The Election, the Supreme Court, and the Unitary Executive

The power of the executive branch can only expand further with the consent of the judiciary. If the Supreme Court approves efforts to expand executive power, the unitary executive may become a permanent. The direction the court will take depends on which justices are appointed to make those decisions.

One of the underlying, though dormant, issues in the upcoming election is the assumption that McCain is more likely to make appointments favorable to expanded executive power and Obama will not.

Here are readings making that case. They tend to come from the left, so I'll balance these at some point.

- Andrew Sullivan.
- New York Review of Books.
- Esquire.

...an audience of third graders

That's what George Will calls Palin's supporters. Ouch.

He takes aim at McCain and Palin's loose understanding of the Constitution.

Another Reason the Founders did not Want you to Vote

From the Chron:

23 percent of Texans are convinced that Democratic presidential nominee Barack Obama is a Muslim.

Obama is a Christian who was embroiled in a controversy earlier this year about his two-decade membership in Chicago's Trinity United Church of Christ. Yet just 45 percent of those polled identified the Illinois senator as a Protestant.

The Obama-is-a-Muslim confusion is caused by fallacious Internet rumors and radio talk-show gossip. McCain went so far at one of his town hall meetings to grab a microphone from a woman who claimed that Obama was an Arab.

The Texas numbers are unusual because most national polls show that just 5 to 10 percent of Americans still believe Obama is a Muslim — less than half the number of Texans who buy into the debunked theories.

Bio Lab in Galveston

Why did a bio-laboratory which handles the most dangerous viruses in the world get approved to be built in hurricane prone Galveston without a hitch? Here's an interesting story in democratic decision making -- or non-decision making.

Meet the Millenials

Why are the young so fresh? So different?

The Artlantic Monthly Recommends ...

... Abraham Lincoln. Here is the reasoning for their support for Lincoln in 1860.

John Adams on Democracy

A quote for today:

Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.
- John Adams

I can tell that some of my students don't take the founders' suspicions of democracy seriously. That is a mistake. The founders may well have been horrified by the idea that propertyless 18 year olds still in school would be able to help select our country's leaders.

Robo Calls v. Text Messages

Research suggests that text messages may be more effective than robocalls.

People Prefer Divided Government

So says the Gallup Poll.


At the moment, indications suggest that Democrats will have unified control of the legislative and executive branches, but respondents prefer that if Obama is elected, Republicans control Congress, and the Democrats control it if McCain is elected.

The case on divided government is mixed.

- The Cato Institute likes it.
- John Judis does not.

Bush Transforms Federal Courts

Regardless of what else happens, conservatives will appreciate the work Bush has done to transform the courts into a more conservative institution:

Earlier this month, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts — Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact.

They have arrived at a time when the appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year—half what it considered a generation ago. And Mr. Bush’s appointees have found allies in likeminded judges named by Mr. Bush’s father and Mr. Reagan.

Republican-appointed judges, most conservatives, are projected to make up about 62 percent of the bench next Inauguration Day, up from 50 percent when Mr. Bush took office. They control 10 of the 13 circuits, while Democrat-appointed judges have a dwindling majority on just one circuit.

If history is any indication, the decisions they make will spur a liberal backlash. Think about what Griswold, Roe, Miranda and Engel did for the conservative movement. All politics is cyclical.

Armies of Lawyers

Slate tells us that they are set to descent across the country for both major parties to challenge ineligible voters -- if the are Republican -- and fight voter suppression -- if the are Democrat:

With an estimated 9 million new voters registered, lawyers on each side will be ghost-busting their election nightmare of choice: Democrats claim Republicans seek to suppress the vote—particularly student and minority votes—through polling-place intimidation, threatening robo calls, and illegal voter-roll purges. Republicans respond—indeed John McCain expressly announced at the final debate—that Democrats are "destroying the fabric of democracy" by signing up Mickey, Minnie, Donald, and Daisy, who will all then vote in coordinated efforts to steal the election.

...

Election litigation is a boom industry, even in a crumbling economy. Hasen recently published a study indicating that the number of lawsuits filed over elections rose from an average of 94 in the four years before the 2000 election to an average of 230 in the six years after. Paradoxically, the best way to inoculate America against the growing pandemic of "vote fraud" allegations from the political right, and the anxiety over widespread voter intimidation and suppression from the left, may be by throwing more lawyers at it. That's why the single most important role for the armies of attorneys working the 2008 election may ultimately just be to be there: to avert the biggest conflicts and bear witness to the small ones. Send in enough lawyers, and you may just ensure that a watched polling place never boils.

Sample Ballot

Here's a sample ballot from precinct 3 in Brazoria County. We'll go over the races in class Wednesday and Thursday.

Where Do I Vote?

Some of you have asked me in class and I promised to post this info. This website at the Texas Secretary of State's Office provides you with the info. Enter the appropriate info and it tells you where to go.

The Brazoria County Clerk's office also has a list of polling places. If you know your precinct, you can figure it out.

Will Harris County Turn Blue?

The Chron tells us that for the first time since 1994 -- when the Republican Party's Contract with America helped the party take over the U.S. House of Representatives and create coattails which lead the party to local dominance -- Harris County Democrats have an advantage over their rivals in county wide elections (County side races are those for administrative positions such as Tax Assessor, Sheriff, and District Attorney, as will as judicial positions):

Democrats have reclaimed the voting advantage they lost 14 years ago in elections for Harris County offices, according to a poll conducted for the Houston Chronicle. But Republican County Judge Ed Emmett appears to be swimming strongly against the tide.

Voters favored Democratic candidates over Republican candidates by 7 percentage points in elections for county leadership jobs, except in the county judge's race, where Emmett has a 13-point lead over Democrat David Mincberg, according to the survey. Sixteen percent of the respondents were undecided or said they lean toward neither party's entry.

The number 7 also popped up specifically in the race for district attorney; Democrat C.O. Bradford ran 7 percentage points ahead of Republican Pat Lykos in the poll, conducted Monday through Wednesday as early voting began for the Nov. 4 election.

As the Chronicle reported Saturday, the poll by Zogby International shows Democrats ahead by the identical gap, 7 percentage points, in the presidential and U.S. Senate races among county voters.

Emmett is an exception due to the name identification he developed during Hurricane Ike. While other Republicans are hurt by the party label because that's all the public knows about then, Emmett has a separate identity.

The poll claims that 46% of county residents are Democrats, 38% are Republican, and the remaining 16% are independent. The poll assumes that 20% of the county's voters will be African American, 20% will be Latino, and the rest mostly Anglo. A higher turnout by minorities -- who are expected to vote Democrat -- will tip the scales further Democrat.

Quiz Update

As most of my TTH classes know, I had to miss last Thursday's (the 23rd) class. I was sharing an intestinal virus with my sons if you have to know.

I don't want to fall behind though so I opted to not postpone the quiz. I will mostly limit the range of material we will cover to what we discussed early last week. For 2301 this'll be background material on the Federalist papers and for 2302 questions about the Stuart monarchs and how their conflict with parliament helps explain our constitutional arrangement. 2301 students note though that there will be a couple or so questions about the specifics of the Federalists #10 and #51.

I have the bulk of weeks nine's material up so after the quiz, we will cover terminology and basic concepts.

Newspaper Endorsements so Far

Click here for a map of newspaper endorsements. They point out a sizable number of papers which supported Bush in 04 are now supporting Obama.

Does Voter Fraud Exist?

Dahlia Lithwick says no.

Large-scale, coordinated vote stealing doesn't happen. The incentives—unlike the incentives for registration fraud—just aren't there. In an interview this week with Salon, Lorraine Minnite of Barnard College, who has studied vote fraud systematically, noted that "between 2002 to 2005 only one person was found guilty of registration fraud. Twenty others were found guilty of voting while ineligible and five were guilty of voting more than once. That's 26 criminal voters." Twenty-six criminal voters despite the fact that U.S. attorneys, like David Iglesias in New Mexico, were fired for searching high and low for vote-fraud cases to prosecute and coming up empty. Twenty-six criminal voters despite the fact that five days before the 2006 election, then-interim U.S. Attorney Bradley Schlozman exuberantly (and futilely) indicted four ACORN workers, even when Justice Department policy barred such prosecutions in the days before elections. RNC General Counsel Sean Cairncross has said he is unaware of a single improper vote cast because of bad cards submitted in the course of a voter-registration effort. Republican campaign consultant Royal Masset says, "[I]n-person voter fraud is nonexistent. It doesn't happen, and ... makes no sense because who's going to take the risk of going to jail on something so blatant that maybe changes one vote?"

Tracking Problems in Voting

Wired Magazine has created a map where people who have problems voting will be able to make their problems known.

Should be worth watching.

Economic Inequality in American Cities

According to a recent UN study, it is on the rise. This may pose trouble in the future:

"High levels of inequality can lead to negative social, economic and political consequences that have a destabilising effect on societies," said the report. "[They] create social and political fractures that can develop into social unrest and insecurity."

The End of an Era

Alan Greenspan rethinks regulation in testimony before Congress.

Alan Greenspan, the former Federal Reserve chairman, said Thursday that the current financial crisis had uncovered a flaw in how the free market system works that had shocked him.

Mr. Greenspan told the House Oversight Committee on Thursday that his belief that banks would be more prudent in their lending practices because of the need to protect their stockholders had proved to be wrong.

Mr. Greenspan said he had made a “mistake” in believing that banks operating in their self-interest would be enough to protect their shareholders and the equity in their institutions.

Mr. Greenspan said that he had found “a flaw in the model that I perceived is the critical functioning structure that defines how the world works.”

Worse Than We Think?

The current state of the economy may be worse than we think due to the way that we report economic numbers such as the unemployment rate. The rate only tells us how many people who are looking for work have jobs. It doesn't reflect the number of people who are discouraged, and no longer looking for work, or the nature of the jobs that people are taking.

The U6 takes those factors into consideration and reports a higher rate than is officially presented, 11% rather than 6.1%:

The U6 in September rose to 11 percent, its highest level since the data series started in 1994 and significantly higher than it was in the last recession, in 2001. The ratio between the U6 and the official unemployment rate has remained relatively steady over the last several years. But that means that as the unemployment rate has risen, so too has the portion of the population suffering from other types of work deficits. Three years ago, when the unemployment rate was 5.1 percent, an additional 3.9 percent of the labor force fell into one of those other underutilized categories. Last month, with the unemployment rate at 6.1 percent, an additional 4.9 percent of the labor force was underutilized. (See charts comparing the unemployment rate and the U6 rate.) Add it up, and more than 10 percent of American workers are essentially not contributing full-time to their families' well-being and to that of the economy at large. The unemployment rate may still be historically low, but the underutilization is historically high.

The Winner of the Presidential Debates was ...

Of the 22 of you who voted:

10 - Obama
6 - McCain
6 - Neither

Bailout Vocabulary: Credit Default Swaps

Wikipedia defines a credit default swap like this:

Former staff member of the Commodity Futures Trading Commission, Michael Greenberger describes a credit swap in brief: "A credit default swap is a contract between two people, one of whom is giving insurance to the other that he will be paid in the event that a financial institution, or a financial instrument, fails. It is an insurance contract, but they've been very careful not to call it that because if it were insurance, it would be regulated. So they use a magic substitute word called a 'swap,' which by virtue of federal law is deregulated."
Some argue that these instruments, the fact that they have led to the development of an unregulated $50 trillion market, are the reason why a handful of mortgage foreclosures spun into a financial meltdown.

- Q and A from the AP.

Watch Guard Video

Who says government impedes business development? Here's a business effectively created by legislators.

From the Chron:

WatchGuard Video, which provides patrol car cameras to state and local police forces across the nation, points with pride to the lawmakers who helped the company grow from a tiny technology startup into a government contracting powerhouse.

And at least two of the lawmakers turned a profit in the process — after the state police began ordering millions of dollars worth of equipment and expanding far outside Texas, interviews and state records show.

Two Texas legislators who made early investments in the booming company said they'd done nothing wrong and never pulled strings on behalf of WatchGuard. But their actions might violate the state constitution and disclosure rules established by the Texas Ethics Commission.

A former Texas legislator and part-time city judge are also investors, the company says.

This Just In ...

... by vote of 28 - 5, you tell me that race will be a factor in the upcoming presidential election.

So tell me, is this good? bad? indifferent? inevitable?

Will we be a stronger country as a result of this election, since racial issues will be brought into the open, or will the election reveal deep divisions in society that will weaken us?

A Right Wing Version of Roe v. Wade

That's what some critics are calling last year's ruling on the second amendment in DC v. Heller.

From the NYT:

Four months after the Supreme Court ruled that the Second Amendment protects an individual right to possess guns, its decision is under assault — from the right.

Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.

The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion. Justice Scalia has said that Roe had no basis in the Constitution and amounted to a judicial imposition of a value judgment that should have been left to state legislatures.

Comparisons of the two decisions, then, seemed calculated to sting.

“The Roe and Heller courts are guilty of the same sins,” one of the two appeals court judges, J. Harvie Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.

Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.”

Federal Agency Turf War

From the Washington Post, a lesson in how government grows:

The government is moving forward with its first significant effort to bring oversight to a vast, unregulated corner of Wall Street that has severely exacerbated the financial crisis.

But a turf war is brewing among three leading federal agencies that have contrasting visions for how the $55 trillion market for speculative financial instruments known as credit-default swaps should be regulated.

While the credit crisis has upended global financial markets and given a lift to advocates of heightened regulation, it has not resolved traditional disputes in Washington over how deeply the government should be involved in free markets.

Some regulators say the market can operate largely on its own but simply needs more transparency. Others say that the credit crisis has exposed wide gaps in oversight that require a much more direct role by the government.

The battle has mobilized the financial industry and lawmakers who are holding a hearing today on market regulation. Some industry players are lobbying sympathetic members of Congress for light oversight. Powerful financial firms, eyeing new fees, are campaigning to play a major role in running the market for swaps, which originated as a form of insurance against bond defaults but grew into a wildly popular vehicle for speculation.

Pointing the Finger: The Community Reinvestment Act

I'll put up a few posts featuring the various arguments being made about who or what is responsible for the current financial crisis.

First up: The Community Reinvestment Act, passed in 1977 which was designed to address discriminatory lending practices where certain populations were prevented from obtaining home loans. Special attention was paid to a practice called redlining.

Here's an outline of the argument from Slate:

The thesis is laid out almost daily on the Wall Street Journal editorial page, in the National Review, and on the campaign trail. John McCain said yesterday, "Bad mortgages were being backed by Fannie Mae and Freddie Mac, and it was only a matter of time before a contagion of unsustainable debt began to spread." Washington Post columnist Charles Krauthammer provides an excellent example, writing that "much of this crisis was brought upon us by the good intentions of good people." He continues: "For decades, starting with Jimmy Carter's Community Reinvestment Act of 1977, there has been bipartisan agreement to use government power to expand homeownership to people who had been shut out for economic reasons or, sometimes, because of racial and ethnic discrimination. What could be a more worthy cause? But it led to tremendous pressure on Fannie Mae and Freddie Mac—which in turn pressured banks and other lenders—to extend mortgages to people who were borrowing over their heads. That's called subprime lending. It lies at the root of our current calamity." The subtext: If only Congress didn't force banks to lend money to poor minorities, the Dow would be well on its way to 36,000. Or, as Fox Business Channel's Neil Cavuto put it, "I don't remember a clarion call that said: Fannie and Freddie are a disaster. Loaning to minorities and risky folks is a disaster."

The rest of the article argues against this point.

For more information check out these sites:
- PolicyLink.org.
- Businessweek.
- The Cato Institute.

On the Current State of Political Parties

From the National Journal: The Hidden History Of The American Electorate.

Consider this required reading

No Politics From the Pulpit

By a vote of 20-8, that's your verdict.

I'm a bit surprised by the result to be honest. Please explain why.

The Supreme Court Does Not Do Evidence

When discussing appellate courts I mention that a key difference between a trial and an appeal is the former focuses on facts while the latter is concerned with procedure. If there are no procedural violations, appellate courts -- those that practice judicial restraint at least -- see no reason to order new trials on the basis of new evidence. This is true even for death penalty cases. Such is the case of Troy Anthony Davis.

The 1991 death sentence against Davis came under scrutiny after seven of nine witnesses who helped convict him recanted their testimony or changed their statements. Several told of being pressured by police to tell them what they wanted to hear. Three other people have said a man who identified Davis as the killer had confessed to being the triggerman.

The case has become a cause celebre for death penalty opponents, including the human rights group Amnesty International, which has launched a campaign on Davis's behalf. Among others, Pope Benedict XVI, South African Archbishop Desmond Tutu, former president Jimmy Carter and the Council of Europe have urged Georgia authorities to spare Davis's life. Even some supporters of the death penalty, notably former FBI director William S. Sessions and former congressman Robert L. Barr Jr. (R-Ga.), have called for a reexamination of the case.

However, relatives and supporters of the victim, off-duty Savannah police officer Mark Allen MacPhail, insist that police got the right man when they charged Davis with murdering MacPhail in the early hours of Aug. 19, 1989, when MacPhail tried to stop Davis and two friends from brutally beating a homeless man in a fast-food restaurant parking lot.

Amnesty International said yesterday that it was "truly shocking" that the Supreme Court has effectively ruled out the presentation of new evidence favoring Davis.

"Faulty eyewitness identification is the leading cause of wrongful convictions, and the hallmark of Davis's case," said Larry Cox, executive director of Amnesty International USA.

The condemned man's sister, Martina Correia, also denounced the Supreme Court's action. "The Supreme Court doesn't know everything," she said. "They make mistakes, too, and that's what we're trying to avoid here, a mistake that you can't take back."

But MacPhail's sister, Kathy McQuary, said her family believes Davis should be executed. "I'm just ecstatic that after 19 years, this is finally going to be over and we can have peace in our family; we can have closure," she said. "My brother was a police officer. That's why we are so adamant about the death penalty. They do risk their lives."

Voting in the Good Old Days

Wasn't really that good. No big surprise probably.

From the New Yorker, an overview of elections past. Lucky all we have to worry about is being purged:

On the morning of November 2, 1859—Election Day—George Kyle, a merchant with the Baltimore firm of Dinsmore & Kyle, left his house with a bundle of ballots tucked under his arm. Kyle was a Democrat. As he neared the polls in the city’s Fifteenth Ward, which was heavily dominated by the American Party, a ruffian tried to snatch his ballots. Kyle dodged and wheeled, and heard a cry: his brother, just behind him, had been struck. Next, someone clobbered Kyle, who drew a knife, but didn’t have a chance to use it. “I felt a pistol put to my head,” he said. Grazed by a bullet, he fell. When he rose, he drew his own pistol, hidden in his pocket. He spied his brother lying in the street. Someone else fired a shot, hitting Kyle in the arm. A man carrying a musket rushed at him. Another threw a brick, knocking him off his feet. George Kyle picked himself up and ran. He never did cast his vote. Nor did his brother, who died of his wounds. . . .

That's just the beginning.

Republicans Hate ACORN

Slate.com tries to understand why:

With voter registration coming to a close, the community-organizing group ACORN has become a major target of criticism by Republicans in recent weeks. On Thursday, Slate's John Dickerson reported that members of the crowd at a McCain rally in Wisconsin started shouting the organization's name as a rallying cry. When did a group more typically known for its minimum-wage and housing campaigns become such a controversial organization in national politics?
In the run-up to the 2004 election.

ACORN—that's the Association of Community Organizations for Reform Now—was founded in 1970 and has long been known for its activism surrounding local issues in urban areas. The group earned its fair share of criticism from the right over the years—not least for its controversial tactics, which have included disrupting a speech by former House Speaker Newt Gingrich in 1995. In 2003, Manhattan Institute scholar Sol Stern described ACORN as promoting "a 1960s-bred agenda of anti-capitalism, central planning, victimology, and government handouts to the poor."

These days, Republicans are accusing ACORN of committing widespread voter-registration fraud. The group has been involved in registration efforts since its early days, but that aspect of its work did not earn much criticism until recent years. In 1993, Newsday reported that the New York State Senate had held hearings over the legality of ostensibly nonpartisan voter drives conducted by ACORN and sponsored by the state's Democratic Party. In 1999, about 400 voter-registration cards submitted by ACORN in Philadelphia were flagged for investigation after a judge stated that "a cursory look would have suggested that they were all in the same hand." Meanwhile, the earliest example of registration fraud documented on "Rotten ACORN," a critical Web site put together by the Employment Policies Institute, comes from 1998—but that's the only case cited from before 2003.

Some people just don't like it when poor people vote.

Still More on the Bradley Effect

Saturday night I was sitting with my wife drinking margaritas at the Mission Burrito on Richmond in Houston watching our kids play with about ten others when I heard the people at the table next to us talk about the Bradley Effect. I'm starting to get sick of it.

Anyway, the NYT featured a long discussion of it today, and made an interesting point--among several. Researchers noticed that the difference between a black candidates poll numbers and his or her electoral vote (the Bradley effect is the difference between the two, if the former exceeds the latter) declined after 1996. That was the year of welfare reform, so they speculate that this legislation lessened the negative images some whites had about black candidates. Since 1996, poll numbers have actually underestimated votes for black candidates -- the reverse Bradley Effect. In states where racism is still a problem, whites may actually be reluctant to express support for a black candidate.

The times they are a changin'.

More on the Bradley Effect

In response to inquiries from certain special students--or student ;)--here is a Gallup Poll story related to their attempt to determine whether race will impede or augment Barack Obama's electability:

While 6% of voters say they are less likely to vote for Barack Obama because of his race, 9% say they are more likely to vote for him, making the impact of his race a neutral to slightly positive factor when all voters' self-reported attitudes are taken into account.

At the same time, 6% of voters say John McCain's race will make them less likely to vote for him, with 7% saying it makes them more likely to vote for him, leading to the same basic conclusion: McCain's race, like Obama's, is on balance neither a plus nor a minus.

But the point of the Bradley effect is that poll respondents do not always tell pollsters (a human on the other end of a conversation) the truth. I'm not sure how much credence I'd give it.

Here's another take at what might be going on: a Reverse Bradley Effect. Whites may not want to admit to supporting a Black candidate.

More on the Current State of the Republican Party

David Brooks adds to the debate about why the Republican Party, which seemed poised to dominate politics for a generation as recently as 3-4 years ago, has imploded. Consider this required reading as well:

. . . over the past few decades, the Republican Party has driven away people who live in cities, in highly educated regions and on the coasts. This expulsion has had many causes. But the big one is this: Republican political tacticians decided to mobilize their coalition with a form of social class warfare. Democrats kept nominating coastal pointy-heads like Michael Dukakis so Republicans attacked coastal pointy-heads.

Over the past 15 years, the same argument has been heard from a thousand politicians and a hundred television and talk-radio jocks. The nation is divided between the wholesome Joe Sixpacks in the heartland and the over sophisticated, over educated, over secularized denizens of the coasts.

What had been a disdain for liberal intellectuals slipped into a disdain for the educated class as a whole. The liberals had coastal condescension, so the conservatives developed their own anti-elitism, with mirror-image categories and mirror-image resentments, but with the same corrosive effect.

Republicans developed their own leadership style. If Democratic leaders prized deliberation and self-examination, then Republicans would govern from the gut.

. . . The Republicans have alienated whole professions. Lawyers now donate to the Democratic Party over the Republican Party at 4-to-1 rates. With doctors, it’s 2-to-1. With tech executives, it’s 5-to-1. With investment bankers, it’s 2-to-1. It took talent for Republicans to lose the banking community.

The Latest Swipe at the Unitary Executive

Consider this required reading. It briefly defines the theory of the unitary executive, how tit has evolved, the constitutional problems it posses ( as well as the sources of its appeal) and demands that the candidates make statements regarding their opinions on it.

Consider the unitary executive as an executive with unchecked powers. An excerpt from the article:

Plenty of presidents have worked to increase presidential power over the years, but the theory of the unitary executive, first proposed under President Reagan, has been expanded since then by every president, Democrat and Republican alike. Reagan's notion was that only a strong president would be able to dramatically limit big government. Perhaps drawing on a model for unitary corporate leadership in which the CEO also serves as chairman of the board, the so-called unitary executive promised undivided presidential control of the executive branch and its agencies, expanded unilateral powers and avowedly adversarial relations with Congress.

In the years that followed, Heritage Foundation and Federalist Society conservatives worked to provide a constitutional cover for this theory, producing thousands of pages in the 1990s claiming -- often erroneously and misleadingly -- that the framers themselves had intended this model for the office of the presidency.

Unitarians (for lack of a better word) want to expand the many existing uncheckable executive powers -- such as executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements -- that already allow presidents to enact a good deal of foreign and domestic policy without aid, interference or consent from Congress. Ardent proponents even insist that there are times when the president -- like a king -- should operate above the law.

The anti-federalists were suspicious that the very creation of a single executive would lead to the eventual expansion of the presidents into a military king, who would claim powers above the law. Were they correct?

Bailout Vocabulary: the TED Spread

Apparently its a better indicator of the poor economic shape we are in right now than measures of the stock market.

What is the TED Spread? Wikipedia tells us:

The TED spread is the difference between the interest rates on inter-bank loans and short-term U.S. government debt ("T-bills") . . . TED is an acronym formed from T-Bill and ED, the ticker symbol for the Eurodollar futures contract. . . . The TED spread is an indicator of perceived credit risk in the general economy[1]. This is because T-bills are considered risk-free while LIBOR reflects the credit risk of lending to commercial banks. When the TED spread increases, that is a sign that lenders believe the risk of default on inter-bank loans (also known as counterparty risk) is increasing. Inter-bank lenders therefore demand a higher rate of interest, or accept lower returns on safe investments such as T-bills. When the risk of bank defaults is considered to be decreasing, the TED spread decreases[2].

So its an indicator of the risk associated with lending money. It is a graphic representation of the current unwillingness of banks, or anyone else, to lend anything to anybody.

A Request

Dear Students,

Please put your names on all the papers you email me.

Thank You

Rethinking Greenspan

The NYT has a critical re-appraisal his career.

A Brand New Bureaucracy

The Office of Financial Stability.

Created by the Emergency Economic Stabilization Act.

On Politics

What matters more when it comes to politics? Reasoned debate -- as I've suggested in class -- or combat?

From Slate:

The Washington Post has a long front-page account of Barack Obama's days in the Illinois state Senate where, the paper says, he was converted from an idealistic do-gooder into a tough politician. "Barack had this misconception that you could change votes with thoughtful questions and good debate," one of his former colleagues told the paper. "That was a little idealistic, if you ask me. It's not necessarily about smarts and logic down there. Votes are made with a lot of horse trading, compromise, coercion, working with the other side. Those are things that Barack can do—can do very well, actually. But it took him a little while to figure it out."

Voters Purged in Swing States

From the NYT:

Tens of thousands of eligible voters in at least six swing states have been removed from the rolls or have been blocked from registering in ways that appear to violate federal law, according to a review of state records and Social Security data by The New York Times.

...

The screening or trimming of voter registration lists in the six states — Colorado, Indiana, Ohio, Michigan, Nevada and North Carolina — could also result in problems at the polls on Election Day: people who have been removed from the rolls are likely to show up only to be challenged by political party officials or election workers, resulting in confusion, long lines and heated tempers.

Some states allow such voters to cast provisional ballots. But they are often not counted because they require added verification.

...

States have been trying to follow the Help America Vote Act of 2002 and remove the names of voters who should no longer be listed; but for every voter added to the rolls in the past two months in some states, election officials have removed two, a review of the records shows.

The six swing states seem to be in violation of federal law in two ways. Michigan and Colorado are removing voters from the rolls within 90 days of a federal election, which is not allowed except when voters die, notify the authorities that they have moved out of state, or have been declared unfit to vote.

Bush's Impact on Executive Power

Bush has attempted, with the hearty assistance of Cheney, to expand presidential power in a variety of ways. The question posed in this article is whether the effort will lead to a backlash in the next administration. Will we ultimately see a weaker office as a consequence if his actions?

The current dispute is simply the latest manifestation of a ongoing conflict between the political branches.

The struggle for supremacy dates to the nation’s birth. George Washington fought with Congress over its right to investigate a botched military expedition. Abraham Lincoln suspended habeas corpus and freed the slaves, with Congress ratifying his actions only afterward. Franklin D. Roosevelt quarreled so much with Congress and the courts over enacting the New Deal that he tried to pack the Supreme Court with more justices. Congress tried to restrain Dwight D. Eisenhower’s ability to negotiate diplomatic agreements with a constitutional amendment that barely failed. Ronald Reagan tripped up during the Iran-contra scandal by defying a Congressional ban on aid to Nicaraguan rebels. And Bill Clinton was impeached by the House (but acquitted in the Senate) for lying under oath about sexual trysts in the Oval Office.

The modern nadir in presidential power came during the administration of Richard M. Nixon, whose extra-constitutional adventures resulted in his resignation and a burst of Congressional activism intended to constrain the executive’s ability to wage war, conduct intelligence operations and spend money. A young Dick Cheney, chief of staff for the weak, unelected president who followed Nixon, Gerald R. Ford, resolved when he returned to the White House a quarter-century later to do all he could to restore that lost power.

The “unitary executive” theory he embraced held that because the Constitution provides for only one executive branch, Congress cannot intrude upon the president’s duties to manage the government. “Congress has by nicks and cuts over the last 30 years done a lot to limit presidential authority,” said Shannen W. Coffin, Mr. Cheney’s counsel until last year. “The president and vice president did put their foot down to Congress. A lot of the things the president stood up to have been happening since the Nixon White House.”

With the acquiescence of a Republican Congress and a public eager to fight terrorism, Mr. Bush and Mr. Cheney advanced their cause for years — the secret deliberations of an energy task force; the Patriot Act; “signing statements” that express reservations about enforcing a bill; warrantless surveillance; unrestricted detention of terrorism suspects; the reinterpretation of the Geneva Conventions.

But as Mr. Bush’s sky-high approval ratings collapsed, so did his capacity to preserve that newfound power. Lawmakers and judges began forcing him to seek legislative approval for military commissions and eavesdropping, proscribing interrogation techniques and trimming back some investigative powers.

Meet Neel Kashkari

He's the 35 year old aerospace engineer, six years out of business school, who has been put in charge of the $700 billion bailout. He's being called the "bailout czar."

Confident yet?

It Could be Worse ...

.... it could be 1800.

Bailout Vocabulary: Commercial Paper

The economic meltdown has turned into a terrific opportunity to learn vague financial terminology. I'll begin a series of posts on such terms.

Today's term: commercial paper, and a related concept: the commercial paper market.

From Investorwords.com: An unsecured obligation issued by a corporation or bank to finance its short-term credit needs, such as accounts receivable and inventory. Maturities typically range from 2 to 270 days. Commercial paper is available in a wide range of denominations, can be either discounted or interest-bearing, and usually have a limited or nonexistent secondary market. Commercial paper is usually issued by companies with high credit ratings, meaning that the investment is almost always relatively low risk.

Commercial paper is apparantly drying up, making it difficult for businesses to stay afloat. The Federal Reserve is stepping in to ensure the market stays solvent.

Can There Be Another VP Like Cheney?

We discussed this in one of today's classes. Has Cheney fundamentally transformed the office of the vice president, or was his effectiveness in the office a function of his unique skill set?

I think its the later, and so does the Barton Gelman:

Dick Cheney made his mark by transforming the job of vice president into something very close to deputy president. Now the question is whether Sarah Palin, and to a lesser extent Joe Biden, can carry on his legacy—or whether America should want them to. The answer to both questions: probably not.

Cheney brought to office a singular blend of knowledge, experience, discipline, zealotry, and operational talent. The last two are especially rare in combination, and mercifully so. Zealots drive history harder than opportunists do when they get their hands on the wheel. Cheney won room for maneuver from President Bush, and he knew how to use it.

This is a good read.

The Bradley Effect

As discussed in class, the Bradley Effect.

Wooden Arrows and The Bailout

Here are some of the links we covered in class today about the tax breaks written into the bill for the makers of wooden arrows.

- Bailout Bill Includes Wooden Arrow Tax Break
- The Wooden Arrow Bailout
- Bloomberg.com: U.S.
- Tax breaks big and small sweeten financial bailout

It's worth reviewing exactly which provisions were inserted to get the votes of which representatives. Makes you wonder whether they were strategic in their decision to oppose the bailout bill the first time with the idea that they would be able to command incentives the second time around.

On the Vice Presidency

Cheney's impact on what was once a dreary job is the subject of a small handful of new books and currently underlies disputes between Biden and Palin over the constitutional role of the office. Is it open ended or restricted?

Its The Economy .... You Know ....

Here's a post that underscores points made in class today. The increasingly poor performance of the economy may guarantee victory for Barack Obama:

Perpetually fretting Democrats will not want to accept it. The campaigns themselves can't afford to believe it. Many journalists know it but can't say it. And there will certainly be some twists and turns along the way. But take it to a well capitalized bank: Bill Ayers isn't going to save John McCain. The race is over.

John McCain's candidacy is as much a casualty of Wall Street as Lehman or Merrill. Like those once vibrant institutions, McCain's collapse was stunning and quick. One minute you are a well-respected brand. The next you are yelling at the messengers of your demise as all around you the numbers start blinking red and stop adding up.

McCain's road was difficult to begin with: the President of his party has had record-low approval ratings for two years and the number of Americans who say the country is heading in the wrong direction is stratospheric. He also had the misfortune to be pitted against an exceptional candidate running an extremely well-executed campaign.

Still, before Wall Street's collapse Senator McCain was ahead. His approval ratings remained high, his VP pick had generated excitement and interest, and his campaign operatives were capable, on any given day, of winning news cycles and giving their opponents fits. And then the underpinnings of American capitalism begin to sink -- and with them sunk McCain.

An election dominated at its inception by the war in Iraq is now overwhelmingly focused on the economy. More than half of voters in polls say that the economy is their top concern and Senator Obama enjoys double digit leads among voters asked who can better fix our economic mess. Put simply, there is no way Senator McCain can win if he continues to trail Senator Obama by double digits on the top concern of more than half of voters.

State polls are beginning to reflect this. If the election were tomorrow, Obama would win all of the states John Kerry carried and add Iowa, New Mexico, Colorado, Virginia, Nevada, Ohio and Florida. Barack Obama is campaigning in Indiana, which last went for a Democrat in 1964 and North Carolina, which has gone for a Democrat only once in thirty-four years. At the same time John McCain has pulled out of Michigan and Sarah Palin has been forced to visit Nebraska.

The Pulpit Initiative and the Separation of Church and State

Over the weekend a good handful of clergymen endorsed John McCain, despite IRS rules that put them at risk of their churches losing tax exempt status. This was done to deliberately challenge the constitutionality of the law, so if the IRS goes forward and attempts to impose taxes on them, then a challenge could end up in the Supreme Court. The purpose of the initiative was to ensure that pastors could speak freely without fearing reprisal (which assumes that paying tazes is punishment).

The rule, as Stanley Fisk explains, has a peculiarly secular--Texan in fact--history. It was driven by Lyndon Johnson who wanted to punish his opponents:

The story goes that when he was running for re-election to the Senate in 1954, Lyndon Johnson was opposed by a couple of non-profits that urged voters to reject him and his radical communist ideas. (And you thought things were crazy today.) In response, Johnson had new language inserted into the section of the IRS code, which defines a tax exempt entity. His addendum declared that an exempt organization “does not participate in or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

He tells us that in order to push the issue, the pastors sent copies of their sermons to the IRS, and a bill has been introduced into Congress to repeal Johnson's amendment.

Fish's argument is worth discussing because he reminds us that at the center of this issue is a dispute about what "religious exercise" means. Is it a purely private affair, or does it require involvement in human affairs?

We'll go over this in class.

Poll Question: Sarah Palin and the Separation of Church and State

44 of you voted on the followign question:

Sarah Palin's belief that the Bible is literally true threatens the separation of church and state, if she is elected.

10 agree
34 disagree

On Obama's Donations

Obama has been slaying all comers in donations. Republicans want to know exactly where some of those small donations are coming from.

Maybe they want in on the action.

The Election and the Supreme Court

From the New York Times, a story about the impact the election result is likely to have on the composition of the Supreme Court.

Its The First Monday in October ...

.. and the Supreme Court is back in session.

Here are links to articles discussing what they are likely to rule on:
- The LA Times.
- National Review.
- Christian Science Monitor.
- The First Amendment Center.

The overall take is that nothing spectacular lies ahead--though several cases touch on the ability of individuals to have access to the courts to sue. More to come.

The Economy's Impact on the Election

In 2002 and 2004 it was fairly easy to call the elections for Republican candidates. All things equal, when security -- or foreign affairs in general -- is the dominant issue on people's mind independent voters tend to vote more Republican than Democrat. But when the economcy is the dominant issue, the same holds true for Democrats. From Slate's Today's Papers (10-5-08):

The New York Times leads with a look at how the beleaguered economy has shifted the electoral map in Barack Obama's favor. (The Washington Post stuffs a nearly identical story.) According to the Times, Obama has a "solid lead" or is "well positioned" in states that account for 260 electoral votes, while John McCain has the advantage in states representing 200 electoral votes. McCain's advisers are hoping that the issue of the economy recedes, but the Los Angeles Times lead story predicts sustained misery. "[A]lmost every major player in the economy...is now beating a hasty retreat," says the LAT. Europe, meanwhile, isn't faring much better and the Washington Post leads with the continent's four largest economic powers rejecting a joint strategy to shore up banks. The leaders of Britain, France, Germany and Italy did, however, call for a global summit to revamp the international monetary system set up under the Bretton Woods Agreements.

Only a month ago Barack Obama's strategy of competing aggressively on Republican turf was looking overly ambitious. But, as the NYT reports, the weakening economy and Obama's fundraising advantage have given new force to his efforts to win at least nine states that voted for George Bush in 2004. Not only does this give Obama more ways to reach the 270 electoral votes needed to win, it also forces John McCain to spend money defending once-reliable red states, while limiting his ability to compete elsewhere.

After pointing out Obama's substantial advantages, the Times covers itself by mentioning "how closely contested the campaign remains" and warning that "the field could...shift again in the final weeks." The McCain campaign certainly isn't throwing in the towel. "Senator Obama has more money than God, the most favorable political climate imaginable—a three-week Wall Street meltdown and financial crisis—and with all that, the most margin he can get is four points?" said Bill McInturff, a McCain pollster. Four points, really?

If You Lose Your Home, Do You also Lose the Right to Vote?

If you lose your house due to foreclosure, you no longer live at the address you listed on your voter registration. Where then can you vote? Or more ominously, do you lose the right in a pragmatic sense? Can your vote be successfully challenged? From an editorial in todays NYT:

The foreclosure crisis could do considerable damage to the nation’s voting system. More than a million people have lost their homes in the past two years. And because voter registration is based on people’s residences, they could face politically motivated challenges at the polls.

Graphic: How House Members Voted on the Bailout Bill

Digital graphics are just getting better and better.

This allows you to look at the house vote from various angles. A good way to kill an hour or so, even if its just to watch those cool little boxes fly all over the place.

Tom Davis and the Contemporary U.S. House

The NYT has an long overview of Tom Davis (R - VA 11th District) and his decision to not run for reelection.

It tells alot about both the mindset of current members of congress and the political landscape that exists within it.

H.R.1424

Thats the number of the actual bill passed into law today. Here's the title:

A bill to provide authority for the Federal Government to purchase and insure certain types of troubled assets for the purposes of providing stability to and preventing disruption in the economy and financial system and protecting taxpayers, to amend the Internal Revenue Code of 1986 to provide incentives for energy production and conservation, to extend certain expiring provisions, to provide individual income tax relief, and for other purposes.

The bill itself had been around for a while and apparently served as a vehicle for the proposal introduced to Congress by Bush and Paulsen.

Here's a link to the bill summary in Thomas.

Not Like 1929

That's what Robert Samuelson tells us anyway. Economists have learned a lot since the Great Depression about what went wrong then, and what can be done to prevent a repeat now. One choice nugget:

There are parallels between then and now, but there are also big differences. Now, as then, Americans borrowed heavily before the crisis—in the 1920s, for cars, radios and appliances; in the past decade, for homes or against inflated home values. Now, as then, the crisis caught people by surprise and is global in scope. But unlike then, the federal government is now a huge part of the economy (20 percent vs. 3 percent in 1929) and its spending—for Social Security, defense, roads—provides greater stabilization. Unlike then, government officials have moved quickly, if clumsily, to contain the crisis.

Maybe big government is the, or at least a, solution afterall.

Do we Really Know What is in the Bailout Bill?

Not really.

Like critics have claimed, the Secretary of the Treasury has tremendous discretion -- that is power -- to do what he wants. Slate provides a rundown of what we do not know:

The bill itself doesn't provide any help. It demands Paulson explain how this whole thing is going to work two days after the first troubled assets are purchased. At that point, Paulson must outline the following details:

1) Mechanisms for purchasing troubled assets

2) Methods for pricing and valuing troubled assets

3) Procedures for selecting asset managers

4) Criteria for identifying troubled assets for purchase

(The above order is the one Congress proposed in the legislation. Let's hope Paulson thinks in a more logical sequence. We'd recommend starting with No. 4 and working his way up.)

For now, all of this leaves us, the American public, scraping for some answers. Referring to that elementary series of questions we learned in grade school-who, what, where, when, why, and how-the only one that's been explicitly answered is why. We know that Paulson thinks we're all destined for Hooverville if we don't vacuum troubled assets from bank sheets. When the House shot down the bailout last week, Paulson's mantra sounded like it was stolen from Heroes. Save the bailout, save the world.

Note to Internet Students

In order to compensate for Ike, and all the time lost due to it, I'm suspending due dates for all the assignments. Get them to all to me by December 9th. It would be best if you continued to send them in on a weekly basis. December will be here before you know it.

Email me with any questions.

Sweetening the Bailout

Here's how the Senate is planning to broaden support for the bailout (from Slate):

In what USA Today describes as "a maneuver to reverse a stinging House rejection of the plan," the Senate added several popular measures to the original bill. How many? Well, just think of it this way: The rescue package began as a three-page proposal by the Treasury Department and now clocks in at 451 pages. These additions include an increase in bank insurance limits and a host of popular tax breaks for businesses and individuals that add up to $150 billion. Its passage in the House remains far from certain as fiscally conservative Democrats have long opposed extending the tax breaks unless they were offset by tax increases or spending cuts. Still, Republican leaders said they are optimistic that the sweeteners would be enough to convince some lawmakers to change their vote.

"Instead of siding with a $700 billion bailout, lawmakers could now say they voted for increased protection for deposits at the neighborhood bank, income tax relief for middle-class taxpayers and aid for schools in rural areas," notes the New York Times. Indeed, the Los Angeles Times points out that a few "of the changes appeared aimed at enticing specific lawmakers," including expanded coverage of mental illness and a tax break for bicycle commuters. The Wall Street Journal says that the bill now has "a number of tax breaks that have been attacked by fiscal conservatives, including an exemption from a 39-cent excise tax for children's wooden practice arrows."

The Bailout and the Constitution

Maybe not such a good mix. Is the bailout just another executive power grab? Quin Hillyer says yes:

what Washington lawmakers are doing with this immense Wall Street bailout fills Will's bill: It is an utter abandonment of balance and restraint and a capitulation to fleeting passions. It represents a massive aggregation of power by the federal government, and within the federal government by the Department of the Treasury. It is a massive interference in the market when far less massive interference might do the trick. It is a manifestation of sheer panic when calm and considered action -- fairly swift action, yes, but not precipitous -- is called for.

The Bush White House, always fond of demanding its way or the highway, presented Congress with an ultimatum: Accept this basic framework for a bailout, and none other, or financial Armageddon will ensue. And at first the word was that the Armageddon would occur if the bailout weren't finished within about four days.

Four days came, and four days went, with no Armageddon. But then the administration said A-Day would happen within the week. Didn't happen. Then it would arrive if Congress voted down the plan on Monday. Didn't happen. The stock market dropped like a rock -- and then it recovered five eighths of its ground the very next day.

All the while, other actors -- bureaucrats, which in this case is an honorific rather than an insult -- continued to take smaller steps to help the market absorb the credit crunch. Without a greater accretion of power, the Federal Deposit Insurance Corporation stepped in to help stem the panic. So did the Securities and Exchange Commission. So did the Federal Reserve. All of them helped. And more can be done, within existing authority.

The House, Senate and the Bailout

Congressional action on the proposed bailout confirms expectations by the founders about how each institution was likely act, as well as their attitudes about the nature of public opinion.

The House, which narrowly refused to pass the bill on Monday, did so (apparently) due to the hostility of their constituents. All members are subject to reelection this November (unless they are retiring) so they are risk averse and prone to follow the wishes of their constituents. This what we would expect from delegates. The problem now seems to be that since the stock market tanked following the no vote, constituents may be changing their minds. A representative can't help but be confused.

From Slate.com: "There was a widespread sense on Capitol Hill that Monday's vote had snapped the public to attention about the potential repercussions of Congress's failure to act," notes the WP. Consequently, lawmakers' offices were flooded with calls, and there was a marked shift in tone as constituents who found themselves spooked by the huge plunge in Wall Street demanded that Congress do something. "It's completely in the other direction now," Boehner's spokesman said. But the WSJ says that House Democrats who voted against the bill received thousands of calls from constituents who mostly agreed with them. Now lawmakers might realize that trying to do what their constituents want is a little difficult when the public as a whole isn't really sure of what it wants.

The last comment perfectly illustrates the fear the founders had about the capricious nature of public opinion and may well justify the indirect design of American democracy. It's worth noting that the Senate, as of a few moments ago, passed the bailout. Not a huge surprise given their removal from the close influence of the electorate.