Judicial Tyranny?

Dana Milbank has an interesting piece in the Washington Post today pointing out that the feud over Terry Schiavo is but a precursor to the upcoming battles that will take place over judicial confirmations. In fact, I think the most significant consequence of this case is going to be a conservative campaign against "judicial tyranny." Here's Tom Delay from his press conference today - "We will look at an arrogant, out of control, unaccountable judiciary that thumbed their nose at Congress and the President." Who's "we" and what will it mean to "look at" the judiciary? Which judges were arrogant, out of control and unaccountable? Since there was virtual consensus among judges - whether liberal or conservative, state or federal - it's hard to believe they are out of control (arrogant maybe, but coming from Delay that's a bit like the pot calling the kettle...). Are judges unaccountable? This is a serious charge and it raises some complicated issues.

The judge who has taken the brunt of the conservatives' ire in this case is Florida Circuit Judge George Greer. He's the judge that has been most involved in the Schiavo case and also the one who ordered the feeding tube removed and ignored Congress's subpoena for Terry Schiavo. But in what way did Judge Greer act tyrannically? It can't be because he doesn't have to answer to the voters - judges in Florida (with the exception of the Florida Supreme Court), including Judge Greer, are elected! Besides, if that's the only reason, then the unelected judiciary - including all federal judges - act tyrannically every day.

It must, then, be that he override an elected branch of government. If so, the Supreme Court acted tyrannically in Brown v. Board of Education(and, in fact, many conservatives at the time argued that they had) and in hundreds of other cases where they ruled legislative actions unconstitutional. Overruling the other branches is the judiciary's prerogative under our constitutional system of checks and balances. Furthermore, the principle of separation of powers requires an independent judiciary and gives the courts the responsibility for interpreting the law.

But that's apparently not what Pennsylvania's own Sen. Rick Santorum thinks. When U.S. District Court James Whittemore refused to hear the Schiavo case de novo following the passage of the Schiavo bill in Congress, Santorum argued,

"You have judicial tyranny here... Congress passed a law that said that you had to look at this case. He simply thumbed his nose at Congress."

"What the statute that [Whittemore] was dealing with said was that he shall hold a trial de novo," the Pennsylvania Republican explained. "That means he has to hold a new trial. That's what the statute said."

"What he's saying is, 'I don't have to hold a new trial because I've already determined that her rights have been protected,'" Santorum said.

"That's nice for him to say that. But that's not what Congress told him to do," he added. "Judges should obey the law. And this judge - in my mind - simply ignored the law."

But if judges are simply supposed to "obey the law" as written by Congress, what is their purpose? What is their role in a system of separated powers? In fact, it is Congress that overstepped its bounds, as Judge Birch argued in his concurring opinion in the 11th Circuit Court's decision yesterday not to take the case.

Section 1 of Pub. L. 109-3 [the Schiavo law]—which states that the United States District Court for the Middle District of Florida shall have jurisdiction to hear a suit regarding alleged violations of rights held by Mrs. Schiavo “under the Constitution or laws of the United States”—is not facially unconstitutional. If the Act only provided for jurisdiction consistent with Article III and 28 U.S.C. § 1331, the Act would not be in violation of the principles of separation of powers. The Act, however, goes further. Section 2 of the Act provides that the district court: (1) shall engage in “de novo” review of Mrs. Schiavo’s constitutional and federal claims; (2) shall not consider whether these claims were previously “raised, considered, or decided in State court proceedings”; (3) shall not engage in “abstention in favor of State court proceedings”; and (4) shall not decide the case on the basis of “whether remedies available in the State courts have been exhausted.” Pub. L. 109-3, § 2. Because these provisions constitute legislative dictation of how a federal court should exercise its judicial functions (known as a “rule of decision”), the Act invades the province of the judiciary and violates the separation of powers principle.

It IS offensive to democratic sensibilities to allow unelected judges to strike down acts of the elected branch(es) of government. But making them more accountable to "the people" (read: the majority) is problematic too. Ultimately, conservatives aren't really upset with tyranny - just with decisions they disagree with. The campaign against an independent judiciary seeks to do something radical to our constitutional system. We'd better think long and hard before letting it happen.

New Report Shows Effects of Redistricting

A new report by POLIDATA on the presidential election results by congressional district shows how rapidly the nation is becoming polarized. The number of districts in which voters split between the presidential candidate of one party and the congressional candidate of the other went from 103 in 1992 to 59 last year. The reason for this increasing polarization is redistricting. The process is now so precise (due, largely, to the use of computers), that the resulting districts are far more homogeneous in partisan terms.

This report is yet more evidence that something drastic has to be done about redistricting in the United States.

New Election Commission Formed

American University's Center for Democracy and Election Management has announced the creation of a bipartisan Commission on Federal Election Reform to, in the words of commission co-chair Jimmy Carter, "define an electoral system for the 21st century that will make Americans proud again."

During hearings of the National Commission on Federal Election Reform (chaired by Carter and Gerald Ford) after the 2000 election, Carter maintained, "I think it is a waste of time to talk about changing the Electoral College. I would predict that 200 years from now, we will still have the Electoral College." It certainly will be around in 200 years if high-profile commissions headed by former presidents don't address the grossly undemocratic nature of that institution. Let's hope they address it this time.

Public hearings are set for April 18 at American University in Washington and one in June at Houston's Rice University. A final report will be delivered to Congress in September.

Rep. Shays on the Republican Party

From an article in today's New York Times - "This Republican Party of Lincoln has become a party of theocracy," Mr. Shays [R-CT] said.

Note that Shays is saying that it "has become" a theocratic party, not that it is in the process of becoming one. To the extent that he's right, this is a serious - and dangerous - development.

New Keystone Poll Results - Santorum in Trouble

The results of a new Keystone Poll (conducted at my institution, Franklin & Marshall College) have just been released and they suggest that Sen. Rick Santorum is vulnerable. He's in a dead-heat with State Treasurer Robert Casey Jr. (D) - Casey 44%, Santorum 43%. Santorum's favorable rating is 39% (26% not favorable) and Casey's is 33% (10% not favorable).

If Casey is well-funded, as I suspect he will be, this might end up the most closely watched Senate race in 2006.

For PA readers - Gov. Rendell leads the three potential Republican nominees by fairly significant margins - St. Sen. Piccola (53-23), former Lt. Gov. Scranton (47-37) and former Steeler wide receiver Lynn Swann (59-29). None of these GOP candidates have much name recognition yet (including Swann, who, despite being a Hall of Famer, is unknown by 63% of respondents). Plus, Rendell's job approval isn't great (39%), though his favorables are okay (48%). This one could get tight too, but as my colleagues at the Center for Opinion Research point out in the poll summary, "No sitting Pennsylvania governor has lost a re-election campaign since the state’s constitution was amended to allow for successive gubernatorial terms."

Saletan on the "Culture of Life"

In Slate today, William Saletan's column on the "culture of life" is an absolute MUST-READ. Here are a few choice paragraphs...

If Congress makes such decisions, here's the kind of judgment you'll get. At a press conference Saturday, one Republican congressman said his colleagues were intervening in the case "so that this young woman can continue to make her parents as happy as she has"—as though that were the purpose of her existence. DeLay accused Democrats of starving Schiavo to death. He called it "medical terrorism." One day DeLay said she'd die slowly of starvation; the next, he said Congress had to move fast because she'd die quickly of dehydration. Frist, who has asserted special credibility "as a physician," claimed that "neurologists who have examined her insist today that she is not in a persistent vegetative state"—neglecting to mention that neurologists who testified in court concluded the opposite. On the Senate floor, Frist claimed to have "been in a situation such as this many, many times," when in fact he had never made such an evaluation. On the basis of the family videos, he challenged the assessment made by doctors who had examined Schiavo in person.

... [snip]...

And here's the culture you'll get. Schiavo's parents have filed a motion to divorce her from her husband. Protesters at the hospice have suggested that the husband should be starved and the judge should be beaten. On the Senate floor, Frist has challenged the husband's right to make the decision because he has "a girlfriend." What about the judge's confidence in the husband's account of Schiavo's stated wishes? Unless Schiavo "had specifically written instructions in her hand and with her signature," scoffs DeLay, "I don't care what her husband says." This from an out-of-state congressman who got his legal training in campaign-finance creativity and his medical training in pest control.

If I were Terri Schiavo and saw what was being done to my body, my honor, and my country in my name, I'd sooner die.

The Politics of the Schiavo Case

If you have a blog on American politics, I suppose you have something of an obligation to address a story as extraordinary as the Schiavo case. It's tempting to point out the apparent hypocrisies in the Republican position - that a states' rights, sanctity of marriage party is willing to use the federal government to interfere with a decision by a husband about his wife.

To be fair, conservatives would say that the right to life is a principle that overrides their dedication to other values. But that simply highlights the inconsistencies in their supposed commitment to a "culture of life." It is unimaginable, for example, that a Republican-lead Congress would intervene on behalf of a death row inmate who is likely to be innocent. And the defense of life, of course, is not the same as a commitment to quality of life. If life is so important, why not provide health care coverage to all?

There are plenty of other questions to be raised about Republican behavior in this case. Does it violate the separation of powers? Isn't this contrary to a view of limited government that Republicans supposedly embrace; where is this particular congressional power enumerated in the Constitution? Is the precedent this creates - the federal government stepping into specific, unique cases - an acceptable one?

Of more relevance to this blog, though, are the politics of the case. Clearly, Republicans see a benefit in placating the most important part of their base, namely, conservative evangelicals. As the Washington Post reported Saturday, a GOP memo circulated among Senate Republicans in which "the Schiavo case was characterized as 'a great political issue' that could pay dividends with Christian conservatives, whose support is essential in midterm elections such as those coming up in 2006." It also

singled out Sen. Bill Nelson (D-Fla.), who is up for reelection next year and is potentially vulnerable in a state President Bush won last year.

"This is an important moral issue and the pro-life base will be excited that the Senate is debating this important issue," said the memo, which was reported by ABC News and later given to The Washington Post. "This is a great political issue, because Senator Nelson of Florida has already refused to become a cosponsor and this is a tough issue for Democrats."

As The Note points out today, Christian conservatives have been lobbying Congress for a while to do something in the Schiavo case. The truth is, congressional Republicans probably HAD to act.

But there's a significant risk as well. The libertarian streak within the American public may very well be activated by this heavy-handed move. In fact, public opinion is clearly opposed to the Republican position. Gary Langer's analysis of an ABC News poll today finds that

Americans broadly and strongly disapprove of federal intervention in the Terri Schiavo case, with sizable majorities saying Congress is overstepping its bounds for political gain.

The public, by 63 percent-28 percent, supports the removal of Schiavo's feeding tube, and by a 25-point margin opposes a law mandating federal review of her case. Congress passed such legislation and President Bush signed it early today.

That legislative action is distinctly unpopular: Not only do 60 percent oppose it, more — 70 percent — call it inappropriate for Congress to get involved in this way. And by a lopsided 67 percent-19 percent, most think the elected officials trying to keep Schiavo alive are doing so more for political advantage than out of concern for her or for the principles involved.

The poll shows that even conservatives and evangelicals oppose congressional action (57% and 50% respectively) and both groups support removal of the feeding tube (though evangelicals are split on the subject, 46% for removal, 44% opposed to it).

The political consequences of this may be similar to the Clinton impeachment. Republicans moved forward with that despite opposition from the public at large because in the conservative districts of their leadership, that position was popular. Here, the leadership is being encouraged by the socially conservative interest groups it communicates with, but they're missing the bigger picture.

Many Democrats are likely feeling pressure to appear morally sensitive to this situation. But the American people value living a dignified life that requires more than being technically 'alive.' They want a quality life for themselves and their loved ones. (That's why roughly 80% would prefer to have the feeding tube removed were they in Ms. Schiavo's condition.) Furthermore, in cases like this, the people prefer to let a private matter remain private (only to be adjudicated in courts, if it comes to that). As a result, the Democrats shouldn't exploit the issue; the Republicans' misstep speaks for itself.

More on the Senate and Democracy

A few people have taken exception to my previous post on the Senate (see, for instance, the comment by my good friend Stephen Caliendo), so I thought I'd say just a bit more.

Part of the disagreement over the Senate is based on terminology. 'Democracy' is simply too vague a term to use in referring to specific aspects of a political system. Arguments over whether or not an institutional arrangement is 'democratic' are based on particular conceptions of 'democracy.' Thus, when supporters of the Senate insist that 'democracy' and 'majority rule' aren't synonymous, there's validity to the claim but only to a point. Of course they aren't perfectly synonymous, but under majoritarian conceptions of democracy, they're closely linked. Under pluralist conceptions, the two are less clearly related.

But even pluralist models, some allowance for majority rule is necessary. As a result, something can't be called democratic if it didn't allow for majority rule at some point in the process. Hertzberg's column, I thought, showed how the Senate might very well be operating under minority rule (and not simply because of the filibuster, though that too makes minority rule highly likely).

If majority rule is a necessary condition of democracy, then we have to acknowledge that the protection of minority rights is a check AGAINST democracy (as the Framers knew and repeatedly asserted). Don't get me wrong, protection of minority rights is a good thing, especially when the minority is relatively powerless in society. It's good because democracy can (at least theoretically) bring about bad results. But, just as democratic results aren't always good, not all good things deserve the label "democratic."

The Supreme Court - as Caliendo well knows - isn't democratic either. Sometimes they advance good causes nonetheless (e.g., Brown v. Board). More often in our history, however, they've hindered progress. Today, they may be imbued with pluralistic spirit enough to not trample on minority rights. But, we're only one more Scalia away from being on thin ice in that regard.

The minority in "minority rights" is another issue to address. When we use that term, we normally mean groups of people who are in danger of being oppressed. But all the Senate does is protect small states. As Robert Dahl points out in How Democratic is the American Constitution?, why should small states be protected? First, why do STATES, as opposed to PEOPLE, even deserve protection? Second, are small states so systematically oppressed that they need protection?

Anyway, the filibuster protects numerical minorities in the Senate, which may not be aligned with small states as Hertzberg's numbers for the current Senate indicate. Again, that might be a nice check against numerical majorities, but it's not democratic. And it might contribute to minority tyranny, as it did for years in stopping civil rights.

We'll never strike the perfect balance between majority rule and minority rights. But what arrangement gets us closest? I doubt it's the Senate, though I'm fully prepared to be proven wrong. In the meantime, I'd rather cast my lot with a parliamentary system under proportional representation (but that's a discussion for another time).

Another Theocracy Sighting

Lest anyone think I was exaggerating the attempt to establish a theocracy in the United States, the Christian Science Monitor reported today on a national conference of evangelicals devoted to "reclaiming America for Christ." (The host church, Coral Ridge Presbyterian, supports the Center for Reclaiming America and the Center for Christian Statesmanship.) As one of the conference speakers told the attendees, "We have God-sized problems in our country, and only God can solve them." And part of the conference materials contains this statement - "As the vice-regents of God, we are to bring His truth and His will to bear on every sphere of our world and our society. We are to exercise godly dominion and influence over our neighborhoods, our schools, our government ... our entertainment media, our news media, our scientific endeavors - in short, over every aspect and institution of human society."

This may be a relatively small number of right-wing activists at the moment, but they are emboldened by the belief that they are responsible for the reelection of President Bush. (For his part, Bush believes he wasn't elected as much as chosen by God for the office.)

On the Road to Theocracy?

Two recent articles on religion and politics caught my attention and highlight the kookiness and cunning of some fundamentalists. The first is Bill Moyers' piece in The New York Review of Books on fundamentalists and the environment. In a nutshell, he shows how belief in the Rapture leads to a disregard for the environment. As Moyers writes, "why care about the earth when the droughts, floods, famine, and pestilence brought by ecological collapse are signs of the apocalypse foretold in the Bible?" But more than the policy implications, it's the actual belief in the Rapture that stopped me short. Moyers notes that it's difficult to tell how many true believers there are, but he cites some recent poll numbers to give a sense of how many people out there hold similarly crazy beliefs: 36% believe the Book of Revelation to be "true prophesy" and 25% believe the Bible predicted the 9/11 attacks. Here's the basic "plot of the Rapture" according to Moyers...

Once Israel has occupied the rest of its 'biblical lands,' legions of the Antichrist will attack it, triggering a final showdown in the valley of Armageddon. As the Jews who have not been converted are burned the Messiah will return for the Rapture. True believers will be transported to heaven where, seated at the right hand of God, they will watch their political and religious opponents writhe in the misery of plagues - boils, sores, locusts, and frogs - during the several years of tribulation that follow.

What does this have to do with politics? "One is foolish to think that their bizarre ideas do not matter," writes Moyers. "I have no idea what President Bush thinks of the fundamentalists' fantastical theology, but he would not be president without them."

Then I read an article in the Washington Post on Monday about the new strategy of the so-called "intelligent design" movement. The idea is not to immediately push for the removal of evolution from the schools (and to replace it with creationism), but to simply "teach the controversy," the controversy being that evolution has its critics. My own Senator, Rick Santorum, for instance, is quoted as saying, "My reading of the science is there's a legitimate debate" about the validity of evolution. (With all due respect, Rick Santorum's reading of the science?!?!) And Cindy Duckett, a Wichita mother who sends her children to a private Christian school, believes that "the more options, the better" and that students should have to consider "any other belief that a kid in class has." Any other belief? So flat-earth, alien invasion - it's all on the table? I wonder if all beliefs - including Darwinism - are welcome at Ms. Duckett's Christian school.

Again, how is this political? It's nothing but political, given that the intelligent design movement has very little to do with science. Science, after all, is based on hypotheses that scientists do their best to reject; the scientific method is based on searching for counter-evidence. What evidence could possibly exist to "disprove" the notion that an "intelligent creator" formed the world and its inhabitants? No, this movement is about fighting progress and enlightenment. As one of the intelligent design advocates admitted in the Post piece, "If you can cause enough doubt on evolution, liberalism will die." But with it, so will advances in science and medicine.

Add to all this Justice Scalia's recent claim that "government derives its authority from God" (as opposed to the people?) and it doesn't seem unreasonable to worry that we're inching toward some form of theocracy in the United States. But every step toward theocracy is a step away from freedom and progress. If our pluralist democracy is to remain healthy, political movements based on religion really must be resisted.

Video News Releases, Propaganda and the Media

Yesterday's New York Times had an absolute must-read article on the Bush "message machine" and its ability to get "video news releases" (VNRs) placed, in many cases unedited, on local news programs. In many ways, I don't blame the Bush administration for using this tactic - VNRs are just sophisticated examples of the kind of spin you see daily in the White House press briefings. No one expects political actors to offer criticisms of their own positions and programs. And few would argue that, in the age of 24/7 news cycles, political actors should not actively attempt to get their messages out.

But does this tactic amount to domestic "propaganda," which by law cannot be disseminated by the government? Determining what counts as "propaganda" is a tricky endeavor. What, for example, makes these VNRs different from run-of-the-mill press releases? One thing is that press releases are distributed on agency letterhead and, as a result, anyone reading them knows exactly who the source is. Because the distribution of VNRs is rather complex, the provenance of the piece may not be obvious. So local news stations may very well think that the piece was produced by their parent network.

Does this mean the government have an obligation to make it crystal clear that it is the source of a VNR? I think so, though failure to meet this obligation probably isn't a gross ethical violation. At any rate, most of the VNRs do contain some hint of the original source. For example, one piece for the Agriculture Department ends, "In Princess Anne, Maryland, I'm Pat O'Leary reporting for the U.S. Department of Agriculture." It may be brief - and may not be enough to tip the average viewer to what's going on - but I think it meets the government's obligation for sourcing. (Of course, some VNRs have been tailored for certain stations, as in the case of one Ag Department piece for an Illinois station that ended, "With the U.S.D.A., I'm Bob Ellison, reporting for 'The Morning Show'." That can sound as though Ellison is "on location with the U.S.D.A." This is more problematic.) Ultimately, the sourcing on these things is blurry, but as long as there's no disinformation in them, I think they're acceptable.

Far more troubling is the way local news stations use VNRs. The news directors the Times reporters talked to said they don't run them, but in fact they were shown to have done so. Local stations are under pressure to do more with fewer resources and this makes it hard to resist a pre-packaged news segment, even if it isn't really a news segment at all. Add to that the basic shoddiness of so many local television news divisions and this is fertile hunting ground for public relations specialists. Networks and local affiliates ought to simply prohibit the use of VNRs in any form. Until they do, the average viewer won't really know if they're watching neutral reporting or propaganda.

How Undemocratic is the Senate?

Hendrik Hertzberg has, as usual, a terrific column in the latest New Yorker and it's a must read if you want to know just how undemocratic the Senate is. The numbers are devastating.

The filibuster allows a minority within a legislative body to thwart the will of a majority. But that is hardly the worst of the Senate’s democratic imperfections, most of which spring from the arithmetical disparity among state populations. Fifty-one senators—a majority—can represent states with as little as seventeen per cent of the American people. Sixty senators—enough to stop a filibuster—can represent as little as twenty-four per cent. That’s theory. What about reality? Well, if each of every state’s two senators is taken to represent half that state’s population, then the Senate’s fifty-five Republicans represent 131 million people, while its forty-four Democrats represent 161 million. Looked at another way, the present Senate is the product of three elections, those of 2000, 2002, and 2004. In those elections, the total vote for Democratic senatorial candidates, winning and losing, was 99.7 million; for Republicans it was 97.3 million. The forty-four-person Senate Democratic minority, therefore, represents a two-million-plus popular majority—a circumstance that, unless acres trump people, is at variance with common-sense notions of democracy. So Democrats, as democrats, need not feel too terribly guilty about engaging in a spot of filibustering from time to time.

In an ideal system, there'd be no Senate. But I wouldn't be for eliminating it - as if that's even a possibility - given the undemocratic nature of how the House and the presidency are currently elected (i.e., first-past-the-post districts and the Electoral College, respectively).

The trickier question is the filibuster, since it could realistically be abolished. It, too, is undemocratic and, as Hertzberg points out, has been used for ill more than for good. But when a legislative minority actually represents a popular majority, it might be a good way to restore some balance. In the current circumstances, think of it as a device for protecting majority rights.

House New Dems Sell Out on Bankruptcy

Apparently the House New Democrat Coalition supports passage of the extraordinarily bad bankruptcy bill. Leaving aside any policy evaluation, however, the politics of this escapes me (as it does Noam Scheiber). What Democratic constituency - or group of swing voters, for that matter, would find this bill attractive? Furthermore, what Democratic principle does this bill possibly embrace? If Democrats don't defend working and middle class people, particularly those who are facing bankruptcy as a result of medical expenses (which account for half of personal bankruptcies according to a recent study by Harvard researchers), who do they stand for? This certainly doesn't seem like the way to convey the "values" that New Democrats are always accusing the rest of the party of ignoring.

Scheiber - a centrist himself - calls this a "colossal, inexcusable mistake" and says, "The political imagery here so obviously benefits anyone who'd oppose the bill you're left to conclude that the only way a congressman could possibly support it is through a craven and reflexive willingness to do the bidding of big business" [i.e., credit card companies].

If New Democrats want to prove their bona fides as moderates, why not split the difference and push for a provision exempting medical bankruptcies? No wonder liberals are fond of referring to the DLC (or Democratic Leadership Council, the New Dems' parent organization) as "Democrats for the Leisure Class."

Barone on Campaigns in the "Networking Era"

I read Michael Barone's Feb. 25 National Journal cover story called "American Politics In The Networking Era" over the weekend and I've just finished thinking it through. The piece, which is an excerpt from the forthcoming Almanac of American Politics 2006, seems to have two purposes. First, it discusses campaigning in the "networking era," arguing that the Bush `04 campaign was tailor-made for the demands of this age. Second, he strongly suggests that 2004 is a "reshaping" (he never uses the more common term "realigning") election along the lines of 1896 and 1936.

Barone is a smart guy (he was editor of the Harvard Crimson and the Yale Law Journal) and a very good political analyst, but his assessment of the "networking era" and the Bush campaign's place in it is seriously flawed. He claims that the 2004 campaign "produced a different kind of politics, a politics that reflects the character of the post-industrial, networking age we live in." Rather than the old command-and-control structures appropriate for the Industrial Age, a networked campaign is decentralized and can draw upon thousands of contact points through which it communicates. In the Information Age, it's the networked campaign that will have an advantage.

Barone believes that the Bush campaign "created an organization unlike any seen before, a networking organization that far surpassed what the Democrats were doing." As evidence of this organization, Barone notes that the Bush campaign collected 6 million e-mail addresses and had 1.4 million active volunteers. More than the numbers, Barone argues it was how the Bush campaign used its volunteers that made it unique. As he says, the Bush organization

used connections - networks - to recruit volunteers and identify voters. The campaign built on existing connections - religious, occupational, voluntary - to establish contacts. If a Bush volunteer was a Hispanic accountant active in the Boy Scouts, the campaign would reach out through him to other Hispanics, accountants and their clients, and Boy Scout volunteers.

So, what were Democrats doing? According to Barone, they relied on unions and 527s, groups that, in turn, "relied on paid workers supervised by command-and-control organizations." That approach is "traditional, industrial-era politics."

To be blunt, I'm not sure what campaign Barone was watching. First of all, MoveOn has 2.9 million e-mail addresses of its own, while Kerry and the DNC maintain lists of almost 3 million and 4 million, respectively. And, with respect to volunteers, the Kerry campaign and the Democratic Party signed them up in unprecedented numbers. Furthermore, volunteers organized by progressive 527s numbered in the hundreds of thousands and America Coming Together created the largest get-out-the-vote effort in history. When unions are included, my bet is that the raw number of volunteers was roughly equal.

More puzzling is Barone's contention that 527s are "traditional, industrial-era" organizations. MoveOn.org might be a lot of things, but it isn't traditional. It began life in 1998 as an e-mail to 100 friends and rapidly became a grassroots (or "net-roots") movement. Since then, it has used the Internet in innovative ways to organize and mobilize. (A few weeks after the election, MoveOn "hosted" 1,500 parties around the country to encourage 18,000 attendees to help set the future direction of the organization.) And, as a Wired News story explained last summer, it has "no office and no formal organization other than a website and a handful of staff members spread around the country." You can't get much more decentralized than that.

In fact, it's the Democratic effort that fits Barone's networking model far better than the Republican model. In fact, the approach Barone describes - voters being contacted by someone like them in some important way - was essentially invented by the unions. Labor may be old school, but their tactics helped Democrats beat the Republicans at the turnout game for decades before Republicans mimicked them with their "72 Hour Task Force" in 2002.

Furthermore, progressive outfits coordinated their efforts under the umbrella group America Votes, which consisted of over 30 liberal organizations. But coordination is not command-and-control. Groups still had the flexibility to create their own efforts. For example, when Emily's List needed people in Florida, they e-mailed members from around the nation asking for volunteers. According to a staffer at the group, "Within 36 hours, we had filled four planes with 650 people, and we had such a large waiting list we had to shut it down" (as quoted in a Washington Post story on October 24, 2004). Admittedly, Emily's List paid for the plane tickets, but this was one group contacting its own members. Sounds like networking to me.

The Republican effort, on the other hand, was completely controlled by the Bush campaign and the party. As Barone says in his essay, Bush campaign manager Ken Mehlman established goals for voter contact and, "Every week, the leaders of the local, state, and national organizations got reports on whether those metrics had been achieved." In addition, "Unproductive volunteers were replaced or persuaded to do more." Leaving aside the question of whether these reports might have violated the prohibition against campaigns coordinating efforts with outside groups, this reads like a classic command-and-control operation. And reporters covering the campaigns' get-out-the-vote shops refer to the Republicans over and over again as "centralized."

In fact, there was no command-and-control structure in the Democratic operation. This, as it turns out, may have been its problem. Remember that perhaps the most decentralized campaign in history was Howard Dean's - which campaign manager Joe Trippi has referred to as an "open source campaign" to signify its emphasis on empowering the grassroots. But Dean's campaign crumbled, at least in part, because there was a lack of logistical direction at the top.

Barone's basic conclusion - that decentralized campaigns are more effective than centralized ones - is simply incorrect, regardless of the era. If you need evidence, you need look no further than the Bush campaign of 2004.

Ironically, Barone's second point - that Republicans might be on the verge of partisan domination for years to come - may very well be right because his first point is wrong. In other words, the Republican organization in 2004 may have "reshaped" the electorate to the GOP's advantage. But that's only possible because the Bush campaign (and, by extension, the Republican Party) ran a tight ship, not a decentralized one. For instance, the GOP's e-mail list is basically the Bush-Cheney `04 list, because the campaign built the list with a post-election hand-over to the RNC in mind. The Kerry campaign, however, promised list members that the e-mails wouldn't be shared with anyone. Thus, the Kerry list and the DNC list remain separate. And all the decentralized efforts of more than 30 527s exacerbate the problem.

House Dems Shouldn't Follow GOP Lead on Redistricting

The Hill is reporting a split in the House Democratic leadership on whether or not to follow the lead of Republicans and redraw district lines before the 2010 reapportionment in states favorable to Democrats. Minority Leader Nancy Pelosi (CA) is against doing so, as is Rep. John Larson (CT) who is running for vice chair of the Democratic caucus. On the other side are House Minority Whip Steny Hoyer (MD) and two other candidates for caucus vice chair (especially Rep. Joe Crowley [NY]). According to The Hill, Hoyer's position "appears to be gaining momentum in the caucus."

Pelosi and Larson are right. The short term gain to the Democrats of picking up a few (no more than about 5) seats is far outweighed by the long-term damage this sort of tit-for-tat battle would do to the system and by the lost opportunity for Democrats to capture the reform mantel.

Republican mid-decade redistricting efforts in Texas and Georgia were premised on change in legislative control since the 2001 redistricting round. They claimed that since the voters gave them control over the legislatures in those states, redrawing the district maps was necessary to reflect the new reality. It's a bogus claim, but one that would constrain Democratic efforts to do the same. In other words, Democrats could only "legitimately" try to redraw lines in states where they have taken legislative control since 2001. Those states are CO, NC, VT, WA, IL, LA, and NM. CO and VT are out because there's a Republican governor in CO (and because the state Supreme Court has already said it can't be done - Republicans tried in 2003) and VT only has one congressional district. That leaves NC, WA, IL, LA, and NM. An article from Roll Call a few days ago said Democrats are considering this move in IL, NM and LA. In the first two states, they think they can pick up a combined 3 seats. If - and this is a BIG if - they can gain one more in each of the other three states, that's a total of 6 seats. Is it really worth making a bad system worse to gain 6 seats? And Republicans would certainly move to redraw lines in other GOP controlled states, thus mitigating Democratic gains.

Perhaps the more important reason for not engaging in this petty retribution is that the Democrats have a golden opportunity to cement their image as the party of reform. The American public believes that parties and politicians look out for themselves first and only then think about the common good. By embracing redistricting reform, like that proposed by Gov. Schwarzenegger in California, Democrats would be sending a signal to the voters that they put American democracy above short-term partisan gain. If they miss this opportunity, they'll lose any credibility they might now have in advocating other election reforms.

Times Poll: Bush Isn't Moving the Public

The latest poll from the New York Times indicates that President Bush is having difficulty convincing the public to accept his plans for Social Security. Fifty-one (51) percent oppose private accounts, which climbs to 69 percent on the assumption that private accounts will lead to a decrease in guaranteed benefits. This after weeks of traveling around the country to rally support for his scheme.

The problem for Bush is that, for a "going public" strategy to be successful, the public has to approve of the job the president's doing in the first place. In the Times poll, Bush's approval rating is 49 percent.

In fact, Bush is wildly popular among Republicans but equally unpopular among Democrats. In such a polarized setting, there is a natural ceiling to Bush's popularity and it probably isn't high enough to enable him to enact a major policy revision.

On a related note, a National Journal article from a few weeks ago (January 22 to be exact), noted the "declining currency" of winning reelection to a second presidential term. There are too few cases (only six since 1950) to be certain of such a decline, but one trend does look ominous - the approval rating of presidents by members of the opposition party has dropped dramatically. [From the National Journal article...]

The Satisfaction Gap
Newly re-elected presidents always have strong support from

their own partisans, but over the years the approval such

leaders receive from the out-of-power party has declined

steadily. The chart below shows each president's approval rating

in the first Gallup Poll conducted in the year after his

re-election.
Col. 1: Approval rating from members of the president's

party

Col. 2: Overall approval rating

Col. 3: Approval rating from opposition party members



                    Col. 1      Col. 2      Col. 3

1957 (Eisenhower)       91          73          57

1965 (Johnson)          85          71          51

1973 (Nixon)            81          51          36

1985 (Reagan)           88          62          39

1997 (Clinton)          85          58          32

2005 (Bush)             91          52          19



SOURCE: Gallup Poll

Because the number of independents has increased, the drop in overall approval ratings hasn't been as precipitous. But these numbers suggest a deep polarization that, if continued, will make it difficult for any president to govern effectively (in the absence of majority control of both chambers in Congress, of course, though even that won't help Bush with Social Security privatization).

Is Scalia a Hypocrite?

Justice Scalia is, by all accounts, a brilliant person and he certainly has a well-developed ideology and judicial philosophy. So when someone accuses him of contradicting himself, it's worth listening to. In his Slate column yesterday, William Saletan claims that Scalia has flip-flopped on whether or not minors should be held responsible for their actions.

In his dissent from the majority in Roper v. Simmons (announced yesterday), Scalia himself accuses some of his colleagues of reversing course on this matter. He points out that in the abortion case Hodgson v. Minnesota, they argued that minors are often mature and rational enough to make their own decisions and, therefore, insisted that parental consent laws provide for judicial by-pass. Now, in the juvenile death penalty case, Scalia argues that some of these same justices hold minors to be too immature to fully comprehend their actions, which is the basis for the majority's ruling that a person can't be put to death for acts committed as minors.

Saletan, however, says it's Scalia who has changed his position. Scalia opposed the judicial by-pass requirement - thus, according to Saletan, treating minors as incapable of making grown-up decisions - but now believes that minors are quite aware of what they're doing in committing murder and, as a result, can be held accountable for their actions.

The problem with Saletan's argument is that he never provides evidence that Scalia argued against judicial by-pass on the grounds that minors aren't mature enough to make decisions about pregnancy. He dissented from that part of Hodgson because he opposes abortion, regardless of how old someone is and no matter how mature or rational she is. His technical reason for opposing judicial by-pass is simply that he finds no basis for such an exemption in the Constitution. As he wrote at the time, "I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so."

Saletan should have known that Scalia won't be caught in a contradiction that easily.

When Consultants use MRIs

Apparently, neuroscience has found a biological link to religious belief, has vindicated utilitarianism, and might be able to perfect political (and other marketing) appeals. The Los Angeles Times is the latest to report on studies of brain activity in response to political advertising [see also here and here]. Preliminary results suggest that there are differences between the ways Democrats and Republicans react to images in campaign spots. This scientific endeavor may be very fruitful in extending our understanding of voting behavior. The downside is that political consultants will someday be able to use the same techniques to manipulate the electorate.

At first blush, the thought of MRIs replacing focus groups seems ominous indeed. But how troubled should we be by this prospect? Is a map of brain activity significantly different than responses on a survey or in a focus group? I'm not sure. My gut reaction is that, yes, there is a difference. But the only argument I can come up with is that appeals based on neuroresponses enable consultants to influence people at an almost pre-rational level. When ads are created based on focus group discussions, there will be slippage between the appeal and the response. That's because there's a real possibility that people aren't explaining their reactions completely, as even they don't fully understand them. But if, in using MRIs, consultants were to know more about voters' responses than the voters do, there seems to be an advantage for the consultant that borders on manipulation.

The assumption here is that the brain activity being monitored in this process is based more in emotion than in reason. But that may not be the case at all. As an earlier article by John Tierney in the New York Times described the studies...

One of the most striking results so far is the way that subjects react to candidates after seeing a campaign commercial. At the start of the session, when they look at photographs of Bush, Kerry and Ralph Nader, subjects from both parties tend to show emotional reactions to all the candidates, indicated in the ventromedial prefrontal cortex, an area of the brain above the nose associated with reflexive reactions.

But then, after the Bush campaign commercial is shown, the subjects respond in a partisan fashion when the photographs are shown again. They still respond emotionally to the candidate of their party, but when they see the other party's candidate, there is more activity in the rational part of the brain, the dorsolateral prefrontal cortex.

There's still a lot to be learned here. But I don't think it's at all clear that a future of MRI-tested ads would be one of mind control.