View profile

Matt's Five Points, October 19, 2018 — Constitutional Hardball

October 19 · Issue #2 · 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, and often some links to interesting things I’ve been reading this week. 
In this issue, I discuss Court packing, the statehood process, congressional party organizing meetings, lame duck sessions, and indicted members of Congress.
Feedback? Drop me a line or just respond to this email. And you can always catch up with me on Twitter.

You should be very wary of Constitutional hardball.
I studied 19th century statehood politics. It’s not pretty.
In the wake of the Kavanaugh confirmation, there’s been a lot of talk among liberals about packing the Supreme Court—expanding its size and filling those seats with liberals—next time they get a unified majority in the federal government, perhaps after the presidential election of 2020.
This would be a major expression of “constitutional hardball,” which has been variously defined but basically boils down to using political tactics and strategies that are thoroughly legal under the constitution but flout the basic assumptions about the rules that we all agree upon. It’s perfectly legal to double the size of the Court in order to pack it, but something about it strikes us as out of bounds. If anything, it’s a good reminder that our political system is held together largely by norms and popular adherence to them.
Liberals will rightly point to some legislative hardball that the GOP has been playing in the past decade, most notably the refusal to consider the Garland nomination to the Court throughout 2016. Of course, the rise of legislative hardball in the Senate did not begin with Garland, and there is definitely some blame to be placed on both sides, though on balance the GOP bears more of the responsibility. The escalating war over the use of the filibuster and the subsequent resorting to the nuclear option to eliminate it on nominations has close to a 30 year history, and it seems almost impossible to remember the old days prior to the presumed filibuster when legislation and nominations would routinely pass the Senate with more than 50 votes but less than 60.
But the way hardball took over in regard to the Senate rules should give us some pause about its application at the Constitutional level. One of the key lessons of watching the Senate escalate the war over the filibuster is that the hardball tactics, once employed, are hard to stop and really hard to reverse. Taking those tactics out of the Senate and using them to fundamentally alter another branch of the government seems patently dangerous, in the existential sense, for the separation of powers system. Would the Supreme Court even exist in any independent sense if unified majorities simply recreated a Court they preferred?
On a more grand scale, court-packing is one of the key moves of autocrats throughout the world, most recently in Honduras, Hungary, Poland, and Turkey. Whatever short-term benefit one might gain from a court-packing scheme, the long-term impact would undoubtedly be to fundamentally weaken the Court, which would only serve to empower either a president or a party that sought to consolidate power more generally.
I have long experience thinking about constitutional hardball because I wrote my doctoral dissertation on the statehood process, which is perhaps the weakest board in the Constitutional flooring for anyone seeking to play hardball (see below). The main relevant lesson I learned from studying statehood is that the flexibility of our Constitutional design is usually a source of its enduring strength, but in the wrong moments can become a profound weakness.
The statehood process was always controversial, just like judicial nomination to the Supreme Court. But once the slave crisis got entangled with statehood, the weakness of the statehood process became a destabilizing institutional mechanism that threw gasoline on the antebellum tensions. I don’t believe we are living right now in an era analogous to the 1850s. But I worry that constitutional hardball over Court packing could serve as a similar gasoline on the political fire.
What prevents constitutional hardball from escalating out of control all the time? Mostly the voters operating in the public sphere. Actors in the political system always have constitutional tools they can use raise the stakes in any battle. The president can issue veto bargaining threats, the Congress can call his bluff, the president can veto the law, Congress can override the veto, the president can ignore the law, the Court can issue an injunction, the president can ignore the Court order, Congress can impeach the president, and the president can refuse to leave office. But, as it turns out, not every budget battle results in a coup.
And this is because political actors judiciously use their available tools, as Josh Chafetz would put it. And they do that because they know they are operating in the public sphere, where their actions are continuously being judged by both other political actors and by the voters, who may punish escalating confrontational behavior for any number of reasons. The system operates in an equilibrium, in which escalating a fight can be costly with the public, and as such political actors must carefully weigh their choices to employ certain tools. Often, they fold, figuring the risk is too high. Sometimes, as with McConnell and the Garland nomination, the risk pays off. And actors gain new information about the dangers of escalating a fight.
With any luck, Court packing will die this public sphere death, as it did in the 1930s. If the Democrats get unified control of the government, they may judge the public sphere costs of employing the tool to be too great, and will set it aside in favor of achieving other goals they have, within the context of the existing Court equilibrium, pocketing their Garland-Kavanaugh rage. But I worry they may either miscalculate or just figure the risks are worth it if the Court moves sharply right in the next few years. Whatever the sins of the GOP regarding constitutional hardball have been, Court packing would be a new escalation, to unstable and uncharted territory.
Statehood is the nuclear option of hardball.
The Founders’ flawed process makes it a tinder box.
Whatever one thinks about Court packing, the location of constitutional hardball that has always worried me the most is the statehood process. Its flawed design accelerated the destabilizing of the republic in the 19th century, and the disinterest in fixing it after the west was politically completed leaves it as a continuing latent source of problems in the constitution.
On the one hand, there are currently good substantive arguments for expanding the nation. Both Puerto Rico and Washington, DC have strong claims on admission to the Union as states. Each currently operates a provincial government for hundreds of thousands of U.S. citizens, and if either were already a state, no one would think anything odd of it. If either entity was 75,000 square miles in size and located somewhere out west, it would have long ago become a state.
But the way the admission of DC and Puerto Rico are being discussed among liberals gives me a lot of pause, because it is mostly in the context of “fixing” the Senate, via hardball. Some see DC and Puerto Rico as a way to compensate for the rural bias of the small states in the Senate; DC and PR are both pretty small (they’d have 1 and 4 Representatives, respectively, if they were states) and mostly urban. Another dimension is race. David Leonhardt had a column this week arguing that DC and PR could make up for the racial inequality built-into current Senate representation, in which the small states are overhwelmingly white:
How the Senate Favors White Americans
While I don’t specifically endorse either of these viewpoints, neither of their diagnoses are wrong, per se. Malapportionment is a legitimate concern. The reason I find them disconcerting is that they explicitly endorse hardball as a solution, and rely on a fundamental flaw of the constitution: it’s really easy to create a new state. Too easy.
The relevant constitutional provision is Article 4, section 3:
New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress
That’s right. All it takes to create a new state is the passage of a federal law. Right now, assuming they were willing to use the nuclear option to abolish the filibuster for state admissions, any unified government could make Puerto Rico or DC a state, or (with the consent of the state leg) divide Texas (or Wyoming) into any number of states. WIth just a law. Irreversibly. And the constitution puts no population or land size constraints on the process either.
These three features of the statehood process—irreversibility, a low threshold for creation, and no population/size constraints on the creation of a state—made the statehood process incredibly destabilzing in the 19th century. Any majority, at any time, could rearrange the balance of power in the legislature and the electoral college. And it unambiguoulsy exacerbated the slave crisis: so manty of the major flashpoints over slavery between 1820 and 1860 involved the flawed statehood process: the Missouri Compromise, the Compromise of 1850, the Kansas-Nebraska Act, the LeCompton Constitution fight, even the Dred Scot decision.
The crazy part is that the Founders didn’t intend for this to be the process. They understood representational security quite well—indeed, even a concern about new states overwhelming the atlantic states interests was debated at the convention—and they had every intention of putting specific size and population threshold restrictions on Congress’s ability to admit new states. All of the proposed plans floating around for statehood prior to the Constitutoin had restrictions on admission. Here’s a comparison of the Constitution and five alternative plans, and a chart of comparative discretion. The Constitution, by far, gives Congress the most discretion over statehood.
Various Alternative Statehood Plans, 1780-1860
Various Alternative Statehood Plans, 1780-1860
Discretion given to Congress under Various Plan
Discretion given to Congress under Various Plan
Indeed, the Continental Congress had passed the Northwest Ordinance—which prescribed specific size and population thresholds for admission— during the constitutonal convention. It was everybody’s intention that it should guide the statehood process. But the Founders screwed up. Instead of putting the Northwest Ordinance directly into the constitution, it was simply repassed as federal law in the first Congress. But a federal law can’t bind a future federal law. And states are created by federal law. And so the Northwest Ordinance, with it’s size and population restrictions for admission, was rendered useless. Total discretion would be given to Congress, providing for the maximum destabilization and potential hardball uses in the 19th century.
The saddest moment, to me, is Stephen Douglas and John Crittenden on the floor of the Senate during the winter crisis of 1860-61, pushing their competing compromise plans to try to avert civil war. You are probably familiar with the front of these plans, which are constituional amendments to protect slavery and defuse the immediate secession crisis. But the back half of both plans are amendments to Article 4, section 3, and provide for specific population thresholds and minimum sizes of future states, the very thing the Founders failed to enact. Douglas—who had personally been involved in the Compromise of 1850, the Kansas-Nebraska Act, and the defeat of the LeCompton Constitution—understood better than anyone that the statehood process was flawed, and was serving as a catalyst for the slave crisis.
The statehood process, of course, is not thurst upon us today like it was in the 1850s, with vast tracts of unorganized land in the west and settlers streaming out there by the thousands. But in the malapportionment debate, I see many of the strategic impulses that entrepreneurial politicians brought to the process in the 19th century. The self-serving arguments—of course DC and Puerto Rico deserve statehood!—can be mirrored on the other side—of course Texas is too big and should be divided into 3 or 4 states!—with the very same side argument of reducing malapportionment in the Senate. It is not a path we should go down.
I like to think that the public sphere reaction can contain outlandish power grabs under the statehood clasuse, but it’s not a chance I’d want to take. For that reason, I have always favored constitutional provisions for the minimum size and population requirements for new states, and also a supermajority threshold in Congress for the divison of existing states. Neither of those reforms would sour the possibility of Puerto Rico statehood. Assuming the population threshold was the federal ratio of representation, DC would currently fall short. But, in my mind, that’d be a small price to pay to stabilize the process and avoid the potential problems.
If you find the statehood process as fascinating as I do, you should know that this is only a tiny taste of the various politics of it. I’ve tweetstormed before about the constitutional hardball aspects of statehood, as well as the balance rule thesis and its flaws and the role of local western interests in dividing Dakota territory. I also have a article-length distillation of my dissertation that focuses on the statehood battles of the 1850s, a blog post on the division of the Arizona terriotry, a blog post on the role of the civil war in the creation of the western territories. Of course, if you want to read my full 600 page dissertation (over 75 maps included!), drop me an email and I can send it to you.
November will be pivotal for the 116th House.
But not just because of the federal elections.
There’s no doubt that the federal elections on November 6 are going to have important consequences for both public policy and American politics over the next several years. The most important question the election will settle, of course, is which party controls the House of Representatives. But November is also going to feature a second set of events that will be highly consequential for Congress: the biennial organizing meetings.
For those unfamiliar, both parties use the lame-duck period—after the congressional elections but before the start of the new Congress on January 3—to conduct caucus/conference business. This business includes: electing parties leaders, nominating members and chairs to committees, writing and adopting party rules, selecting class officers and regional representatives to party committees, drafting House rules (for the majority party), and providing an orientation for new members-elect.
While parties have been doing these activties informally throughout Ameican history, the process became formalized beginning in 1974 and has grown significantly since then. The House now covers the cost of travel for the members-elect (and sitting Members if the House has adjourned for the session), and in addition to the party meetings there are non-partisan orientation sessions put on by the Committee on House Administration, the Congressional Research Service, and the Harvard Institute of Poitics.
But the heart of the matter is stil the party organzing meetings. This year, there are a larger-than-usual number of decisions that will highly impact the House in the 116th Congress. Many of these, of course, will be shaped by the election and thus are yet unknown. But here are five of the big questions—formal and political—that will be answered at the meetings:
  • Who will lead the parties? With Speaker Ryan retiring and no heir-apparent who obviously has the votes, the GOP has already had a contested leadership race on their hands for months. The Democratic leaderhsip will almost certainly fall if they do not win the House, and while Minority Leader Pelosi is a favorite to win a Speakership nomination if they take control, she is far from a lock. Dozens of Democratic House candidates are running away from her, though it’s likely many of them will return to the fold after the election. It’s worth noting that, while most of the party leadership posts are filled in the caucus meetings, the Speakership is decided on the floor of the House, which means you only need half your party + 1 to become minority leader or majority whip, but you need virtually your entire party to hold together to become Speaker. This allows small factions within the party to, in theory, block the Speakership if they have a credible threat to defect on the floor.
  • How will the Democratic caucus rules change? If the Democrats take control of the House, a number of party rules changes will be up for discussion. The most interesting one, for me, is the question of earmarks. Currently, the ban on earmarks in the House is not a chamber rule, but a GOP party rule. If the Democrats—who do not curently have a similar rule—did nothing, the earmark ban would effectively disappear in the 116th Congress. While I would support such a move, my hunch is that the Dems will be cornered into either an all-out earmark ban, or a highly restrictive set of party (or maybe House) rules that open the door to the return of a very limited set of earmarks, perhaps just Army Corps of Engineers projects that have been agency-approved.
  • How will the House rules change? Whoever wins the majority will be busy drafting changes the standing rules of the House. If the Dems win, one rule in question will be term-limits for committee chairmen. The GOP put in this rule in 1995; the Democrats removed it in 2009; the GOP brought it back in 2011. I supsect there will be some pressure to keep the rule—there are certainly good arguments for rotating in chairs—but I’m strongly against it. The experience with it under the GOP has been bad, with committee chairs lacking experience, not being able to build power bases, an atrophy of oversight, and a strengthening of the central leaders.
  • Who will be the GOP chairs? If the GOP manages to hold onto the House, they will have leadership struggles beyond the top of the party. A whole lot of GOP chairmen are retiring this year, including Appropriations Committee Chair Rodney Frelinghuysen. Whoever takes the gavel at Appropriations in a GOP House will be a pivotal player in 2019, caught between an administration budget that is likely to include major non-defense cuts, a Budget Control Act spending limit that would cut $126B in spending via sequestration if not altered, and a bipartisan House that is opposed to both.
  • Will the Democratic freshmen organize? In a landslide Democratic victory, this could be the most important question of the entire organizing period. Any large influx of members will have influence in the House, but if they consciouly see themselves as a distinctive group, and act on that impulse, they can magnify their power before the 116th Congress even begins. This is part of the reason the parties have gradually moved the orientation and organizing meetings forward—to indoctrinate freshman and make decisions before they have a chance to organize themselves. Both parties would much prefer freshman take a DC insider as their chief-of-staff, see themsevels primarily as party loyalists, and follow the “head-down, mouth-shut, hand-out” rule for Capitol Hill newcomers. But that has become trickier in the last decade, as fundraising and media options have allowed newcomers to connect and build indpendent power bases earlier than ever. The Tea Party class of 2010, which numbered 85 strong, is a good model. They saw themselves as distinct from the GOP, many ignored GOP pleas to get an insider CoS, and consciously organized within the party. They successfully bargained for more representation in the elected party leadership, and they won. Whether freshmen Democrats can do this is another story. It’s not obvious that anything unites them separately from the existing Dem members, and their ideological diversity—Alexandria Ocasio-Cortez is a long way from Connor Lamb—is greater than the Tea Party. But make no mistake, the battle to recruit new members to various factions of the party fighting for leadership will be fierce, as will the challenge of constraining them if they are 60+ strong in numbers.
Lame-duck are no longer unusual or insignficant.
Big action can happen. Maybe even this year.
It could be a very busy lame-duck session of Congress this year. The House and Senate calendars currently envision four weeks of session, one for the party organzing meetings November 13-16, and then three after Thanksgiving, running from November 26-December 13. While it has historically been the goal of Congress to wrap up the second session and adjourn sine die prior to the elections, there have been 21 lame-duck sessions (out of 42 oppportunities) since 1935, including each of the last 10 Congresses. Of course, before the passage of the 20th amendment, the entire second session of every Congress was a lame-duck session, because of the mistake built into the Constitution and unexpected delays in ratification in 1787-1788, which caused the federal election calendar to be totally out of sync with the congressional calendar.
There’s a popular historical opinion that lame-duck sessions of Congress either are generally not productive—thus the name. But that impulse is generally wrong. An unusual amount of legislation passes during lame-duck sessions, as fair amount of significant legislation. In some ways, this makes sense; given that lame-duck sessions are optional, congressional leaders are probably not going to attempt to hold them unless they expect things to actually move. In the past decade, lame-duck sessions have included passage of multiple NDAAs, a slew of appropriations CRs/deals, trade agreeemnts, the American Taxpayers relief Act, the Don’t Ask, Don’t Tell Repeal Act, the ratifcation of the New START treaty, the confirmation of hundreds of nominees, and FISA Act reauthorization. Reaching back a bit further, and we find the impeachment of President Clinton in the lame-duck session of 1998.
The only must-do item on the agenda for the upcoming lame-duck is the FY2019 approprations, of which five bills (and most of the overall funding) have already passed, and seven are tied together with a Continuing Resolution until December 7. Caught up in the CR, of course, is the funding of a potential border wall. Other agenda items include the Farm Bill reauthorization, which is sitting in limbo, tax break extenders, and possibly criminal justice reform and VAWA reauthorization. And of course there are an endless number of judicial appointments that could be moved through the Senate.
The real question is how much the GOP will try to move—and how much the Democrats wil resist—if control of the House (or Senate) flips in the election. This is tougher to game out than it might appear at first blush. There are some credible opinions that a defeated party won’t try to jam through huge things lame-duck on its way out, but I don’t find those particularly persuasive. For instance, I suspect if the GOP was about to lose the Senate, they might stay in session right through January 3 confirming judges. On the other hand, I don’t think this a GOP loss in the election is going to be some magical moment where the decide to nuke the legislative filibuster in order to gobble up all the legslative priorities they can while they still have the House majority.
So it seems to me that the legislative filibuster will quite obviously still be in place, which reduces the unilateral moves that any GOP majority can make in the lame-duck. They will still have to bargain in the Senate. Where this gets tricky is in relative bagaining power; it may be the case that the Democrats can get a better deal on, say, DACA, if they bargain now in the lame-duck than if they bagain in 2019 holding the House. As useful as the House will be for the purposes of blocking legislation, the best deals might come from a situation in which Trump/GOP worries they will never get a border wall, and the Senate Dems can drive up the price to be paid for one, themselves worried that the House Dems may never agree to a wall in 2019. Will Nancy Pelosi roll her 2019 majority to cut a border wall deal? Unlikely. But could an outgoing Speaker Ryan roll his 2018 majority for a DACA/Wall deal? Absolutely.
And this is sort of the rub I see: if centrist Senate Dems want to cut a really good deal for Dems now, there’s not a whole lot the future House Dems can do to stop them. Blah blah blah party ties and all that. But I think people are underestimating where the center of gravity will be in the Demcratic party, after winning the election. In 2019 it will be emphatically in the House. But during the lame duck, it may still be in the Senate.
What happens if a sitting member goes to jail?
In theory, nothing. But they’d probably be expelled.
Two current members of the House, Chris Collins (NY-27) and Duncan Hunter, Jr. (CA-50), are currently under federal indictment. Collins was indicted in early August on insider trading charges. Hunder was indicted later than month on a variety of corruption charges. Both men continue to seek reelection (Collins initially sought to drop out, but then changed his mind.) While Collins may yet resign after winning the seat, Hunter seems set on fighting the charges and remaining in Congress. What happens if either win election to the 116th Congress and then gets convicted and sentenced to prison?
Constitutionally, nothing. There’s no prohibition in the Constitution that prevents someone from holding federal office while in prison. As a pracatical matter, an incarcertated member may not be able to vote, since in most circumstances voting by proxy is not allowed. But conviction of a federal crime does not in any way affect the constitutional standing of a member of Congress. Nor does the Constitution have any recall provision for voters.
Beyond the Constitution, however, are the Rules of the House. Under the Constitution, the House and Seante are both empowered to make their own rules, as well as discipline their members. Currently, under House rules, members who have been indicted face no sanction. Under Rule XIII, Members who have been convicted of a crime to which the punishment may be more than two years in prison are told to “refrain” from committee business and from voting on the House floor.
The rules do not strictly prohibit convicted members from voting, and that likely reflects the dubious constitutional nature of such a prohibition. While the House and Senate have wide latitude to set their own rules and discipline thier members, the Supreme Court has been skeptical of the power of the chambers to block member participation in final passage votes. So the House rule probaly should be read as a voluntary suggestion, at least in regards to voting on the floor.
The House could also vote to discipline a convicted member. The harshest punishment avialable is expulsion (which requires a 2/3 vote). Only 5 Members have ever been expelled from the House (most recently James Traficant in 2002), but that’s largely because members facing possilbe expulsion tend to preemptively resign. Less severe punishments have historically included censure—which amounts to formal shaming—and reprimand, which is just a lighter form of censure. The House has also, on occasion, fined Members under the discipline power.
Outside the constitution and formal chamber rules, there also exist party rules that affect Members. The current rules of both the House Democxratic caucus and the GOP conference require members under indictmet to step down as Chair or Ranking member of any committees they serve on. Informal pressure from the party induced both Collins and Hunter to step down from their committee assignments altogether. Both sets of rules also strip members permanently of their committee leadership posts upon conviction. As party rules, of course, these provisions are not enforceable on the House floor, and parties are free to ignore their own rules.
Three other federal laws affect Members convicted of crimes. The first is 2 U.S.C. § 5306, which direct the House CAO to deduct from a member’s salary on a pro-rata basis for each day they are absent from the House (except in cases of sickness). It is unclear whether this would be enforced, as it is routinely ignored for members missing votes here or there. Second, the so-called Hiss Act provides that federal officers and employees forefeit their pensions if convicted of certain national-security related crimes. Similarly, the Honest Leadership and Open Government Act (2007) and the STOCK Act (2012) provide that members lose their creditable years of service toward their pensions if they are convicted of any of a variety crimes related to public corruption or campaign finance.
If either Hunter or Collins won reelection and was then convicted and sentenced to prison but chose not to resign their seat, the most likely outcome would be a move in the House to expel them. While the House has been skeptical in the past of punishing members for prior conduct that was known to the voters, it also has an incentive to maintain its own prestige, and the optics of a sitting member in federal prision would likely compel the House to lean hard on them to resign, and to expel them if they did not.
Three Things I Enjoyed Reading This Week
The Man Who Broke Politics
What to fear in Trump’s White House
The House Springsteen Built: An Oral History of the Stone Pony
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!
Did you enjoy this issue?
In order to unsubscribe, click here.
If you were forwarded this newsletter and you like it, you can subscribe here.
Powered by Revue