Hertzberg considers this reform the one good idea put forward by the now-defunct campaign of Texas Governor Rick Perry:

This ingenious idea has been kicking around in legal circles for decades. It tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy. Justices would still get lifetime appointments. After their eighteen years with the Supremes, they could choose to serve on other federal courts, bringing their experience and, in some cases, their wisdom to the appellate bench. Even if they didn’t exercise that option, though, their salaries would continue for life. If a Justice died or retired before his or her eighteen years were up, a substitute would be appointed via the usual process—Presidential nomination, Senate confirmation—to serve out the remainder. The interim Justice would not be eligible for reappointment to the Supreme Court, but he or she would have the same sweet post-Court deal. And what lawyer wouldn’t jump at the chance to be a Justice of the highest of high courts, if only for a year? . . .

From 1789 through 1970, the average tenure of a Supreme Court Justice was about fifteen years. For Justices who have retired or died since then, the average tenure has been twenty-six years. This isn’t just an artifact of longer life spans. As the Court’s importance has grown—Marbury v. Madison made it the only one of the three federal command posts that is functionally sovereign, and the polarized gridlock of the elected branches has only made it more powerful—and as it has become more “political,” aging Justices have tended to hang on well into senescence, especially when the sitting President is of a different ideological persuasion. Presidents, for their part, seek to extend their influence into the far-distant future, by finding the youngest nominee they can get away with. (Another incentive: while younger is not always wiser, it does make for a shorter paper trail.) The prospect that a Justice will be handing down decisions for close to half a century [more accurately: a quarter-century or a third of a century--JL] turns confirmation fights into political Armageddons. The randomness of openings abets the now-or-never mentality. Richard Nixon named four Justices during his five years in the White House; Jimmy Carter, during his four years, named zero.

Under our proposal, slots would open in the summer of odd years, thus guaranteeing two appointments in a president’s four-year term.

The last race to be called was in the 8th District. Twelve Milwaukee precincts seem to have been withheld for a very long time, leaving open the possibility of the Democrat (Pasch) overtaking the Republican (Darling). But other Wisconsin news outlets have collected results from almost all of the outstanding precincts and Darling’s lead is holding up (tip to HuffPo relaying counts of the Patch).

UPDATE (2am ET): All but one of the Milwaukee precincts have now reported and Darling’s lead remains substantial. It’s over . . . .

UPDATE: On Monday in Asia (Sunday night in the US), the stock markets in Japan, China, Australia, and South Korea are up 1.3% to 1.9%.

2D UPDATE (Monday afternoon): Though the Dow hit 140 points UP shortly after the opening on Monday morning, it quickly reversed, hitting 140 points DOWN at the low. By 3:15pm ET, the Dow had recovered to down 39 points.

3D UPDATE (Monday market close): The Dow closed down only 11 points (0.09%), while the NASDAQ and S & P 500 closed down 0.4%.

Terror Suspect Anders Behring Breivik. Photo published by VGNett.

UPDATE:

An automated Google translation of a story at VG Nett (the web site of a national newspaper in Norway) includes this passage (sorry, I don’t read Norwegian, so I can’t vouch for the translation):

Critical of Islam

In online debates marks Anders Behring Breivik as well read, and one with strong opinions about Norwegian politics. He promotes a very conservative opinions, which he also called nationalist. He expresses himself strongly opposed to multiculturalism – that cultural differences can live together in a community.

Breivik has had many posts on the site Document.no, an Islam-critical site that publishes news and commentary.

In one of the posts he states that politics today no longer revolves around socialism against capitalism, but that the fight is between nationalism and internationalism. He expressed clear support for the nationalist mindset.

Anders Breivik Behring has also commented on the Swedish news articles, where he makes it clear that he believes the media have failed by not being “NOK” Islam-critical.

A terror group, Ansar al-Jihad al-Alami, or the Helpers of the Global Jihad, issued a statement claiming responsibility for the attack, according to Will McCants, a terrorism analyst at C.N.A., a research institute that studies terrorism. The message said the attack was a response to Norwegian forces’ presence in Afghanistan and to unspecified insults to the Prophet Muhammad. “We have warned since the Stockholm raid of more operations,” the group said, according to Mr. McCants’ translation, apparently referring to a bombing in Sweden in December 2010. “What you see is only the beginning, and there is more to come.” The claim could not be confirmed.

Now Will McCants, the Times’s source, reports that this claim of credit has been retracted:

This [claim of credit in Arabic] was posted by Abu Sulayman al-Nasir to the Arabic jihadi forum, Shmukh, around 10:30am EST (thread 118187). Shmukh is the main forum for Arabic-speaking jihadis who support al-Qaeda. Since the thread is now inaccessible (either locked or taken down), I am posting it here. I don’t have time at the moment to translate the whole thing but I translated the most important bits on twitter.

Update: Abu Sulayman has now issued a retraction, stating clearly that “Helpers” was not involved in the operation and that his statement was not an official statement. He says those who carried out the attacks “must surely be known to all.”

I assume that Abu Sulayman is implying that al-Qaeda (or an al-Qaeda-linked group) is responsible.

Early results show that the “real” Democratic candidates are beating the Republican-sponsored “fake” or “protest” Democratic candidates by about a 2-to-1 margin, except in District 14, where the real Democrat Fred Clark leads Rol Church by a still substantial 16% with 10% of precincts reporting.

UPDATE: With 3% reporting in District 8, the real Democrat, Sandy Pasch, is trailing Gladys Huber by 16%. The identities of the candidates in each race are set out here.

2D UPDATE: With 16% reporting in District 8, Sandy Pasch has taken a large 50% lead over Gladys Huber.

3D UPDATE: Only one race is now close: In District 10, the real Democrat, Shelly Moore, leads Isaac Weix by only 6%, with 35% [then 54%] of precincts reporting.

4TH UPDATE: Moore has extended the lead over Weix to 8% with 77% [then 84%] reporting.

5TH UPDATE: With 91% reporting, the Journal Sentinel calls the race for Moore, the real Democrat. Thus, all the regular Democrats appear to have won their primaries.

Although consent is said to justify unconstitutional conditions, consent is no cure. Of course, within the government’s constitutional authority, consent often is a measure of what the government can do. But outside such authority, it is another matter. Constitutional powers and rights are legal limits imposed by the people. Therefore the consent of mere individuals, states, or private institutions cannot justify the government in going beyond these limits.

Though I have just skimmed the piece, it appears very interesting and important, for it takes a new approach to unconstitutional conditions. In essence, it explores whether the federal government can cure an unconstitutional action by obtaining someone’s consent to do what it wants to do. The paper can be found at SSRN. If you have suggestions, you may email him at Columbia (his email address is listed at SSRN, if you click on his name in the abstract).

Thursday, March 10, 2011
Capitol opening delayed Thursday
Capitol opening delayed Thursday
The Wisconsin State Capitol did not open at 8 a.m. Thursday morning due to events the previous night when thousands of people entered the building after the Capitol was to have been closed for the evening and more than 200 people remained overnight.

The Capitol will not open until a law enforcement assessment of the building and today’s security requirements have been completed.

– Capitol Police

There was some discussion today about the notice provided for the legislature’s conference committee. In special session, under Senate Rule 93, no advance notice is required other than posting on the legislative bulletin board. Despite this rule, it was decided to provide a 2 hour notice by posting on the bulletin board. My staff, as a courtesy, emailed a copy of the notice to all legislative offices at 4:10, which gave the impression that the notice may have been slightly less than 2 hours. Either way, the notice appears to have satisfied the requirements of the rules and statutes.

Since the Clerk is relying on Senate Rule 93, it’s worth a look. The provision is a special rule for special sessions, which tend to be more focused in topics and more time pressured in duration. Rule 93 in part provides:

Senate Rule 93 (2)
(2) A notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published.

Senate Rule 93 (3)
(3) The daily calendar is in effect immediately upon posting on the legislative bulletin boards. The calendar need not be distributed.

Senate Rule 93 (4)
(4) Any point of order shall be decided within one hour.

On its face, this rule would seem not to require even a 2-hour notice, just posting on the bulletin board, which is how the Clerk interprets it. This is consistent with the emphasis on speed implicit in several parts of Rule 93. Yet it is possible one could instead read the rule as merely covering the method of notice, not the timing of it, but I think that reading is neither the literal one nor the intended one.

The Wisconsin Open Meetings Law [see 2D update below] has an exception for inconsistent legislative rules so that is unlikely to come into play.

BTW, the best place to follow the legislative news in Wisconsin is The Wheeler Report.

UPDATE: Barry Pump raises another issue.

2D UPDATE: Here is the relevant provision of the Wisconsin Open Meetings Law:

19.87 Legislative meetings.
This subchapter shall apply to all meetings of the senate and assembly and the committees, subcommittees and other subunits thereof, except that:

(1) Section 19.84 shall not apply to any meeting of the legislature or a subunit thereof called solely for the purpose of scheduling business before the legislative body; or adopting resolutions of which the sole purpose is scheduling business before the senate or the assembly.

(2) No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.

3D UPDATE: Some commentators have suggested that the conference committee was a joint conference committee, involving Assembly members as well Senators [and it was]. Yet the Assembly has the same language in its own Rule 93, so I don’t see how that alone would change things.

I’d have to say that the legislature could do a better job of informing people of exactly what was done and under what legal authority.

4TH UPDATE: Representative Peter Barca’s complaint is online. One issue he raised caught my eye, and I certainly have no explanation for it: The bill was taken to a joint conference committee BEFORE it was passed by the Senate, when usually it must pass both houses before being sent to conference.

5TH UPDATE: A member of the nonpartisan staff of the legislature explained the last problem for me.

Joint Rule 3 provides in part:

Joint Rule 3 (1)
(1) In all cases of disagreement between the senate and assembly on amendments, adopted by either house to a bill or joint resolution passed by the other house, a committee of conference consisting of 3 members from each house may be requested by either house, and the other house shall appoint a similar committee. At least one member from each house shall be a member of the minority party.

There are two possible readings of this provision. Under the one apparently employed by the legislature and endorsed by at least parts of its nonpartisan staff, a conference can be called without a vote in the Senate first. If the Senate has a “disagreement” (i.e., a majority of senators disagree) with an “amendment, adopted by either house” (here the Assembly), the Senate can request a conference on a bill passed by the other house (here the Assembly, which had passed Assembly Bill 11 after amending it).

Under the second possible reading, the amendment causing disagreement has to have been adopted by the house other than the one that passed the bill. Under that reading, before the Senate could request a conference, it would have had to pass an amendment to the Assembly bill, which it did not do before the request.

My guess is that the second interpretation (not the first) was intended, but the first interpretation is also consistent with the language of the rule.

The senators seem to have left in everything that was not clearly fiscal. They even left in several sections near the end that (unwisely, IMO) still have “Fiscal” headings, though they contain no taxes or increases in appropriations, e.g.:

SECTION 9221. Fiscal changes; Health Services.

SECTION 9227. Fiscal changes; Joint Committee on Finance.

SECTION 9230. Fiscal changes; Legislature.

A source in the legislature informed me last week that this approach had been proposed early on, but had been rejected as too politically risky for Republicans friendly to labor and too procedurally hard to go through both houses again, given the rancor in the assembly. From what I’ve heard from several sources (including one journalist), I’m fairly certain that it was NOT under active consideration when I floated my proposal last week.

I haven’t been able to find a copy on the bill online yet, but it appears that the senators took a fairly aggressive line in determining what was fiscal, treating even provisions that have financial impact as not fiscal. For example, the Bill passed by the Senate is reported to contain the requirement that contracts require public workers to pay at least 12%. In this, as my op-ed and article showed, they are being consistent with the very narrow definition of fiscal in the Wisconsin Constitution and the Joint Rules of the legislature.

Here is the conclusion of my SSRN paper, Super Quorums Under the Wisconsin Constitution:

Article VII, §8 of the Wisconsin Constitution requires a three-fifths quorum only for statutes that are fiscal, that is, statutes that actually appropriate money, impose taxes, create a debt, or release a claim owed to the state. Even then, these categories have consistently been interpreted in the most limited form conceivable. Indeed, the Wisconsin attorney general in 1971 gave a formal opinion to the legislature that a bill that changed collective bargaining rights substantially was not fiscal in nature and was not subject to the three-fifths super quorum provision. Because collective bargaining rights and that very statutory chapter (ch. 111) are at the heart of the proposed Senate Bill 11, the most controversial portions of the bill could be passed constitutionally with just a simple majority of elected members present, without a three-fifths quorum.

Though most of the bill’s provisions demarcated “Fiscal changes” are clearly fiscal — e.g., increasing appropriations for needy families, health care, and corrections — much of the bill is not fiscal. Even provisions that observers might reasonably assume to be fiscal are probably not fiscal under Wisconsin law, such as the rule that in the future employers can agree to pay no more than 88% of health care costs. Less clear of their constitutionality without a super quorum are provisions that legislate dollar amounts for workers to contribute for benefits over the next few months until contracts and decisions are made for future years. While these identified dollar amounts would seem to be “fiscal” in the ordinary sense of the word, they do not appear to qualify as either a tax or an appropriation. Thus, they are probably not fiscal as well.

A possible strategy thus presents itself to the Republicans. They could split the Senate Bill into two or three bills. The first bill could be as short as possible and would contain only the most central collective bargaining provisions. The second bill would contain all the rest of the bill except those few provisions that increase appropriations, impose a tax, or incur a new debt. This broad second bill would contain provisions that are probably not fiscal, but whose constitutionality was less certain.

Both of these bills could be passed with a simple majority quorum without any Democrats returning. Essentially, the Republicans would be proceeding to do the parts of their jobs that they can legally accomplish without going after or punishing the wandering senators for their absence. The third bill, containing the appropriations, taxation, and debt provisions, as well as repeating the language of the other two bills, would have to await the return of a quorum. All three bills should contain a separability clause should any part later be deemed unconstitutional by the Wisconsin Supreme Court.

One practical advantage of this tripartite strategy is that, if the first bill passes, the errant Democratic senators may decide to return. After all, they would have failed at their main goal, protecting full bargaining rights for public unions. Once the senators return, a three-fifths quorum is achieved and the omnibus budget bill can be passed. Then any administrative actions implemented in the interim could be reconsidered and reaffirmed by those administrators. That should defeat most of constitutional challenges because only effects between the passage of the first bill and the passage of the full budget bill would be subject to a plausible challenge, the rest being rendered moot going forward.

This strategy may raise other hurdles to surmount, depending on legislative rules and practices of which I am only dimly aware. A revote in the Assembly would probably be necessary, either on a new bill or on a reconciliation bill, but that vote could be taken with a simple majority for the first two (non-fiscal) bills. Also, additional language may be needed to clarify precisely which existing statutes were being modified. For either or both of these reasons, it is possible that a new referral to Senate and Assembly committees might be necessary.

Why are the Wisconsin Republicans not already taking an approach similar to the one I outline here? The first reason is that even some Republican legislators may not realize how narrow is the class of fiscal statutes and how little of the budget bill fits that narrow definition.

The second reason can be inferred only by reading between the lines of the public statements of some Wisconsin senators. Senator Jon Erpenbach, a Democrat, speculated that the Republicans might split off the main collective bargaining provision, attach it to a non-fiscal bill, and pass it without the Democrats. But the Republican majority leader, Scott Fitzgerald, assured a reporter from the Associated Press that he will not attempt to pass any part of the budget repair bill without the return of the Democrats. One cannot be sure, but this reluctance to sever the bill may be because some Republican senators are willing to vote for a budget bill overall but not for a bill that solely targets union bargaining rights.

Yet a handful of the 19 Republican senators could vote against such a bill and it would still pass by a majority of votes if they were present and the Democrats stayed away. Moreover, if voting on such a narrow bill did not appeal to some Republican senators, then a broad bill could be passed instead, including all but the taxation, appropriation, and debt provisions.

Making democracy work can be a difficult task, especially if some actors refuse to perform the duties with which they are entrusted by the people. Yet aggressive approaches that try to punish senators or protesters may backfire. The governor and the legislators who remain should do everything they can to get the business of the legislature done as they see it, with or without the Democrats. Responsible legislators might worry less about protesters and wayward senators and more about doing their own jobs. Instead of obsessing about who is not there and why one can’t do what one wants to do, those who remain should focus on the task at hand. If the Republicans believe that changes are needed to repair Wisconsin’s budget, they should enact most of those changes now.

It appears that the Republicans took the strategy suggested in the bolded passage above. It should be interesting to see what happens in the Assembly tomorrow.

UPDATE: The 2-hours notice provided for the Senate committee meeting may have been legally inadequate. As to violating rules that it sets for itself, one would want to look at the Stitt case discussed in my SSRN article and the Milwaukee Journal Sentinel case. I haven’t had a chance yet to explore this issue.

2D UPDATE: The Senate Rules provide:

Senate Rule 25 (1) (b)
(b) Except as provided in par. (d), public notice of every meeting of a committee shall be given at least 24 hours before the commencement of the meeting, unless the committee on senate organization determines that for good cause such notice is impossible or impractical. In no case may notice be provided less than 2 hours in advance of a meeting. A public notice may be amended at any time to delay the commencement of the meeting or to delete items from the agenda of the meeting.

So, did the “committee on senate organization” make such a determination? It would appear to me that the actions of the demonstrators tonight strengthen the factual case for such a determination (if one were made) — that safety concerns and a breakdown in order was reasonably feared.

BTW, the Wisconsin Open Meetings Law does not apply where it is inconsistent with a Senate Rule.

3D UPDATE: I believe that a description of the alterations to Senate Bill 11 might be here, but the description is awfully hard to follow.

4TH UPDATE: I have a new post briefly describing the substitute bill.

He argues (in part):

As Akil Amar and Neal Katyal note in a 1995 law review article, modern cases have given the arrest clause such a narrow construction as to make it a “virtual nullity.” They suggest, however, that a broader interpretation of the clause that once prevailed may be more consistent with the original understanding. Specifically, they argue that “arrest” may be “understood more functionally as extending to various civil cases that interfere with– that arrest– a person’s performance of her duties in public office.” In support of this view, they cite, among other things, an 1840 decision of the Wisconsin Supreme Court which held that the privilege should be given a “liberal construction” to ensure “the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of congress.”

Even at the time when the privilege was given its broadest reading, however, there appears to be no case or commentator suggesting that the privilege would in any way inhibit a legislature from arresting its own members. Among other things, such an interpretation would render unconstitutional longstanding rules and practices of both the U.S. House and Senate. For example, a House rule provides that in the absence of a quorum, “a majority of those present may order the Sergeant-at-Arms to send officers appointed by him to arrest those Members for whom no sufficient excuse is made and shall secure and retain their attendance.”

Moreover, applying the arrest privilege to arrest by the legislature would stand the purpose of the privilege on its head. Rather than protecting against interference by outsiders that might prevent the legislature from fulfilling its functions, or prevent individual legislators from performing their constitutional duties at a session of the legislature, it would now prevent the legislature itself from ensuring that it has a quorum to conduct its business and would empower individual legislators who wished to absent themselves from performing their duties. It would also fly directly in the face of the quorum clauses of the U.S. and Wisconsin constitutions, which authorize each house to “compel the attendance of absent members, in such manner, and under such penalties, as each house may provide.” There is simply no warrant (so to speak) for such an interpretation.

From some private correspondence I received today from him, I suspect that we may both see the main potential problem with the Wisconsin resolution as being the contempt and disorderly conduct grounds. And I tend to think that arresting senators is a bad idea politically.

I think this question must be analyzed at four levels:

1. Constitutional Protections: Would the Wisconsin Constitution’s protection against being arrested in a case – that is, a court case – apply to this situation, which is not an arrest in a court case?

2. Enforcement: Who can or would enforce a legal senate order to compel attendance?

3. Statutory Problems: Do any statutes alter any power in the senate to compel attendance?

4. Adequacy of the Resolution: Does the Senate Resolution give an adequate legal basis for compelling attendance.

In this post, I take up the constitutional question.

Reading through a couple dozen news articles and blog posts on this matter, I have been appalled at the inability of the commentators to analyze the relevant Wisconsin constitutional provisions. Because I am not an expert in these matters, it is easy for me to make mistakes, but even a cursory glance at what’s out there suggests that genuine experts have not yet weighed in sufficiently to shape the debate. One blog even posted what purports to be a legal memo from some Madison attorneys.

Typical of the news reports is this one from CNN:

But whether the contempt measure is constitutional remains unclear. The state Constitution prohibits the arrest of lawmakers while the legislature is in session, except for “treason, felony and breach of the peace.”

CNN misreads the provision in part because they quote only part of the relevant language of the Wisconsin constitution:

SECTION 15. [Exemption from arrest and civil process.] Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

The exemption from arrest is a separation of powers provision. Traditionally, legislatures could police their own miscreant legislators, but the courts could not interfere with the ability of legislators to appear in the legislature. Two hundred years ago, “arrest” was something that occurred in criminal cases and most non-contract civil cases. Thus by its express terms, the Wisconsin privilege against arrest applies only to “cases.”

In 1770 Lord Mansfield advocated for a bill that allowed Members of Parliament to be arrested for crimes but not arrested for civil cases:

Members of both houses should be free in their persons in cases of civil suits, for there may come a time when the safety and welfare of this whole empire may depend upon their attendance in Parliament. God forbid that I should advise any measure that would in future endanger the state. But this bill has no such tendency. It expressly secures the persons of members from arrest in all civil suits. [as quoted in Williamson v. United States, 207 U.S. 425, 438 (1908)]

There it is. The purpose of the privilege against being arrested in a court case was to help facilitate attendance in Parliament, not to frustrate it. The idea that Mansfield would have been preventing Parliament from enforcing its own rules by outlawing compulsion would probably not even have occurred to him. Thus compelling attendance in the Wisconsin senate is consistent, not only with the letter of the Wisconsin Constitution’s arrest clause, but with its spirit and purpose as well.

I would hope that those who rely on the arrest clause of the state constitution would deal with the fact that the privilege against arrest applies “in all cases.” These commentators might try to argue that the drafters of the Wisconsin — and by implication, US – Constitutions meant “in all instances” when they wrote “in all cases.”

As implausible as this interpretation would be in the abstract, in context it would not pass the laugh test. After all, the phrase reads: “in all cases, except treason, felony and breach of the peace.” In context, the framers’ language clearly meant court cases. If there is some reason to think that the Constitutional arrest provision doesn’t mean what it says, I haven’t encountered it yet (but then I’ve been working on this issue for only a few hours and this is out of my main areas of expertise).

Another amazing defect of the analyses I’ve encountered is that they ignore — or are unable to reconcile sensibly – the compulsory attendance provision (Article IV, §7) of the constitution:

SECTION 7. [Organization of legislature; quorum; compulsory attendance.] Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide.

Reading the two constitutional sections together, the courts can’t meddle in legislative affairs by arresting legislators in a civil court case, but each house of the legislature “may compel the attendance of absent members in such manner and under such penalties as each house may provide.” Given that force was traditionally used to compel attendance and is still used in the US Senate (which operates under similar Constitutional provisions), there would have to be a reason that I haven’t seen yet why this provision does not authorize force if necessary.

As I noted this afternoon:

Historically, constitutional guarantees against the arrest of members of legislative bodies developed as protections against judicial or executive arrests, not against the power of a house of a legislature to seize and discipline its members. Indeed, this was considered a matter of legislative privilege, and when a house of a legislature remained within its privilege, its disciplinary decisions were considered beyond the review of the courts. The Wisconsin constitutional provision on the arrest of members (Art. IV, s. 15) follows this tradition . . . .

The privilege to compel attendance is just as much a legislative privilege as the privilege not to be arrested in court cases.

Why would commentators assume that the arrest clause and compulsory attendance clause were inconsistent — and that the drafters of both the US Constitution and the Wisconsin Constitution were too sloppy to notice it and resolve the tension — and that the arrest clause trumps the compulsory attendance clause? If you just read both clauses according to the language they actually used, they are not at all inconsistent. One applies to court cases in the judicial sphere, the other to house discipline in the legislative sphere. This interpretation is consistent with their language, their purpose, their history, and their logic.

The Republicans could split the bill into three bills. The first bill should be as short as possible, containing only the most central collective-bargaining provisions. If passing this bill did not cause the walkout to collapse, a few days later the Senate could pass a second bill, containing all the rest of the bill except those few provisions that increase appropriations, impose a tax, or incur a new debt. These would be provisions that are probably not fiscal, but whose constitutionality is less certain.

The third bill would essentially be the full original bill, including the appropriations and taxation provisions as well as the language of the other two bills. Passing this would require the return of at least one Democratic senator. . . .

Why are the Wisconsin Republicans not already taking an approach similar to the one I outline here? First, even some Republican legislators may not realize how narrow is the class of “fiscal” statutes and how little of the budget bill fits into that category. The second reason can be inferred only by reading between the lines of the public statements of some of the senators. Sen. Jon Erpenbach, a Democrat, speculated that the Republicans might split off the main collective-bargaining provision, attach it to a non-fiscal bill, and pass it without the Democrats. But the Republican majority leader, Scott Fitzgerald, assured Ryan Foley of the AP that he will not attempt to pass any part of the budget-repair bill without the return of the Democrats. One cannot be sure, but this reluctance to sever the bill may be because some Republican senators are willing to vote for a budget bill overall but not for a bill that solely targets union bargaining rights.

Yet a handful of the 19 Republican senators could vote against such a bill, and it would still pass by a majority of votes if the Republicans were in the Capitol and the Democrats stayed in Illinois. Also, if voting on such a narrow bill targeting union rights did not appeal to some Republican senators, then a broad bill could be passed instead, including all but the few taxation and appropriation provisions. While that might be more politically palatable to reticent Republicans, it would somewhat raise the small probability that the statute would be held unconstitutional.

Making democracy work can be a difficult task, especially if some actors refuse to perform the duties with which they were entrusted by the people. Yet aggressive approaches that try to punish senators or protesters may backfire. The governor and the legislators who remain should do everything they can to get the business of the legislature done, with or without the Democrats. Responsible legislators should worry less about protesters and wayward senators and do their own jobs, passing the parts of the statute that don’t need Democratic support. This is not just a matter of strategy; it is a matter of principle. Instead of obsessing about who is not there and why one can’t do what one wants to do, those who remain should focus on the task at hand. If the Republicans believe that changes are needed to repair Wisconsin’s budget, they should enact most of those changes now.

There’s more at NRO and at SSRN.

Resolved, That Senators Carpenter, S. Coggs, T. Cullen, Erpenbach, Hansen, Holperin, Jauch, C. Larson, Lassa, Miller, Risser, Taylor, Vinehout, and Wirch are hereby ordered to appear at the senate chambers on or before 4:00 p.m. today, March 3, 2011, and to remain in the senate chambers until the senate is duly called to order and for such additional time as necessary to be counted as part of the quorum of that senate session; and, be it further

Resolved, That if any of the named senators fails to appear in the senate chambers on or before the prescribed time, then that member shall be held guilty of contempt and disorderly behavior by the senate, and the majority leader shall immediately issue an order to the sergeant at arms that he take any and all necessary steps, with or without force, and with or without the assistance of law enforcement officers, by warrant or other legal process, as he may deem necessary in order to bring that senator to the senate chambers so that the senate may convene with a quorum of no less than 20 senators; . . . .

AP is reporting that the majority leader has signed the contempt orders.

Historically, constitutional guarantees against the arrest of members of legislative bodies developed as protections against judicial or executive arrests, not against the power of a house of a legislature to seize and discipline its members. Indeed, this was considered a matter of legislative privilege, and when a house of a legislature remained within its privilege, its disciplinary decisions were considered beyond the review of the courts. The Wisconsin constitutional provision on the arrest of members (Art. IV, s. 15) follows this tradition, as suggested by its wording, which is that:

houses shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

The Wisconsin situation is reminiscent of a story that I relate in my SSRN piece, Super Quorums Under the Wisconsin Constitution:

[O]n the evening of February 23, 1988, Republicans in the U.S. Senate walked out during an all-night filibuster in order to deny the majority a quorum. Democratic Majority Leader Harry Byrd had arrest warrants signed for all 46 Republicans. Tipped off by a janitor that Senator Robert Packwood was hiding out in his office, at about 1:00 a.m. on February 24 the Sergeant at Arms used his passkey to unlock Packwood’s office and, with the help of several associates, push his way into the office, overcoming Packwood’s attempt to hold the door closed. Packwood agreed to walk over to the Capitol, but said he would have to be carried into the chamber. He got his wish, being carried feet first onto the floor of the Senate, aggravating an existing injury to his hand but supplying the additional body needed for a quorum.

On the floor of the Senate, Byrd spoke quietly about his decision:

Partial TRANSCRIPT of BYRD’s Comments:

This is the second time in my service in the Senate as a member of the leadership that I have felt compelled to move that the Sergeant at Arms arrest a Senator. In both instances, of course, I was reluctant to do that, sorry to do it, but I felt I had a duty to do it.

I’m not so sure that this is a wise move by the Republicans in Wisconsin.

Further, it has been interpreted extremely narrowly in the past. Indeed, there is a 1971 Opinion of the Wisconsin Attorney General that determined that a bill changing collective bargaining rights was not a fiscal statute under the constitution and did not require a three-fifths quorum. Thus the Republican senators do not need the presence of the Democrats to pass the most controversial parts of Wisconsin Senate Bill 11.

Here is the abstract:

Super Quorums under the Wisconsin Constitution

This essay takes a brief and preliminary look at the remedies available to the Wisconsin Senate to enact its 2011 proposed budget legislation without Democratic senators who fled the state in February 2011. Article VII, §8 of the Wisconsin Constitution requires a three-fifths quorum only for statutes that are fiscal, that is, statutes that actually appropriate money, impose taxes, create a debt, or release a claim owed to the state. Even then, these categories have consistently been interpreted in the most limited form conceivable.

For example, in State v. Stitt (1983), the Wisconsin Supreme Court determined that the issuance of short-term debt was not debt under Article VIII of the constitution and thus was not “fiscal” so as to trigger the three-fifths quorum and roll call requirements.

The Wisconsin attorney general in 1971 gave a formal opinion to the legislature that a bill that changed collective bargaining rights substantially was not fiscal in nature and was not subject to the three-fifths super quorum provision. Because collective bargaining rights and that very statutory chapter (ch. 111) are at the heart of the proposed Senate Bill 11, the most controversial portions of the bill could be passed constitutionally with just a simple majority of elected members present, without a three-fifths quorum.

Though some provisions in Senate Bill 11 are clearly fiscal – e.g., increasing appropriations for needy families, health care, and corrections – much of the bill is not fiscal. Even provisions that observers might reasonably assume to be fiscal are probably not fiscal under Wisconsin law, such as the rule that in the future employers can agree to pay no more than 88% of health care costs.

Because much of Senate Bill 11 is not subject to the three-fifths quorum, these portions could be separated from the rest of the bill and passed by majority vote in the presence of a simple majority of the elected Senators. With Republicans holding 19 of the Wisconsin Senate’s 33 seats, Republicans thus constitute a quorum to pass much of Senate Bill 11 without any Democratic Senators present or voting. The rest of the bill would have to await the return of the wandering Senators and the return of a three-fifths quorum.

Unless things change today, I will probably have an op-ed on this issue online within the next few hours.

UPDATE:

My op-ed on this issue is up at NRO.

In recent prior election cycles (2000, 2004, 2008), at this point before the elections each party had at least two candidates with double-digit positives — but not the Republicans this year.

Ironically, I think that several possible Republican candidates have views and talents that might make them better than average presidents, but I see no one who as yet looks to be a better than average candidate to win the presidency.

Among those not in Silver’s analysis, I like Chris Christie, but he has been very emphatic that he is not a candidate: “Short of suicide, I don’t really know what I’d have to do to convince you people that I’m not running. I’m not running!”

If the economy continues to improve (as I think it will), I think that President Obama will be hard to beat.

The majority of citizens in the United States of America have never read the United States of America’s Constitution.

You don’t have to accept the federalist laws.

Nonetheless, read the United States of America’s Constitution to apprehend all of the current treasonous laws.

Two screens later, he returns to the same territory by way of summary:

In conclusion, reading the second United States constitution I can’t trust the current government because of the ratifications: the government is implying mind control and brainwash on the people by controlling grammar.

Some commentators have feverishly concocted an elaborate argument involving white supremacists, all without the slightest of evidence to support their speculations. To be fair, in trying to understand much of Loughner’s semi-incoherent writings, speculations are often needed (for example, I wonder if he often substituted one word for a similar sounding one that would be more idiomatic, such as “ratifications” for “ramifications”).

In this case, however, we don’t need to assume that when Loughner refers to “the second United States constitution” he means anything more than the second constitution of the United States — the 1787 Constitution that is now in force.

In traditional parlance, the first constitution of the United States was “The Articles of Confederation and Perpetual Union.” The second US constitution is the 1787 “Constitution for the United States” or “United States Constitution.”

There is an academic debate about whether the founding document of a confederation is a true constitution or more like a treaty, but as the title to the Articles suggests, that document was intended to create an unusually strong confederation, a “Perpetual Union.” In any event, one very standard view is to see the Articles as the first constitution of the United States and the current 1787 Constitution as the second constitution of the United States.

If you Google the phrase “what was the first constitution of the United States,” I think you will quickly see what Loughner was talking about.

Note also that when Loughner refers to “the United States of America’s Constitution,” he capitalizes it, but when he refers to “the second United States constitution,” he doesn’t capitalize constitution. That’s exactly what online pedants suggest:

Q142. “What was the first constitution of the United States?”

A. . . . If the question says “What was the first Constitution of the United States?” (note the capital C), then the answer is that there has been one and only one Constitution of the United States, and it is the same one currently in effect.

If, however, the question is posed as above, with “constitution” spelled with a lowercase C, then the answer is more tricky. The Articles of Confederation would qualify as the first constitution of the United States, where a constitution is defined as the most basic document of the law.

Moreover, Loughner’s reference to reading the “second constitution” seems to be a summary of his earlier account of reading the “United States of America’s Constitution,” another hint that he is talking about reading the same document, the current 1787 Constitution.

Further, Loughner’s reading of that current Constitution causes him to think that many of the current federal laws are treasonous and reflect government mind control, which are extreme versions of the views of some of those who most influenced his political views.

Stay tuned for more on who Loughner’s major intellectual influences are.

On July 7, 2010, Loughner posted his assertion that the war(s) in Iraq and Afghanistan “is a war crime from the Geneva Convention articles of 1949”:

There was help with cleaning the uranium from the Iran and Iraq war in the 1980′s?

Article 33 of the Geneva Convention is the prohibit of pillage.

All military invasions with armed forces into a foreign country are war crimes in the Geneva Convention articles of 1949.

The Iraq and Afghanistan war of 2010 is a military invasion with armed forces into a foreign country.

Therefore, Iraq and Afghanistan war of 2010 is a war crime from the Geneva Convention articles of 1949.

Ouch! For the thoughts of war.

In a thread on unemployment, Loughner quotes with seeming approval, portions of The Universal Declaration of Human Rights asserting “the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity” and “the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care.”

And then there are his frequent attacks on religion and Christianity, e.g.:

Crap on God!
Crap on God!
Crap on God!

Talk to the toilet seat for a hour.

Of course, many responsible people think that the current wars are a “war crime.” Perhaps the majority of the world believes that the state owes people health care and a good standard of living. And at least a couple of the bloggers on this site are atheists (including myself). But these views are much more common on the left than on the right, as is the belief that 9/11 was an inside job.

From reading through page after page of Jared Lee Loughner’s rantings, I see no evidence that he has changed from the left winger that he was in 2007. Indeed, less than six months ago, he was calling the Iraq and Afghan Wars “war crimes” under the Geneva Convention.

My hope in exploring Loughner’s politics is to take the political argument off the table, not to turn it around. Unfortunately, I think that the likeliest way to get some people to back off their hateful and inflammatory rhetoric — blaming people who are not at fault — is if the people doing the finger pointing begin to realize that Loughner was more probably a mentally deranged left winger than a mentally deranged right winger. In either event, the derangement, not his political orientation, is the proximate and ultimate cause of his mass murders.

On Tuesday or Wednesday I will explore other probable sources of Loughner’s ideas, including his interest in brainwashing, new currencies, and flag-burning.

On the issue of Loughner’s politics, so far one person claiming to have been a friend of Loughner’s has come forward. Her Twitter account is under the name Caitie Parker. She begins by retweeting other people’s comments blaming Sarah Palin:

• democracynow RT @felixsalmon Sarah Palin *literally* put a gun sight on @Rep_Giffords. See Palin’s map: http://bit.ly/fLwY2g about 2 hours ago via TweetDeck Retweeted by caitieparker and 100+ others
• tcmassie Rep. Giffords was on #Palin’s infamous “target” map: http://usat.ly/e4NSjp Today she was shot in Tuscon. What is the US turning into? #p2 about 3 hours ago via web Retweeted by caitieparker and 100+ others

Then she finds out the gunman’s name and reveals that she was in a band with him and attended high school and college with him. Parker reports that (in 2007 at least) Loughner was a “political radical” and “was left wing, quite liberal. & oddly obsessed with the 2012 prophecy.”

• Saying Jared Laughner was the gunman. Really hoping that’s not the same guy I went to HS with, really good friend. Freaking out right now!!! about 1 hour ago via Twitter for iPhone
• Official I went to high school & college, & was in a band w/ the gunman. I can’t even fathom this right now. about 1 hour ago via Twitter for iPhone
• I went to high school, college, & was in a band with the gunman. This tragedy has just turned to horrific. 43 minutes ago via Twitter for iPhone in reply to antderosa
• I can. That is him. 39 minutes ago via Twitter for iPhone in reply to antderosa
• He was a political radical & met Giffords once before in ’07, asked her a question & he told me she was “stupid & unintelligent” 37 minutes ago via Twitter for iPhone in reply to antderosa
• he was a pot head & into rock like Hendrix,The Doors, Anti-Flag. I haven’t seen him in person since ’07 in a sign language class 35 minutes ago via Twitter for iPhone in reply to antderosa
• As I knew him he was left wing, quite liberal. & oddly obsessed with the 2012 prophecy. 33 minutes ago via Twitter for iPhone
• he had a lot of friends until he got alcohol poisoning in ’06, & dropped out of school. Mainly loner very philosophical. 29 minutes ago via Twitter for iPhone in reply to antderosa
• more left. I haven’t seen him since ’07 though. He became very reclusive. 27 minutes ago via Twitter for iPhone in reply to noboa
• I haven’t seen him since ’07. Then, he was left wing. 25 minutes ago via Twitter for iPhone in reply to lakarune
• it’s loughner just checked my year book. less than 20 seconds ago via Twitter for iPhone in reply to antderosa
• This is a circus. Good Morning America just called me. less than 5 seconds ago via Twitter for iPhone

Three things to note:

1. Parker doesn’t claim to know Loughner’s current politics, only those circa 2007.

2. Given the vagaries of the internet and social media, things may not be what they appear to be.

3. Again, whatever Loughner’s politics, his probable mental state and mental problems are likely to be both the proximate and the ultimate cause of his actions, not any political orientation he might have.

The video references “District 8,” but not Arizona. (Congresswoman Giffords represents Arizona’s 8th District.) On its face, the video seems somewhat paranoid, and the mentions of “English grammar” may hint at an anti-immigration orientation.

At this early stage, one must be aware that this Jared Lee Loughner may be a different person than the “Jared Laughner” who has been reported as being in custody. And given the internet, the video may even have been posted by someone using Loughner’s name.

UPDATE: The Huffington Post has reached the same conclusion and describes Loughner’s MySpace page.

“Trickle Up Economics”


UPDATE: Here is the San Francisco Fed’s study, suggesting about a 0.4% increase in the unemployment rate because of extending benefits for up to a total of 99 weeks. It also documents the huge increase in the percentage of long-term unemployed in the recent recession and its aftermath.

Typically, a Democratic majority in the House of Representatives has been bad for the stock market and the economy and Republican control has been good (in the past, I have run, but not published, the numbers back to 1854). The reverse is generally true for the presidency [a Democratic president is good and a Republican president is bad, though the effects are not as consistent as for the House and their sizes depend in part on how far back in time one goes and whether one treats the market as anticipating or lagging presidential turnover].

There have been two switches from Democratic to Republican control of the House since 1950: in the 1994 election and in the 1952 election.

Cumulative returns in the S&P 500 over the two years following the 1994 Republican takeover (1995–96) were 69.8%. (The three-year returns for 1995–97 were a staggering 127.0% [+38%,+23%,+33%].)

Cumulative returns in the S&P 500 over the two years following the 1952 takeover (1953–54) were 54.7%. (The three year returns for 1953–55 were 98.4% [-1%,+56%,+28%], but the Democrats retook the House in the 1954 election.)

Indeed, the best year for the S&P 500 since World War II was 1954 (56.0%), the second year after a Republican takeover of the House. The best year since 1976 was 1995 (38.5%), the year after the last Republican takeover of the House.

So will we get a huge stock market increase this time, as we have the last two times that Republicans have taken the House? Maybe, maybe not. . . .

Ironically, if the Republicans retake the House and the stock market booms as it did after the 1952 and 1994 takeovers, such a strong recovery would greatly increase President Obama’s chances of being re-elected.

So what do I think about the stock market? At the moment at least, I am fully invested in US and foreign stocks and mutual funds — and I hope to remain so over most of the next two years, at least if the Republicans take the House and there are no major new pieces of economy-destroying legislation or EPA regulations.

The first leg of this process has worked out, though I recognize that it might be just a coincidence. The Republicans took the House of Representatives on Tuesday and the S&P 500 is up 10% since September 9 and 16% since the end of August. The stock market this fall had the best September since 1939 (when the European stage of World War II began and, presumably, European money flowed into the safe haven of the US). Small caps had their best September-October run since 1982, the beginning of one of the greatest bull markets in history:

Small cap’s gains in September and October have been the best since 1982 and bode well for an end-of-the-year rally, in the estimation of Bank of America Merrill Lynch. (In the previous five-best September/October stretches of performance, small caps averaged 8.2% in November and December.

For those curious about what happened in the weeks after the 1952 and 1994 takeovers, in 1952 the market moved up sharply for the rest of 1952 before stalling out when the Korean War news weighed heavily on the market. The market bottomed in September 1953 (the Armistice was signed at the end of July) and then exploded to start a huge 2-year expansion. The three-year S&P 500 returns for 1953–55 were 98.4% (-1%,+56%,+28%).

In 1994, the market dropped in November, followed by 8 straight months of very strong stock market gains. The three-year returns for 1995–97 were 127.0% (+38%,+23%,+33%).

I remain very bullish on the stock market, as I was in early September. If quantitative easing (which I think is a bad idea) does indeed weaken the dollar, as Bill Gross has warned that it might, foreign and emerging stocks may be a better place to be than US stocks. I don’t think that cash or Treasury bills are safe against inflation and currency risks. [In other words, the likelihood that you will lose money (measured by purchasing power) in money market or safe fixed investments is very high compared to investing in the stock market, though the chance that you will lose a lot of money, e.g., 30-50%, is higher in the stock market.] If the US government were smart, it wouldn’t be buying US government debt (as the Federal Reserve is doing), but rather it would be locking in today’s low interest rates for generations to come by issuing lots of 30-, 50-, and 100-year bonds, thus making our huge debt less costly for future generations.

If the stock market continues to boom, I would expect the economy to start growing strongly in the spring and the job prospects for our students to improve somewhat by next summer.

For the caveats to this stock market analysis and the very good reasons why I might be wrong, see my September 9 post.

On this, I reprint part of an old post from 2005:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

James —

The special interests in Washington are not happy, and it’s because of something you did.

Since President Obama moved into the White House, this movement has stripped them of their influence, proving we could take on the lobbyists and corporate cash with good, old-fashioned organizing.

Now these groups are vowing to get payback in the fall elections — and they have put all their chips on one man: Congressman John Boehner.

Third-party organizations have already spent millions to help Republicans take over the House and make him Speaker — and you can bet there are millions more to come in the form of nasty TV ads and shadowy robo-calls before November.

Here’s how we fight back: the largest-scale voter turnout effort this party has ever assembled in an election like this.

Another grassroots supporter has promised to match, dollar for dollar, whatever you can chip in today. These matched donations add up fast — and right now there are 3,211 donations across the country waiting to be doubled.

Don’t leave this money on the table — donate $5 or more today and double your impact.

It’s easy to see why these special interests picked John Boehner. This is a guy who first made national news 14 years ago when he was caught handing out checks from tobacco lobbyists on the House floor.

John Boehner said he did nothing wrong — he was simply helping out his lobbyist friends.

And, in all of the fights we’ve waged together these past 20 months, he’s been these special interests’ right-hand man.

He teamed up with financial lobbyists to do everything he could to stall Wall Street reform and even took time before the vote on health reform to scream “Hell no!” over and over again from the podium.

If John Boehner is handed the Speaker’s gavel, all that is wrong with Washington is back in business. Their plans are simple — unravel what this movement has done and stand in the way of the rest of President Obama’s agenda. Some Republican leaders have even threatened to shut down the government to get their way — a heartless move that would hold Social Security checks hostage and shut down veterans’ hospitals across the country.

With just 48 days to go until the election, this movement is the only thing standing in John Boehner’s way.

Take advantage of this opportunity to piggy-back on another grassroots supporter’s promise. Help fund our effort to fight back against Republicans and keep America moving forward.

Chip in $5 today to get your donation doubled:

https://donate.barackobama.com/Match2010

Thanks,

Mitch

Mitch Stewart
Director
Organizing for America

The Alinskyite attempt to freeze and demonize John Boehner was recently furthered by the New York Times. Is the Times doing what it did in 2008 and doing an unfair lobbyist hit story on a Republican leader, or does Boehner really have closer ties to lobbyists than Speaker Nancy Pelosi? I don’t know much about Boehner, but I was impressed with his speech before the House as they were passing the Cap & Trade bill (which so far has stalled in the Senate).

BTW, Bolehner has responded to the Times.

While the Democratic attack on Boehner may or may not work this year, contrary to some Republican commentary, such attacks CAN work. I remember 1995-96, when Dick Morris’s campaign on behalf of Bill Clinton against Newt Gingrich destroyed Gingrich’s credibility, an attack from which Gingrich has still not fully recovered.

Typically, a Democratic majority in the House of Representatives has been bad for the stock market and the economy and Republican control has been good (in the past, I have run, but not published, the numbers back to 1854). The reverse is generally true for the presidency.

There have been two switches from Democratic to Republican control of the House since 1950: in the 1994 election and in the 1952 election.

Cumulative returns in the S&P 500 over the two years following the 1994 Republican takeover (1995-96) were 69.8%. (The three-year returns for 1995-97 were a staggering 127.0% [+38%,+23%,+33%].)

Cumulative returns in the S&P 500 over the two years following the 1952 takeover (1953-54) were 54.7%. (The three year returns for 1953-55 were 98.4% [-1%,+56%,+28%], but the Democrats retook the House in the 1954 election.)

Indeed, the best year for the S&P 500 since World War II was 1954 (56.0%), the second year after a Republican takeover of the House. The best year since 1976 was 1995 (38.5%), the year after the last Republican takeover of the House.

So will we get a huge stock market increase this time, as we have the last two times that Republicans have taken the House? Maybe, maybe not.

If the Republicans take the House, why might we get a strong stock market?

(1) an end to disastrous new government efforts to stimulate the economy (or at least a significant slow down in such wealth-destroying efforts);

(2) a probable reduction in regulatory uncertainty; and

(3) a reduction in the odds for increased taxes (beyond the expiration of the Bush Tax cuts for those making over $250,000).

A strong stock market and a reduction in regulatory uncertainty would likely lead to robust economic growth — and eventually strong job growth. That would make the world a lot better for our students and our children.

I don’t expect that good economic policy will suddenly start coming out of Washington in 2011, but I do hope that the policies will not get increasingly worse, month by month. Though we will never know, I believe that, if the Federal Reserve and the Bush and Obama Administrations had done little else than lower interest rates, provide liquidity, and temporarily guarantee money market funds, we would have had a brief, sharp recession, followed already by robust GDP growth.

So why might this optimistic 2011-2013 scenario not happen?

(1) the Republicans might not retake the House (the number of pick-ups needed is exceedingly large);

(2) the Republicans might act like the Democrats once they regain control, as they mostly did the last time they held sway;

(3) significant tax rate increases are already scheduled for 2011;

(4) because of tax increases, economic activity may have already been shifted from 2011 to 2010;

(5) a new carbon cap or tax may be imposed either by a lame duck Congress or by the EPA;

(6) regulatory uncertainties persist, especially over health care;

(7) two events (1952, 1994) are not enough to define an effect, especially since if one goes back further in time, this effect is not present. (The two-year returns following prior Republican takeovers of the House averaged just 5.6%.); and

(8) there were special circumstances in the 1953-55 period (end of the Korean War, worldwide post-WW2 boom) and in the 1995-97 period (computer revolution; end of the Cold War and expansion of economic freedom).

Ironically, if the Republicans retake the House and the stock market booms as it did after the 1952 and 1994 takeovers, such a strong recovery would greatly increase President Obama’s chances of being re-elected.

So what do I think about the stock market? At the moment at least, I am fully invested in US and foreign stocks and mutual funds — and I hope to remain so over most of the next two years, at least if the Republicans take the House and there are no major new pieces of economy-destroying legislation or EPA regulations.

Funny or Die has an excerpt from the upcoming film (after a particularly loud and annoying ad from Minyanville):

Orin writes:

As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about). . . .

Given that this apparently was . . . only sent to people who voluntarily signed up to receive such things, I have trouble understanding why Jim sees it as “emulating the trappings” of a dictatorship.

In neither post did I state or imply that I had signed up to be on the Obama campaign’s email list. While working on a post for the Volokh Conspiracy, as part of my due diligence I had emailed the Obama campaign with specific questions about Obama’s position on what I was writing about. I never signed up to be on any Obama related email list. Nor did I present myself as a supporter in my email to the campaign.

If my experience can be generalized–and maybe it can’t–this Obama email list is comprised of people who contacted the campaign in any capacity, not just supporters. It is certainly not just for people who signed up to be on a list.

Orin is mistaken on the factual basis for his opinion.

Would having the facts right change his opinion? Frankly, I don’t know.

SUBJECT: Will you sign Barack’s birthday card, James?

James –

Every year, our family tries to come up with a fun way to wish Barack a happy birthday.

And this August 4th, when he turns 49, I have something new in mind.

This has been a big — and hectic — year for him. After signing the Affordable Care Act and Wall Street reform into law — and completing his first year as president — I think it’s safe to say we will remember it for a long time.

And I know full well how much he credits this movement, and the work of supporters like you, for the change that we’ve accomplished.

So I’m putting together a birthday card that I would like you to sign. Together with other Organizing for America supporters — and me, Malia, Sasha, and Bo — we’ll wish him a happy birthday and let him know that we’re ready to take on the year ahead alongside him.

Will you wish Barack a happy birthday with me?

This year also brought a lot of surprises — some good and some bad.

Supporters like you have helped him make the best of it — by contacting Congress to help push stalled legislation forward, by re-engaging supporters in the political process, by giving back with service projects across the country, and so much more.

And while we can’t know what the coming year will bring, all of us, working together, will continue pushing forward for change.

Will you help make this a memorable birthday for Barack and wish him a happy 49th?

http://my.barackobama.com/birthday

Thanks so much,

Michelle Obama

I find it hard to say precisely why I find this email a bit creepy. At one level this seems innocuous enough–and it is definitely not a big thing.

At another level, asking millions of Americans to sign a birthday card for the President suggests a tone-deafness about the cult of personality. If we lived in a dictatorship, getting millions of subjects to celebrate the Dear Leader’s birthday would be routine, but in a free republic this appeal to get millions of citizens to celebrate a current president’s birthday strikes a discordant note to my ear.

No, I am not saying we are in a dictatorship; I am saying that because we are not, we should not be emulating the trappings characteristic of that fundamentally different sort of regime. Nor do I think this is particularly ominous, just a very small step in the wrong direction.

Last, it seems strange for Michelle Obama to be trying to get us to sign Barack’s birthday card when she is scheduled to be in Spain with [at least one of] her daughters during the President’s birthday.

UPDATE: In a subsequent post, Orin Kerr expresses his opinion that he does not find this email even “a bit creepy.” While certainly entitled to his own opinion, he is not entitled to his own facts. Orin writes:

As far as I can tell, Jim received this e-mail because he signed up to be on the Obama campaign’s e-mail list (as was the case with this prior e-mail he blogged about).

In neither post did I state or imply that I had signed up to be on the Obama campaign’s email list. While working on a post for the Volokh Conspiracy, as part of my due diligence, I had emailed the Obama campaign with specific questions about Obama’s position on what I was writing about. I never signed up to be on any Obama related email list. Nor did I present myself as a supporter in my email to the campaign.

If my experience can be generalized–and maybe it can’t–this Obama email list is comprised of people who contacted the campaign in any capacity, not just supporters. It is certainly not just for people who signed up to be on a list.

Orin is mistaken on the factual basis for his opinion.

Jared Bernstein (Politico photo)

Jared Bernstein, chief economist for Vice President Joseph Biden, served in 2008 as an economic adviser to the Obama campaign. At the same time, he was a member of JournoList, the controversial progressive email list.

Bernstein’s bio at Politico, which appears not to have been updated since 2008, states: “He is an economic adviser to the Obama campaign.”

He was known to many for his regular appearances on the financial channel CNBC. His primary employer in 2008 was the Economic Policy Institute, a pro-labor progressive think tank, but according to his bio when appointed to the Obama-Biden Administration, he also was a member of the Panel of Economic Advisers of the Congressional Budget Office.

Reached today at the Office of the Vice President, Bernstein revealed that his position with the Obama campaign was as something called a “surrogate.” “I was not paid by the campaign,” he explained. “They would call me from time to time to represent their positions, that side of the debate.”

Asked when he left JournoList, Bernstein replied, ‘‘I think I left the list around the time I came here.” Bernstein was announced as Chief Economist and Economic Policy Adviser to the Vice President-elect on December 8, 2008.

One question that has arisen in the last week is how closely JournoList members, not only discussed how to shape the news to advance the fortunes of Barack Obama, but coordinated with the Obama campaign. Jared Bernstein’s position as an unpaid adviser and surrogate shows that there was at least one direct link between JournoList and the Obama campaign.

Bernstein’s serving on the Economic Advisory Panel of the CBO is less worrisome, though it appears to violate Ezra Klein’s first rule for JournoList:

At the beginning, I set two rules for the membership. The first was the easy one: No one who worked for the government in any capacity could join.

It would appear that Bernstein’s presence on the list violated Klein’s first rule, since he met the test of working “for the government in any capacity.”

Yet note Klein’s careful wording here. People who worked for the government in any capacity couldn’t join, but could they stay on the list if they took a government job after joining?

Were there other campaign advisers or part-time government officials who participated on JournoList?

UPDATE: Here is an example of Bernstein’s humorous political writing at the Huffington Post.

2D UPDATE: I have an anonymous source who has shown me an email thread that appears to be from JournoList. From his search of the JournoList archives, he believes that Bernstein’s last direct email to the list was on December 5, 2008, a charming farewell sent 3 days before he was introduced as Biden’s chief economist. Indeed, months later there were several emails to the list from members who wondered how to contact Bernstein.

I hope to have a lot more in the next few days.

Defenders of J-List have argued that the Daily Caller (DC) is taking quotations out of context. That is certainly possible. For that reason, it would be better if the DC (or one of the J-Listers complaining about the DC) released an entire thread or an entire day or two of posts so that we can get a better sense of the broader context.

Nonetheless, without the broader context, the quotes and characterizations appear to be worrisome:

Daniel Levy of the Century Foundation noted that Obama’s “non-official campaign” would need to work hard to discredit Palin. “This seems to me like an occasion when the non-official campaign has a big role to play in defining Palin, shaping the terms of the conversation and saying things that the official [Obama] campaign shouldn’t say – very hard-hitting stuff, including some of the things that people have been noting here – scare people about having this woefully inexperienced, no foreign policy/national security/right-wing christia wing-nut a heartbeat away …… bang away at McCain’s age making this unusually significant …. I think people should be replicating some of the not-so-pleasant viral email campaigns that were used against [Obama].” . . .

Chris Hayes of the Nation wrote in with words of encouragement, and to ask for more talking points. “Keep the ideas coming! Have to go on TV to talk about this in a few min and need all the help I can get,” Hayes wrote.

Suzanne Nossel, chief of operations for Human Rights Watch, added a novel take: “I think it is and can be spun as a profoundly sexist pick. Women should feel umbrage at the idea that their votes can be attracted just by putting a woman, any woman, on the ticket no matter her qualifications or views.”

Mother Jones’s Stein loved the idea. “That’s excellent! If enough people – people on this list? – write that the pick is sexist, you’ll have the networks debating it for days. And that negates the SINGLE thing Palin brings to the ticket,” he wrote. . . .

Time’s Joe Klein then linked to his own piece, parts of which he acknowledged came from strategy sessions on Journolist. “Here’s my attempt to incorporate the accumulated wisdom of this august list-serve community,” he wrote. And indeed Klein’s article contained arguments developed by his fellow Journolisters.

I wonder whether JournoList was behind several brief, but intense, herd political attacks on CNBC personnel that at different times seemed to come out of the blue (on Jim Cramer, Erin Burnett, and Rick Santelli). They each struck me as odd at the time, especially because I suspect that Cramer and Burnett were only a few months past voting for Obama.

The Daily Caller has yet another JournoList thread up on its website. Members are expressing their strong emotions and expectations for the future on the day Barack Obama was elected president.

Though some of the comments on Nov. 3 and 4 look a bit silly in retrospect, it really was a big deal that this country elected an African-American president. Indeed, besides having a smarter president who was capable of delivering a great speech, the chief benefits I saw at the time were that (1) Obama’s election proved that this country’s views on race had improved markedly, and (2) it was reasonable to hope that Obama would usher in a new, post-racial era.

So I don’t find most of the early gushing comments in the JournoList thread at all out-of-line. But there was one by Spencer Ackerman that jumped off the page. Adam Serwer of the American Prospect had posted a link to an article he had just written on the historic nature of Obama’s election. Ackerman’s response:

Goddamn, did an Obama speechwriter ghost that post? That’s pitch-perfect, Adam. Take a bow.

Just imagine: here’s a journalist who thinks it’s a GOOD THING for another journalist to have written an editorial that read as if it were ghost-written by an Obama speechwriter.

[As the win sinks in, on Nov. 7 the Journolist comments turn nasty. Ackerman again:

Let’s just throw Ledeen against a wall. Or, pace Dr. Alterman, throw him through a plate glass window. I’ll bet a little spot of violence would shut him right the fuck up, as with most bullies.

And Eric Alterman, who is described as the author of "What Liberal Media?" writes:

Fucking Nascar retards]

This brings up a problem with tarring participants in JournoList with the opinions of its kookier members. Is everyone who has ever posted a comment on a website responsible for the least responsible comments made on those sites: think of the range of comments at Democratic Underground, Free Republic or Daily Kos — or even Althouse or the Volokh Conspiracy?

When reading further revelations from JournoList, one must be careful not to attribute the opinions of one individual to another — I would hope that a majority of JournoList members would not think Ackerman’s comment to be a compliment — though it would often be fair to characterize the general drift of the comments in a thread.

2. Nate Silver’s Life on J-List.

Nate Silver has a post on 538 (tip to Instapundit and Legal Insurrection) that reviews what he considers the two most questionable comments he made on JournoList. Both strike me as unobjectionable, but judge for yourself.

Obviously, Silver is enormously talented (which everyone should already know). But I for one really appreciate his taking this JournoList issue seriously and wanting to explain his posted comments that he thinks that some might consider conspiratorial or inappropriate (I don’t).

Kudos to Silver.

UPDATE: In the hour after posting I made a few small changes in the early text and added the second Ackerman quote and the Alterman quote.

2D UPDATE: Emphasizing my point about not attributing the views of one JournoLister to another, Jonathan Chait writes of Ackerman: “Ackerman was in the habit of writing wild, bombastic things that people usually didn’t feel like responding to.”