Dreams & Nightmares

As it becomes increasingly clear that Senator Obama will be the Democratic nominee, speculation will focus---as it inevitably does between the primaries and the convention---on who his running mate will be (and who Senator McCain's running mate will be). Obama will be under considerable pressure to offer the slot to Senator Clinton, as a means of healing the rift that the primary contest opened between their supporters.

The arguments against a so-called "Dream Ticket" are strong: 1) Clinton probably doesn't want the VP job; she doesn't need it as a stepping stone to the White House; the best reason for her to take it would be the hope that the ticket would lose in 2008, so that she'd be well positioned for a run in 2012, rather than having to wait until 2016; if so, Clinton might take the slot and not campaign with full vigor, which is a reason not to pick her; 2) Clinton has very high negatives, so that adding her to the ticket would energize Republicans and turn off independents; 3) Part of the argument for Obama is that he can tie McCain to the Bush Iraq war because Obama opposed it early on. Pairing him on the ticket with Clinton undermines Obama's ability to make that argument. 4) Despite the trope of "change" versus "experience," neither Obama nor Clinton (nor McCain for that matter) has any substantial executive experience, which argues for picking a governor. 5) Clinton doesn't help with a potential swing state in the way that, say, Jim Webb might help Obama carry Virginia.

So there you have a whole lot of conventional wisdom. And yet, I wouldn't bet a lot of money against an Obama/Clinton ticket. The traditional role of the VP candidate is attack dog and if the last 6 weeks have proven anything, it's that Hillary Clinton can play that role effectively. Plus, once Clinton fully realizes she's not getting the No. 1 slot on the ticket, she's going to look at the damage she has done to the Democratic Party and herself, and realize that the best way to undo that damage is through a gesture that allows her to claim she was never trying to be racially divisive; she was only pointing to the uncomfortable fact of existing racial divisions; she can then offer herself as a bridge-builder, and potentially bring her supporters along. To be sure, vigorous campaigning by Clinton for an Obama-led ticket that does not include her could also have this effect, but not in as large a degree.

Those are reasons why Clinton might sincerely want to take the VP slot if offered. But what does Obama gain by offering it? Many of the Clinton supporters who have told exit pollsters that they would support McCain in the general if Obama gets the nomination will likely change their minds between now and November, especially those that usually vote Democratic. But some won't, and Clinton's presence on the ticket will bring some of them around. It's also quite likely that the economy will be a more important issue for voters than the war (although obviously they're related; the expenditure of dollars in Iraq limits options at home). An Obama/Clinton team could be very effective on economic issues.

There is also the Rovian truth. Turdblossom showed that you can win general elections by doing just enough to stay viable for independents while massively mobilizing your base. I have a hard time believing that an Obama/Clinton ticket would not lead to huge voter turnout for Dems---especially given its historic nature. True, it will also inspire Republican turnout, but given the way turnout has been going in the primaries (even when the Republicans still had a live contest), and given the fundamentals, turnout has to favor the Democrats.

Bottom Line: I have no idea whom Obama will name as his running mate, but I no longer think the "Dream Ticket" is a crazy idea. The bigger Hillary's victory in West Virginia, the more likely it becomes, so long as she stays in her more restrained mode of campaigning (i.e., directs her fire at McCain). Of course, I'm a lawyer and law professor, not a politico, so what do I know?

Posted by Mike Dorf

Was the Long Primary Fight Inevitable?

With press coverage of the Democratic presidential intramurals (finally) recognizing the impossibility of a Clinton nomination, the post mortems have begun in earnest. Today's New York Times Week in Review section includes a discussion of the argument that this will all turn out to have been good for Obama, by ____ (fill in the blank with: toughening him up, forcing him to be more of a populist, etc.). A friend, however, recently sent me an email suggesting a more fundamental question about the nominating process: "Did the Democrats set up a situation that couldn't be resolved until very late in the primary season?"

The arguments for this conclusion are pretty convincing. The Republican primaries and caucuses were to a large degree winner-take-all, while the Democrats use a system of proportional representation all but guaranteeing that multiple candidates will receive at least some delegates. In addition, the winner of the popular vote in some states receives less than his or her proportional share of delegates. (The oddest of these was Texas, with its "primacaucus" hybrid, by which Obama ended up with a majority of the delegates even though Clinton was the winner of the popular vote in the early March primary.) That alone suggests that getting to over 50% in delegate count probably could not happen until quite late in the process. Add in the mysteries of the superdelegates and the Michigan and Florida messes, and you seem to have a recipe that assures a long process with no clear winner.

Why, then, was I as surprised as almost everyone else by how long this nominating fight has dragged along?

The easiest answer, of course, is recent history. There has not been a seriously dragged out nominating fight for either party in many years, so people assumed that these battles had been relegated to discussions in political science seminar rooms. There are, however, explanations with a bit more content.

First, the real contest in running for president before the primary season officially begins has become the so-called money primary. Locking up the big donors (and thus the best advisors and consultants, and inevitably the most prominent endorsements) can turn an apparently drawn-out process into a pro forma exercise. Indeed, the entire early Clinton strategy was based on making her candidacy look so formidable that it would be foolish to donate to anyone else. It was all supposed to be over by Super Tuesday.

Note that this script played out almost exactly as planned. The surprises were Obama's emergence and Clinton's refusal to walk away. Had there been no Obama phenomenon, it seems pretty clear that all of the narratives about Edwards's well-meaning-but-quixotic candidacy, Biden's gaffe-in-waiting candidacy, Kucinich's pointless-but-at-least-his-wife-is-good-for-reaction- shots candidacy, etc. would have played out exactly as planned for Clinton. Her ex post disastrous presumption that she could wrap it up by early February would have been confirmed as brilliant political maneuvering. Indeed, as late as early February, I was telling friends that I simply could not see how Clinton could lose, no matter how weak she was turning out to be as a candidate. Like many people, I didn't see the Obama candidacy's popular -- and especially nontraditional financial -- potency.

Once that emerged, I doubt that anyone could have predicted that Clinton would refuse to give up for as long as she has. Like virtually every candidate from both parties in all recent election cycles, Edwards dropped out when the writing was on the wall but well before he had to do so. People have been pointing out for months that Clinton simply did not have a prayer other than to hope for (and to help create) a melt-down of her opponent's candidacy. Hoping for disastrous missteps by front-runners is as American as uncounted ballots, but no one prior to Clinton in '08 ever showed the willingness and ability to keep going for this long.

Finally, I was surprised by the change in voter psychology this year from "go with the winner" to "rally around the underdog." One of the reasons that John Kerry so easily won the nomination in '04 was that he became inevitable after Iowa and New Hampshire. The voters in that year did not fight that idea but ratified it. This year, Clinton managed to find a way to rally surprising support to what had become an impossible candidacy.

In short, I do not think that anyone was wrong to imagine that the nominating process adopted by the Democratic Party would again end quickly and that we would have had a general election season running from early February through November. Although the fight has been ugly along the way, I am happy to have been wrong.


Posted by Neil H. Buchanan

Gaffes and Journalism

In alphabetical order, here are what I regard as the leading Presidential candidates' leading gaffes (although I don't have a measure for saying what counts as the gaffiest):

Clinton: "Sen. Obama's support among working, hard-working Americans, white Americans, is weakening again."
McCain (singing): "Bomb bomb bomb, bomb bomb Iran."
Obama: "it's not surprising then that they get bitter, they cling to guns or religion . . . ."

I want to begin by acknowledging that there is at least some prima facie reason to pay attention to these sorts of statements---and to these three in particular. Each one suggests that the rap on the candidate is right: Clinton is consciously trying to sell herself as the white Democrat, thus deliberately damaging a coalition at the heart of the Democratic Party; McCain is a hothead who will get us into yet another war; Obama is an egghead who doesn't connect with socially conservative working-class Americans. A gaffe of this sort is thus a kind of Freudian slip. It reveals the candidate's true identity, what he or she really thinks when not staying precisely on message.

To mention two unsuccessful candidacies of the recent and less-recent past, Joe Biden's description of Barack Obama as "clean" and "articulate" betrayed a measure of racism that he will probably never be able to get past, and Jesse Jackson's reference to New York City as "Hymietown" betrayed a measure of anti-Semitism that has limited his mainstream appeal ever since. It is legitimate to report on gaffes for what they reveal about a candidate's character and what that candidate really thinks.

But it's one thing to pay some attention to gaffes. It's quite another to make them a major focus of campaign coverage, as the media have done in this election cycle. I'll bet more people can identify the candidates' gaffes than their proposals on the Iraq war.

It is commonplace to complain about horserace rather than issues-based coverage of political campaigns. Here I want to suggest---and invite discussion on the hypothesis that---the cause of excessive attention to gaffes is the same as the cause of horse-race coverage: In a long campaign, gaffes and primary results are events that can be covered as news, whereas policy positions are not.

That explanation, however, lets professional journalists off the hook too easily. It may be understandable for the evening news to lead with a gaffe story or a horse-race story, but when a journalist has an opportunity to interview a candidate or a campaign spokesperson, the journalist has an opportunity to make policy into news. By asking a candidate how he or she plans to pay for some new spending program, for example, and then asking tough follow-up questions, a good journalist can elicit actual new statements about policy. Of course, to do this effectively requires the journalists to know something about the underlying policy issues, which is a lot harder than asking candidate Y whether he or she was offended by what candidate X said about candidate Z's latest gaffe.

Posted by Mike Dorf

A Counterintuitive Democratic Strategy on the Courts

By now, others have picked apart the substance of Senator McCain's recent speech about the judiciary. (For one particularly good analysis, see Jack Balkin on his eponymous blog.) Here I want to ask what strategy the Democratic candidate should use in combating what is almost certain to be a frequent attack theme from the McCain campaign in the general election: that the Democratic nominee is extremely liberal for having voted against the confirmation of both CJ Roberts and Justice Alito (as both Clinton and Obama did).

The obvious response would be to try to paint McCain as the true radical, both by pointing to actual decisions of Roberts and Alito, and by tying them to Scalia and Thomas (who tend to be regarded by as much further to the right). The Democratic candidate could say something like this:

I believe that it's the job of the President to nominate consensus-building moderates. President Clinton did that with Justices Ginsburg and Breyer, and Republican Presidents have often done that too. I would have gladly supported President Ford's nomination of Justice Stevens, President Reagan's nomination of Justices O'Connor and Kennedy, and the first President Bush's nomination of Justice Souter. But a President should not be given a blank check to name Justices who are at the ideological extremes, even if they have excellent professional credentials, and that's what President George W. Bush. In this regard, as in so many others, Senator McCain offers himself as serving a third term for George W. Bush.

In fact, Obama did say something very much along these lines in an interview on CNN yesterday, and if asked the question directly, perhaps this is the right answer, but I have a nagging feeling that this sort of answer plays into McCain's hands.

Here's why. The base of the Republican party cares much more about the courts (including the Supreme Court) than does the base of the Democratic party, and the vast middle of the country doesn't seem to care at all about the courts (or if they care, it's way below issues like the economy, education, health care, and national security). The base of the Republican party is also suspicious of McCain. Accordingly, a Democratic strategy that attempts to paint McCain's support for Roberts and Alito as far to the right is unlikely to have any substantial impact on voters, except perhaps to persuade the Republican base that perhaps McCain is a reliable conservative after all.

Right now, the Republican base thinks McCain is soft on the courts, as evidenced by his willingness to join the gang of 14 in conditionally renouncing the nuclear option. He gave his recent Wake Forest speech precisely because he hoped to calm their fears. A concerted campaign by Democrats to portray McCain's views on the courts as far to the right would only help him. A better strategy might be to ignore the issue except for mouthing platitudes about how it's important to have an independent judiciary.

Posted by Mike Dorf

Patent Chaos and "Dorf's Law"

Writing in the NY Times on Tuesday, Adam Liptak reported that, as a result of analysis by GW Law Prof John Duffy, the courts may have to "undo thousands of patent decisions concerning claims worth billions of dollars." Duffy's analysis is excellent, but I want to suggest here that the bigger the problem is, the smaller the problem will be. How's that? Let me explain.

In a little-noticed provision of a 1999 appropriations measure, Congress changed the way that patent judges of the Board of Patent Appeals and Interferences are appointed. As a result, all such administrative judges appointed since 2000 have been named by the Director of the Patent and Trademark Office, but the Director is not the Head of a Department (since he serves under the Commerce Secretary). Thus, these judges were appointed in violation of the Appointments Clause of the Constitution, Art. 2, sec 2, cl. 2. And thus, cases on which they have sat are invalid. Duffy argues that because of the breadth of standing the Supreme Court has permitted in Appointments Clause challenges, and the automatic nature of the remedy, there is no good way for the government to avoid this result---although prospectively, Congress can vest appointment authority of the patent judges in the Commerce Secretary.

I would argue that the government may indeed have a way out, which I'll call "Dorf's Law." Dorf's Law states that courts do not provide a remedy for really really big constitutional problems where doing so would create chaos. One example of Dorf's Law in the United States may be McCleskey v. Kemp, in which the Supreme Court refused to invalidate Georgia's death penalty despite evidence showing with statistical significance that the race of the victim was a determinative factor in whether a defendant was sentenced to death. The Court feared that invalidating the death penalty on this basis would, among other things, require acknowledging that racial considerations pervade the criminal justice system, and the Justices couldn't imagine invalidating the entire criminal justice system. As a result, Justice Powell wrote a majority opinion that is, to put it kindly, innumerate. It says (nonsensically, for anyone who understands statistics) that proof that race infected death penalty decisions in Georgia in general doesn't count as proof that race infected the death penalty decision in any particular case. (This is nonsense because the Court was NOT saying that there is a higher persuasion burden where statistical proof is used, nor was it saying that there was something about McCleskey's case that made it atypical.)

As McCleskey illustrates, it's possible (perhaps likely) that examples of Dorf's Law will not be expressly acknowledged as such. Towards the end of his opinion, Justice Powell does candidly say that the Court can't give McCleskey the relief he wants because doing so would open the floodgates, but he offers this as an "additional concern" that is meant to bolster his decision nominally based on the statistical (non)argument.

My favorite illustration of Dorf's Law is the Supreme Court of Canada's decision in the Manitoba Language Rights Case. Manitoba was obligated to enact all laws in French and English, but from 1890 until 1985, the Province only enacted laws in English. The Supreme Court had little difficulty finding that practice invalid, but balked at the suggestion that as a result, all laws in Manitoba since 1890 were null and void. Such a legal vacuum, the Court said, would itself violate the rule of law. Thus, the Court continued in effect the prior laws for a temporary period while Manitoba translated and re-enacted its laws.

Dorf's Law suggests a legal strategy for the government in the patent imbroglio: Emphasize the utter waste and chaos that would ensue from declaring void all the decisions rendered by the improperly appointed patent judges. The courts (that's the Article III courts that would adjudicate this issue, presumably including, eventually, the U.S. Supreme Court) could either follow the McCleskey route and make up some nonsensical reason why the Appointments Clause isn't really violated, or they could follow the (more honest) Manitoba route and say simply that the remedy is too costly. This is a risky strategy primarily because the chaos that would ensue from invalidating eight years worth of patent decisions isn't quite on the scale of the chaos of having no law at all in an entire Canadian province or no criminal law in the United States.

Still, the Supreme Court did something a lot like this once before in a context that looks quite similar. In Northern Pipeline Co. v. Marathon Pipe Line Co., after finding that bankruptcy courts had been improperly constituted, the Court decided that its ruling only applied prospectively, and gave Congress a few months to fix the problem. In the ensuing years, the Court has ruled out pure prospectivity, but if there's enough at stake, look for something like it to re-emerge in the patent cases.

Posted by Mike Dorf

Got Indiana?

Yesterday, I wondered how perverse it would be for Senator Clinton to win the Democratic nomination in good part because of her appeal among voters who, in a general election against Senator McCain, would just prefer McCain. Some of the comments (when they weren't supposing I was naive or misinformed or something worse) inferred that I was arguing the DNC is irrational for trying to involve less ideologically committed voters in a nominating process. That is not what I argued at all. What I argued is that individual voters are only asked to make a highly constrained choice in our (mostly ordinal) elections and that that is no way to "reveal preferences" or to aggregate them into some kind of "collective will." Moreover, there is good reason to believe that what nominees for President need most is a committed base to whom they will not have to pander or communicate at all in the general election.

So the results are finally in and Senator Clinton won Indiana -- some of it by wide margins. An area with one of the most lopsided margins (70/30), Pike County, makes my point. Pike County is 99.1% white, disproportionately poor, older than normal, under-educated (this is a demographic profile, mind you, and all this means is that most college educated people leave and don't come back) and clearly a place that has suffered in a post-industrial economy. It has about 12,000 people (down from 20,000 in 1900) and about 3,000 of them voted last night. Is this the sort of victory the DNC should pay attention to in picking the nominee? I'm betting there are WAY more registered Republicans there than about 3,000. More importantly, though, virtually no one even puts Indiana in play this fall. Bush/Cheney states in 2004 that could go "blue" this year include Colorado (9 electoral votes), New Mexico (5), North Carolina (15), Virginia (13), and Missouri (11) and they all seem more likely to go for Obama according to people more knowledgeable than I (although even I can fathom the power of popular home state backers like Richardson, McCaskill, Webb and having won those primaries by wide margins).

Thus, when some suppose that Senator Clinton would be a stronger nominee because a few national polls put her further ahead of McCain than Obama, I am, shall we say, floored. Obviously, the general election is still an eternity away, we don't vote for President as a nation, and THERE ARE STILL THREE CANDIDATES BEING PUT UP IN THESE POLLS. Now readers of this blog will all know (thankfully) that the electoral college is what shapes the Presidential race. Getting to 271 is all that matters. George W. Bush proved that twice (and, in his case, it didn't even matter how he got to 271 in one of them (sorry - couldn't resist)).

But before we think the nominating process is anything other than a crude approximation of what it supposedly accomplishes, ask yourself why more Americans voted for GWB in 2004 than for any other President in history. It wasn't because of his popularity or because Bush was a centrist or because he had been nominated in a process designed to get at those two qualities. He was a presumptive nominee of a tightly organized party, running in a year in which the nation was extremely polarized, he and the RNC ran an extremely polarizing campaign in the "swing" states, and Senator Kerry was close in a lot of the polls leading up to the election.

There are plenty of good reasons to want someone with broad appeal to be a party's nominee. But it is exceptionally unlikely you will nominate that person by just opening primaries up to anyone or making the delegate counting "proportional." (Incidentally, Senator Clinton certainly isn't that person. She the kind of politician Chris Matthews idolizes: she has surrounded herself with professionals whose only expertise is in how to exploit the flaws of an ordinal election and those of our mass media-driven electoral process at the national level. They have "sliced and diced" the voters they need by coming up with "winning" strategies like a gas tax holiday, for example.)

Now imagine Senator Clinton trying to run a race that wins the swing states she might even possibly win. Is she really going to campaign to win places like Pike County, IN? That would be a terrifically stupid strategy because it would cost her (in opportunity costs, if nothing else) dearly to have to triangulate her message for so little voter payoff.

Finally, having the nominating contest end swiftly very well could be means/ends rational for a party. More and more of Senator Clinton's voters have been answering in exit polls that they will not vote for Senator Obama should he be the nominee. I can only surmise that that trend line is a function of the primary campaigning - assuming, of course, that these voters are Democrats at all.

Posted by Jamie Colburn

America, Where Every Day is a Tax Holiday

In my latest FindLaw column, I explain why the proposed gas tax holiday is such an idiotic idea. The point has been made in other places, but I thought it worth a short sustained argument that actually addressed the feeble arguments that could be made in its favor. I then turn to the question of whether the attraction of such measures for politicians undermines democracy. Because the column went to bed before yesterday's primaries, I don't address the impact this issue had on Indiana and North Carolina voters.

Here I want to raise yet one more argument against the gas tax holiday, one that I did not make in the column. You can bet your bottom dollar that if Congress is foolish enough to enact the gas tax holiday (or if one of the state legislatures contemplating a similar measure at the state level does so for state fuel taxes), then when the expiration of the holiday approaches, someone will make the argument that the McCain campaign now makes about the Bush tax cuts: Permitting the officially temporary tax break to expire is, from the perspective of the taxpayers, a tax hike, and so the gas tax holiday should be made permanent.

It's tempting to think there's nothing at all to this argument. Branding one's political opponents as tax hikers is partly just a GOP marketing strategy, like calling the estate tax the "death tax." But it's also true that people paying zero federal gas tax on Sept 1 and 18.4 cents per gallon on Sept 2 does experience a tax increase. The problem is assuming that's the end of the argument. In general, the law sensibly protects people's reasonable reliance and nobody can reasonably rely on not paying a tax that he is scheduled to pay, simply because he hopes that the legislature will enact a new law relieving him of that duty.

Unless, that is, anti-tax legislators repeatedly state their intentions of making permanent nominally temporary tax cuts. Then a reasonable citizen could be led to think that the tax is going to be permanently repealed and it would be reasonable for such citizen to experience the expiration of the tax cut as a tax increase. Of course, I would still say: So what? People experience disutility from tax increases, but if the utility of the revenue (and any Pigovian effect of the tax in the case of a tax on harmful activity such as driving) outweighs that disutility, the tax should not be permanently eliminated.

Bottom Line: 1) There is something to the point that people (with high incomes) will experience the non-enactment of legislation making the Bush tax cuts permanent as a tax increase; but 2) that's mostly because Republicans have been deliberately inducing expectations that the tax cuts will be made permanent; 3) in any event, changes in the tax law routinely upset expectations but that's not by itself enough to oppose all changes (or non-changes) that leave people paying more in taxes than they expected; and 4) lawmakers who oppose a tax cut as unsound long-term policy should be very wary of voting for it as a "temporary" measure, given that other lawmakers will then try to make it permanent.

Posted by Mike Dorf

The Rational and the Reasonable In Voting?

As voters in Indiana and North Carolina go to the polls, I can't help wondering: how perverted has our electoral system become? Senator Clinton is, by most measures, still in the race for the Democratic nomination at all because of her support from voters who are not "vocal" or "caucus-going" Democrats. They lack, in other words, any kind of ideological loyalty to the Democratic party. They are just as likely to vote for a Republican candidate or not vote at all when the general election comes around as they are to vote for the Democrat. One could even say, as this story in the Times almost does, that Clinton has duped the voters who should have such loyalties into thinking she's their candidate even while, in reality, she was pro-NAFTA, pro-Democratic Leadership Council, and is herself now fabulously wealthy.

How perverse is it, then, that our nominating process might allow such voters to defeat the Democratic candidate that most "true-blue" Democrats are for, only to put Senator Clinton against a Republican candidate that those same voters would then prefer over Senator Clinton? Given the rules pitting Senators Clinton and Obama against each other in this primary election, it is perfectly rational for voters to choose their "preferred" candidate in one election who then is not the preferred candidate in another election. (It could be strategic or just plain short-sighted.) It would be, however, unreasonable of a party to nominate someone by ignoring these defects in elections and it would be just as unreasonable for observers to conclude that Senator Clinton's victories in the primaries are at all reflective of her chances in an election against another opponent.

Posted by Jamie Colburn