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Matt's Five Points, October 12, 2018 — The Kavanaugh Circus is Democracy in Action

October 16 · Issue #1 · View online
Matt's Five Points
Welcome! I’m Matt Glassman, Senior Fellow at the Government Affairs Institute at Georgetown. Here’s my weekly newsletter that always includes five points at the intersection of politics and political science, as well as links to what I’ve been reading this week. 
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I have a bunch of Kavanaugh denouement #hottakes.
First, and perhaps most importantly, I don’t think the Senate confirmation process is at all “broken.” I’m honestly not even sure what that term is supposed to mean. As I wrote on Twitter last week, people kept describing the Kavanuagh confirmation as a “circus,” but all I saw was democratic politics in action. Political actors used their formal authority, politicians in and out of office took positions and clashed over decisions, the public was arounsed and more generally attentive than usual, and voters/interests mobilized in response to the events.The final vote was held, we have winners and losers, and now there’s a looming election where voters can further translate the the results into a new set of elected officials.
If that’s a circus, sign me up to drive the clown car. People hate losing, of course, and a lot of people hate political confilct. But this is the essence of how democratic politics should work: publlic policy being fought out in the public sphere.
Likewise, count me as someone almost totally unconcerned with the “legitimacy” of the Court. I don’t think the term has much meaning; even if it does, I’m not sure we can measure/predict it very well; and even if we could, it’s not obvious to me that a decline of SCOTUS legitimacy would be bad for our separation of powers system, especially if it was paired with a renewed “legitimacy” of the political branches.
Second, I am not a fan of term limits for the Supreme Court. At leat not as the mechanism some people were proposing in the last few weeks to “reduce the politics” or “lower the stakes” of the nomination process. The most common proposal is an 18-year term limit, with one seat coming up every two years. But it wouldn’t reduce the role of the Court in electoral politics, it would magnify it! Imagine if every single federal election was built around a Supreme Court nomination? Because that’s what you’d get.
And this reminds me a lot of an understated reason why the 17th amendment got rid of state legislature election of Senators. The big reasons were the deadlocking of seats and the corruption, but another reason was that the overwhelming importance of the Senate seats was starting to distort state legislative races. If state legislative seats were simply proxies for Senate elections, the public sphere debate over who should be in the state legislature in regard to state politics becomes secondary. You can see this as early as 1858 in Illinois, where the Lincoln-Douglas race starts to crowd out state-level politics. If the Supreme Court becomes a regularized key issue in congressional elections, that’s not an optimal outcome for the legislative branch.
If you think the influence/stakes of Court nominations in politics should be reduced, I really see two paths. One is the James Wallner thesis: we should literally work to reduce the role of the Court within the separation of powers system, by reasserting the role of the political branches in the interpretation of the Constitution and perhaps reiginig in the jurisdiction of the Court. The other is to dismantle the fixed nine-person Court and go to a random rotation of federal appelate judges. Neither of these seem particularly likely anytime soon.
Finally, read this piece by Josh Huder about the changing politics of confirmation in the post-filibuster Senate.
Be careful when you translate issue polling into electoral consequences.
I’m seeing/hearing a lot of political analysis today that goes like this:a majority of Americans (52% to 38%) believe Kavanaugh lied under oath, and a majority (51% to 41%) oppose his confirmation, therefore Kavanaugh is a winning electoral issue for the Democrats.
This is bad logic: the conclusion does not necessarily follow from the fact. And I think it’s a good example of the more general problem of extrapolating electoral effects from policy polling. If we have 100 Americans in front of us, what do we know?  We can somewhat confidently predict that about 51 of oppose Kavanaugh’s confirmation, and that about 41 of them support it. But as far as electoral effects go, we are missing the key information: the voting preferences of the 51 and the 41 both prior to the confirmation fight, and after it.
The reason this is so important is that elections are not about winning majoritarian approval for individual policy decisions; they are about winning votes. At the micro-level, the relationship between the two things is a simple equation: how many net votes did a particular policy action gain or cost you? If it gained you aggregate votes, then electorally it’s a good thing. If it didn’t, it’s not.
The problem is that we don’t know how many votes the Kavanaugh confirmation gained or lost. For example, if all 51 of the opposed were going to vote Democratic as of last week, but 8 of the 41 in opposition were previously going to vote Democxratic but have now changed their mind, then the net results is 8 votes lost for the Democrats. The opposite scenario — in which all 41 Kavanuagh supporters were already going to vote GOP, but 7 of the 51 Kavanaugh opponents were previously going to vote Republican but now will vote for Dems — is also possible. That’s a net gain of 7 votes for the Dems. More reasonable numbers can be plugged in for the underlying support and the patterns of switching, but the result is the same: the aggregate level of support for the issue itself is more or less irrelevant.
The level of support for a policy choice may be correlated with electoral support and/or net change in electoral support, but it doesn’t have to be. The only way the poll numbers could be definitive is if we knew everyone was a single-issue voters on this question. Opinion polls can be quite deceiving in this manner. Imagine you are a liberal Democratic President and you see a poll that shows a decisive majority — say 70% of Americans — wants to legalize medical marijuana. On it’s face, looks like a really smart electoral move to come out in favor of medical pot. But be careful: there are almost certainly voters who supported you in the past on both sides of this issue. And there’s a strong possibility that more former supporters will desert you over the issue than former-opponents will join you. Probably want to get more data before you make a decision. (Or, more likely, just sidestep the whole thing. Sigh.)
Lurking behind this is the issue of intensity of preference. Ask 100 people how they feel about some policy issue, and you’ll find that some oppose it and others support it. But only a small portion of those people will consider it relevant to their vote choice on election day, and only an even smaller fraction will be single-issue voters on the subject. When those intensities are not evenly distributed among the opinion, that’s a good recipe for the electoral effects to be strongly skewed in reference to the policy opinion numbers. 
The most underrated feature of the election is the incongruent House / Senate dynamics.
The most underrated aspect of the 2018 congressional election is the divergence of the House and Senate political maps. In the House, the bulk of the vulnerable seats are Republican seats in blue states (suburban Republican seats in CA; upstate Republican seats in NY, etc). In the Senate, it is just the opposite: most of the vulnerable seats are Democratic-held seats in red states (Heitkamp ND, Donnelly IN, Manchin WV, McCaskill MO, etc.). What’s the upshot of this? 
  • You can think of congressional elections as having two components. First, there’s a national component, where voter mood about the direction of national politics, their feelings about the two major parties, and their assessment of the president affect their vote choice. Second, there is a local component, where their vote choice depends on the issues in their district/state, the policy positions of the candidates, and the candidate personalities.Every election features both of these components, the only question is to what degree they matter to the votes. Candidates also try to shape vote perception along these dimensions.
  • On this dimensions. the congressional parties are at cross-purposes. House Democrats are interested in nationalizing the election, making it all about Trump. But so are Senate Republicans! Vulnerable incumbent House Republicans and Senate Democrats, meanwhile, are interested in localizing the races; your odds of survival if you are a Republican in California or a Democrat in North Dakota increase the more you can make the election about district/state issues and your personal relationship with your constituency. This unites House Republicans and Senate Democrats.
  • An issue like Kavanaugh is a nationalizing issue. Regardless of its magnitude, the fight over the Supreme Court tends to nationalize the vote. But given the dynamics of the elections, that doesn’t help one party of the other—the marginal effect will be to squeeze House Republicans and Senate Democrats.
  • A nationalized election should, on the margins, exacerbate current predictions. The most likely outcome of the 2018 election right now is Democrats take control of the House and Republicans maintain the Senate. A more nationalized election, far from helping either party, will likely exacerbate this, while a localized election would attenuate it. Imagine if Kavanaugh and Trump were literally the only issue in the election: the likely result would be a House more titled toward the Dems, and the Senate marginally more tilted toward the Republicans. Conversely, a localized election would tend to marginally protect incumbents, which this year would mean a smaller majority in the House for the Dems (or a GOP hold), and few or no pickups in the Senate for the GOP.
A Few Words on the Senate
Now look, I’m a mild Senate defender; I don’t like how the chamber is currently operating, but the basic functioning of the Senate prior to the onslaught of the tree filling had the nice feature of actually being, well, deliberative. On many days, I’ll take the functiong and outcomes in the Senate over the corresponding realities of the House—which now features something approaching dictatorial majority-rule, and close to no amencments to bills, ever. I don’t hate the filibuster; in fact, I think the idea of allowing intensity of preference to exist in a formal way in a legislature is a good impulse.
One prediction I made ten years ago and now see is increasingly coming true: getting rid of the filibuster will naturally increase majoritiarianism in the Senate, but it will also unmask the real underlying structural anomaly of the institution, which is not anti-majoritarianism, but malapportionment.
You can already see this with the Kavanuagh nomination; the first SCOTUS nominee in the post-filibuster age (note that Gorsuch went through the confirmation process with the filibuster still intact; it was abolished for the purpose of securing cloture on his nomination) not only behaved like you might expect a candidate seeking to win over a majority party in a majoritairan legislature, but the liberal response, in turn, became a lot of spilled ink about the evils of the malapportioned Senate. 
And it is certainly true that the Senate is malapportioned. California is something like 60 times more populous that Wyoming. They have the same number of Senators. Without digging into the debate over whether malapporitionment is good or bad, per se, I’d like to make two structural points:
  • It’s *not* true that malapportionment currently has a particularly strong partisan flavor. If you look at the smallest 10 states, they are represented by 11 Democrats and 9 Republicans. The smallest 17 states? Represented by 17 Republicans and 17 Democrats. The four biggest states (CA, TX, FL, NY) are represeted by 5 D’s and 3 R’s. What *is* true is that the small states tend to be rural and the large states tend to be urban, and so there is a rural bias built into the Senate.
  • Admitting some small liberal urban states doesn’t solve malapportionment. You see liberals all over the place talking about admitting DC and Puerto Rico as states. While I personally think both of those ideas have some merit, they aren’t cures to malapportionment. Yes, they would both be small states that are highly urban, but that only serves to mitigate the consequences of one dimension of malapportionment. And if you want more urban policy or more liberal policy, admitting those states will certainly push Senate policy that direction. But if you want to reduce malappotionment across all dimensions, you have to, well, reduce malappotionment. The obvious way to do that is not to admit DC, but to divide California and Texas.
Losing congressional parties "learn" the wrong lesson.
One question on a lot of peoples’ minds is what is going to happen to the GOP after the election if they take a serious beating. I can’t say for sure as to the national party, but in regards to the House Republicans, I am quite confident that they will not suddenly decide to moderate. 
And this is a structural feature of all congressional election. When a party gets routed in the House, the seats they lose almost universally are the seats in the middle of the ideological spectrum. This is only natural; the minority party stands the best chance of winning the swing seats, which by definitoion are the moderate ones. And so when the Democrats got crushed in 2010, it was the Blue Dogs—the most conservative Democrats—who lost their seats. And if the GOP gest crushed, it will be the suburban moderates who lose their seats.
The upshot is that the remaining party caucus in the House is just the old majority, minus their moderate members. And while parties can think strategically as a collective, they are highly influenced by the individualk members who comprise them. And so most parties, as collections of individauls, sort of evolutionarily learn the wrong lesson from electoral defeat in the House. The median member of the caucus becomes more extreme, the leadership elections tend to pull people to the extreme, and the strategies for regaining the majority tend to start not from the middle but from the wings.
You can see all of this in the post-2010 Democrats. Faced with the choice of trying to win back the Blue Dogs seats are create a progressive coalition, they opted for the latter. Pelosi was re-elected, more moderate potential leaders (like Hoyer) had become that much further out of step with the center of the caucus, and the party essentially gave up on the Blue Dog seats while seaking to organize around issues that could eventually create a progressive majority. While some people saw this as an imperative, I saw it as a choice. A choice made by a caucus that had been reshaped by an election. Was it the right choice? Who knows. But it was the logical one, given what elections do to losing coalitions.
I suspect the same is about to happen to the GOP. As they lose thier moderates, all of their natual individual instincts will be to shift the party toward the new caucus median, which will have drifted righward. Or perhaps more towards president Trump. Having lost many of the critics of the president, the tax cuts, and the border wall/restrictive immigration, the natural progression of the party will be in those directions. 
Thanks for reading. I’ll be back again next week! In the meantime, follow me online or reach out via email. I’d love to hear from you!
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