Archive | Politics

Some Final Election Wildcards

The recent national poll news is overall bad for Romney, suggesting a reversal in momentum in favor of Obama. The one possible saving grace is that this momentum may primarily be an artifact of increased Obama support in Northeastern states where Romney was not competitive to begin with. The Pew poll, which shows Obama up by three–his best current result–states: “Another notable gain for Obama, perhaps reflecting Hurricane Sandy’s effect on the race, comes in a region he was already secure in: the Northeast. He has increased his lead over Romney from nine points (52%-43%) to 21 points (56%-35%) there over just the past week.” A very rough calculation suggests that this surge of support in the Northeast could account for approximately 1.5% of the 3% point lead. If other polls showing an even tighter race are getting similar results, it leaves open the possibility of a repeat of 2000–an Obama popular vote victory resulting from blowout victories in the Northeast, and a narrow Romney electoral college majority, with Romney squeaking by in either Ohio or Pennsylvania. Another wildcard is whether any hurricane-related gains by Obama will dissipate as the hurricane fades in the news, except for stories about those who are still suffering. A final wildcard is whether state polls are properly sampling early voters–from what I’ve read of pollster methodology, anyone who says that they voted early is automatically put down as a “likely voter.” I can easily imagine people who don’t really want to be polled but are too polite to hang up telling pollsters they already voted in the hopes that this will signal an early end to the interview. (UPDATE: And, though I haven’t checked the figures myself, others who claim to have say that the polls are substantially overestimating early voters compared to [...]

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How Should Libertarians Vote?

Continuing the series of posts examining how libertarian-leaning folks should vote (assuming they think it’s worth voting at all), Reason has published essays on the libertarian case for Obama (Mike Godwin), Romney (Robert Poole) and Gary Johnson (Nick Gillespie). Some may also be interested in this post by law professor Brad Smith explaining why he will vote enthusiastically for Romney, and this essay by Shikha Dalmia arguing Romney is the most protectionist GOP candidate in ages. Then again, perhaps Katherine Mangu-Ward is correct, and libertarians shouldn’t vote at all.

UPDATE: Reason board member Manny Klausner e-mails to note that he is enthusiastically voting for Gary Johnson, but also encouraging libertarians who live in battleground states to vote for Romney if the election looks like it will be close. He writes:

It seems to me that the WORST possible move for a libertarian would be to vote for a statist candidate who may win the election — and doesn’t need your vote to win. In my view, this implicates the voter in the bad policies pursued by the candidate once they take office. To me, the only exception to this is a close election where your vote arguably could be decisive, so that voting for the lesser of the evils might well be appropriate.

Moreover, on the issue of drug policy — a high priority for libertarians — I’d point out that a libertarian in a non-battleground state emphatically should not vote for Romney, who shows no sign of doing anything other than supporting the counterproductive war on drugs. Voting for the Gary Johnson/Jim Gray ticket is a commendable way to express dissatisfaction with the War on Drugs — a “cure” that is far worse than the disease.

I generally agree with this sentiment, but would also note that the [...]

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The Popular Vote and Presidential Legitimacy

Recent polling results present the possibility that Mitt Romney could win the popular vote but lose the electoral vote. Would this matter? It shouldn’t. We’ve seen this before, and it is not at all unusual for a President to be elected with less than 50 percent of the popular vote, as some voters support third-party candidates. Should President Obama be re-elected, there’s no question some GOP partisans will complain and right-leaning pundits will dredge up old quotes from Democratic politicians calling for replacing the Electoral College with a national popular vote system. But Barack Obama would still be the president, and he would be no less “legitimate” than if he had won the popular vote as well.

Does the Electoral College system allow for the election of a president who does not enjoy majority (or even plurality) support? Yes, but it would be a mistake to assume that a candidate’s failure to get a majority of the popular vote on election day means that the candidate does not enjoy majority support. One consequence of the Electoral College system is a distortion of popular vote totals, particularly in electoral strongholds. So the “winner” of more popular votes cast under the Electoral College system would not necessarily have won under a national popular vote system.

The electoral college encourages attention on winning contested states, not maximizing turnout nationwide. Each candidate focuses turnout efforts in states with closely divided populations, devoting fewer resources to “safe” states. This means the Romney campaign has no incentive to trawl for every vote in Texas, and the Obama campaign can take it easy in states like New York. (Under a national popular vote system, however, the incentives would be quite different, as every vote would count.) Because some of these “safe” states have large populations and are [...]

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Blog 538 on Ohio

Nate Silver has a curious post up today. He points out that Obama is leading Romney by an average of 2.3% (according to Real Clear Politics, slightly more according to other averages) in Ohio polls. He then goes through all recent examples when there were at least three polls in a state ten days before an election. He shows that with one exception, these polls accurately predicted the winner in every case in which the winner was ahead by at least 1.5 points.

Okay, but this is a small data set, includes state polls with a greater than 2.3% lead that wound up being decided by razor thin margins in favor of the poll leader, and that also leaves much important information out. For example, in 2004 Bush was behind in the Ohio polls by .9%, but actually won by 2.4%, a spread of 3.3, more than the current Romney-Obama margin. That especially pertinent datum appears nowhere in the post. [Silver’s chart does tell us that Bush won, but isn’t pertinent to discuss Ohio specifically, and also to point out that he won by 2.4%, a 3.3% spread, and not, say, .1%, a 1% spread?]

And isn’t the broader issue how often state polls are off by at least 2.3%? Just for example, Silver’s chart shows that Bush was leading by .9% in Florida in the polls 2004. He actually won by 5.0%, a difference of 4.1%. That didn’t change the “outcome,” but isn’t it very relevant to how secure a 2.3% lead in the polls is? [I randomly chose this as the first and only non-Ohio poll vs. outcome I looked up. It may be a huge anomaly. If so, Silver surely has the data at hand to tell us that.]

If I were investigating the issue, I’d want [...]

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Re: Libertarian Law Professors and Presidential Candidates

I think David is absolutely correct in his post below that judicial appointments are a big issue for most libertarian-leaning law professors, and on this issue Republican presidents (and their judicial nominees) have done far more to advance libertarian legal views than Democratic presidents. I would add two points to David’s analysis. First, even on those issues where libertarians are more “liberal,” Democratic nominees have not been clearly superior to Republican ones. The most speech protective justice on the Court is Anthony Kennedy. The least speech protective is likely Justice Breyer. On criminal justice issues, the formalism of some conservative justices often leads the to embrace pro-criminal defendant holdings, as we’ve seen in Fourth and Sixth Amendment cases. In this regard, a Justice Scalia or Thomas is often more “libertarian” than a Justice Breyer. There are no paragons of a libertarian jurisprudence on the Court, but in the past thirty years Republican nominees have come far closer than Democratic nominees.

While judicial nominations may overshadow many other issues for libertarian law professors, I think there’s another factor at work. Recent Democratic presidents have tended to be quite disappointing on those issues where libertarians have “liberal” views. Many libertarians had high hopes for President Obama, but he has disappointed them on a range of issues, such as executive power, civil liberties, foreign adventurism, government transparency, drone strikes, and the drug war. He has expanded and entrenched many Bush Administration War on Terror initiatives and has also been disappointing in areas President Clinton was a pleasant surprise, such as trade and the federal budget. Even where I support the President’s policy preferences, as with gay marriage, the administration has been disingenuous.

Reasonable libertarians may disagree as to whether any of this justifies supporting Mitt Romney [...]

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Ted Frank: Is 538 Wrong?

There have been many silly posts in the right-leaning blogosphere attacking Nate Silver at the 538 blog for his perceived pro-Obama tendencies. In fact, Silver created his model earlier this year, and has stuck with it as the campaign has progressed. So unless he’s lying about the results of his model, there’s no reason to accuse him of bias.

This, of course, leads to the question of whether his model is correct. In a nuanced post, Ted Frank sees one potential flaw. Conventional wisdom suggests that undecideds tend to break against the incumbent party, and that Republicans tend to outperform the polling data. Silver thinks that’s largely incorrect, but a good part of the reason that he does so is that Al Gore both won the undecideds and vastly outperformed his polls in 2000. As Frank points out, however, 2000 may have been an anomaly because it was the only election in recent memory that featured a last-minute, important “November surprise”–the revelation of Bush’s drunk driving conviction. If you take 2000’s results out of the picture Obama’s outlook looks pretty bad; an incumbent who is consistently polling less than 50% close to the election, as Obama is, is likely to lose.

It’s an intriguing point, and Frank provides the necessary caveats. I’ll add one more: Blog 538’s predictions haven’t been much out of line with those of betting markets, professional and otherwise. (Of course, there is also a chicken and egg problem here, to the extent that bettors think that Silver has the best model).

Meanwhile, I’m still intrigued by the debate Monday night, which I watched despite my better judgment. I thought Obama “won” the debate by seeming more confident while Romney often stuttered and sputtered. But I also thought that Obama adopted the aggressive posture of an [...]

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Why Libertarian Law Professors Tend to Support Romney

As Jonathan and Ilya have recently pointed out, Reason Magazine’s writers are overwhelmingly voting for Gary Johnson, or they are not voting at all.

By contrast, most libertarian law professors of my acquaintance are supporting Romney. (And even back in 2008, when some libertarians supported Obama, this was a distinct minority position among libertarian law professors–though David Post did support Obama on this blog.) Why the difference? One reason, undoubtedly, is that law professors have a much greater than average concern about the Supreme Court. And while one can make the case that a libertarian whose primary concern is gay rights or abortion would prefer a Court with Democratic appointees, here’s something to keep in mind, from a post I wrote back in October 2008:

Libertarians have been heavily involved in some of the most important constitutional Supreme Court litigation of the last two decades, either in terms of bringing the case, being among the most important advocates of one side’s constitutional theory, or both. Among the cases in this category are Lopez, Morrison, Boy Scouts v. Dale, U.S. Term Limits, Grutter, Gratz, Kelo, Raich, Heller, and probably a few more that I’m not thinking of offhand. With the minor exception of Justice Breyers’ vote in Gratz, in each of these cases, the ONLY votes the libertarian side received were from Republican appointees, and all of the Democratic appointees, plus the more liberal Republican appointees, ALWAYS voted against the libertarian side. The latter did so even in cases in which their political preferences were either largely irrelevant (Term Limits), or should have led them to sympathize with the plaintiff (Lopez, Kelo, Raich).

To those examples we can add McDonald, Citizens United, American Tradition [...]

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Over 30% of President Obama’s 2009-2011 Gross Income Came From Foreign Sources

I find it strange that the Obama campaign would be making so much of Romney’s income from foreign sources when Obama’s foreign source income appears to be a much bigger percentage of his income over the last few years. Of course, one can’t tell for sure because Mitt Romney has not released his 2009 tax return.

Yet in the three tax years in which Barack Obama has been President (2009, 2010, and 2011), fully 30.1% of the Obamas’ gross income has come from foreign sources: ($2,711,340 out of a 3-year total gross income of $8,993,449).  In 2009, 26.5% of the Obamas’ gross income came from foreign sources. In 2010 it was a whopping 41.4%, and in 2010 it was 30.2%.

The salary that we taxpayers pay him as President (just under $1.2 million over the 3 years) accounted for less than 13% of the Obamas’ income, a share dwarfed by their 30% from foreign sources over the same period.

From 2009 through 2011, the Obamas paid $87,429 in foreign taxes, which they applied toward a credit to reduce their U.S. tax bill.  The amounts I examined are reported on Form 1116, of which there are two filed along with their 1040 when they had both general and passive foreign income.

Their returns do not disclose which foreign countries are responsible for paying the Obamas the $2.7 million in foreign source income, but the overwhelming bulk of it must come from payments resulting directly or indirectly from book sales.  Nonetheless, the Obamas did report a total of $3,611 in foreign passive income in 2009 and 2010, a type of income that most often results from investments in foreign countries.  Like some of the foreign investments for which Romney has been pilloried, this Obama passive foreign income might [...]

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Next step: Repeal the individual mandate because it is unconstitutional

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the [...]

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NFIB as Marbury

My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that a conditional congressional grant violates the rule.

The folks who think that the “evolving Constitution” completed its evolution in 1937-42, and that everything the Court did during those years must be applied today with the broadest possible reading, should be especially pleased with the NFIB Court’s vigorous enforcement of a very important New Deal precedent.

My essay argues that the application of the non-coercion rule, as well as the  application of the doctrine of incidental powers for the Necessary and Proper Clause, are among the many elements of the Roberts opinion whose significance approaches that of some of the most important opinions by Chief Justice Marshall.

Although we do not know Chief Justice Roberts’ motives, I suggestion a comparison of NFIB to Marbury v. Madison: adroitly escaping from a partisan assault on the Court itself, the opinion moves constitutional law very far in the opposite of the direction favored by partisan assaulters–and does so in a way that leaves the partisan assaulters unable to use the case in their attacks on the Court. [...]

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Justices Time Their Retirements According to Political Party

Do U.S. Supreme Court justices tend to try to time their retirements to help the political party of the president who appointed them? University of Chicago sociologist Rafe Stolzenberg and I have an article in the journal Demography that finally answers that question: Yes, justices do act politically when deciding whether to retire or take senior status.  One interesting finding is that since 1789 justices have been more likely to die in office when the party of the current president is different from the party of the president who appointed him.

Our paper, “Retirement and Death in Office of U.S. Supreme Court Justices,” can be downloaded at SSRN.

Here is the abstract [abstract revised after posting]:

In this study, we construct demographic models of retirement and death in office of U.S. Supreme Court justices, a group that has gained demographic notice, evaded demographic analysis, and is said to diverge from expected retirement patterns. Models build on prior multi-state labor force status studies and data on justices permit an unusually clear distinction between voluntary and “induced” retirement. Using data on every justice from 1789 through 2006, with robust, cluster-corrected, discrete time, censored, event history methods, we (1) estimate retirement effects of pension eligibility, age, health, and tenure on the timing of justices’ retirements and deaths in office, (2) resolve decades of debate over the Politicized Departure Hypothesis that justices tend to alter the timing of their retirements for the political benefit or detriment of the incumbent President, (3) reconsider the nature of rationality in retirement decisions, and (4) consider the relevance of organizational conditions as well as personal circumstances to retirement decisions.

Computing robust standard errors with adjustments for clustering by justice, we find that the odds that a justice will retire (or resign or take senior status) in

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Emmy nomination for 1951 Colorado Inside Out

Every year the political roundtable show Colorado Inside Out does a time machine episode. Last year’s 1951 episode has just been nominated for a regional Emmy Award, in the news/interview program category. Our topics for the episode were the firing of Gen. Douglas MacArthur, the Korean War, duck and cover training, and the new federal government center in Denver. Characters were the famous singer and actress Ethel Merman, who had recently moved to Denver (played by Westword publisher Patty Calhoun), newspaperman Al Nakula (played by former Rocky Mountain News journalist Kevin Flynn), sociology professor Lois Waddell (played by Dani Newsum), and southern Colorado newspaper editor Cecil Koplowitz (played by me, evoking my father’s first journalism job, in Walsenberg).

We  are getting ready to tape a new episode, which will be set in 1912. Patty Calhoun will portray Denver socialite and social climber Molly Brown. I’m busy reading about the Balkan War which began in 1912. The episode will premiere on Friday, July 6. [...]

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Public opinion about the National Rifle Association

In April, a Reuters/Ipsos poll found that the National Rifle Association was viewed favorably by 68% of Americans, and unfavorably by 32%. Unlike most polls, the Reuters poll apparently did not allow “unsure” or “undecided” as a choice. In each of the demographics which the poll provided–Republicans, Democrats, independents, whites, and blacks–the NRA was viewed favorably by at least 55%.

A 2005 Gallup Poll had found a 60/34 favorable/unfavorable view of the NRA. Previous Gallup results were 52/39 (May 2000), 51/39 (April 2000), 51/40 (April 1999, right after the Columbine High School murders), 42/51 (June 1995), and 55/32 (March 1993).

It is interesting to compare the NRA’s ratings with support for handgun control.  Since 1959, Gallup has been asking “Do you think there should or should not be a law that would ban the possession of handguns, except by the police and other authorized persons?” There have been some small changes in wording over the years, and the question is not a perfect test of support for handgun prohibition; some respondents might interpret “other authorized persons” simply as support for the licensing for handgun owners. However, the Gallup question is the closest thing there is to a 50-year gauge for sentiment for banning handguns.

In October 2011, Gallup found that 26% of Americans (a record low) thought that there should be such a law, and 73% did not. The 26/73 anti-/pro-handgun split is fairly close to the 32/68% anti-/pro-NRA split. After Columbine, 38% wanted the anti-handgun law, and 40% disapproved of NRA.

Likewise, Gallup in May 1993 found 54% in against the proposed law, and 55% approval for NRA.

Thus, generally speaking, over the last two decades, Americans who favor handgun prohibition appear to have accurately identified the NRA as a major obstacle to their wishes, and have viewed the [...]

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The Great Gun Control War of the 20th Century — And its Lessons for Gun Laws Today

This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here’s the abstract:

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. Another side asserted that the right to arms was absolute, and that any gun control laws were infringements of that right.

By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved; the Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws which do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous.

In the post-Heller world, as in the post-Brown v. Board world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from

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