close
The Wayback Machine - https://web.archive.org/web/20120106030550/http://plainblogaboutpolitics.blogspot.com/

Thursday, January 5, 2012

Santorum/Newt

I'm still completely baffled by all the pundits, and at least reportedly the Romney campaign, who think that Newt was a bigger threat to Romney than Santorum. He's still beating Santorum on InTrade (6.4% to 6.0%) even now. Not that I think Santorum is a strong candidate, but stronger than Newt Gingrich? Isn't that obviously true?

That is all.

Is It a Recess? Who Decides?

I've seen one argument on recess appointments that is worth knocking down right away; it's made by liberal Tim Noah over at TNR, and conservative John Yoo at NR: that Congress, and not the president, get to decide whether or not Congress is in "recess" when it is not actually meeting.

There's simply no Constitutional support for that at all. The clause about recess appointments is in Article II, for whatever that's worth (that is, the article about the president, not the Congress). It just talks about "the Recess of the Senate." That's it. There's no definition at all about what "counts" as a recess, or whose job it is to say what counts.The word "recess" only comes up one other time in the Constitution, in a (now-obsolete) similar clause about state legislatures and U.S. Senate appointments. There's nothing at all about who gets to define recess.

Here's what Yoo says:

President Obama is making a far more sweeping claim. Here, as I understand it, the Senate is not officially in adjournment (they have held “pro forma” meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional “recess.” Rather, Obama is claiming the right to decide whether a session of Congress is in fact a “real” one based, I suppose, on whether he sees any business going on.
This, in my view, is not up to the president, but the Senate. 

This may be Yoo's position, but it would be a break with precedent. As You knows (since he refers to it in his article), the current three-day minimum standard is derived from a Clinton-era Justice Department opinion. Not the Senate. The Justice Department.

Of course, Yoo and Noah could still be correct that the decision should rest with the Senate. But the Senate has never, as far as I know, made any such determination. There are various minor technical differences between the various times that the Senate is out of session (intersession, between different Congresses, overnight/weekend intrasession, and longer intrasession), but the the Senate generally does not use different vocabulary for them, and certainly does use the word "recess" for the breaks relevant here. The Senate does not, in any official way, announce that they are now in recess for the purpose of the Constitutional appointments clause.

Moreover, and this is why the point I made yesterday is I think relevant: even if it were up to the Senate, we know that the Senate Majority Leader, and presumably the majority of the Senate, support the president's recess appointment. Surely Yoo doesn't believe that the Speaker of the House has a Constitutional role to play in determining whether a recess counts as a "Recess of the Senate"?

Granted, I wouldn't say that it must be a real Recess just because the president and the Majority Leader agree that it is; they could certainly be wrong, either honestly or cynically.

The actual issue here -- how long does a recess of the Senate have to be before it counts as a Recess of the Senate for these purposes -- is legitimately contentious, because we don't really have any guidance for what "recess" means in this context. That's why I'd like to see exactly what the WH is relying on (as Kevin Drum said yesterday). And while I believe I agree with the decision, I think there's plenty of room for legitimate disagreement on substantive grounds. But as far as the procedure, I just don't see it as a problem for the White House to have its own interpretation of a vague Constitutional clause in cases where precedent doesn't apply. There's no reason for the president to defer to Congress on the definition.

Why The Primaries Matter Even If Romney Has It Won

I mentioned earlier I have an article in the new Washington Monthly about one of the key things worth knowing about presidential elections: candidates actually do carry out their promises. I go through the political science research, and tell a few stories -- such as how the context of the 2000 nomination battle pushed George W. Bush to unveil a major tax-cut initiative, which of course he then went on to fight for from the White House.

That's why the remaining Republican primaries and caucuses matter, as long as the nomination is still being contested, even if Mitt Romney is overwhelmingly likely to win. As long as he still has to fight for it, he's going to be pushed to take positions that will appeal to the various primary electorates, state by state. And the structure and context of the thing can matter. A Romney vs. Santorum contest imposes different incentives on him than, say, a Romney vs. Gingrich race would have done, because the kinds of attacks that Romney would want to use against the two differ. Remember, even a sure-thing nomination such as Al Gore or George W. Bush after Iowa in 2000 still is run by people who are paid to be paranoid about the chance of losing a "safe" election, and part of what goes into an estimate that Romney is likely to win is that we assume he'll continue campaigning hard until it's over. Which means, in many cases, making new promises about public policy.

More broadly, and I haven't studied this so it's just speculative for now, I'd guess that Romney's reputation as a closet moderate would lead to more specific promises during the nomination struggle. A Santorum or a Bachmann doesn't need to prove that he or she is "really" a conservative, and so they can campaign on rhetoric alone (although in many circumstances a specific issue position can be useful if it promises to differentiate the candidates in a helpful way). Again, I'm just guessing here, but maybe that's why Romney wound up with a 59-point economic plan.

So the twists and turns of the nomination process really can matter even if they wind up with a result everyone expected from the get-go. At least, if the winner of that nomination winds up in the White House next January. Of course, that's a whole different story, for now -- except that the more contested the nomination remains, the more Romney is going to be pressed to take positions that hurt him in November. Which means that there are two good reasons to pay attention to what's happening now in New Hampshire and South Carolina, even if you're confident that Romney will wind up as the GOP nominee.

Read Stuff, You Should

I owe a real links post, but this one is slightly off-format -- but well worth it. This is the stuff that I'm going to be reading as soon as I can -- well, plus a little self-promotion, if you don't mind. 

1. Washington Monthly has an excellent issue out about what will happen should the Republicans win in 2012. I kick it off with a piece about how presidents tend to do exactly what they said they would do while campaigning. Which is another reason to watch the nomination process carefully. Even if you believe that Mitt Romney has had it won from the beginning, it matters a lot what he has to do while campaigning, because the promises he makes in Iowa and New Hampshire and South Carolina and the rest really will constrain him in office. 

Anyway, I was happy to write the piece, but when I saw who else they had enlisted for the issue, I couldn't wait to read through it. Ready? Dave Weigel on Tea Party influence. Tom Mann and Norm Ornstein on Congress. Dahlia Lithwick on the Courts. James Traub on foreign policy. David Roberts on the environment. Mike Konczal on financial regulation. And Harold Pollack on health care. As I said, I haven't read any of these yet, but that's a terrific lineup, no? 

2. Nothing about me in this one, but there's a new issue of The Forum focusing on the Senate. Again, a terrific lineup. I'm not going to link to all of it (just click over and explore), but there's a lot of terrific people: Sarah Binder, Greg Koger, Eric Schickler and Gregory Wawro, Frances E. Lee, Charles O. Jones, and much more. As always, free after some annoying pass-through stuff. Again, I haven't read any of it yet, but most articles over at The Forum are pretty accessible to non-academics. Looks very good, and I highly recommend.

3. I don't think I've actually mentioned this here: the book is out! That's The Making of the Presidential Candidates 2012, edited by William G. Mayer and Jonathan Bernstein (hey, that's me!). Bill's been doing this for several cycles now, and he added me as co-editor this time around; it is the premier edited volume about the presidential nomination process. This one, I have read! And it's terrific. Wayne Steger, Andrew Dowdle, and Randall Adkins on predicting nomination races; Antonhy Corrado on campaign finance; Andrew Busch on the Tea Party; Michael Cornfield on "the Densification of Presidential Campaign Discourse"; Stephen Farnsworth and Robert Lichter on TV coverage; and William Mayer on presidential selection...in 1788-89. Actually, I haven't read Bill's chapter yet, and I'm very much looking forward to it. Oh, and there's also one contribution from someone who isn't a political scientist, although he does know a little bit about running for president: Michael Dukakis, on "The Experience of Running for President." All that, plus an appendix with facts and figures from presidential nomination history. All great stuff, if I do say so myself. Check it out! Assign it in your campaigns & elections class! Also probably makes a terrific birthday or anniversary gift -- looks highly impressive on your bookshelf (and yes, there's an e-version). 

Wednesday, January 4, 2012

Recess!

(Updated)

The major breakthrough finally comes: Barack Obama announced in his speech in Ohio today that he was going to recess appoint Richard Cordray to head the new Consumer Financial Protection Bureau, and then later that he would use the same Article II power to fill the vacancies on the National Labor Relations Board.

So here we go. This is, to be sure, uncharted waters. In both directions.

First: Republican obstruction of the normal advise and consent procedures has been, without a doubt, unprecedented. That began with the blanket filibusters against everything in the Senate -- that is, the "60 vote" Senate, which did not exist across the board until January 2009. That extended to Republican "nullification" -- the tactic of prohibiting agencies they don't like for fulfilling their lawful functions by refusing to allow any nominee to come up for a vote. In the case of the NLRB, this actually wound up producing a Republican filibuster of a Republican nominee in order to keep that board (which by statute has both Democratic and Republican appointees) from having a quorum needed to operate.

But that's all about the norms of regular confirmation. What really pushed the rules was (as Congressional scholar Sarah Binder describes) the Republican House's attempt to prevent recess appointment by using pro forma sessions. That's a tactic that was deployed by the Senate Democratic majority near the end of George W. Bush's administration to prevent recess appointments. Whatever it's legitimacy in that case, it's yet another stretch for the House of Representatives, which has no Constitutional role in executive branch nominations, to use Constitutional machinery to block a Senate recess in order to prevent recess appointments.

So that's the real "unprecedented" in this case. Whatever the president decided in order to react to GOP obstruction would have been unprecedented, because we've just never been here before. Remember, until very recently, a party that held the Senate and the White House would simply confirm most nominees speedily, with any opposition at all rare, and filibusters unheard of, until the 1990s. The only significant exceptions were the ends of presidential terms when the Senate was held by the out-party, which of course isn't the case now.

Now, Obama's response. As Binder points out, the problem is that the presidential power here is Constitutionally undefined. The Constitution only says that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate." So what counts as a recess? That's up for grabs, as this CRS report and my somewhat shorter summary of it explained.

Indeed, Obama had three possible responses to the "pro forma session" tactic. He could have used the Teddy Roosevelt trick of using the space between the First Session and the Second Session of the 112th Congress yesterday; he could have used a previously untried Constitutional provision to resolve the dispute about recess in favor of the Senate; or he could, as he did today, choose the argument that the non-recess recess was a sham, and that it was sufficient to trigger the Constitutional authority.

None of the three is firm, precedent-affirmed Constitutional ground, although in my view all three are probably kosher (note in particular that the TR intersession appointments were contested by Congress, although only after it was a moot point, so there's no particular reason to believe that TR style appointments would have been on any firmer ground). For the relevant court cases, see the above-linked CRS report or my explainer, or see Think Progress's Ian Millhiser's argument or Sarah Binder's conclusion. On the other hand, see Steve Smith's comment to Binder's post, and see also Matt Glassman's post. The White House has issued a statement, but it's mostly boilerplate, and so far they haven't released (at least that I've seen) a full legal opinion on the matter, which would presumably clarify and (for pro forma sessions) override a Clinton-era opinion that interpreted the Constitutional requirement as a three-day minimum. Basically, however, it appears that they are arguing that any pro forma sessions would be insufficient to prevent a Constitutional "recess." That doesn't sit well with Smith and Glassman, who both argue that it's up to Congress to decide what to do when they're in session, which they plainly are during those pro forma meetings. That's a strong argument, and might even win in court, but I disagree, as do Bush-era DOJ lawyers, although I certainly agree with Kevin Drum that we'll have to see the legal opinion the WH is working from. One key point to me: the Senate Majority Leader agrees with the president's decision. After all, if the majority of the Senate (as voiced by its Leader) agrees that the Senate is in a Constitutionally-qualifying recess, it's a lot harder to argue that the president is unilaterally changing the rules.

I don't agree, then, with Tim Noah, who finds no justification for the action, and argues that this would open up the possibility of appointments during normal weekend recesses (or while he doesn't mention it, recess appointments when the Senate recesses overnight). The key is that the White House isn't saying anything about the three-day minimum; they're just arguing that what's happening now is really a weeks-long recess, not a bunch of little three-day recesses. In fact, once the option of intra-session recess appointments was established (which was done in the mid-20th century), there's no reason at all to assume that there's any difference between inter- and intra-session recesses. In other words, using the (again, established but contested) TR precedent would, some might argue, be far more of a justification for future weekend "recess" appointments than would what Obama did today.

Look, what we have here is an ambiguous, vague Constitutional clause. The president has every right to interpret it in his favor. At least in this case that he's doing is, in my view, a lot less hostile to the spirit of the Constitutional and certainly to the spirit of norms and precedents than what Republicans in Congress have been up to. And, again, one could make that same argument for Senate Democrats under Bush -- but at least they had the argument that recess appointments would be going around their Constitutional role (the only question is whether their solution was legitimate). House Republicans, and perhaps minority-party Senate Republicans, have much less of a case.

The real solution to all of this is to reform executive branch nominations and confirmation. And that's why I really like these appointments: they show a president who (finally) seems to care about that process, and perhaps may use the threat of further appointments, either now or next year if he is re-elected, to push for much-needed reform. What's needed is a way to action on these appointments much more rapid while preserving the Senate's important role, but at the same time finding procedures or incentives for compromise during times of divided government. Will we get it? I don't know, but I am convinced that this is at least possibly a step in that direction.

(Updated to include the point about Harry Reid)

Bachmann Out

The fun parts of the Republican race are starting to fade away: first we lost Prince Herman, and now Michele Bachmann is calling it a day.

Her withdrawal speech was vintage Bachmann, of course, although to my ears at least (even) heavier on the God talk than was her standard campaign stump speech and debate rhetoric. But it was, as usual, heavy on the socialism-bashing, and even better heavy on her special brand of self-aggrandizement: how Michele Bachmann has been all that's standing between all that is good and wholesome and blessed on the one hand, and the nefarious socialist in the White House on the other. Which, as usual, takes the form of her bragging about being the one who opposed Obamacare, and Dodd-Frank, and the debt limit increase, and everything else that...every other Republican opposed, and passed anyway. What's wonderful about her self-image is that it's so removed from reality. In reality, of course, she's not a fighter in Congress; she's an irrelevant back-bencher who was denied a subcommittee chair and mainly just shows up and says crazy things on cable news shows, and couldn't get a single Member of the House to back her bid. Not even her buddy Steve King from Iowa, who might well have helped her a bit.

Of course, her "knowledge" of the issues, or for that matter socialism, is equally detached from reality -- my favorite one, among many greats, is her repeated charge that Obama has a secret socialist plan to phase out Medicare and replace it with "Obamacare." I mean, how do you even respond to that? I'd love to know whether she's sincere and just massively ignorant about the programs she opposes, but I guess we don't get to know things like that about our politicians. Anyway, no doubt those who watch will be seeing plenty of her on Fox News and the Chris Matthews show and other such programs, but as a presidential candidate she was entertaining in her way, and as such she'll be missed from the campaign trail,

Perry Still In?

The news this morning is that Rick Perry, after going back to Texas to reassess his candidacy, is...staying in? That's what's apparently happening, according to multiple sources. I suppose it might even be true. On the other hand...no one says they're out until they're really out, and plenty of campaigns have pulled more sudden u-turns: I wouldn't be at all surprised if this reprieve lasts only 24 or 48 hours.

Why would a campaign do that? Well, if they really are trying to calculate their chances, then they would want potential donors and current supporters to believe that they're still in, for now. Drop this out there, and see if any money comes in over the next day or two. See, too, what their high-visibility supporters tell them. Until you're absolutely certain that you're dropping out, there's no reason to even hint at it. So they might just be making one last bluff.

And even if Perry and his staff believe they're going to stay in, that's still no guarantee that they'll still believe that after a couple of days.

So I only know what I read, but I just wouldn't take claims that he's staying in at face value.
Who links to my website?