All told, Franken gained a net of 176 ballots from the 952 under review according to The Uptake's unofficial count, putting him 225 votes ahead in the recount overall. Excluding disqualified ballots, Franken won 53.7 percent of the votes counted today, Coleman 34.1 percent, and other candidates 12.4 percent. Franken's 225-vote advantage is now slightly larger than the one Norm Coleman held before the recount began, when he led by 215 votes based on the certified Election Night tally.
Although the absentee ballots were expected by all observers to help Franken's prospects, the nearly 20-point margin that he ran up on Coleman today was surprisingly large; two pre-election polls that surveyed absentee voters had Franken winning that group by 8 points and 12 points, respectively. (n.b. Originally missed the Research 2000 poll on this -- nrs). It should also be remembered, however, that the Democrats made a large nationwide push for early and absentee voters this year, with Barack Obama overperforming by as many as 20-30 points among those voters in certain states.
The other possibility, of course, is that the Franken campaign did a more effective job of using its veto power on absentee ballots, perhaps by taking better advantage of voter lists.
Either way, a number of legal stratagems that might have seemed appealing to the Coleman campaign might now be somewhat mooted. For instance, even if all 130 ballots that the Coleman campaign claimed were double-counted for Franken were removed from his tally (but no ballots at all had been double-counted for Coleman), Franken would maintain a significant advantage. With Franken doing so well among the absentee ballots that were counted today, moreover, any Coleman attempts to get more absentee ballots counted would seem to have a high risk of backfiring.
EDIT: It appears that Franken's lead is now 225 votes, not 223 as previously reported, based on an a count provided orally by state officials in St. Paul today.
Right now, with Jackson's name being at least tangentially tied up in the Blagojevich scandal, he might well have a difficult time winning statewide office in Illinois. But these communications between Reid and Blagojevich apparently took place before the scandal broke, so let's concern ourselves with that hypothetical. Was Jackson electable then?
In the literal sense of the term "electable", of course Jackson Jr. was electable. Before the Blagojevich scandal, virtually any Illinois Democrat was going to be the favorite over virtually any Illinois Republican. One only need back to look to 2006 when Blagojevich himself, already relatively unpopular in Illinois, defeated a fairly appealing, moderate Republican in Judy Barr Topinka by 10.5 points. Having the big 'D' by your name is exceptionally advantageous in Illinois -- or at least it once was.
Nevertheless, I don't think that Reid was wrong to conclude that Jackson Jr. was relatively more vulnerable to an upset than another Democrat might have been.
On December 4th, about a week before the Blago scandal broke, Rasmussen released a poll asking Illinoisans who they preferred to succeed Barack Obama. Jackson Jr. was named by 23 percent of Illinoisans, essentially putting him in a three-way tie with Lisa Madigan (25%) and Tammy Duckworth (21%).
A look at the internals of the poll, however, suggests that Jackson's support was fairly limited outside of his base.
Candidate preference by party:
Candidate DEM Indie GOPNearly all of Jackson's support came from Democrats, among whom he was the plurality favorite to succeed Barack Obama. He placed a fair bit behind Madigan and Duckworth among independents, and received very little support among Republicans.
Jackson, Jr. 36% 14% 9%
Duckworth 29% 19% 12%
Jones 2% 3% 6%
Madigan 17% 23% 37%
Schakowsky 8% 9% 5%
Unsurprisingly, these results are strongly tied to the issue of race:
Candidate preference by racial group:
Candidate White Black OtherJackson had the support of 81 percent of black voters in the Rasmussen poll, but just 10 percent of whites. He did do reasonably well among those in the "other" category -- which in Illinois, means mostly Hispanics -- getting 21 percent support, though he still trailed Duckworth among that group.
Jackson, Jr. 10% 81% 21%
Duckworth 22% 6% 31%
Jones 2% 4% 6%
Madigan 31% 0% 23%
Schakowsky 9% 2% 5%
Now, it is hard to translate the results from a straw poll like this into a prospective matchup against a Republican opponent. But a reasonable worry for Reid is that, while African-American voters would probably have supported another Democrat in a matchup against a Republican, white voters who might have gone for someone like Madigan might not have gravitated to Jackson.
In the 2006 gubernatorial race, Illinois' turnout was made up of 77 percent white voters, 10 percent black voters, and 13 percent "other". Let's say that Jackson Jr. received a turnout bonus among black voters, boosting their share of the electorate to 12 percent, bringing white voters to 75 and leaving "other" at 13. Let's furthermore say that Jackson Jr. wins 95 percent of the black vote -- a Barack Obama type of number -- and 60 percent of the "other" vote. These Jackson votes account for a total of 19.2 percent of Illinois' electorate.
In order to receive a majority, Jackson Jr. would then have to win the support of just slightly over 41 percent of white voters. In Illinois, about 35 percent of white voters are Republicans, 35 percent are Democrats, and 30 percent are independent. What if, say, Jackson received the support of 80 percent of white Democrats, but just 35 percent of white independents and 5 percent of white Republicans? That would bring him to 49.4 percent, denying him election by a point or so.
Hypothetical 2010 Election:
___ Share ofNow, obviously these numbers are completely made up. Perhaps Jackson Jr. would get more like 70 percent of Hispanic voters instead of 60 percent, or more like 85 percent of white Democrats instead of 80 percent. All that I'm saying is that given Jackson's tepid support outside of his base, there is a plausible path to defeat here, one that might not have existed for someone like Madigan.
Group Electorate Jackson Jr. GOP
African-American 12.0% 95% 5%
Hispanic/Asian/Other 13.0% 60% 40%
White Democrats 26.25% 80% 20%
White Independents 22.5% 35% 65%
White Republicans 26.25% 5% 95%
Total 100% 49.4% 50.6%
I do share rikyrah's concern over at Jack & Jill Politics. If Reid was looking for someone electable -- should he really have been looking at Tammy Duckworth? The fact of the matter is that Illinoisans have gotten to see an awful lot of Tammy Duckworth, and they simply don't like her all that much -- note that she's getting barely more crossover support than Jackson in the Rasmussen poll. Duckworth also couldn't defeat a non-incumbent Republican in Illinois' 6th Congressional District in 2006. Although IL-6 is a slightly Republican district, registering as an R+3 on Charlie Cook's PVI scale, 2006 was a very, very Democratic year. Democrats were knocking off Republican incumbents in R+3 districts all over the country in 2006, and they certainly should have been favored in an open seat race. I'm a pretty big proponent of the No Loser Rule: don't nominate someone for higher office if they lost their last race for lower office.
In all probability, though, this seat would be considerably more vulnerable to Republican takeover if Jackson were the nominee than if Madigan were instead, or for that matter someone like state treasurer Alexi Giannoulias.
If Harry Reid hadn't expressed that concern to Blagojevich, then Harry Reid really wouldn't have been doing his job.
NOTE: To be clear, my argument is about Jackson Jr. and Jackson Jr. only, who along with Madigan and Duckworth, has strong enough statewide name recognition that we can credibly discuss their chances of winning election. I don't particularly know about Davis, or for that matter someone like Jan Schakowsky, who are little known outside of their home districts. In particular, the implication that Jackson is more likely to lose than Madigan seems credible. On the other hand, the implication that, say, Davis is more likely to lose than Tammy Duckworth is far more speculative.
UPDATE (9:48 AM): The state will now begin counting the ballots; see The Uptake for live video coverage. The Supreme Court has not yet ruled on Coleman's petition, nor was the recount team in St. Paul willing to delay the counting until it heard from the Court.
At 9 AM local time, Minnesota officials will begin counting more than 900 absentee ballots mutually agreed upon by the campaigns to have been wrongfully rejected -- unless they don't.
If it proceeds unimpeded, the counting of absentee ballots is likely to bolster Franken's lead, as proportionately more rejected absentees were identified in counties won by Franken. If we simply allocate out the absentees in each county based on the proportion of the November 4th vote (.pdf) received by each candidate, that would imply 414 ballots for Franken, 383 for Coleman, and 156 for "other", adding 31 votes to Franken's lead.
The apparent edge for Franken comes as each campaign has had essentially a unilateral veto to prevent any particular absentee ballot from being opened and counted. Initially, based on a review of the process in Democratic stronghold St. Louis county, it appeared that the Coleman campaign was being far more aggressive than the Franken campaign in exercising its veto. Information gathered by additional counties by the Star Tribune, however, suggests that this may not be the case, and that the Franken campaign has been at least as aggressive as Coleman in exercising its veto.
The Star Tribune has reported on the disposition of absentee ballots in six counties, including the "Big 3" blue counties (Hennepin, Ramsey, St. Louis) won by substantial margins by Franken on election day, as well as three smaller counties won by Coleman.
In the Big 3 counties, Coleman vetoed about 18 percent of absentee ballots, Franken 11 percent, and 2 percent were vetoed by county officials, leaving slightly less than 70 percent of the ballots to be opened and counted.
Interestingly, however, in both Ramsey and Hennepin Counties, Franken actually vetoed more ballots than Coleman. There are some number of red precincts in each of these counties, and so it is possible that the Franken vetoes came in those areas. It is also possible, however, that the Franken campaign has better information than the Coleman campaign. Although the absentee ballots are sealed, the name of the voter in question can be identified, and a campaign that had superior voter lists could in fact do some very precise cherry-picking.
In the three smaller red counties that the Star Tribune identified, Franken vetoed 28 percent of the ballots, and county officials and the Coleman campaign almost none. The overall fraction of the ballots forwarded to the state from these counties was 68 percent.
To be clear, both campaigns seem inclined to employ the veto power provided to them by the state to their utmost advantage. If, however, Coleman is engaging in macro-level cherry picking (moving to reject ballots based on the characteristics of the county), and Franken is engaging in micro-level cherry picking (moving to reject ballots based on the characteristics of the voter as provided for by his voter databases), then Coleman may be at a substantial disadvantage, and Franken is likely to gain more ground from the counting of the absentees than the 31 votes we implied above.
The contingency is that the Coleman campaign is once again back in court, having filed an motion for emergency order (.pdf) with the state Supreme Court on Wednesday. The motion ostensibly seeks a uniform standard for the counting of absentee ballots -- something which, by all available evidence, the process that the court initially established for the counting of absentees, in giving each campaign an essentially arbitrary and unilateral veto, did a poor job of ensuring.
Coleman's motion is fairly sneaky, however, because the relief he is specifically requesting is his motion is not to blow the whole thing up and start the absentee ballot process again over, but rather, for the inclusion of about 650 absentee ballots, mostly from heavily red counties, that have already been identified by his campaign as being wrongfully rejected, but which were not identified as such by the respective counties. The Franken campaign, for its part, identified 80-90 such ballots.
Coleman is trying to thread the needle here. On the one hand, he knows that if the state counts the absentee ballots as is, they are only likely to add to Franken's margin. On the other hand, if the state started the process completely over, Franken might conceivably also identify hundreds more absentee ballots that he believed had been ignored by the county officials. Basically, Coleman wants the state to permit his 650 ballots to be counted -- as well as Franken's 90 -- and then to freeze things in place.
Any of a variety of rulings from the court are possible; we may know the outcome within the hour.
Colorado is one of four states that will require senators to be appointed as a result of Barack Obama's transition the White House. Remarkably, it now appears possible that none of the four appointees will be present holders of elected office. Indeed three of the four have never before run for elected office. This includes Bennet, who worked for an investment firm prior to becoming superintendent, and Delaware's Ted Kaufman, a Beltway political operative who was formerly Joe Biden's chief of staff. Caroline Kennedy, if she is named to Hillary Clinton's seat in New York, has also never run for office. Only Roland Burris in Illinois, if the Democrats choose to seat him, would break the rule, having been his state's Attorney General until 1995.
In contrast to certain of the other selections, however, this one would appear to be eminently meritorious, as Ritter had a rich group of candidates to pick from, and as Bennet's work in Denver was regarded strongly enough that he was reportedly a finalist to become Obama's Secretary of Education. Relatively little is known about Bennet's politics, however. If he fits the profile of a typical Colorado Democrat, he'll be liberal on social issues and the environment, but more moderate on fiscal policy (as his business background might imply).
Salazar's seat was to be up for re-election in 2010, and so Bennet -- if he so desires -- would soon have the opportunity to compete for a full six-year term. I would be modestly surprised if Bennet is merely intending to serve as a placeholder, as at age 44, he is on track to become the youngest member of the United States Senate.
But the issue puts Specter in a particularly tough position that is a typical quandary for Republican moderates. Facing reelection in 2010, he hails from a state where unions are strong and the electorate is becoming more and more Democratic. That puts pressure on him to support the labor bill.The labor bill in question is the Employee Free Choice Act, a bill on which Specter's vote is absolutely crucial to the Democrats. Specter voted for cloture when EFCA came up in 2007 -- he was the only Republican to do so -- and has long had the backing of labor unions in Pennsylvania, most of whom endorsed him against Democrat Joe Hoeffel in his successful re-election bid in 2004.
But Specter often faces opposition from fellow Republicans for being too liberal: In 2004, he faced a tough primary challenge from the right by Pat Toomey, who is now president of the Club for Growth, an anti-tax conservative group.
Toomey says that if Specter casts a decisive vote on the labor bill, "he virtually assures he will deal with a primary challenge and he hands the challenger a powerful issue."
But Pat Toomey, the conservative Republican who came closer to knocking off Specter in 2004 than Hoeffel did (losing by just 1.7 percentage points in the Republican primary) seems to be suggesting that he'll run against Specter if Specter votes for EFCA. Is Toomey -- or another conservative Republican -- a credible threat to Specter?
On the one hand, conservative Republicans tend to be out of vogue these days, especially in a state like Pennsylvania, who couldn't kick Rick Santorum out of the Senate fast enough in 2006. But the preferences of Pennsylvania's electorate as a whole hardly matter. Pennsylvania is a closed primary state, and so only Republicans would vote in the event of a primary challenge. With many of Pennsylvania's moderates having registered with the Democratic Party in order to vote in this year's Democratic primaries, Specter might not be able to count on much crossover support in the primary, especially with the Democrats liable to have a very interesting primary of their own taking place at the same time.
Still, Specter wouldn't seem to be in too bad of shape among his base. Quinnipiac has his favorability ratings among Republicans as 60 percent favorable, 21 perecnt unfavorable. Specter's ratings were notably poorer in 2004, when as of April of that year, Quinnipiac had measured his numbers as 52 percent approve, 31 disapprove among Republicans.
Toomey is now President of the Club for Growth, which came to his aid in 2004 but has a somewhat spotty track record of late, having lost 3 of the 4 Senate races where they backed a candidate in November. It's hard to know whether an organization that brands itself as the Club for Growth tends to do will be seen as a part of the problem or a part of the solution if the economy remains sluggish two years from now.
For the time being, however, Specter would seem to be at greater risk of losing in the general than in the primary. If he thinks he can guarantee himself labor's backing in the general in 2010, odds are that he'll call Toomey's bluff.
Firstly, some smart folks arguing that the Senate probably does have the right to exclude Burris:
Akhil Reed Amar and Josh Chafetz, Slate
Lyle Dennison, SCOTUSBlog
Jack Balkin, Balkinization
And here are some other smart folks arguing that no, the Senate probably does not have such authority:
Scott Lemieux, Lawyers, Guns and Money
Brian Kalt, Concurring Opinions
Eugene Volokh, Volkoh Conspiracy
The crux of the argument seems not to be, as I questioned originally, whether Burris' appointment constitutes an "election" as specified by Article 1, Section 5 of the Constitution. The Senate certainly has had no trouble challenging appointments before, although it hasn't done so (at least as far not as I can tell) since the Powell v McCormack decision in 1969. (Amar and Chafetz also argue that -- notwithstanding the question about what constitutes an "election", the appointment of Burris qualifies as a "return", which the Senate also has the power to judge under Article 1, Section 5). Rather the question in light of the Powell decision, is to what if any extent the Senate is restricted in its power to serve as the judge of such an appointment.
I do think that -- and, in case this isn't clear to anyone, this is just a layman's reading of the decision -- people may be underestimating the intended scope of Powell, which seems to have been trying to cast a fairly wide net. In particular, the opinion holds that:
Unquestionably, Congress has an interest in preserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.Emphasis mine. The key word in that paragraph is probably "discretionary". One can imagine two extremes here. In one case, imagine that the governor of Arizona, a state which requires that an appointed senator be from the same party as the vacating one, attempted to nominate a candidate from the other party instead, in apparent contravention to the state law. Or, to draw a more plausible scenario, suppose that the appointee switched parties on the day before her appointment to circumvent that law. Clearly, it seems, the Senate would have the authority to strike this down.
At the other extreme, imagine that in Indiana, which has no such law, Evan Bayh decided to resign from the Senate, Governor Mitch Daniels decided to appoint a Republican to fill his seat, and that the Democratic majority in the Senate didn't like this and so voted to exclude Daniels' otherwise-qualified appointee merely because they didn't want another Republican in their chamber. I would hope that the Senate would be precluded from doing something like that.
What the Powell decision seems to hold is that, if the Senate wants to exercise its discretionary power to prevent someone from serving in the Senate, it has another mechanism to do that, which is expulsion. So the decision to exclude a member must in some sense be non-discretionary.
In the case of a question about a member's qualifications to serve in the Senate, there is a pretty clear bright line between a discretionary decision and a non-discretionary one, which is that the Constitution specifically establishes the qualifications for serving in the Senate, such as being of sufficient age and being a U.S. Citizen. But can such a bright line be established between a discretionary and non-discretionary action in the case of the Senate's right to judge a gubernatorial appointment?
I don't know. What the Burris folks will probably argue, if the case gets that far, is that the Senate's power would be limited to judging whether such an appointment was made in contravention of either state or federal laws. That is, a non-discretionary judgment is one involving the enforcement or interpretation of such laws, and in order to be allowed to render such a judgment, the Senate needs to put a legal question before itself.
That the Burris appointment appears to be legal under Illinois law, that the state has alternate mechanisms to preclude Blagojevich from making such an appointment (either removing him from office or requiring that the vacancy be filled by special election), and that neither Blagojevich nor Burris have yet been convicted of any wrongdoing, might tend tip the scales in favor of this being precisely the kind of discretionary decision that the Court was seeking to prevent in Powell.
If, on the other hand, Blagojevich were impeached before Burris had been sworn into the Senate, perhaps the Senate might then have the right to judge whether Burris' appointment had been nullified by that impeachment, and to exclude him if it so chose. Perhaps the Senate also has the right to judge whether Blagojevich's appointment is invalidated by the failure of Illinois' Secretary of State to certify it. These are fairly specific legal questions.
Nor am I suggesting that the Senate has no right to judge the Burris appointment on its face. But the "non-discretionary" component of that might be to judge whether the appointment was legal or not -- not merely to judge whether it was in poor taste.
At the very least, the people arguing for a narrower interpretation of Powell would seem to have to reconcile the way in which the Court distinguished exclusion from expulsion in that opinion. Amar and Chafetz argue that the distinction is merely that exclusion concerns a potential member who has not yet been seated, whereas expulsion concerns someone who already sits in the chamber. That is a perfectly commonsensical interpretation -- but it is not the one that the Court appears to have made in Powell.
We'll call this version 'Version A'...
Notes: the "vote" provided in the example is entirely hypothetical.
The senior senator from each state is always designated on the left-hand side or the top-hand side of each dyad, whichever is applicable.
A couple of alternate versions follow below the jump.
...and Version D:
Note that the frequency of dining out is essentially unchanged among American households making more than $75,000 per year, as well as those making less than $20,000 per year. Americans in the middle income brackets, however, appear to be dining out 15-20 percent less frequently.
Caveats: the sample size on this survey is relatively small (about 1,000 persons) and restaurant meals are obviously just category from among a large universe of consumer expenditures. Still, if one of the goals of the stimulus is to craft tax policy so as to entice consumption, it is important to know just who needs to be stimulated.
Reid spokesman Jim Manley, by way of Ben Smith, has word on the Majority Leader's potential workaround:
In response to those who are asking how this is different from Powell v. McCormack, in which supreme court said House could not refuse to seat a member based on his alleged corruption and said only qualifications to be considered are those listed in the Constitution:This is certainly a stronger argument than trying to challenge Burris's qualifications, something which was explicitly addressed by McCormack.
[W]e are not making a judgment about qualifications of appointee, but about whether appointment itself is tainted by fraud, which we believe we are entitled to do under Art. 1 s. 5.
This is like judging the integrity of an election, free from fraud or corruption. It's the process that led to the [appointment], not the appointee's fitness.
Article 1, Section 5 of the Constitution holds that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members". If Reid is not attempting to judge Burris' qualifications, then he'd presumably have to argue that a Senatorial appointment is tantamount to an "election", which seems on the surface like a liberal reading of that term. EDIT: Some of the lawyers in the comments section, however, seem to think that this is a trivial distinction, and cite previous instances (.PDF) in which the Senate did attempt to challenge an appointment.
Nevertheless, if you read the McCormack opinion, the principal reason why the Court decided to interpret the qualifications clause narrowly is because there is an alternate mechanism available to the Senate: expulsion. The Court conceivably might hold that the other provisions of Art. 1 s. 5 should be interpreted narrowly for the same reason.
We should keep in mind, however, that ultimately winning this court case doesn't necessarily do a whole lot of good for Reid. All that would mean is that the Democrats would be short a senator until Illinois either held a special election or impeached Blagojevich, neither of which appear likely to happen especially quickly. Rather, the goal is to find some pretense by which the Democrats can keep Blagojevich at arm's-length -- and forcing Burris to go to court to get his seat would presumably allow them to do that.
NOTE: Edited for truthiness.
DULUTH - Shirley Graham was astonished to learn that a lawyer from Norm Coleman's campaign on Tuesday blocked her absentee ballot from being added to the U.S. Senate recount.There are a couple of things in the preceding paragraphs that the Franken campaign ought to be worried about. Firstly, quite a high percentage of absentee ballots were rejected -- 60 out of what had been reported yesterday to be 161 ballots under consideration in St. Louis County, or 37 percent. All but one of those objections were made by the Coleman campaign. Secondly, the Coleman campaign is getting away with blocking ballots for asinine reasons. In the case cited above, for instance, the ballot was rejected because the date provided by the voucher did not match the date the date provided by the voter. Not only is there no requirement that the dates of the signatures match -- there is no requirement that the signatures are dated, period (see the applicable statutes for yourself here and here).
"I'm an election judge," said Graham, of Duluth. "I expected to be the last person whose ballot wouldn't be counted."
Her sealed ballot was among 60 from St. Louis County that were blocked by representatives of Coleman and Al Franken during the first day of a statewide review of absentee ballots that may have been wrongly rejected in last month's election. Under a state Supreme Court ruling, local election officials and the two campaigns must all agree that a ballot was wrongly rejected for it to be sent along to St. Paul for inclusion in the recount.
Coleman's camp, which rejected 59 of the 60 ballots set aside Tuesday in St. Louis County, objected to Graham's ballot on the grounds that the date next to her signature did not match the date next to the signature of her witness, Jack Armstrong.
Now, it's not clear that the Franken campaign can do much about the Coleman campaign blocking any one individual ballot, since the process that the Minnesota Supreme Court set up essentially gives either campaign a unilateral veto on any ballot they do not want counted. The risk to Franken is that the Coleman folks will be applying one standard in St. Louis County, where the average absentee ballot would probably help Franken, but another (more liberal) one in Dakota County, where Coleman won the plurality of votes. If Coleman is blocking 37 percent of the ballots in blue counties and not blocking any at all in red counties, then it is far from clear that Franken will succeed in gaining ground from the absentee ballot phase and in fact the opposite might turn out be true.
The Franken could take one obvious counter-measure: move to reject a high percentage of absentees in red counties. Perhaps they have been doing that; reporting has pretty sporadic between all the different counties where this process is taking place, so we really don't know.
For the time being, however, they seem inclined to play it cool and maintain the moral highground, perhaps believing that they'll have a strong argument on Equal Protection grounds if they need to contest the election later on.
From my vantage point, Franken could possibly have played his hand more strongly on Monday, once it became clear that the Coleman campaign was making no pretense whatsoever of attempting to establish an objective, statewide standard for the counting of absentees, essentially just cherry-picking ballots and daring the Franken campaign to call them on it. The result of that process was that no statewide standards were agreed upon, enabling either campaign to apply different standards across different counties.
The upshot of all of this is that Franken probably now has grounds to contest the election if at any point he falls behind, either after the vote is certified or, as is somewhat more likely, following a successful Coleman challenge on the question of duplicate ballots.
The notion that the Democrats can refuse to seat Roland Burris out of hand is, at best, constitutionally dodgy. This is because of the Supreme Court's 1967 Powell v McCormack decision, in which it ruled that the Congress's power to judge the qualifications of its members is expressly limited to the conditions mentioned in the Constitution (e.g. age, residency, and U.S. Citizenship). If the Congress wants to deny membership for any other reason, it has another power, which is expulsion. Although the power of expulsion is much broader than the power of exclusion, it comes with a higher price tag: two-thirds of the Senate must vote to expel one of its members rather than a simple majority.
Given this, Reid and the Democrats have essentially three strategies they could pursue if and when Burris's name comes before the Senate Chamber:
1) Attempt to exclude Burris by majority vote, almost certainly inviting a court challenge.
2) Attempt to expel Burris after seating him.
3) Bluff at either of the above, but with the ultimate expectation that Burris will be seated.
1) Attempt to exclude Burris by majority vote, almost certainly inviting a court challenge.
Reid's language about refusing to seat Burris seems to be an invocation of Article 1, Section 5 of the Constitution, which holds that "Each House shall be the judge of the elections, returns and qualifications of its own members." In the case of Burris, however, there was no election in play (rather, he was appointed), so there are no questions about elections or returns - and McCormack holds that the Congress's ability to judge the qualifications of its members is limited to circumstances that don't pertain in the case of Burris.
Still, the Senate could hold a vote and decline to seat Burris, and take their chances in court. Then, Burris (or Blagojevich?) would sue, probably also seeking an injunction that required the Senate to seat Burris until a ruling by th court.
Reid would seem to be a longshot to win such a lawsuit, since McCormack speaks fairly explicitly to the issue at hand, but it's possible that he could find some sort of clever argument or that the Court would refuse to take the case -- it's a different court than it was in 1967. Or Burris, embarrassed by the whole thing, could stand down, although that seems unlikely since Burris has lost more elections than Lyndon LaRouche and doesn't seem the type to be easily deterred.
More likely, though, this would succeed only in delaying the inevitable for several weeks.
2) Attempt to expel Burris after seating him.
Here, the Senate would be on much firmer Constitutional ground. But the power of expulsion has been used very judiciously -- no Senator has been expelled since the Civil War, although several (such as Bob Packwood) have resigned in the face of possible expulsion. And Burris himself has not been accused of any misconduct; the Senate has never before attempted to expel a member under such circumstances. Achieving a two-thirds majority, therefore, might not be easy. There is also a decent chance that an expulsion could trigger a court challenge, although the courts have interpreted the Senate's powers of expulsion to be very broad.
3) Bluff at either of the above, but with the ultimate expectation that Burris will be seated.
The difference here is that Reid would make a show of trying to exclude Burris for the cameras, but would not really try and whip votes. Perhaps the Senate Democrats could thereafter vote to exclude Burris from their caucus, something they have complete discretion over, but which wouldn't have much impact with the Democrats firmly in control of the floor.
Of these choices, it seems like the first is probably the Democrats' best bet. This way, Reid and the Senate Democrats won't appear to have broken their promise to exclude Burris; instead they'll claim that their hands have been tied by the courts. But, they'll still get their 58th (or 59th) Democratic senator.
Secondly, although Burris has criticized Blagojevich in recent weeks, he's also contributed $11K to his campaign fund, and his consulting firm has done a lot of business with the state during Blago's term. Neither of those things are damning in and of themselves, of course, but they give the Republicans some ammunition.
One of Reid's problems, by the way, is that it seems plausible that some Republicans would vote against expulsion, perhaps by suggesting that to expel Burris would be an abuse of their Constitutional authority. Their real motivation, of course, might be to give the Blagojevich story legs heading into 2010.
12:58 PM: What's more shocking? That a fairly credible candidate actually decided to accept Rod Blagojevich's appointment? Or that Harry Reid is actually showing some spine?
But, says Ben Smith:
Gov. Rod R. Blagojevich of Illinois will name Roland Burris, a former state attorney general, to replace President-elect Barack Obama in the United States Senate, someone with knowledge of the governor’s plans confirmed on Tuesday.
Mr. Blagojevich, who faces federal corruption charges including allegations that he tried to sell Mr. Obama’s former senate seat for a high-paying job or money, had not been expected to try to fill the seat. [...]
Mr. Burris, 71 and a Democrat, is a longtime political player in this state, who has run for governor before, including mounting a primary challenge against Mr. Blagojevich. Mr. Obama backed him over Mr. Blagojevich in that race.
This is going to be ... awkward. As we explained before, it's not at all clear that the Senate has the constitutional authority to refuse to seat an appointed senator. Instead, they might have to seat Burris and then immediately expel him. And I'm not sure that expulsion, which requires a two-thirds majority, is any kind of slam dunk. Burris has a reputation for being above-board, was the first African-American ever to be elected (to statewide office) in Illinois, and actually ran against Blagojevich in 2002. He also has the advantage of not actually having held office in Illinois since 1995, which may explain why he's clean. So the third surprise here is that Blago made a fairly astute choice. If he wanted to pick someone who maximized his chances of having the appointment succeed, Burris would be close to the top of that list.
The Senate will not seat Roland Burris if Illinois Governor Rod Blagojevich attempts to appoint him, a Democratic leadership aide said.
Majority Leader Harry Reid views Burris as "unacceptable," the aide said.
The Senate Democrats may have let this situation get away from them when they got greedy and pulled back from the promise of a special election.
Wait, that's already what he's planning on doing?
Ssssshhh. Better not tell McConnell.
The numbers we're playing with are so large here -- so large as to seem almost abstract -- that one gets the sense that whatever Obama calls for, Mitch McConnell will simply call for 40% less. So if Obama calls for a $1 trillion stimulus, McConnell will call for $600 billion instead. And if Obama calls for a $800 billion stimulus, McConnell will call for $480 billion instead.
If I were Obama, and what I actually wanted was an $800 billion stimulus, I might have someone whisper some off-record comment to Adam Nagourney about a $1.2 trillion stimulus just to frame McConnell's expectations accordingly. Then Obama can force the GOP into the position of accepting a compromise which it doesn't really want.
This is the proportion of various types of assets held -- everything from property to cash to stocks -- as a percentage of total assets for Americans in various income categories. The data comes from the Federal Reserve Board's 2004 Survey of Consumer Assets, which is probably the best data our government produces on consumer behavior. (Unfortunately, the Survey of Consumer Assets is conducted only once every few years; the next release is scheduled for early next year).
The most obvious trend is that higher a person's income, the less a proportion of their wealth is tied up into their homes. People in the bottom three income quintiles had roughly half their total wealth embedded into their principal residences, and another 8-9 percent in other forms of real estate. By contrast, the top 10 percent of earners had just 21 percent of their assets in their residences, and another 13 percent in other categories of real estate (including second homes).
Where do the wealthy have their money instead? In securities -- including stocks, bonds, and mutual funds -- as well as in businesses. As of 2004, the wealthiest 10 percent owned about 78 percent of all equity in businesses, 75 percent of all equity in individually-held stocks, and 65 percent of mutual funds, but just 34 percent of all equity that Americans held in their primary residences. Homeownership penetrates much deeper down the income pyramid than other types of assets.
We can also look at this in a slightly different way, comparing the various types of assets held to annual income:
Lower-income Americans have nearly four years' worth of annual income tied up into their homes, and middle-income Americans between two-and-a-half and three years' worth, as compared with only about two years' worth for the wealthiest Americans. By contrast, wealth in securities rises dramatically among the richest 10 percent of Americans, not just in absolute terms but also relative to their incomes.
Let's consider a typical individual in the middle income quintile. This person, as of 2004, was making about $43,000 per year before taxes, with takehome pay probably closer to $35,000. She held about $18,000 in stocks, bonds, and mutual funds, most of it likely in her 401K, whereas her home was worth about $123,000.
If this person's securities lost 25 percent of their value, then she has lost the equivalent of 6 or 7 weeks' worth of takehome pay. By contrast, if the price of her home drops by 25 percent, she has lost the equivalent of almost a year's worth of takehome pay -- actually, somewhere between 10 and 11 months. It isn't any surprise then, that for both rational and behavioral reasons, she'll want to cut back on her consumption a little bit when this occurs.
Now, I don't mean to sanctify homeownership to any extent -- I'm a renter myself, and proud of it. But this isn't really an argument about homeownership. Rather, it represents a relatively unique natural experiment about the relationship between wealth and consumption, since we haven't had a truly major, nationwide decline in American housing prices since World War I.
What the experiment suggests is that when the housing market declines, it can trigger a precipitous decline in consumer spending, potentially enough to send the economy into a tailspin. The steepest decline in housing prices came between November 2007 and this March; the NBER, perhaps not coincidentally, now dates the recession back to last December -- long before the Fannie and Freddie takeover or the collapse of Lehman Brothers. When the stock market crashes, by contrast -- particularly in a case like the 1987, when the crash wasn't really tied to broader economic fundamentals -- the effects on consumption have tended to be fairly negligible.
The primary difference between housing wealth and securities wealth is that the latter is concentrated almost exclusively among the wealthy, whereas the former affects persons in all income classifications. One inference we could draw from this, then, is that a robust middle class is indeed the engine of American growth.
If this inference is correct, then a principal goal of our recessionary fiscal policy should be to encourage consumption and improve consumer confidence among the middle class. The two most intriguing ways to do this are probably a reduction or suspension of the payroll tax, and some sort of sales tax holiday in which the federal government would foot the bill for state and local sales taxes for some period of time. By contrast, a reduction in something like the capital gains tax rate, as was proposed by the McCain campaign in October, would seem to be about as orthogonal to our current economic problems as could possibly be.
Coleman is requesting the following:So the Coleman campaign does not want to count about 550 ballots identified by the counties as potentially being rejected improperly, but they do want to count about 650 ballots that the counties didn't flag. As the Star Tribune notes, however,
-778 absentee ballots OPENED on the basis of recommendations from local election officials.
-544 absentee ballots LOOKED at more closely before they are opened (or not)
-67 absentee ballots OPENED that are not currently on the list from local election officials
-587 absentee ballots LOOKED at more closely before they are opened (or not) that are not currently on the list from local election officials.
Note that 778 plus 544 does not equal the total of 1,346 absentee ballots released by local election officials. Tony Trimble, Coleman recount laywer, said today they have not rejected opening any absentee ballot yet so the discrepancy accounts for absentee ballots they have not yet reviewed.
Coleman's proposed additions skew heavily toward suburban and rural counties where he did best in the election.The Coleman campaign has apparently not made any effort to explain what differentiates the absentees they do want counted from the ones they don't.
Original post follows after the jump.
Stunningly, the Al Franken and Norm Coleman campaigns are having difficulty coming to a consensus on just which absentee ballots to count, in spite of having been ordered by the Minnesota Supreme Court to do so:
While the Franken campaign said Saturday it wanted to count all 1,346 absentee ballots that local officials have determined were improperly rejected, lawyers for Coleman said today they had agreed to 136 of the ballots but would release a list containing "lots, lots more" this afternoon.We perhaps shouldn't judge the Coleman campaign too harshly until we know precisely what "lots, lots more" means. But, the passage of the Christmas holiday wouldn't seem to have softened them up any. What sort of an objective standard would result in a list (even a partial list) that contains just 136 out of 1,346 potentially wrongly rejected absentee ballots? Minnesota's reasons for rejecting absentee ballots are actually quite clear. There are undoubtedly some borderline cases -- but it's doubtful that 90 percent of the cases are borderline.
More to the point, the Coleman campaign shouldn't really be picking out individual ballots at all. Rather, they should be proposing some set of standards by which all ballots can be evaluated. They don't seem to be making any effort to do that. Certainly, the Coleman campaign has the right to promote a set of standards that they believe is relatively more favorable to its cause. But that's different than cherry-picking individual ballots -- which, in all probability, the campaign has concluded are liable to be Coleman ones.
Peering a little deeper into the Star Tribune's article, however, one understands why the Coleman campaign must be very worried about the absentees:
There were indications today that of the 1,346 absentee ballots agreed to by the Franken campaign as being improperly rejected, an estimated 60 percent were cast in Hennepin, St. Louis, Ramsey and Dakota counties. There are 329 such ballots in Hennepin County alone, and another 161 ballots in St. Louis County, according to an official close to the Senate recount.Of the potentially wrongly rejected absentee ballots identified by county officials, 24.4 percent are in Hennepin County -- meaning Minneapolis and its whereabouts, a highly favorable area for Franken. By comparison, however, 22.8 percent of the ballots cast on Election Day were in Hennepin County. The number of absentees in Hennepin, in other words, is about what you'd expect.
On the other hand, 12.0 percent of the absentees are in St. Louis County, another highly blue area that contains Minnesota's third-largest city, Duluth. By comparison, just 4.1 percent of Election Day turnout was in St. Louis County. Why the discrepancy? Because officials in Duluth rejected 77 absentee ballots which didn't contain a date next to the voter's signature. The state does apparently instruct voters to date their signatures on the absentee ballot envelope -- but there is no statutory requirement that they do so, and the vast majority of counties processed and counted such ballots.
On Election Day, Franken got 54 percent of the vote in Duluth, Coleman got 31 percent, and other candidates got 15 percent. Applying those percentages to the 77 dateless ballots would imply that Franken picks up 42 votes, Coleman 24, and "other" 11, meaning a net gain of 18 votes for Franken. Considering that Franken's lead is unofficially listed at just 47 votes, adding another 15-20 ballots to that margin makes a fair amount of difference.
The first thing you'll need to recognize is that public opinion is running against you. The public doesn't think about the stimulus as being analogous to the bailout. They can differentiate spending on highways or airports or solar power grids from spending on Morgan Stanley. CNN's new poll has the public backing it 56-42. Not overwhelming, but pretty solid. And that number isn't liable to move in your direction, when the Democrats have Barack Obama on their team and you've got Mitch McConnell.
Fact is, you're not going to prevent a stimulus bill from passing. The House is a lost cause. Obama's walking on water right now, and even most of the Blue Dogs come from states that he won. He's not going to lose more than a handful of Democratic votes. Plus, certain of your "friends" -- moderates, blue state types -- are going to vote for the stimulus. The best you could probably do is limit the Democrats to about ~240 yea votes in the House, still plenty enough for passage. More likely, they'll be in the somewhere in the 290s or the 300s.
In you're in the Senate, of course, you could hope to mount a filibuster. But even if you could keep Snowe and Collins and Specter in line, which you probably can't, that is a dicey proposition. This is because the Obama administration will play the Emergency! card. The public is scared, and they want action. If you try to filibuster the stimulus, the Democrats will scream Emergency!, and they will frame your actions as dangerous, and maybe even a little unpatriotic. Plus, Obama will get a lot of help from the stock market. Equities are very jumpy right now, and they are assuming that the stimulus will pass (see, for instance, the big run-ups achieved in the past month by the steel industry). Were the stimulus to be significantly threatened by your filibuster, the market might dump 900 points in a day. That'll break your filibuster within 48 hours, and you'll be duly embarrassed in the process.
So the damned thing is going to pass. You have to think about how to position yourself. And you have essentially three options.
1) Try to pressure Obama into some kind of compromise, and vote for that compromise;
2) Let the stimulus pass as the Democrats choose to construct it, over your strong objection;
3) Yield to Obama, and vote for the stimulus in the name of national unity.
The third choice probably isn't very appealing to you. It might be appealing to Newt Gingrich, who is telling you that you don't have the credibility right now to pick a fight. Better off rebuidling and rebranding the party for the long term. But rebuilding and rebranding means someone other than you is in charge -- someone, for example, like Newt Gingirch. So that option is out.
So let's think through the other couple of choices. First thing first: if the economy improves substantially by the midterm elections, you're screwed. It won't matter whether you voted for the stimulus or voted against it, and it won't matter whether you achieved some kind of compromise or you didn't. If, by the summer of 2010, GDP growth has miraculously recovered to 4% per year, that's all the public is going to think about. Obama Save Economy!! Me Vote Democrat!! They aren't going to care about whether you snuck some sort of capital gains tax cut in there.
But let's say that the economy still sucks in 2010 -- which, frankly, is a pretty good bet. That's going to work much, much better for you if you've voted against the stimulus. Not only can you pin the blame on the donkeys, but you can campaign on tax cutting and fiscal responsibility -- the stimulus will "prove", once and for all, the wisdom of conservative economic principles. And then think about this: the Democrats are going to be trying to spend $800 billion in taxpayer dollars as quickly as they can possibly get away with it. Somewhere along the way, they're going to wind up funding a Woodstock Museum or a Bridge to Nowhere. Somewhere along the way, an enterprising contractor is going to embezzle a bunch of stimulus money, or cook up some kind of pay-to-play scheme. Maybe if you're really lucky, this will happen in your Distrct. Better to keep the whole thing at arm's-length and make sure that Democrats get the blame for that.
So it seems to me that your risks and rewards are pretty asymmetrical. The public loves Obama, whereas that (R) beside your name is still causing you problems, especially when every Newt and Bobby and Sarah out there is perfectly happy to throw you under the bus. Fact is, you're not going to get the benefit of the doubt. If the stimulus package is seen as a success, you aren't going to get an ounce of credit for it. But if it's seen as a failure, you'd better make damned sure that you've distanced yourself from it.
Maybe you can go through the motions of soliciting a compromise -- all the better that way to say I-told-you-so later on. But do you actually want a compromise? I think not. Better to let the Democrats be careful what they wish for, and make sure that they get it.
For those of you who haven't had your morning coffee yet, the little numbers represent the respective Congressional Districts in each state.
There are, obviously, a couple of different trade-offs at play here. On the one hand, you'd like the the shape of each "state" to bear some resemblence to its real-life counterpart. On the other hand, you want the states that share borders in real life to also share borders in the cartogram. And furthermore, it would be nice to have the Congressional Districts within each state in some sort of reasonably representative geography -- which isn't easy in a state like New York where three-quarters of the districts are in New York City and its immediate suburbs.
Accomplishing all of those things with one cartogram is, I've determined, probably impossible; the example I've provided cheats by creating a sort of warp zone between Minnesota/Iowa and North/South Dakota. Still, I think it gets the job done by and large.