The Volokh Conspiracy

When it’s pushed by the Republican leadership, is located in a politically important state, and is carefully written to avoid the official definition of an “earmark.” (HT: Instapundit)

Yesterday Common Cause and several members of Congress filed suit to challenge the constitutionality of the filibuster. According to various reports, the suit is largely based upon the theory outliend in this article by litigator Emmet Bondurant, which maintains that the filibuster is a historical accident and violates the constitutional principle of majority rule. Where the Framers wanted a super-majority requirement for legislative action, they wrote such requirements into the Constitution. Further, Bondurant argues, the filibuster is entrenched in the Senate rules and must therefore be challenged in court.

Ezra Klein thinks Bondurant makes a “strong case.” I don’t, and I don’t think this suit will go anywhere. The first obstacle is standing. The failure of the Senate to pass a bill is not a legally cognizable injury, even if that bill appears to have majority support. The second obstacle is the political question doctrine. This obstacle is particularly large given that the Constitution expressly gives each house of Congress the power to set its own rules, so there is a textual commitment of this question to a coordinate branch. All of the cases upon which Bondurant relies to establish justiciability involved challenges to legislation or other acts that passed Congress and altered pre-existing rights and obligations, so they offer little support for Common Cause’s claims. Even were a court to get beyond these justiciability concerns, the suit would likely fail on the merits. If the Constitution authorizes the Senate to set its own rules, there’s no reason why the Senate cannot opt to include supermajority rules in its procedures.

The problems with this legal challenge are further magnified by Common Cause’s decision to challenge the use of the filibuster to block substantive legislation. The argument that the use of filibusters violates some unstated-albeit-enforceable constitutional norm is stronger with regard to items on the executive calendar (such as nominations) than it is with legislation. One could argue that the Senate’s obligation to “advise and consent” presumes an obligation to act — specifically, an obligation to hold an up-or-down vote — and that the filibuster prevents the Senate from fulfilling this duty. It is much harder to argue that the Senate must hold follow rules that allow for substantive votes on legislation. While it’s likely a challenge to nomination filibusters would also be found non-justiciable, it is more plausible than the claim Common Cause filed.

I’m sympathetic to the view that the filibuster is overused, particularly for nominations, but quite skeptical of any lawsuit claiming the filibuster is unconstitutional.

UPDATE: Common Cause’s Bob Edgar explains the suit here. Ian Millhiser likes the argument but doesn’t think the suit is justiciable. Gergory Koger is more circumspect.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

On Sunday, I noted John Berlau and David Bier’s concerns that the STOCK Act sweeps to broadly and could inhibit whistleblowing, and Professor Bainbridge’s thorough response.   Now Berlau and Bier’s colleague, Ryan Radia, has joined the fray, arguing in Berlau and Bier have valid concerns.  In his sur-reply, Professor Bainbridge explains why he’s still unconvinced, and why legislative reform to restrain insider trading on Capitol Hill remains a good idea.

Congress appears poised to enact the Stop Trading on Congressional Knowledge (STOCK) Act to expressly extend the prohibition on insider trading to members of Congress and their staff.  Some argued that insider trading on Capitol Hill was already illegal, but the STOCK Act would make this explicit.  Both the House and Senate have passed versions of the STOCK Act that are to be reconciled in conference for final passage.

As the STOCK Act has progressed, some have raised concerns about how it might apply to particular activities, such as  political intelligence (more here).  On NRO, John Berlau and David Bier raised concerns that the STOCK Act could inhibit whistleblowing.  As written, Berlau and Bier fear either bill “would muzzle the communication necessary for sunlight and reform.”

Professor Bainbridge, who’s written more on Congressional insider trading than anyone (e.g. here and here), believes these concerns are unfounded because existing law already applies to Congressional staff and Whistle-blowing activity does not constitute illegal tipping.

Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification.”

Thus, “Originalist argument is an artifact designed to recall the Constitution’s origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite.” So, argues Koppelman, the fact that originalists differ among themselves in many important details about what “originalism” really is, is not a fatal flaw. Simiilarly, there are many different things called “aspirin” (e.g., Excedrin, generic products, St. Joseph’s children’s aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.

I do want to quibble, though, with one particular legal history claim that Koppelman makes: “Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers’ specific intention to permit school segregation and miscegenation laws.”  Michael McConnell and Randy Barnett have written on the school segregation issue, but I’d like to add something on miscegenation. I don’t think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.

We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . .”

Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority’s dicta). In 1872, the Alabama Supreme Court ruled that the state’s 1866 constitutional ban on miscegenation  violated the “cardinal principle” of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: “Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it.”

That same year, the Texas Supreme Court unanimously ruled that  the “the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States.” Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe’s book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.

It was the Indiana Supreme Court  that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is  ”more than a mere civil contract”; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial  mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).

I don’t find the Indiana court’s 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was “status” and not “contract,” and was therefore not covered by the Civil Rights Act: “Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs.” Frasher v. State, 3 Tex. App. 263 (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine’s great 1861 book Ancient Law: “we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.” Maine’s book elaborates in great detail why marriage law fits this paradigm.)

By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a “a badge of inferiority,” that is “solely because the colored race chooses to put that construction upon it”) , was also lazily ignorant of legal history: “Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state.” The sole citation for this allegedly “universal” recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.

Although the late Professor Pascoe’s book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe’s book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as “the Great White Hope”) notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to “the Mongolian or Malay races” applied to Filipinos); the NAACP’s political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment  free exercise of religion, rather than a categorical attack on all racial discrimination).

Justice Carter’s concurrence in Perez is a good illustration of the main thesis of Koppelman’s post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our “tradition is a living thing,” in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent’s collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler’s Mein Kampf. Justice Carter continued: “To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal.” And so, “In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as ‘Reason in any part of the World besides.’”

In several recent postings (here and here, for example) I called on all interested persons to come to the Internet’s defense against a spate of truly dreadful bills now making their way through Congress (the “Protect IP Act” and SOPA, the “Stop Online Piracy Act”). Larry Downes, always a thoughtful voice on tech matters, has an interesting piece in Forbes about the rather astonishing outcry that the bills have engendered. As someone who’s been doing Internet law for almost 20 years, I can’t remember any issue galvanizing public opinion in quite this way since the 1996 “Communications Decency Act” [outlawing "indecency" on the Net -- good luck with that!]. It’s quite gratifying, and something of a turning point, I think, in terms of the politics of the Net, and it’s gratifying to have played a small part to help generate the current outcry about these truly egregious bills (Mark Lemley, Dave Levine, and I having written a Law Professors’ Letter in opposition that generated over 100 signatures — and, according to the counter at Scribd.com, has been downloaded over 50,000 times already . . . ) I’m pretty gratified; once I saw the full-page ad in the Times a few weeks ago, signed by Google, eBay, Yahoo, Facebook, AOL, Twitter, Zynga, and several other tech giants, stating their opposition to these bills, I began think we might actually have a good chance of winning this one and saving — seriously — the Internet. I think the copyright interests may look back at this battle and realize that they overstepped; galvanizing Google, Facebook, Twitter, eBay, . . . into action is not going to help their cause much, I don’t think.

[And if you're not aware of how serious a threat these bills are to the Internet's technical, commercial, and economic infrastructure, consider this. Under SOPA, intellectual property rights holders can proceed vigilante-style against any allegedly infringing foreign websites, without the need for any court hearing or judicial intervention or oversight whatsoever. SOPA establishes a "notice and take-down" scheme under which an IP rights holder need only notify banks, credit card companies, Internet advertisers, and Internet search engine operators, in writing, that he/she has a “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of the notice will then have 5 days to cease doing any business whatsoever with the specified site, taking all “technically feasible” steps to prevent it “from completing payment transactions” with customers, from “making advertisements available” to the site, and from “being served as a direct hypertext link” from within any site under the recipient’s control. And all of this based on nothing more than a written notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If that's "law," I'm the Pope. Imagine if we had that in the non-virtual world:

A guy walks into a bank. He hands the teller a note. Sweat begins beading on the teller's forehead, and he takes the note to the bank VP. The note reads: "Jack Johnson's been stealing my hogs. Freeze his bank account." And the bank has five days to comply!!

It's not law - it's a kind of thuggery, and it will make the Net a much, much less vibrant place (and a teeny bit safer for copyright holders - if that) if it is enacted.

UPDATE: Marty Schwimmer, an experienced copyright and trademark attorney, sent me the following revision to my "guy walks into a bank" description of SOPA, which, in the interest of airing other views, I present below. Obviously, we disagree - I still believe a law permitting private parties to create liability for other persons based on nothing more than their say so and a "notice" is a form of lawlessness and thuggery - but here's Schwimmer's take on it:

I think that your note to the bank scans better, but I think that my version is a more accurate reflection of the motives of the IP holder and the circumstances under which they would attempt to utilize notice-and-takedown.

On Tuesday I testified before the U.S. House subcommittee on Crime, Terrorism, and Homeland Security, regarding H.R. 822, which would set up a national system of interstate reciprocity for concealed handgun carry permits. My 24-page written testimony is here. The video of the subcommittee hearing is about and hour and 45 minutes. Nearly all members of the 21-member attended the hearing, and used their opportunity to ask 5 minutes worth of questions. Most of the questions posed to George Mason Law’s Prof. Joyce Malcolm, Philadelphia Police Commissioner Charles Ramsey, and me, were quite thoughtful. Some congressional hearings are just a form of kabuki theater, but in Tuesday’s hearing, Representatives of both parties, and on both sides of the gun issue, seemed to be sincerely trying to learn more. The bill currently has 243 House co-sponsors.

That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee clause.

In short, the Founders defined a “republic” to include governments such as those of ancient Athens, Carthage, and Sparta, all of which included elements of direct democracy. According to Minor v. Happersett (U.S. 1875), the decision of Congress to admit a state to the Union is conclusive proof that, at the time, the state had a Republican Form of Government. Massachusetts and Rhode Island had referenda when they were admitted. The progressive movement for initiative and referendum began in the last 19th century. Congress chose to admit Oklahoma (1907) which had very strong I&R provisions in its state constitution, and New Mexico (1911), whose statehood constitution specifically provided for the creation of a citizen initiative system.

Courts have held that the Republican Form of Government issue is not justiciable, and enforcement is up to Congress. The amicus brief, however, addresses the merits of the issue.

Thus far Republicans have kept their pledge to end the practice of passing commemorative legislation in the U.S. House of Representatives, the Washington Post reports.  So this has been a year without a Congressional remembrance of the fabled battle of Marathon or Multiple Sclerosis Awareness Week.  Unlike last year, the House is not marking Independence Day passing resolutions honoring the flag or the bald eagle.  Some members are unhappy about this; Rep. Barbara Lee (D-CA) said it’s just wrong.  Other observers note the lack of symbolic resolutions makes it harder to hide the lack of substantive legislation.  It’s also worth keeping mind of the cost.  Though each resolution, by itself, did not cost much, they would add up.  Back in 1993, CRS cited estimates ranging from $340,ooo to $1 million per year, given the printing and other associated expenses.  Whatever else taxpayer dollars should be spent on, National Pi Day and National Beer Day are not it.

I have an article in the new issue of Regulation on the REINS Act, which would prevent major regulations from taking effect without the passage of a joint resolution of approval by Congress.  The article is largely based on my Congressional testimony about the Act, and summarizes the arguments for and against the measure.  My prior posts on REINS can be found here.

At a recent press conference touting House GOP plans to reduce regulatory burdens on business, members of Congress expressed dismay that the Environmental Protection Agency may tighten the National Ambient Air Quality Standard for ozone (aka urban smog) without considering the economic costs. Rep. Vicki Hartzler (R-Mo) remarked:

I received this week a letter from the EPA regarding a letter I’ve written them about some of their rules and they wrote here, quote, “Thus, the agency is prohibited from considering costs in setting these standards.” Now in business we do a cost benefit analysis before we make policy changes. Washington should as well.

Rep. Hartzler is right to be concerned about the consequences of tightening the ozone NAAQS any further, but the EPA can’t be faulted for not considering costs. As EPA Assistant Administrator Gina McCarthy explained in a letter to Rep. Hartzler:

Under the Clean Air Act, decisions regarding the National Ambient Air Quality Standards (NAAQS) must be based solely on an evaluation of the scientific evidence as it pertains to health and environmental effects. Thus, the agency is prohibited from considering costs in setting the NAAQS. But cost can be – and is – considered in developing the control strategies to meet the standards (i.e. during the implementation phase).

McCarthy is correct. The EPA has been prohibited from considering costs when establishing NAAQS for the past three decades. The U.S. Court of Appeals for the D.C. Circuit first interpreted the Clean Air Act to preclude such cost consideration in Lead Industries Association v. EPA in 1980, and the Supreme Court reaffirmed this interpretation of the Act in Whitman v. American Trucking Associations in 2001. As noted regulatory zealot Justice Scalia explained for a nearly unanimous court:

Section 109(b)(1) instructs the EPA to set primary ambient air quality standards “the attainment and maintenance of which … are requisite to protect the public health” with “an adequate margin of safety.” 42 U.S.C. § 7409(b)(1). Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards. The language, as one scholar has noted, “is absolute.” D. Currie, Air Pollution: Federal Law and Analysis 4—15 (1981). The EPA, “based on” the information about health effects contained in the technical “criteria” documents compiled under §108(a)(2), 42 U.S.C. § 7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an “adequate” margin of safety, and set the standard at that level. Nowhere are the costs of achieving such a standard made part of that initial calculation.

One may quarrel with Justice Scalia’s interpretation of the Clean Air Act — I, for one, did some work for parties advocating a different interpretation in this litigation — but it is the law of the land, and the EPA is not to be faulted for following the law. If members of Congress do not like this, they have but one solution: Amending the Act.

This is not an isolated example. The EPA is frequently attacked for doing what they are required to do by existing federal statutes or judicial interpretations thereof. Numerous members of Congress and outside groups have accused the EPA of a “power grab” for proposing to regulate greenhouse gas emissions under the Clean Air Act. The EPA’s GHG regulations will be quite costly and extensive, while producing minimal environmental benefits (as I detail here). Yet such regulation is clearly authorized, if not required, by the Supreme Court’s decision in Massachusetts v. EPA.

Senator Sherrod Brown (D-OH) wrote the EPA in February urging it to “reconsider” the regulation of GHG emissions from utilities and other large stationary sources under the Clean Air Act. Senator Brown may have avoided the inflammatory rhetoric of his Republican colleagues, but his error was the same. Given the EPA’s conclusion that GHG emissions contribute to global warming that may be reasonably anticipated to threaten health or welfare, it has no choice but to impose the regulatory measures to which Senator Brown objects. Here again, there are plenty of reasons to oppose the EPA’s initiatives, but the EPA is not to blame. Rather, the Agency is doing what the Clean Air Act (as interpreted by the courts) requires.

If members of Congress disapprove of the EPA’s emission-control initiatives, they need to take responsibility for the laws on the books, and not scapegoat the EPA. However overzealous the EPA may be sometimes, most of its recent Clean Air Act initiatives are plainly authorized, if not required, under federal law. Indeed if the agency is to be faulted, it is for rewriting the Act to allow for less expansive regulation than the statutory text clearly requires. It was Congress that delegated expansive regulatory authority to the EPA, and Congress that enacted provisions making some regulatory initiatives obligatory. If members of Congress don’t like that, it is up to Congress to fix it.

On Tuesday, Senate Republicans blocked a vote on legislation to repeal $2 billion in tax breaks for the five largest oil companies. Even had the bill passed, it would not have had much effect, however. Equivalent legislation is unlikely to move in the House. More importantly, as TPM reports, passage of the bill would likely have been unconstitutional, as revenue-raising measures are required to originate in the House.

The Hill reports that House Republicans appear to have forgotten how a bill becomes law. Specifically, on Friday the House narrowly passed the “Government Shutdown Prevention Act,” a bill that, among other things, purports to make a House-passed spending bill become law should the Senate fail to act. As Ed Morrissey notes, this is like “deem and pass” all over again — if not worse. If only it were an April Fool’s joke.

The Hill further reports that some House Republicans defend the bill as a purely symbolic measure to highlight the failure of the Senate to act on a spending measure. Maybe so. But if the aim was to make a symbolic point, there are more appropriate ways to do it than asserting that a measure passed by the House alone will become law. Among other things, the Republicans in the House have the votes to pass a sense of the body resolution or including findings or prefatory language in a bill that make their point.

UPDATE: Patterico makes a strong case that there is nothing unconstitutional about the Government Shutdown Prevention Act.  He argues that the bill may have used “unusual triggering language” but did not actually purport to bypass the Senate, and there is ample precedent for incorporation of other bills by reference.  He makes a good case, but I’ll stand by my final point, that there more effective ways for House Republicans to have made their point without using “unusual triggering language” of the sort that would prompt this sort of debate.

Last month, University of Richmond law professor Noah Sachs published an article in The New Republic criticizing the proposed REINS Act, which would require Congressional approval before any major regulation could take effect. As with many attacks on the REINS Act, Sachs’ article misrepresents the legislation to make its case. As there is a hearing on the bill today, I thought I’d address some of the arguments he makes.  In case some find this to be redundant with my prior posts on the subject (1, 2, 3), the bulk of this post is below the fold.

Continue reading ‘REINS Act — A Response to Noah Sachs’ »

Tomorrow the House Judiciary Committee will have a second hearing on the REINS Act, a bill to increase legislative control over and accountability for federal regulatory policy. The central provisions of the REINS Act provide that new “major rules” – those regulations expected to cost over $100 million annually – may not become effective unless a joint resolution of approval passes Congress. The Act would further create an expedited review process designed to ensure that there is a prompt up-or-down vote in each house of Congress on all new “major” rules, which represent less than five percent of the 3,000-plus federal regulations promulgated each year. My prior posts on the REINS Act are here and here, and my congressional testimony is here.

The purpose of the REINS Act is to prevent the imposition of major regulatory initiatives without Congressional approval. Because of Congress’ long history of delegating broad rulemaking authority to administrative agencies, there is relatively little legislative control of, and accountability for, the regulations agencies impose on the American people. The best way to ensure greater legislative accountability is to require members of Congress to vote “yea” or “nay” on new major rules. This will prevent unpopular rules from being adopted, but also ensure that Congress is accountable for those new major rules that are imposed. If the public wants more regulatory protections in particular areas – and it may well – the REINS Act will not stand in the way. Environmentalist groups and progressive academics see the REINS Act a bit differently. See, for instance this post by the NRDC’s David Goldston or this article from The New Republic by Noah Sachs.

This post on the ACS Blog by University of Michigan law professor David Uhlmann is representative of the arguments being made against the REINS Act, but they are not particularly persuasive. Uhlmann labels the REINS Act “a cynical attempt to block further environmental, public health, and safety protections,” and yet makes few substantive arguments against it.  Throughout the post he insinuates that industry groups will be able to block regulations in in Congress the same way they block substantive bills, but Uhlmann never quite makes this claim because he can’t.  The REINS Act creates an expedited legislative procedure that prevents concentrated minority interests from blocking resolutions of approval.  It ensures a straight up-or-down vote on the floor, so industry can only block a regulation if it can command a majority in at least one house of Congress.

Uhlmann begins noting some of the most significant safety and environmental measures adopted in the past several decades. “It is unlikely that any of the health and safety gains we have enjoyed would have been possible” had the REINS Act been the law. This is a striking claim – it is “unlikely” we would have “any of the health and safety gains we have enjoyed” – and one that is readily refutable.

Continue reading ‘The REINS Act Revisited & A Response to David Uhlmann’ »

On Monday, I testified before the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law on the REINS Act. The other witnesses were former Rep. David McIntosh and Sally Katzen, who headed the White House Office of Information and Regulatory Affairs in the Clinton Administration. Rep. McIntosh and I expressed support for the REINS Act while Katzen did not. Here are my testimony, my prior post on this hearing, and the C-Span video.

It was a rather short hearing, but the questioning was fairly aggressive, particularly from the Democrats on the subcommittee, including Rep. John Conyers, who attended as the ranking minority member of the committee even though he is not on the subcommittee. During the hearing I was struck by how many of the questions from members were premised on a misunderstanding (or misrepresentation) of the bill, both structurally and substantively. I recognize members of the minority may not have had the most time to prepare for a Monday hearing for which there had only been several days official notice. Nonetheless, I was surprised how unprepared  (or unwilling) some of the committee seemed to be to address the bill on its own terms.  Perhaps I’ve just lived in Ohio too long.

Several members of the subcommittee suggested the REINS Act imposed unconstitutional constraints on executive power, particularly the executive’s responsibility to faithfully execute and enforce federal laws.  Therefore, they suggested, the REINS Act could conflict with Article II, Section 1 of the Constitution.  Set aside the curiosity of House Democrats, including Rep. Conyers, defending executive power.  This objection is based on a fundamental confusion about the nature of executive power. The power to “enforce” the laws – that is, the power to take action to see that legal rules are complied with – is distinct from the power to make the rules pursuant to a delegation of authority from Congress. So, for instance, the EPA’s power to impose fines or other sanctions on companies that violate emission limitations is distinct from the EPA’s power to set the emission limits. A requirement that federal regulatory agencies obtain Congressional approval before major rules may take effect requires Congressional assent for the latter, but has no effect on the former.

Sally Katzen raised a more nuanced separation of powers concern, but one that I also find unconvincing, and for largely the same reasons. She noted that under Morrison v. Olson, “a statute is suspect if it ‘involves an attempt by Congress to increase its own powers at the expense of the executive branch,’” and it is reasonable to see the REINS Act as an effort to constrain the executive. Just look at the bill’s full title and findings. The problem with her argument is that it ignores the distinction between executive and legislative functions.

The powers to investigate and prosecute are core executive functions. Any effort by Congress to limit such powers and aggrandize its own is problematic.  This point was made not only in Morrison v. Olson (in which the Court upheld the statute in question, despite its intrusion on executive power), but in other cases as well.  The executive power is distinct from the power to adopt legislative-type rules, however.  The latter is not a core executive function. Rather it is a quasi-legislative power that must be delegated by Congress. As the Supreme Court has stressed time and again (and as I noted in my testimony), federal agencies have no authority to promulgate regulations beyond that which has been given by Congress. And what Congress has given, it may take back. Restraining the exercise of such authority, whether by adopting rules for the exercise of regulatory authority (as under the Administrative Procedure Act or the Congressional Review Act) or limiting the scope of such authority is perfectly acceptable, so long as other Constitutional requirements (such as bicameralism and presentment) are satisfied. As the REINS Act satisfies such requirements, there is no problem. The REINS Act does not curtail executive power so much as it places limits on the legislative-like power delegated by Congress.

For more recent comments on the REINS Act, see David Zaring’s posts here and here.  I’ll have more to say on the Act, and the arguments for and against it, in the days to come.

Tomorrow afternoon (back willing) I will be in Washington, D.C. to testify before the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law on the Regulations from the Executive In Need of Scrutiny (REINS) Act.  This bill would require congressional approval before  new “major” regulations – those regulations expected to cost in excess of $100 million per year — could take effect.  It also creates an expedited process for consideration of new regulations, much like that which has been used in conjunction with “fast track” trade negotiation authority, to ensure that both Houses of Congress take up-or-down votes within a short time frame.  For more detail on the bill, here is a brief white paper I wrote for the Federalist Society on the REINS Act’s central provisions.

The primary purpose of the Act is to ensure greater political accountability for major regulatory initiatives.  Federal regulatory agencies only have that power delegated them by Congress, but regulatory agencies are not always particularly responsive to Congressional concerns.  Nor are members of Congress always willing to take responsibility for how the power they have delegated gets exercised.  Requiring a straight up-or-down vote on new major regulations is a way to address both problems and the expedited procedures ensure that traditional legislative logjams and special interest obstruction won’t prevent consideration of significant regulatory initiatives.  This is why I believe the REINS Act is more about transparency and political accountability than anything else.

I have no idea whether the REINS Act has much hope of passage.  The bill was part of the Republican leadership’s “Pledge to America” and was just introduced in the House, where I would think its prospects are good.  The Senate presents a more significant challenge, as does the White House.  At present, most support for the REINS Act appears to come from those who believe federal regulation is out of control and needs to be restrained.  Given that the REINS Act does not offer a mechanism to bottle up regulations with holds, filibusters or other roadblocks, supporters have adopted the implicit assumption that federal agencies are engaged in more aggressive regulation than the public supports.  From what I’ve seen of the other side (and I have not seen much as of yet), some opposed to the REINS Act likewise assume that regulatory initiatives they would support could not command majorities in Congress.  I don’t know whether this assumption is accurate, but it would say something if there were to be widespread agreement that federal agencies are regulating in a manner the American people do not support.

Additional posts on this legislation, my testimony and the hearing will follow.

UPDATE: My testimony is available here.

Today’s Washington Post has an interesting article detailing Justice Department concerns that the Constitution’s Speech and Debate Clause has frustrated investigations into Congressional wrongdoing.  The clause provides, in relevant part, that members of Congress:

shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

As interepreted by federal courts, this clause limits the Executive Branch’s ability to investigate legislators conduct on Capitol Hill. In one infamous case (discussed here), the U.S. Court of Appeals for the D.C. Circuit held the FBI violated the clause when it seized allegedly privileged documents from the office of Rep. William “Cold Cash” Jefferson.  Reports the Post:

The Justice Department warned at the time that the court decision would “seriously and perhaps even fatally” undermine congressional corruption probes by limiting the FBI’s ability to search for evidence and use wiretaps.

Since then, speech or debate challenges have killed an investigation of former representative Tom Feeney (R-Fla.), hampered probes of Rep. Peter J. Visclosky (D-Ind.) and former representative John T. Doolittle (R-Calif.), and slowed a pending corruption case against former representative Rick Renzi (R-Ariz.), sources familiar with those inquiries said. . . .

lawyers familiar with the issue said speech or debate concerns come up in virtually every congressional probe because many involve legislative acts, such as whether the lawmaker obtained earmarks in exchange for campaign contributions.

“The essence of speech or debate is you can’t introduce into evidence what the member did if it’s part of an official duty,” said a lawyer who spoke on the condition of anonymity because the challenges are often under court seal. “If you can’t introduce legislation, a bill, a speech on the floor, how do you make the case?”

In November I wrote a blog post critical of non-emergency lame duck Congressional sessions.  Since then, the lame duck Congressional session has been surprisingly productive.  Not only did Congress pass a tax deal, it repealed DADT, confirmed some judges and (perhaps most importantly) rejected a pork-laden spending omnibus.  That’s far better than I would have expected. But I still think non-emergency lame duck sessions are a bad idea.  Members of Congress are supposed to be accountable to voters, and it is inappropriate for those who cannot face reelection, or were defeated, to exercise such power free from political constraints.  This year’s lame-duck wasn’t so bad — indeed, it was probably better than most regular sessions of Congress — but I still believe the practice of non-emergency lame duck sessions is a bad one.

Now that all congressional races have been decided, here the final tallies for how the election affected Second Amendment support in Congress, according to the NRA’s top federal lobbyist Chuck Cunningham:

19 of 25 U.S. Senate candidates endorsed by the NRA-Political Victory Fund won their races. The net gain is +7 votes (Ark., N.H., N.D., Oh., Penn., W.V., Wisc.) with no offsetting losses. 

After the 2008 elections, there were 43 Senators with an A rating from NRA, 2 with a B, 9 with a C, 12 with a D, and 34 with an F. The changes in the new Senate will be +7 A, +1 C, -7 D, and -1 F.

The 12 pro-gun Senate freshmen are:  John Boozman (Ark.), Marco Rubio (Fla.), Jerry Moran (Kan.), Rand Paul (Ky.), Roy Blunt (Mo.), Kelly Ayotte (N.H.), John Hoeven (N.D.), Rob Portman (Oh.), Pat Toomey (Penn.), Mike Lee (Utah), Joe Manchin (W.V.) and Ron Johnson (Wisc.).

In the U.S. House, 227 of the 283 endorsed by NRA-PVF won. 

After the 2008 elections, there were 226 Representatives with an A rating, 18 B, 14 C, 22 D-rated, 151 F, and 4 ? (had refused to answer questionaire). The new House will be +36 A, -7 B, - 1 C, -9 D, -16 F, – 3 ?.

There were 29 districts where the grade improved: AZ-1, AZ-5, AR-2, FL-8, FL-22, FL-24, ID-1, IL-8,IL-10, IL-14, IL-17, KS-3, MI-7, NV-3, NH-1, NJ-3, NY-13, NY-19, NY-24, NY-25, NY-29, NC-2, OH-1, OH-15, PA-3, PA-7, PA-8, SC-5 and WA-3. In 3 districts the grade declined: AL-7, HI-1 and LA-2.

The NRA identifies 86 pro-gun House freshmen:  Martha Roby (AL-2), Mo Brooks, (AL-5), Paul Gosar (AZ-1), Ben Quayle (AZ-3), David Schweikert (AZ-5), Rick Crawford (AR-1), Tim Griffin (AR-2), Steve Womack (AR-3), Jeff Denham (CA-19), Scott Tipton (CO-3), Cory Gardner (CO-4), Steve Southerland (FL-2), Rich Nugent (FL-5), Daniel Webster (FL-8), Dennis Ross (FL-12), Allen West (FL-22), Sandy Adams (FL-24), David Rivera (FL-25), Rob Woodall (GA-7), Austin Scott (GA-8), Raul Labrador (ID-1), Joe Walsh (IL-8), Adam Kinzinger (IL-11), Randy Hultgren (IL-14), Bobby Schilling (IL-17), Marlin Stutzman (IN-3), Todd Rokita (IN-4), Larry Bucshon (IN-8), Todd Young (IN-9), Tim Huelskamp (KS-1), Kevin Yoder (KS-3), Mike Pompeo (KS-4), Jeff Landry (LA-3), Andy Harris (MD-1), Dan Benishek (MI-1), Bill Huizenga (MI-2), Justin Amash (MI-3), Tim Walberg (MI-7), Chip Cravaack (MN-8), Alan Nunnelee (MS-1), Steven Palazzo (MS-4), Vicky Hartzler (MO-4), Billy Long (MO-7), Joe Heck (NV-3), Frank Guinta (NH-1), Charlie Bass (NH-2), Jon Runyan (NJ-3), Steve Pearce (NM-2), Michael Grimm (NY-13), Nan Hayworth (NY-19), Chris Gibson (NY-20), Richard Hanna (NY-24), Ann Marie Buerkle (NY-25), Tom Reed (NY-29), Renee Ellmers (NC-2), Rick Berg (ND-AL), Steve Chabot (OH-1), Bill Johnson (OH-6), Steve Stivers (OH-15), Jim Renacci (OH-16), Bob Gibbs (OH-18), James Lankford (OK-5), Mike Kelly (PA-3), Pat Meehan (PA-7), Mike Fitzpatrick (PA-8), Tom Marino (PA-10), Lou Barletta (PA-11), Tim Scott (SC-1), Jeff Duncan (SC-3), Trey Gowdy (SC-4), Mick Mulvaney (SC-5), Kristi Noem (SD-AL), Chuck Fleischmann (TN-3), Scott DesJarlais (TN-4), Diane Black (TN-6), Steve Fincher (TN-8), Bill Flores (TX-17), Quico Canseco (TX-23), Blake Farenthold (TX-27), Scott Rigell (VA-2), Rob Hurt (VA-5), Morgan Griffith (VA-9), Jaime Herrera (WA-3), David McKinley (WV-1), Sean Duffy (WI-7) and Reid Ribble (WI-8).

The Los Angeles Times reports that Republicans may eliminate honorific resolutions (e.g. resolutions endorsing National Potato Day and National Pi Day, or honoring the 75th anniversary of Radio Shack’s listing  on the NYSE — all real examples) from Congressional business.  This would be a nice symbolic gesture.  Such resolutions seem trivial, but they cost time and money — and they add up.  But Congress tried this before, and it didn’t stick.  From the LA Times:

When Newt Gingrich became House speaker in 1995 after the Republican landslide, he sought to ban resolutions designating special days, weeks and months — like National Asparagus Month, Wine Appreciation Week and National Fragrance Week.

The results were striking. Commemorations plummeted from a high of 41% of all bills passed in the mid-1980s to 12% in 1995-96.

But this being Washington, lawmakers found a way around the new rules. Because the ban restricted only commemorations designating a specific time period, lawmakers soon started bestowing less temporal honors — as in “supporting the goals and ideals of American Craft Beer Week.”

Now members of both parties indulge in the practice, introducing hundreds of celebratory resolutions every session. It’s the kind of Washington addiction that the opposition wave against politics-as-usual has set its sights on.

[Hat Tip: Instapundit]

The 20th Amendment provides that the terms of Senators and members of Congress end on January 3.   Its passage in 1932 severely curtailed the potential for Congress to enact measures in lame-duck sessions by limiting the time between elections and the existing Congress’ expiration to approximately two months or less. Seventy-five years ago, travel to and from Washington was more difficult, and legislators were not eager to disrupt their holiday schedules for non-emergency legislation. Even wartime Congresses that held session year-round were quite restrained during the periods between elections and the seating of a new Congress.

That was then. Now, laments Yale Law School’s Bruce Ackerman, legislators see lame-duck sessions as a time to consider serious measures free of political accountability.

After 1954, there was a 16-year interlude in which lame-duck sessions were unknown, but they reemerged on four occasions during the 22 years between 1970 and 1992 – without any emergency justification. Since 1994, lame-duck meetings have become routine. With a single exception, every Congress has returned after the election.They have been making very big decisions: passing NAFTA in 1994, impeaching President Clinton in 1998 and creating the Department of Homeland Security in 2002. These large initiatives serve as precedents for the coming lame-duck consideration of such weighty matters as permanent tax relief and the New START arms treaty with Russia.

It may be too late to call off the impending lame-duck session, but this practice need not continue into the future. Ackerman believes Congress “should enact legislation prohibiting lame-duck sessions except in national security emergencies.”

An end to non-emergency lame-duck sessions would be a welcome addition to other legislative process reforms Republicans have proposed. I wonder whether a prohibition on non-emergency lame-duck sessions could be enforced. Even if adopted as part of the legislative rules, like the filibuster rules in the Senate, nothing would stop a future Congress from reversing course. Nonetheless, passing a prohibition on non-emergency lame-duck sessions would be a valuable symbolic measure, and could help restore the norm that lame-duck legislation is extraordinary.

There’s more from Ackerman at Balkinization here.

Senate: +6

House: +18.75

Governors: +.5

Constitutions: +4

Hawaii Gov. Dem. Abercrombie wins open seat, vacated by Linda Lingle. -75.

Undecided Governor races: Connecticut (potential +1), Repub. Foley leads by 3%, with 87% in. Florida (potential -1), Repub. Sink leads by 1% with 99% in. Minnesota open seat (potential -1), Mark Dayton leads by 1% with 90% in. Oregon (potential +1), Repub. Dudley leads by 2% with 81% in.

Undecided Senate races: Washington (potential +1), Murray (D, F) leads by 1% with 60% in. Colorado (potential +.5), Bennet (D, C) trails by 1% with 77% in. Alaska, Murkowski leading, with 51% in; all candidates are A-rated, but Republican Miller would probably be a more energetic activist.

Ill. Gov. Anti-gun incumbent Quinn hanging on, with 99% counted. Will make passage of licensed carry difficult.

Colorado State House of Representatives: Repubs. take control. So re-districting will be bi-partisan. Bad news for U.S. Rep. Ed Perlmutter (D, F), who needs a carefully-drawn district to win in 2012.

From Ben Smith @ Politico: Repubs. now fully control redistricting in Ind., Penn., Ohio, Ala., Mich, Wisc.  My view: RKBA effects unclear, because all those state have lots of strongly pro-2d Amendment Dems. But probably a net plus for RKBA.

Wash. 2. John Koster (R, A) unseats Rick Larsen (D, B-).

Big race on the cusp. Less than 8,000 votes separate Illinois Gov. candidates, with 97% in. If Republican Brady wins, Illinois will get concealed carry.

Ariz. right to hunt and fish: Nearly 90% of precincts in. Losing by 13%. I project defeat.

Minn. 8. Chip Cravaack (A, R) unseats long-term incumbent Jim Oberstar (D, B+). +.25

Conn. Gov. retraction: With 81% of precincts reporting, Republican Tom Foley leads Dem. Dan Malloy by 3%. Possible pro-gun pickup.

Colo. Atty. Gen. Repub. John Suthers re-elected. Fends off challenger who attacked him for filing amicus briefs  against gun control and health control.

Ohio Atty. Gen. Former U.S. Sen. Repub. Mike DeWine wins. Setback for 2d Amendment.

Ariz. 5. David Schweikart (R, A) beats incumbent Harry Mitchell (R, C-). +.5

Mich. 7. Tim Walburg (R, A) ousts Mark Schauer (R, B-).  +.25.

N.Y. 19. Nan Hayworth (R, A) defeats incumbent John Hall (D, F). +1

N.Y. 13. Mike McMahon (D, F) ousted by Mike Grimm (R, A). +1

The official name of R.I. is the “State of Rhode Island and Providence Plantations.” Voters defeated a proposal to remove the second half of the name. As Brunonian, I am delighted.

N.H. 2. Charlie Bass (R, A) wins open seat vacated by Paul Hode (D, A-).

R.I. Gov. Independent Lincoln Chafee wins open seat. -1

Wash. 3. Open seat of retiring Brian Baird (B in 2008). Won by Jaime Herrera (R, A). +.25 

Nev. Senate: Reid wins. Given a Democratic Senate, very good new for gun owners. Without Reid, the Majority Leader would have been Charles Schumer or Richard Durbin, either of them would be the first Majority Leader who was not only anti-gun, but strongly motivated and well-informed on the issue. Presuming that Reid is re-elected as Majority Leader, this means that both houses of Congress will have pro-gun leadership.

Ill. Sen. Mark Kirk (R, F) wins. Sponsored an “assault weapons” ban in the current Congress. Will be only strongly anti-gun Senator in GOP caucus. At least he’s a staunch critic of United Nations malfeasance.

Right to hunt and fish trailing in Arizona, 56-44. One million votes counted so far.

Ohio Gov. John Kasich (R, B) ousts Ted Strickland (D, A+). Kasich voted wrong on the “assault weapon” ban in 1994, now claims to have seen the light. -.25

Ark. 2. Tim Griffin (R, A) takes open seat vacated by Vic Snyder (D, F in 2008). +15.25 

 Ohio 15. Steve Stivers (R, A) takes the seat from Mary Jo Kilroy (D, F). +1

 Ohio 1. Steve Chabot (R, A) ousts Steve Driehaus (D, D). +1

 Kan. 3. Dennis Moore (D, F in 2008) is retiring. His wife, Stephene Moore (?) was defeated by Kevin Yoder (R, A). +1

 Conn. Gov. Dan Malloy (D, F) wins. Replaces term-limited Jodi Rell (R, F).

Penn. Senate. Pat Toomey (R, A) wins. Replaces inconsistent Arlen Specter. +.5

Great idea now circulating on Twitter: Replace Eric Holder with Russ Feingold.

Mo. 4. House Armed Services Chair Ike Skelton (D, A) defeated by Vicky Jo Hartzler (R, A).

Fla. 8. Allen West (R, A) unseats Ron Klein (D, F). +1

 N.C. 2. Incumbent Bob Etheridge (D, D) narrowly beaten by Renee Ellmers (R, A). +1

 Cal. Gov. Jerry Brown (D, D+) defeats Meg Whitman (R, C+). No net change from outgoing Gov. Schwarznegger.

Ill. 14. Randy Hultgren (R, A-) vs. unseates Bill Foster (D, D). +1.

 Penn. 8: Repub. Mike Fitzpatrick (R, A) ousts Patrick Murphy (D+). Congratulations to the Snowflakes team! +1

 S.C. 5: House Budget Chairman John Spratt (D, D) defeated by Mick Mulvaney (R, A). Good for 2d Amendment, and the public fisc. +1

Ill. 17. Bobby Schilling (R, A) takes the seat from Phil Hare (D, F). +1

Louisiana. Joseph Cao (R, C) unseated by Cedric Richmond (D, F). First net loss of the evening. -.5

Republicans take State House of Representives in Pennsylvania. Good news for RKBA.

South Carolina and Arkansas Constitutions: Right to hunt and fish amendments have been declared winners. Still awaiting results from similar amendment in Arizona.

Penn. 7. Joe Sestak’s open seat is taken by Pat Meehan (R, A). +1

Kansas Constitution: ”Shall the state amend its Constitution to include an individual right to bear arms?” With 19% of precincts reporting, the question leads 87% to 13%. I project that it will win.

Wisc. Sen.  Ron Johnson (R, A) unseats Russ Feingold (D, C). Feingold has been a great leader on many civil liberties issues. I hope he finds a way to stay on the national scene. +.5

N.J. 3. Jon Runyan (R, A) unseats John Adler (D, D). +1

Wisc. Gov. Scott Walker (R, A) wins open seat. Very important. Means that Wisconsin has a very good chance of enacting licensed carry next year.

Penn. 3. Kathy Dahlkemper (D, C) unseated by Mike Kelly (R, A). +.5

Tennessee Constitution. With over half the precincts in, the right to hunt and fish amendment to the state constitution is leading 90% to 10%. I hereby declare it a winner.

Penn. Gov. Tom Corbett (R, A) wins, replacing the retiring Ed Rendell. +1 

N.H. 1. Frank Guinta (R, A) unseats Carol Shea-Porter (D, F).

Mass. Gov. Deval Patrick re-elected. Unfortunate.

Kan. Gov. Sam Brownback (R, A) wins. Replaces the Lt. Gov. who succeeded Sebelius and who did not run. +5.

Fla. 2. Alan Southerland (R, A) beats incumbent Alan Boyd (D, D).

N.D. Sen. John Hoeven (R, A) takes seat held by retiring Byron Dorgan (D, D+). +1

Mich. Gov. Rick Snyder (R, refused to answer NRA questionaire) defeats F-rated Dem.

Tenn. Gov. Mike Haslam (R, B-) defeats Mike McWherter (D, C-).

Ark. Gov. Incumbent Mike Beebe (D, A-) beats Jim Keet (R, B+).

Fla. 8. Daniel Webster (R, A) defeats Alan Grayson (D, B). +.25.

W.V. Sen. Manchin (D, A) wins. Takes the seat of the late Robert Byrd. +1

Conn. Sen. Blumenthal (D, F) wins, replacing Chris Dodd. Will be even more of an anti-gun leader.

Ark. Sen. Boozman (R, A) defeats Blanche Lincoln (D, D+). +1.

Fla. 24. Suzanne Kosmas (D, F-rated) loses. +1.

N.H. Gov. Lynch (Dem, C-rated by NRA) re-elected.

Fla. Rubio (R) win. Keeps seat pro-gun.

Missouri. Blunt (R) defeats Carnahan. Keeps seat in pro-gun hands.

N.H. Ayotte (R) wins. Improvement over retiring Judd Gregg (R). +.5

Ohio: Portman (R) defeats former Handgun Control, Inc., board member Lee Fisher. Will replace usually-anti George Voinovich. +1

Kentucky: Rand Paul wins. Replaces retiring Jim Bunning. Will probably be more of a leader on the issue than Bunning was.

Indiana. Dan Coats (R) wins. When previously in the Senate, was sometimes good, but not always. Dem. Brad Ellsworth would have been better. Retiring Sen. Evan Bayh was always bad. +5.

Vermont. Pat Leahy (D) re-elected. Much better to have him as chair or ranking member of Judiciary than Herb Kohl.

I’ll be providing them here tonight, once the polls close, and results start coming in. I’ll also be doing updates via Twitter, @davekopel.

Besides the candidate races, there are five important ballot issues. Kansas will be voting on whether to restore the individual right to keep and bear arms to state constitution, undoing the judicial nullification in Salina v. Blaksley (1905). Arizona, Arkansas, South Carolina, and Tennessee will decide whether to give explicit constitutional protection to the right to hunt and fish.

The Washington Examiner has this useful guide to some of the key races, organized by when the polls close. Some early races to watch, all of them with poll closings at 7 pm. eastern time:

Peninsular Florida, eastern time zone: 22d district (incumb. Dem. Ron Klein) and 24th (incumbent Dem. Suzanne Kosmos), both terrible on gun rights, and both facing pro-gun opponents. 8th District, where incumb. Dem. Alan Grayson has a B rating from the NRA, but his opponent Daniel Webster has an A (and Grayson’s outrageous incivility provides a non-ideological reason to hope for his defeat).

Indiana, central time zone (polls close at 6 p.m. locally). Open seat, with Dem. Brad Ellsworth (perfect record on Second Amendment) vs. Repub. Dan Coats (uneven record). Either would be superior to retiring Evan Bayh, and Coats has a huge lead in the polls.

South Carolina. 5th District, House Budget Chairman John Spratt. By far the most senior and powerful anti-gun congressman who is at serious risk, among the early poll closings.

Virginia, 11th Dist. Incumbent Dem. Gerry Connolly appears to have a tighter race than expected. Michael Bloomberg has been spending heavily on Connolly’s behalf recently. Conventional wisdom says that Connolly survives a wave, but not a tsunami.

Further information on the gun issue in the 2010 election is available in my guides to the House races and the Senate races.