
11.5.2008 6:47pm
Bored Lawyer:

1. Reinstating the fairness doctrine and crippling conserative talk radio.


Perhaps it is premature to discuss this, but I wonder whether a renewed Fairness Doctrine that is aimed solely at radio and not television would pass Constitutional muster. I know the Supreme Court upheld the doctrine years with respect to television on the grounds that there are limited airwaves. But how can one with a straight face defend application of the doctrine solely to radio (which is much broader and has more stations) and not to television.

Or is the proposal on the table to include television as well.
11.5.2008 6:48pm
Jonathan David:
Doesn't the 23rd Amendment effectively specify that DC is not a state. To make DC a state, wouldn't we have to repeal or alter this Amendment:

1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

2. The Congress shall have power to enforce this article by appropriate legislation.
11.5.2008 6:52pm
josh:
Another reason the Chambliss-Martin runoff would be "tremendously important" would be to get rid of the bum who compared triple-amputee and war veteran Mac Cleland to Saddam Hussein and Osama bin Laden. (http://www.usatoday.com/news/ politicselections/2002-11-06-chambliss_x.htm)

And people thought the 2008 presidential campaign was negative ...
11.5.2008 6:53pm
Eugene Volokh (www):
Josh: Can you give us a bit more details on how the ad "compared" Cleland to Hussein and bin Laden? From what I've read, the ad "showed photos of bin Laden and Saddam Hussein while accusing Cleland of being soft on defense for blocking the creation of a homeland security department. Cleland supported the concept but had opposed some legislative proposals because he wanted more labor protections for employees." Whatever that might be, I'm not sure that's comparing Cleland to Hussein and Bin Laden. (The USA Today story you cite doesn't mention a comparison.)
11.5.2008 7:13pm
JamesInSeattle (mail):
Talk radio is like a vicious attack Chiuaua - it's no threat to the left, and it annoys practically everyone in the middle. Why would Democrats want to get rid of it?
11.5.2008 7:15pm
Deirdre (mail):
I thought there was talk that if the Dems hit 60-40, Lieberman would switch teams? I mean, if they're stripping him of all his committees anyway.....

(The way the Dems have treated Lieberman is disgraceful. Some 'Big tent')
11.5.2008 7:34pm
Marvin (mail) (www):
To vote in the Georgia run-off, you have to have voted in the general election on Nov 4th.
I wonder how many additional voters will attempt to vote on Dec 2nd.

I also worry about the honesty of the Minn. recount.
Bets on it being uglier than the Florida recount of 2000?
11.5.2008 7:37pm
Craig Oren (mail):
the last time I checked (7:45 p.m., Wednesday), Smith was trailing by *two* thousand votes, according to CNN. On the other hand, only 76% of the precincts have reported, so this count has a long way to go.

My guess is that Chambliss will win the runoff in Georgia. It might be hard to turn out black voters against him in the same numbers as voted yesterday with Obama on the ballot.
11.5.2008 7:54pm
Oren:

However, I think I disagree that Maryland ceding that portion of itself to the federal government for use as the "District" means that it must consent to that portion of itself being designated a new state.

Sorry if I was unclear, but at the time, I thought that consent of Maryland was the highest hurdle to clear for DC statehood.
11.5.2008 7:57pm
Kevin P. (mail):
Doesn't article 1, section 8 also stand in the way:

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States...


It's hard to reconcile this with DC becoming a state. If DC becomes a state, then Congress will still have power to "exercise exclusive legislation in all cases" over it. DC would be a state like no other.
11.5.2008 8:03pm
Bama 1L:
(The way the Dems have treated Lieberman is disgraceful. Some 'Big tent')

He lost the primary.
11.5.2008 8:19pm
Bama 1L:
Couldn't DC be made a state by further restricting the "District" to, say, the Capitol Building?
11.5.2008 8:21pm
LN (mail):
Lieberman not only stumped for McCain, but he also claimed that "Obama has not always put country first," and somehow he still has his seniority and committee chairmanship. Oh those heartless Democrats, why are they so partisan?
11.5.2008 8:28pm
Kevin P. (mail):
Al Sharpton has had this idea that the district can be redefined to be just the land and buildings that the federal government actually occupies.

This would seem to contradict the idea of a "District" that is the exclusive domain of Congress. There is too much text in the Constitution that has to be overcome before DC can become a state.

Perhaps DC statehood advocates should consider a Constitutional amendment to make DC a state, instead of trying to interpret out fairly clear language.
11.5.2008 8:30pm
Kevin P. (mail):
Another option is that the Congress give the District back to Maryland, thereby giving them representation in Congress as citizens of Maryland.
11.5.2008 8:32pm
eyesay:
JamesInSeattle: "Talk radio is like a vicious attack Chiuaua - it's no threat to the left,"

Just for instance, in 2002, after the untimely death of Sen. Paul Wellstone and his wife, right wing talk radio lied about and exaggerated any minor mistreatment of Republican speakers at the funeral, and lied about and exaggerated any minor partisanship on the part of Democratic speakers. This was enough to put Coleman over the top.

Note: I do not favor any new legislation to control right wing talk radio.
11.5.2008 9:52pm
Kelly (mail):

I still find it astonishing and cool that with so many votes cast in races like those in Minnesota or Oregon for the Senate (or the 2004 Washington Governorship or 2000 Florida for President) that they can be closer than a student government election at a university.

In the House race for Virginia's 5th District, the Democratic candidate is currently leading by 31 votes out of over 315,000 cast. 31 votes.
11.5.2008 10:23pm
BlackX (mail):
What amazes me--and I'd missed completely until this point--that the utter putz that is Al Franken managed to get that many other imbeciles to take him seriously. Might be the best example of Mencken(?)'s quote I've seen yet: "Nobody ever went broke underestimating the intelligence of the American people." That just completely boggles the mind. Good god, I've vote for Larry, Moe, or Curly miles before Franken.
11.5.2008 10:43pm
josh:
Prof V:

You're right. My statement was imprecise. I found Chambliss' commercial offensive enough that I went with the shorthand.

What Chambliss did was run ads showing Cleland juxtaposed with Hussein and bin Laden to imply Cleland was soft on terror. You are correct about the vote. If Cleland's support for unions, whatever that may lead to, warrants juxtaposition with bin Laden and Hussein (particularly for someone who fought in a war and lost three limbs), then color me a terrorist.

I think it's shameful to use the fear of our time's most awful threats to tar a man -- not address the merits of his votes, but to tar him -- and would like to see that type of politician removed from office. Maybe it's just after living through the last years, starting with Ashcroft and ending with Palin, telling me that b/c I disagree with Bush policies, I'm an unpatriotic, socialist, terrorist-loving fool.

But that's just me. Were I a Republican, I'd rather lose a filabuster-busting minority than win an election. That's just me.
11.5.2008 11:09pm
Minnesota Reader:
Full disclosure: I'm in the tank for Franken. Even though he's probably the most politically palatable Republican I could find, I can't stand Coleman. He is sleazy on so many different levels that he's one of the few public figures to whom I have a visceral reaction. While I have no idea whether or not the latest charges about Coleman and his cronies are true, it would not surprise me if they were.

Having said that, I think that the recount will be a fairly clean one. The election officials here are civil servants, rather than elected and it's been my experience that they are committed to a transparent process all the way through.

Also, Minnesota uses full size paper ballots that are marked, rather than punch cards or touch screens. I think it will be a lot harder to manipulate "voter intent" here than in Florida.

The MN senate race is one of weakness rather than strength. Neither party was able to nominate a particularly strong candidate. Franken is a fairly intelligent person and I agree with most of his policy positions. But he's got so, so much baggage weighing him down. And he's running against a guy who is now posing as a centrist even though his 2002 campaign was based on the premise that he was especially close to Bush.

To top it off, we had so much money pouring into our media market from the outside that it was nearly impossible to not be bombarded by negative ads for either Coleman or Franken. That's why the third party candidates did so well this election. (Independence Party candidates took 15% of the vote in the Senate race and 10% of the vote in the two most competitive - and contested - house races in the state.) I know lots of people who threw up their hands and voted third party.
11.5.2008 11:52pm
Dave N (mail):
eyesay,

I WATCHED the Wellstone funeral. It was televised. It wasn't "Right wing talk radio" that was over the top. Rather it was highly partisan, highly inappropriate, and extremely tasteless display where some of the dignitaries, including then Governor Jesse Ventura and then Senator Trent Lott were booed and the eulogy was turned into a partisan rant.

So please, don't condemn talk radio--condemn those who acted as they did in an inappropriate forum.
11.6.2008 1:34am