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Joining Up With Josh Marshall's TPMCafe

I've always worried that I'm not quite a "natural" blogger. I was never the kind of person who e-mailed all sorts of interesting things to various overlapping mailing lists, and I've always written too long and too infrequently. I'm sort of amazed that this blog has the audience it does, given my lapses and my sometimes wonky interests. But I've always thought it would be great to be part of a group blog, one which would provide its own provocations, and in which I wouldn't be the only person responsible for content. (Acknowledging that commentors provide a lot of the content and value here as they do elswehere, especially recently.)

That's why I'm so thrilled to be joining the group that will be contributing at the start of Josh Marshall's TPMCafe, which goes live today (May 31). The group of people who will be participating in the "coffeehouse" portion of the new site is extraordinary: Three are my colleagues and former colleagues at the New America Foundation: Steve Clemons, Mike Lind, and Karen Kornbluh. Really, if there was a single reason I joined New America this year, it was for the opportunity to have a steady, water-cooler dialogue with these three and others, and it has lived up to that expectation. Other participants I've had some long and provocative exchanges with, although I don't know them as well as I'd like to: Ed Kilgore, Greg Anrig, Reed Hundt. (I always use Hundt as an example of the reach that a blog can have. Last fall I wrote something not quite accurate about how the Federal Communications Commission works, and within an hour, I had a comment and email from Hundt, a former FCC chair, gently correcting me, which I've always thought exemplified the brilliance of online collaboration through blogs: its easy to make errors, but even easier to correct them.)

And others -- Annie Lamott, Marshall Wittmann, Judith Shulevitz, I know only through their writing. (I do know that I went to college approximately with Judith Shulevitz, so I'm sure that over the course of this we will find some common bonds!)

In addition to this group, Josh has brought Matt Yglesias's entire blog under the wing of TPMCafe (further proof that anti-trust enforcement is dead), added a blog by the very smart Ken Baer, and will maintain the blog that Harvard Law Professor Elizabeth Warren started at the time of the bankruptcy bill. If you look around, there seem to be some indicators of other features as well. So I've got one cubicle in a corporate empire.

It's also extremely flattering to be asked to participate in this by Josh, who I don't know well. I had always admired his journalism at The American Prospect and elsewhere, and his was certainly the first "blog" I read regularly. I doubt I would have seen just how to use this form well without his example. With the exception that I was never as interested in the Chandra Levy/Gary Condit melodrama as he was, I've often felt slavishly imitative of what he was doing, to the extent that I sometimes had to pull back and change topics so as not to track him too closely. I think TPMCafe, in addition to bringing together a lot of brainy liberals, will help Josh do what he does best, and what blogs can do best, which is sometimes to grab an issue and, as Howell Raines used to say, "flood the zone," and other times pull back and be more eclectic and imaginative.

As for The Decembrist, I expect to keep it going. I may sometimes cross-post, or use this for longer points that don't seem to fit in with the conversation of the moment at TPMcafe. I know that Josh intends to to cycle new voices into the TPMCafe discussion, so I don't regard that as permanent. On the other hand, I don't know that I can keep a steady stream of posts here and there, and do any other writing or actual work. So there will be some tension, and we'll have to see how it plays out. I am confident that everyone who enjoys The Decembrist will want to read TPMCafe, though, so be sure to bookmark it. The conversation's started already, my name has been invoked, and I'm late!

Posted by Mark Schmitt on May 31, 2005 | Permalink | Comments (8) | TrackBack

My Insularity

Eszter Hargatti at Crooked Timber has a post about her study on "Cross-Ideological Conversations Among Bloggers." She is trying to test Cass Sunstein's theory, in Republic.com, that internet politics forms isolated communities of shared ideology, rather than broad conversations among people with different viewpoints.

It's a fascinating study, and she shows that there is a high-degree of cross-ideological conversation among the 41 political blogs she studies, although much of it involves invoking the other side for purposes of "straw-man" arguments.

Of course, being a Washingtonian, I have to now believe that the most important part of any book is the index, especially the part that begins with the first letter of my own last name, so I checked to see whether the Decembrist was included, not expecting it to be.* So I was pleasantly surprised to see that I'd made the cut. (I've always had a natural, reciprocated affinity for the Crooked Timber gang.)

But take a closer look at one of her main charts. This is a way of depicting all the links across political blogs during a week in March, conservative blogs in red, liberal blogs in blue. Those closer to the center have more links -- "conversations" -- across ideology.

OK, see that red guy over at the far left? Matching up the numbers to her chart, that's Blogs for Bush (who now, courtesy of me, have at least one link from a liberal site.) On a quick read, the closest thing to a cross-ideological conversation there is between the people who want to boil George Voinovich in oil, and those who think the boil-in-oilers are wimps who don't understand that we're in a war against the Islamo-fascists and their allies in the Nevada Democratic Party.

Now see that lonely little blue guy on the upper right? That's me. Apparently as insular on the left as "Blogs for Bush" is on the right?

I hope not. I'm guessing this was just one of those weeks, where I didn't post much or if I did, it didn't happen to have many links to other blogs. In the chart, I see only inbound links.

It's still an interesting study, and outliers are just that, outliers. I'll try better not to be one!

*In New York, the most important part of a book is the acknowledgments.

Posted by Mark Schmitt on May 27, 2005 | Permalink | Comments (14) | TrackBack

Senators' Optimal Experiences

I notice a fair amount of alarm on the left about Senator Lindsay Graham's claim that the 14 Senators who reached a deal on the Nuclear Option will now move on to negotiate a deal on Social Security. I suppose that's possible, but that ship has sailed, or, I should say, has sunk.

But Graham's enthusiasm reminds of why the important thing about Monday's "deal" is not the letter of the agreement, which has been lawyered to death already by people who don't seem to realize that it was written in half an hour and has no one to enforce it anyway. It's the change in the culture of the Senate. For most Senators, huddling in a room or in a hallway with a handful of colleagues from different viewpoints and working something out is the kind of "optimal experience" that the psychologist Mihaly Csikszentmihalyi wrote about in Flow All the preening self-satisfaction that many noted in the Senators' presentation Monday night appeared to me just glee at being able to do this thing that they love. It's why they are there.

Many of them -- the best of them -- slog through all the campaigns and the fundraising and the committee meetings and the rest, just to get to those moments.

My most vivid memories of working in the Senate are of witnessing such interactions. I remember that as the welfare reform bill of 1996 moved toward passage, seeing Senators Dodd and Hatch just off the floor madly negotiating how to add more money for child care, in a kind of intense duet -- and feeling sort of sad that my boss, in implacable opposition, couldn't really be a part of it. I remember watching the bipartisan group that tried to salvage something from the Clinton health care debacle throw themselves into ten-hour days of learning and bargaining, and I have a feeling, just as a distant observer, that the process was still gratifying and thrilling despite failing to produce a result.

And they have really been denied the opportunity to engage in this basic Senatorial need for a long time. It's a need that Frist doesn't share or recognize, and that the culture of one-party rule has aggressively denied them. To use a very crude and obvious metaphor, they're like people who been involuntary celibate for a long time and now they all have brand-new girlfriends and boyfriends. Of course they want to do it again and again!

Tom Mann of the Brookings Institution had, I thought, the last word on the issue of whether to negotiate on Social Security reform, writing in the New Republic Online several months ago. Mann used the key point of one of my favorite books -- Robert Axelrod's The Evolution of Cooperation -- to show from game theory that one should not cooperate with someone who has previously defected from a cooperative effort, and that Bush had already "defected" from the cooperative effort to rescue Social Security. In addition, the Republicans defected from cooperation on the tax cuts, the Medicare bill, judges, almost everything else, making it completely irrational for Democrats to try to cooperate.

Now, in an atmosphere of cooperation, and with a fresh start, within the closed circle of the 14 members who have defined themselves as the controlling center of the Senate, it might be possible to begin a discussion of Social Security afresh. It's very unlikely, but you can see why they would try.

More interesting is that these 14 are trying to return to the kind of institution where they have those rewarding experiences of collaboration and compromise. And for that reason, I think that whatever the letter of the agreement, there is going to be great resistance to letting Frist or anyone else pull them back to the precipice.

Posted by Mark Schmitt on May 25, 2005 | Permalink | Comments (24) | TrackBack

A Fascinating Analysis of the Nuclear Deal from Redstate.org

I've been reading too many opinions on the nuclear deal, when I should be getting some work done, and all of them fall into the same four categories: liberals who are marginally happy, liberals who are disappointed, conservatives who are outraged, and -- the tiniest faction of all -- conservatives who see a bright side.

And then I came across something truly insightful, on the RedState.org group site, which is the closest thing to a DailyKos of the right. (And by far the most interesting of all the conservative blogs, because it has comments and because the perspectives expressed in the comments and diaries are varied and thoughtful. There is none of that suffocating sense of The-Party-Line that makes so many right-wing blogs feel like reading the Daily Worker in the 1940s.)

This morning, "Trevino" wrote that the deal is

about the best possible outcome for the Republicans at this point. Of course, the best possible outcome would have been for this to never have been made an issue at all: the President was having a fair number of his nominees pushed through, and there was not, to my mind, any particularly unusual Democratic obstructionism underway.

This, remember, is from the perspective of someone who identifies himself as a pro-life religious conservative. He goes on:

Historians will look back with no small amount of wonder at this bizarre episode, wherein a majority seized with a maximalist vision of its own power and mission, and facilitated by the personal ambitions of one man, decided to sweep away the institutional checks upon which it itself so recently relied to stymie its opposition's plans. ... Add in the immensely distasteful and unwise mobilization of persons of faith (a demographic in which I count myself) on what was, despite the hype, a tactical rather than a moral matter, and you have all the elements of a profoundly stupid war of choice.

Then, a fascinating insight into the way that religious voters have been manipulated here:

We ought to turn for a moment to these people of faith, the "values voters" of November past, who presumably engage in politics because they want to defend traditional families, fight abortion, and establish a more just and humane social order by their lights. The foolishness of a Democratic party intent on alienating them notwithstanding, these people are not inherently Republican, nor are they all inherently conservative as conservative is commonly conceived. They are aligned with the GOP in this generation by reason of the American left's shortsightedness, canny GOP strategizing, and circumstances of history: but that alignment is, I think, less solid than is usually assumed. Recall, for example, Karl Rove's thesis that these persons stayed home in 2000, thus denying the President his popular vote victory. Having mobilized them in favor of eliminating the "judicial filibuster" -- in reality, the filibuster itself -- what were the possible outcomes? The problem here is that there would have been no good outcome from the party's point of view. Assuming a victory, they, and more accurately, their leadership, would have felt temporarily empowered. But in time, the win would turn to ashes in their mouth: having pushed through, say, Owens, Saad, et al., abortion would not have been outlawed, and the President would not suddenly have become more than the fair-weather defender of life and families that he presently is.

This relates to Ed Kilgore's insight, drawing on Alan Wolfe, about the danger of religious right leaders taking "the prophetic stance" on purely political issues, or as Trevino put it, "tactical rather than moral matters." I also remain amazed by the casualness by which the Republicans manipulated Dobson and others to cloak judicial nominees who were quite obviously just secular economic reactionaries -- especially Brown, with her effusive quotes from the atheist Ayn Rand -- as pawns in a "war against people of faith."

The other [possible] outcome, we see now: having set themselves toward the maximalist position, anything less than it is conceived as a defeat. And so the end result is the same: they feel alienated and used. And betrayed. But this sense of betrayal on procedural grounds is, I think, better for the party in the long run given that it's a sight more palatable than the alternative, which is a sense of betrayal on moral grounds.

I won't quote the whole thing, but Trevino has some reasons that the outcome is good for the party, including the defeat of "maximalism" and that religious voters will not be so easily led, as well as that "Frist is finished." He concludes:

What's bad? What's bad is easy enough to see: the party and the Administration have lost their way in the second term. The pressing issues of the day -- the war, the deficit, the dollar -- have all been ignored in favor of bizarre voluntary fights on Social Security, the filibuster, and the rearguard actions to defend Tom DeLay. It is a stupefying squandering of political capital that speaks ill of the party leadership from the White House to the RNC to the Office of Senator Frist to the offices of activists from Main Street to K Street.

From a very different perspective than my own, very true. I recommend reading the whole post.

Posted by Mark Schmitt on May 24, 2005 | Permalink | Comments (28) | TrackBack

More on Campaign Finance and "Intensity of Desire"

Bob Bauer responded with predictably challenging insights to my post about Judge Guido Calabresi's concurrence in the Vermont spending limits case, and my argument that a generous matching system such as New York City's would meet Calabresi's call for a system that both recognizes the validity of expressing "intensity of political feeling" through money and tries to address the problem that inequalities of income make it impossible to differentiate between the mild feelings of a wealthy person and the very strong feelings of a person of moderate means.

Bauer's first point is that the NYC law -- which provides a 4:1 match on contributions of $250 or less -- doesn't so much enhance small donors, but small contributions. These may be wealthy people who happen to make relatively small contributions to candidates but make their big contributions elsewhere. For example, if a millionaire who gives $1,000 to candidate A who he strongly supports, and then a token $250 to another candidate as a mild favor to a business associate the system will make the two contributions almost equivalent in value, muting the intensity behind the larger one. That point is well taken. The only difference I have is that, by making the $250 contribution worth $1,250 to the campaign, or the $100 contribution worth $500, the law creates an incredible incentive for candidates to reach into communities in which they may have passionate supporters and ask them for small contributions. Without the incentive, candidates would be looking for votes in one community, and then trolling the law firm conference rooms for their dollars.

His second point is more of a red herring, I think. Bauer argues that the matching dollars are not a measure of the givers' intensity, but come from the state. He uses the example of an individual donor who is a libertarian and doesn't believe in state funding of campaigns. If the state matches his small contribution to a libertarian candidate, it is not reflecting or enhancing the intensity of his views, it is actually contradicting them.

That particular case is a good law-school paradox, but a special case. Since the system, like all public financing systems, must be voluntary, it is unlikely that a candidate who held such libertarian views would participate, and thus contributions to him would not be matched.

But let's go back and take this from first principles.

1. First, a complete laissez-faire campaign system, with no limits of any kind and no public financing, and no rules other than disclosure, would be undesirable. It would invite large-scale, Watergate-era corruption and also recreate in the political sphere the severe inequalities of the economic sphere. Candidates with access to financial resources would dominate the debate, others cannot even run.

2. Let's accept that limits are a poor way to solve these problems. They are only a negative; they do nothing to help a candidate without resources be heard. And they create all sorts of incentives to "evade" the limits: soft money, 527s, independent expenditures, and then on the regulatory side, an endlessly frustrating cycle of chasing after "loopholes" while trying not to block free expression, using awkward and "impoverished" legal standards such as corruption.

3. The solution is to bring in some public financing, mostly to boost the have-nots, but also to use as an incentive to induce candidates to accept spending and contribution limits. Let's assume for these purposes that we are dealing with what the ACLU calls "floors without ceilings," that is, pure public financing, without limits. Now the state has entered the picture.

4. Then the question becomes, how to distribute the state's financing. The alternatives are:

-- A voucher system, in which every voter is given some emblem of modest value -- say $25 -- to contribute to any campaign. This is Yale Law Professor Bruce Ackerman's "Patriot Dollar" proposal, and something much like it is in place in Minnesota and other states in the form of a full, refundable tax credit for contributions. In Minnesota, you can even get your money back immediately, without waiting for a tax refund. As Calabresi said, this might measure breadth of support, early in the process, but does nothing to measure intensity of support. I find the idea appealing, but I've always worried that a little-known candidate would have no opportunity to attract sufficient Patriot Dollars to become better known.

-- A "Clean Money" system, such as in Arizona or Maine. Here a large mass of very small contributions, of $5 or $10, triggers public funding in an amount adequate to run an entire campaign, based on past averages. Private contributions are intended mainly to demonstrate a broad base of serious support, in a way that collecting signatures, by itself, would not do. After those first small contributions, private funding is meant to be eliminated alogether, so inequalities of income are no factor, but neither is intensity of support. I favor this system but recognize that the absolute equality it imposes (if it works) on candidates is artificial, eliminates differences in both breadth and intensity of support, and creates anomalies.

-- A matching system such as New York's. (There are others, but none that I now of quite as generous.) Here again, the state is providing the boost. But it is providing it in a way that tracks both the breadth and intensity of a candidate's support, rewarding candidates with broad support in the form of small contributions, but also reflecting in some way the sacrifice that a $250 contribution represents from a person of ordinary means. I believe such a system achieves all the goals of the voucher system. In some ways it's preferable to a "Clean Money" system, but in other ways it is not, since it does not free candidates from fundraising entirely or eliminate the influence of great inequalities of wealth.

The state is not distributing the money according to its own preferences. In all these systems, it is distributing funds according to the preferences of voters, with three different schemes for doing that. If Bauer follows me to point 3 (that is, if he's not a pure libertarian, if he thinks that limit-based regulation is inadequate, and he thinks that some public funding is a useful antidote, then the question would be, wouldn't a system based on Judge Calabresi's principles be the preferable way to distribute that public boost?

My apologies to readers for a long post on a subject that, evidence shows, is of interest to almost no one.

Posted by Mark Schmitt on May 24, 2005 | Permalink | Comments (6) | TrackBack

How I Stopped Worrying and Learned to Love the "Totally Unacceptable" Nuke Deal

The nuclear compromise played out remarkably quickly after the weekend, and followed basically the lines that I called "totally unacceptable" yesterday: allow the worst judges through, coupled with "extraordinary circumstances" language on future filibusters. Yesterday, I wrote that the problem with that deal was that the worst judge allowed through -- in this case, at least on grounds of ideological extremism, that would be Janice Rogers Brown -- would thus become the definition of less-than-extraordinary circumstances. For Democrats who were party to the agreement to join a filibuster of any nominee, including a Supreme Court nominee, who was any less "unhinged" than Brown (to use National Review's Ramesh Ponnoru's word), would be considered a breach of the deal. (Major Garrett said exactly that on Fox a few minutes after the deal.)

And yet, here we are tonight, and the deal is done. And I'll live with it. First, no one cares whether I think it's "totally unacceptable" or not. (That's apart from the more metaphysical question of who cares what I think about anything.) For that matter, who cares whether Barbara Boxer or even Harry Reid considers it "totally unacceptable"? It's the deal. It's how these 14 Senators have decided to cast their votes, and if the Dems had refused to agree to it, we'd be heading to a vote tomorrow in which Frist would probably win. Second, I think the language in the agreement about how every Senator will follow his or her "own discretion and judgment in determining whether [extraordinary] circumstances exist" in a vague way takes care of my concern. It's boilerplate language, but it makes clear that the judgment about future filibusters is independent of anything in the deal itself. In a way, it reminds me of the language in the Bush v. Gore decision where the Court declared that its use of the equal protection standard applied to this case only one a one-time basis. I see this as an agreement to confirm Brown and Owen one time only, to get this crisis behind us.

Third, I understand that compromise should always leave everyone a little disappointed. Some kind of compromise on this package of judges would have to have been developed even if the Nuclear Option had not been on the table. Some, maybe most, of the judges would go through. So if the deal had been a tiny bit less bad -- for example, if it had included Owen but not Rogers Brown -- I would have been ecstatic. A deal that someone like me would be ecstatic about probably wouldn't attract much Republican support. So this is a relatively small step down from a deal that I would have loved. (Still, it feels like negotiating with blackmailers.)

So, if this all sounds like rationalization because of the pure power-politics implications of a deal, maybe it is. Because those implications are really something. Frist put himself out there with the religious right, made this a matter in which some of them chose to speak in "the prophetic voice," from which no compromise is possible. The mistake Frist made was a small one at the time, and he probably didn't even know he was making it. But by enlisting these outside groups as partners and permanent allies, he cut off his own freedom of maneuver. When he finally realized that a critical mass of his own caucus did not want to blow up the Senate, he was trapped by outside forces. Now he's utterly ruined. John McCain and Lindsay Graham are setting the agenda in the Senate, while to the religious right, Frist is not a martyr to principle, but just an ineffectual leader, a guy who talks big but can't deliver.

(I saw Joe Scarborough on MSNBC -- whose insights into Republican dynamics always seem very solid -- describe Frist as the winner here in the long-run, because McCain will have forfeited the support of the far-right in the 2008 primaries, making it available to Frist. That could be right, but McCain was unlikely to get that support anyway, and there are several 2008 candidates -- Brownback, Santorum, Allen -- who already have a stronger base than Frist with that group and who haven't promised something big that they can't deliver. I think Scarborough's right about McCain, though, and he goes from a candidate the far-right is uncomfortable with to one who will now be "totally unacceptable" to them. It's a mutual destruction pact, and the Republican field for 2008 is now down to the second-tier. Or, in honor of new front-runner George Allen, let's say, second-string.)

If the goal of liberals is to block a truly extremist Supreme Court nominee, block Social Security privatization and more tax cuts, block Bolton, and then begin to shift the debate back to issues of economic security, health care, global leadership, etc., the best possible thing that can happen is for the White House and its agents, such as Frist, to lose their control of all the levers of power in Congress. That's indisputably what this deal does, and for that, I'll learn to love it.

Posted by Mark Schmitt on May 24, 2005 | Permalink | Comments (23) | TrackBack

Back From the Nuclear Brink

The good folks at The Next Hurrah blog continue to be like the RAND Corporation of the 1950s or Herman Kahn's original Hudson Institute: constantly gaming out possibilities and the moves several steps ahead for all aspects of the Nuclear Option.

The contributor who signs himself RonK, Seattle (who is also a frequent and welcome commentor here) has a very good insight into the "failsafe" option, one that ought to be giving Bill Frist nightmares. Under his scenario, a handful of Republican moderates can stop the option in its tracks to buy time and essentially take control of what happens next. Let me try to explain it as simply as possible: the cloture vote on Justice Priscilla Owen fails. Frist asks the chair to rule that filibusters are out of order on some judicial nominations. The chair so rules. Reid appeals the ruling of the chair. That appeal is debatable -- that is, it can itself be filibustered. So Frist has to move to table the appeal, which is not debatable.

At that point, the Senate votes, presumably along the lines of support for the Nuclear Option itself. But not necessarily. Some number of Republicans could decide to vote against the motion to table. Combined with the votes of all the Democrats and the Republicans who oppose they option, they would defeat the motion to table. At that point, the underlying question returns: Reid's appeal, which Democrats can now filibuster. But everyone is now on record, and the compromisers who made it happen are now in total control. At any point, they can announce that they are switching their votes on a tabling motion, or that they are switching their votes in favor of Reid's appeal. Or, they can hold out for a compromise.

I heard Bob Schieffer hint at something like this this morning while interviewing Senators Durbin and McConnell. Both said they want to get this over with, but they're not the compromisers.

Make no mistake, this is a terrible outcome for Frist, because he gives up all control over the highest-stakes move of his career. And I also think it creates more problems with other members of his caucus. I am willing to be that he has Republican Senators who are saying to him that they are willing to vote for the Option if he guarantees it passes, but don't want to be out there on record voting for it and have it fail and be a massive embarassment. So just the possibility of the failsafe option creates uncertainty, which is his enemy.

A compromise is also disastrous for Frist, for a hundred reasons. It will destroy his credibility with the religious right that he charged up on this issue, and it will put McCain and/or Lott permanently into the drivers' seat in the Senate, an outcome that's not only bad for him but for his patrons in the White House.

Reid, on the other hand, has a much freer hand to operate. He knows where all his votes are, and he can handle compromise -- not any compromise, but there's nothing disastrous about an agreement to let some judges go through, along with some kind of language about the circumstances under which the compromisers would support a filibuster. After all, some of the judges would go through under any circumstance, because they have some Democratic support.

Any deal will presumably include an agreement by whatever number of Senators are participating to let some judges go through, block some others, and some language about the "extraordinary circumstances" under which members might join a filibuster in the future, in exchange for all of them voting against the nuclear option. It's very unlikely that a deal will happen before Tuesday, but I could see RonK's option, under which the compromisers essentially stop the action and buy time.

In theory, I don't have a problem with the "extraordinary circumstances" language. Because a filibuster will always involve extraordinary circumstances. It is not, as I never get tired of pointing out, a supermajority. And Democrats know full well that they lost the election, they can't just block every nominee until Bush agrees to appoint Cass Sunstein or Ron Dworkin to the Supreme Court. And they can't control all their votes even if they wanted to. So "extraordinary circumstances," in and of itself is just a matter of stating the obvious.

But if "extraordinary circumstances" is coupled in a deal with an agreement to let either Priscilla Owen or Janice Rogers Brown's nominations go through, then it is totally unacceptable. That's because in that combination, Brown or Owen would come to define the line of "extraordinary circumstances." That is, assume Brown goes through -- after that, anyone with views less extreme than Brown would implicitly be considered not extraordinary. Bush could name Brown herself to the Court and Democrats would be paralyzed. And the problem with that is simply that there are no possible nominees to the Supreme Court whose views are more radical than Justice Brown. (I'm open to correction on that, but from what I know of folks like Michael Luttig, Michael McConnell, John Roberts, Edith Jones, and others, none adopt quite as aggressively an activist libertarian position as Brown.)

So I would be happy to see a deal bring this confrontation to a close, but it cannot be a deal that gives Bush a free pass to name anyone he wants to the Court.

Posted by Mark Schmitt on May 22, 2005 | Permalink | Comments (16) | TrackBack

Philanthropy, left and right

Matt Yglesias did a good thing in his follow-up to my post yesterday on right-wing scrutiny of "liberal" foundations, which was to highlight a link to a five-year old essay by my friend Karen Paget that covers a lot of ground on the conservative foundations and the building of the right-wing infrastructure, and the liberal counterpart. This is actually one of a long sequence of articles that Karen wrote, starting in the very first year of The American Prospect's existence that together, as Matt said, cover much of what is now being "discovered" in conversations about building a progressive policy and advocacy infrastructure. "The Big Chill", published in 1998, is a particularly relevant statement of the case for liberal foundations to be as encouraging as the right is of advocacy and thinking politically. (Karen ran Vista, the domestic Peace Corps, in the Carter administration, among other achievements.)

Also recommended reading on a similar subject, for those interested: James Piereson's article in Commentary, "Investing in Conservative Ideas." As the head of the John M. Olin Foundation for twenty years, Piereson was probably one of the most important conservatives you never heard of, using relatively modest assets of $118 million to build out a number of key institutions, including the Federalists Society, and the entire academic field of Law and Economics. What's interesting about Piereson's article is that much of it dwells on the pre-history of conservative funding and activism, the activities of a handful of much smaller foundations that in the 1950s and 60s supported Hayek, von Mises, Irving Kristol and others. Also interesting is that in his discussion of the more recent phase of conservative funding, which he labels "neoconserative," a key role is attributed to political scientist James Q. Wilson, who I think is a somewhat neglected figure, in part because he doesn't lend himself to demonization.)

I noticed that Ed Kilgore recently promised a combined review of Rick Perlstein's book about the Goldwater campaign and a new book by Craig Shirley about Reagan's 1976 campaign, bearing the subtitle, "The Campaign that Started It All." Ed promises that "my Perlstein-Shirley review will focus on the dangerous belief of some Democrats that we should emulate the 1964 and 1976 conservative 'noble defeats' and one of my arguments is that Reagan's survival in 1976 and his apotheosis in 1980 were far more fortuitous than anyone seems to be willing to admit." [UPDATE: I added links to Ed's "New Donkey" blog and the relevant post.]

I hope that in addition to challenging this deterministic view of history, he will also address the illusion that either of these eletoral events was "where it all began," which has become a common interpretation of Perlstein's book even though totally unrelated to his narrative, and is explicit in the subtitle of the Reagan book. The most powerful choice in telling any historical anecdote is the decision about where to begin, and the various narratives about the Right that liberals seem to draw on often seem to take the form, "It all began with..." -- the Goldwater campaign, or the "Powell Memo," or Grover Norquist's break with the first Bush administration in 1990.

Piereson's account, besides being fascinating in it's own right, is a reminder that conservatives' view of their own history often goes back much further, and it's not a story about the Republican Party and it's presidential candidates, but about ideas and institutions seeded well outside the party itself.

Posted by Mark Schmitt on May 20, 2005 | Permalink | Comments (2) | TrackBack

Why they went "nuclear"

I have been watching the Senate floor with more attention than I paid since I worked there, but haven't really had much to comment that I haven't said already.  But Senator Gordon Smith of Oregon (one of our old favoriteshere at The Decembrist) said something interesting:

"I estimate that half of what we do here cannot be filibustered," he said, referring to the vast quantity of legislative work that is driven through the budget reconciliation process, where debate is strictly limited.

That's not a particularly persuasive argument for the raw exercise of power that is the nuclear option, but it does raise an important point that I touched on once before. I believe that one reason -- not the only reason, but an important one -- that this particular fight has become so bitter and so polarizing is exactly that fact, that so much of the Senate's business is now run through the rubber-stamp, party-line process of budget reconciliation. (Including pure policy decisions whose budget impact is incidental, such as opening the Arctic National Wildlife Refuge to oil drilling.) Much of the rest is pushed through using the bizarre technique of rewriting legislation from scratch in small, tightly controlled conference committees, and then forcing the Senate to pass it or not, without amendment.

The result of this trend under which half of the Senate's business is pushed into these rubber-stamp categories is that the small amount of business that remains open to the debate, amendment, and the filibuster -- nominations and a few policy issues -- become more and more bitter. They become the outlet for all the frustrations and resentments of the minority on the other issues. And because most of the business of the Senate is pushed through on party lines, Senators don't develop the habits of forming long-term, cross-party alliances, compromises, friendships, and mutual respect.

And nominations are a terrible platform for developing those alliances because they offer so little room for compromise. You can't amend them or modify them. The only compromise is to take a large number of nominations and agree to some and not others, which is a very limited option and doesn't give much play for creativity.

Steve Clemons recently made a similar point: "If the Republicans actually win the battle on judges, Democrats will never yield on Bolton. They will filibuster forever on his nomination -- and time buys even more potential Republican defectors who are uncomfortable with the high-handed tactics of the White House."

Indeed -- the more subjects are takes off the table of open debate, the greater the pressure and the displaced resentments that come to bear on the few things that remain on the table.

If someday the Senate wants to defuse the nuclear attitude -- the Cold War brinksmanship -- of the institution, one way to do it would be to take Smith's point very seriously. Stop using the budget process for "half of the work we do here," reform it and require it to be used only for the very narrow purposes for which it was intended. When people have to work together and find new alliances, the Senate will become the Senate again.

Posted by Mark Schmitt on May 19, 2005 | Permalink | Comments (10) | TrackBack

"Intensity of Political Desire"

One of my defenses of the filibuster is that it is one of the few ways our democracy has to measure intensity of conviction. If 45 Senators feel absolutely passionately that, say, Janice Rogers Brown is way out of the judicial mainstream and doesn't belong on a federal court, but a majority feels that she's the president's choice and maybe her views are a little unusual, but the president's entitled to his choice, a 55-45 vote in favor of confirmation doesn't really reflect the average view of the body. But if the minority is forced to make some real sacrifices to hold up a nomination or a piece of legislation, to hold the floor and amass hours of argument, then you can  begin to measure the intensity of the opponent's conviction. And that's a good thing, rarely measured in a democracy in any way, except sometimes in a small way through complex preference voting systems.

Interestingly, I found the same concept discussed in a fascinating bit of writing about campaign finance reform that appeared recently: Judge Guido Calabresi's concurring opinion in a 2d Circuit decision upholding Vermont's law that includes mandatory spending limits. Since spending limits, but not contribution limits, were held to be unconstitutional in the 1974 <i>Buckley v. Valeo </i> decision,  this decision is an invitation to the Supreme Court to reconsider <i>Buckley</i>. Since both sides in the Vermont case have asked the Court to take the case, it is likely that it will come up in the next session.

Calabresi's concurrence has about as much legal relevance as this blog, since it is not even a concurrence in the decision itself but rather a concurrence in the decision by the circuit not to rehear the case en banc. (This decision has been long delayed; the law was passed in 1997, the three-judge panel first upheld it in 2002, then pulled the decision back, then reissued it.) But as an effort to introduce some fresh ideas that are relevant to both the legal and policy questions surrounding campaign finance, it is fascinating and important.

The judge's basic point is that the one justification that the Court in Buckley allowed -- corruption or the appearance of corruption -- is "impoverished," and that "efforts to tailor all campaign finance regulation to corruption...surely have constrained possibilities for creative proposals that may not fit comfortably into the proferred box."

(Under the "corruption" justification, limits on contributions are permitted, since large contributions might be corrupting, but limits on total spending by a campaign are not. And generally, limits on contributions to ballot initiatives are not permitted, since an initiative cannot be "corrupted" the way an individual entrusted with power can be.)

Other justifications for campaign regulation have been put forward before, such as the value of "political equality," or the concept that fundraising constitutes a "wealth primary,"
which might be invalidated on the same basis that the Court prohibited white primaries in the 1960s.

Calabresi has a very different way of talking about it, one that I like because it seems to recognize that money has a place in politics as a means of expression, as well as the problem that it can reinforce in the democratic sphere the inequalities of the economic sphere. The judge argues that the values to be protected in campaign finance are, first, the ability of people to express the intensity of their political views, using money, and second, the fact that "given the unequal distribution of wealth, money does not measure intensity of desire equally for rich and poor." Calabresi suggests that spending limits are one way to balance those interests, but not the only way.

Calabresi says that full public financing, as well as other ideas such as vouchers or anonymous contributions, might reduce corruption, "but they do so in a way that undercuts the ability of people, both poor and rich, to give financial expression to the relative intensity of their desires." He's right that full public financing, by his standard, it doesn't leave an opportunity for people to express the magnitude of their support using money, which is the whole point of it. That's also true of vouchers -- what Bruce Ackerman calls  "Patriot Dollars" -- such as giving everyone $25 to give to any candidate, because the voucher of someone who's all but indifferent and disengaged has the same value as the most intense partisan.
I'm not sure how spending limits do a much better job of balancing the two values, and the concurrence doesn't really claim that they do. Contribution limits alone, at a level such as the current federal level of $2,000, allows a lot of intensity, with some moderation of inequality; a lower limit would allow less intensity, and greater moderation of inequality.

But I think the kind of system that ideally meets Calabresi's suggestion would be a very generous matching system, such as New York City's 4:1 match on contributions of $250 or less. For an average person, a contribution of $250 represents a lot of intensity, and its intensity is greatly magnified by the match. The influence of bigger contributors is ameliorated by contribution limits and by a voluntary spending limit. (Since a $250 contribution is worth $1250 to a candidate, a $1,000 contribution doesn't carry that much greater weight.)  Smaller donors with intense feelings have a much stronger voice in such a system than in any other.

Democratic election lawyer Bob Bauer has some thoughtful objections to Calabresi's new standard here.  Bauer is right to note that the standard is very abstract. But so is "appearance of corruption," and at least this standard yields some middle ground, unlike a standard such as "political equality," which can really only be met by some unachievable ideal of removing money altogether from the process.

Sketchy as it is, I think this opens a fascinating way to think about money in politics that the Supreme Court might look at next year.

Posted by Mark Schmitt on May 19, 2005 | Permalink | Comments (1) | TrackBack