Steny Hoyer is Right, Food Stamps Stimulate the Economy (and keep children from starving)

The conservative blogosphere is all atwitter (pun intended) responding to House Minority Whip Steny Hoyer's comments that food stamps and unemployment insurance are the two "most stimulative" things you can do for the economy. Almost immediately, Hoyer's Republican opponent in the upcoming election, Maryland House of Delegate Republican Minority Leader Tony O'Donnell, sent out a fundraising e-mail criticizing Hoyer for the comments.

Trouble is, Hoyer's right. Welfare programs like Food Stamps (actually called SNAP - but I use the names interchangeably) and unemployment compensation stimulate the economy.  Who says so? Some left wing think tank? No - Moody's Analytics. Moody’s Analytics estimates that in a weak economy, every dollar increase in SNAP benefits generates $1.72 in economic activity... SNAP is followed closely by - you guessed it - unemployment insurance which generates $1.63 in economic activity for every dollar spent. Comparatively, tax cuts generally break even with every dollar in cuts generating a dollar - of course income tax cuts would be meaningless to the folks who receive Food Stamps given they generally receive no income (because many are children) or their income is so low they'd owe no income taxes.

The federal government spent about $65 billion on Food Stamps in 2010. If Moody's is right, that $65 billion generated about $112.5 billion in economic activity (I wish my 401k gave me a return like that). Now $65 billion is not chump change to a cash starved federal budget and Food Stamp participation has grown rapidly in recent years - growing from 25 million recipient in 2007 to about 46 million today. But during that same time the number of Americans in poverty has increased from 35 million to over 45 million. Unemployment increased from just over 5% to above 9% and now is at just above 8% and 42 percent of all unemployed workers have been out of work for more than half a year.

Of course people would prefer to earn income from work - but that requires available jobs. In the absence of jobs there would be an even worse contraction in economic activity if the unemployed could not buy food, clothes, gas, utilities, and pay rent. This is what programs like SNAP and unemployment allow. The $65 billion in Food Stamp spending is not buying a Cadillac for a welfare queen - it's buying bread, milk, cereal. It's keeping people employed at Wal-Mart, Target, and local grocery stores. The average Food Stamp participant receives $133 per month - which works out to $1.34 per meal. It's hardly an outrageous sum per person, but is cumulatively significant to the economy. The average family on Food Stamps has a net worth of $101 and nearly 60% earn half the poverty level or below (1 in 5 have no earnings at all).

Oh, and one more important thing to note - nearly three-quarters of SNAP dollars go to families with children. So in addition to economic stimulus, the program keeps kids from going hungry and can stave off the malnourishment that could result in a lifetime of health problems and reduced productivity - imagine the economic drag. Not too bad for $65 billion a year.

And to put that $65 billion into some perspective - that 401k that I mentioned -  I, and millions of other working folks, get a tax deduction for putting aside money in a retirement account. The cumulative cost of those tax deductions? $93 billion. I also have a house, something most of those folks with $101 in net worth do not. I get to deduct my mortgage interest. Total cumulative cost? $87 billion.

Welfare programs such as SNAP and unemployment cost the federal government relatively little compared to the money spent on middle and upper middle class welfare support programs like the mortgage interest deduction and the retirement contribution deduction. Now, I happen to agree with many conservatives that tax cuts can stimulate economic growth as well - but such tax cuts cannot help folks without a job.

Food Stamps and unemployment allow tens of million to engage in economic activity and therefor support the jobs of tens of millions more. Take that money away and aside from devastating the lives of recipients there would be a ripple effect felt from retail store employees to manufacturers to farmers to truck drivers to you and to me.

Of course we'd all prefer a growing a economy with fewer welfare recipients and more private sector jobs. That's why programs like SNAP and unemployment matter. Investments in these programs today decrease the likelihood of needing them tomorrow.

*** Full disclosure - Steny Hoyer represents me in Congress and is a member of the Board of Trustees of St. Mary's College - my employer. I like and respect Hoyer and think House Democrats need to dump Nancy Pelosi and elect Hoyer their leader - we'd all be better off. That said, I was an expert witness in the Voting Rights challenge to Maryland's new congressional districts and have argued that Hoyer's 5th Congressional district disenfranchises minority voters by using them to offset conservative voters in southern Maryland.

As to Minority Leader O'Donnell... he represents me in the Maryland House of Delegates. Not only do I know him, I like and respect him. He and I disagree on many issue (but the same is true of Hoyer) but I consider him to be a strong leader within the Maryland Republican party and if Maryland ever adopted a Congressional district map that represented it's people I have no doubt O'Donnell would do well representing Southern Maryland and Anne Arundel county.

My point being - I don't have a dog in the Hoyer/O'Donnell fight. I simply want to make clear that Hoyer is right. Welfare benefits stimulate the economy. And in a high unemployment job market that stimulus is needed. And the stimulus is quite cheap.

In Defense of the Senate Filibuster

Senate Majority Leader raised again today the threat of reforming Senate filibuster rules in response to Republican “obstructionism.”  Reid is not alone, many have urged changes in U.S. Senate rules to curtail the growing number of filibusters.  The current cloture rule, requiring sixty votes to end debate, might be reduced to a bare majority requirement to lessen unlimited debates or there may be multiple successive votes on cloture with the threshold falling after each vote – eventually falling to a bare majority.  Such reforms ought to be rejected. As the figure below (excerpted from my forthcoming book with Steven Schier) makes clear, there has been an explosion in the use of the filibusters.  Filibusters increased, and increase demonstrated by the related, and more dramatic, rise in the number of cloture motions. The increase began in the early 1970s, and then declined, only to begin a new rise in the 1980s. There has been an acceleration in recent years, but the figure makes clear that Democrats and Republicans have been part of the “problem.” The solution, however, is not to eliminate the filibuster.

Removing the sixty vote cloture rule might, and probably would, make matters worse.  A simple majority requirement might cause narrow ideological majorities to push through controversial and unpopular legislation. The unpopular health care reform of 2010, for example, avoided a filibuster because it was attached to budget reconciliation legislation that by Senate rules could not be filibustered.  Republicans used the same process to enact the controversial Bush tax cuts in 2001 and 2003. In the absence of a filibuster, both pieces of legislation (in fact any piece of legislation) could be easily undone if a rival ideological majority gains power in the Senate.  This sort of ideological zigzag would produce a cycle of passage and repeal of programs.  Without filibusters, narrow Senate majorities will appoint more ideologically extreme judicial and executive branch nominees.  Given the sharp partisan polarization in Congress and the partisan activists that control the major parties, the filibuster offers the public protection against immoderate majorities enacting intensely ideological agendas only to have them repealed and replaced with an opposing ideological agenda when party control shifts.

Protection against partisan majorities is necessary because, as I have noted many times, America’s two major parties are polarized and neither commands close to majority popular support.  The less-polarized public vacillates between two ideologically extreme parties and at times frustrates both parties by voting in a divided government.  If popular majority preferences consistently were frustrated by arrangements like the Senate cloture rule, then perhaps majoritarian reforms would be in order.  But that is not the case.  At present, the cloture rule prevents either party from readily enacting an agenda that does not reflect the popular will.

Congressional Dysfunction - Part 1: Congress Today

In a recent post, Ezra Klein profiled 14 reasons why the current Congress is the worst Congress ever. I find little to argue with in Klein's myriad criticisms of Congress, other than to suggest that the present dysfunction has been a long time coming and is the result of many moving parts slowing coming into sync. In the next few months, a book that I co-authored with Steven Schier - The Dysfunction of American Politics - will begin to hit book shelves. In advance of that publication I have decided to excerpt my chapter on Congress over the course of the next week or so. What I hope to create is a more complete picture of Congressional dysfunction. Perhaps of greater importance, the picture I'll present portrays a dysfunction that is deeply bipartisan. Contrary to the recent claims by noted Congressional scholars Thomas Mann and Norm Ornstein the dysfunction is not simply the fault of an insurgent and radicalized GOP. The problem goes much deeper than that and as a result will be much more difficult to repair.

Part 1: Congress Today

Writing in 2006 in their aptly titled "The Broken Branch" Congressional scholars Thomas Mann and Norm Ornstein described the contemporary Congress as “a supine, reactive body more eager to submit to presidential directives than to assert its own prerogatives." According to the authors, many characteristics that define the contemporary Congress took shape during the period of the late 1960s. Among the changes was a shift away from the “textbook” Congress of the New Deal era characterized by a decentralized power structure, powerful committee chairs, and weak parties.

Though I agree with much of what Mann and Ornstein presented in The Broken Branch, I believe the seeds of Congressional dysfunction where planted a bit earlier. A combination of internal and external pressures dating to the late 1950s set in motion the creation of the contemporary Congress. A series of elections spanning nearly two decades (from the the 1950s-1970s) changed the ideological make-up of the Democratic party. A combination of court decisions and federal legislation (in the 1960s) changed the nature of congressional constituencies. A series of internal reforms enacted from the late 1960s through the mid-1970s empowered individual members of Congress. Concomitant with these changes was a dramatic rise in interest groups, a marked rise in two-party competition, and the frequent presence of divided partisan control of the legislative and executive branches. Collectively, these changes raised the stakes in the pitched battle over lawmaking.  Highly professionalized members, intense partisan polarization, centralized control among party leaders, and an increased reliance on “unorthodox” procedures to secure passage of legislation mark the Congress that emerged.

Over the course of the next few weeks, I will discuss in detail what I merely summarize now.

Two deeply polarized political parties engaged in a close-fought and bitter struggle for electoral victory and legislative control mark the contemporary Congress. Though the even level of electoral competition has been especially evident in recent years, it first emerged in the late 1970s when Republicans gained a congressional foothold in the south. Increased electoral competition coupled with the advent of divided government gave rise to reforms in the Congress that first empowered individual members to become highly professional representatives but then gave way into further changes that effectively centralized control around the organizing principle of party. In the House and Senate, members realized that the best way to ensure success of the party agenda and to obstruct the minority party was through greater centralization of power in party leadership. This was more readily achieved in the House, but even in the Senate changes in the minority/majority approach to floor activity and amendments show that centralization around party – if not necessarily party leadership – has occurred.

In today’s Congress, lawmakers pursue initiatives important to their constituents, to key interest groups, and to their party in a professional environment of ideologically uniform parties with sharp agenda differences. Washington’s professional and partisan legislature often supports a president in the same party as a congressional majority and obstructs an opposition party president. As measured by the number of pages in the Federal Register, the contemporary Congress appears capable of legislating, though not when addressing issues of major concern.  Why?  The congressional parties diverge sharply on major issues, leading to attempts at legislative domination by partisan majorities and obstruction by partisan minorities.

There are now so many voices at play in policy-making, described fully in chapters two and six, that it has become more difficult to legislate and easier to obstruct. Multiple congressional committees and subcommittees enjoy some degree of jurisdiction over major issues. These committees in turn have established mutually beneficial relationships with interest groups. Multiple committee referrals are quite common as a result. Party leadership uses restrictive rules and post-committee adjustment to ensure buy-in by the multitude of interested voices. Such buy-in requires difficult and finely crafted compromises. In a closely divided and polarized environment, every incentive exists for a minority party to derail or prevent such compromises. The result is often congressional inaction and policy stasis.

The great challenges of the present era will often require congressional action. By acting, Congress frequently defines the scope and powers of the executive bureaucracy – Washington’s “permanent government” -- and the scope and jurisdiction of the judiciary. Since the 1960s and 1970s, Congress has become increasingly divided by party and unable to perform its duties with decorum and dispatch.  Dysfunction within Congress reverberates throughout the entirety of the American political system.

Next - Part 2: The Rise of Progresive Democrats - 1958-1974

Protecting the Integrity of the System in Maryland

In a recent Twitter post I took the Maryland Democratic Party to task for placing partisan politics above the interests of the voters of Maryland by producing an egregiously gerrymandered Congressional district map. I further criticized their plan to try and prevent the map from going before the voters by invalidating as many petitions signatures as possible:

@MDDEMS congressional map is an affront to Democracy. Will they double down by attacking peoples right to petition? Let the people judge.

In response to my Tweet, the state party chose a diversion instead of a response:

MD Democratic Party

GOP crusade 4 voter ID as a ploy to disenfranchise Dem voters is the real affront to democracy but @ToddEberly is silent on this ‪#mdpolitics

Of course there are no plans in Maryland to implement a voter ID law and as the petition drive is a Maryland issue I'm not sure why I would write about Republican voter ID reforms in other states.

What I have done is criticize the GOP in TX and NC and PA for engaging in the same partisan gerrymandering as Democrats in Maryland and Illinois. I don't oppose Maryland's new congressional maps because they help Democrats, I oppose the maps because they were drawn solely for the purpose of helping a national political party at the expense of representing the diversity of the state. I do not care which party "wins" or "loses" so long as the game is not rigged. Gerrymandering rigs the game to produce a certain outcome. Of 435 seats in Congress roughly 380 aren't even competitive. Most have been drawn to be safe for one party or the other. So much for Democracy.

I responded to the Maryland Democratic party with a simple question:

@mddems and how many Maryland voters will you disenfranchise by challenging their signatures on the redistricting petitions? ‪#hypocrisy‬

Today, as word came down that the State Board of Elections has certified enough valid signatures to move the new maps to the ballot, we all got an answer from the Maryland Democratic Party courtesy of party spokesperson Matt Verghese:

"Maryland has very strict verification standards on petition signatures based on court precedent, MD laws and regulations. Our priority is making sure that these standards have been met and the integrity of the process is maintained."

So there you have it. The Maryland Democratic Party is planning to mount a legal challenge to protect the integrity of the system against every petition signer who may have forgotten to include his middle initial, or may have forgotten that her full middle name appears on her voter registration card.  Some might call that voter suppression.

But there was something about Verghese's "integrity defense" that sounded familiar to me... and then I remembered. I had heard it before.

There is a federal lawsuit underway in Texas seeking to toss that state's new voter ID law. In response to the legal challenge, Texas Attorney General Greg Abbott filed a counter suit asking the U.S. District Court to implement the new voter photo ID.

Abbott defended the voter ID law saying "the state has the right to protect the integrity of its elections." He then cited voter ID precedent established by similar laws in Georgia and Indiana.

So there you have it... the Maryland Democratic Party wants to invalidate as many signatures as possible for the same reason the Texas GOP wants to require a photo ID for voting - to protect the integrity of the system.

Folks, there isn't enough integrity between the two parties to fill a thimble. The Congressional district maps created by Democrats in Maryland and the Republicans in Texas are a testimony to the parties' utter lack of integrity.

The one thing that the Maryland and Texas congressional maps share in common is the simple goal of marginalizing voter choice in an effort to predetermine a partisan outcome. GOP voter ID laws and the Maryland Democratic Party's plan to challenge already validated signatures each serve that same purpose.

If the Maryland Democratic Party is so damn proud of the monstrosity of a map they created then they should welcome the chance to have the voters pass judgment on it. The Board of Elections has already certified the signatures on the petitions - now let the people be heard.

Voters may Reject Maryland's Gerrymandered Mess, but Congress can Stop Redistricting Abuse

Opponents of Maryland's recently adopted Congressional district map appear all but certain of having submitted enough valid signatures to force the map to referendum in November. At last count, they were only 2,200 signatures away from victory with significantly more than 2,500 signatures awaiting validation - an important fact given that only about 10% of all signatures have been rejected thus far. Should the State Board of Election verify enough signatures, the Maryland Democratic party has hinted it will fight the validity of enough accepted signatures to avoid having the map placed before the voters. This is a bad idea. Every non-partisan observer of state politics recognizes the new map for what it is - a partisan power grab intended to net Democrats an additional seat in Congress. To accomplish this, Gov. O'Malley submitted a map to the General Assembly that contains some of the most gerrymandered districts in the nation. Maryland's map is every bit as egregious as the Republican drawn map in Texas. The new Maryland map would likely result in a congressional delegation that is 7 to 1 Democrat over Republican - in a state where Republicans routinely receive at least 40% of the statewide vote. Worse, the map uses minority voters as electoral cannon fodder - slicing and dicing minority communities so that their reliably Democratic votes can dilute Republican votes in the conservative parts of the state that flank the I-95 corridor.

The new Maryland congressional map already mocks the very concept of representative democracy, the state Democratic party really doesn't need to add insult to injury by denying the people their right to petition and judge the map for themselves.

 

Even if voters do reject the new map, there is nothing to prevent Governor O'Malley from resubmitting the same (or a worse) map to the General Assembly. A rejection of the map by voters would send a powerful message, but more needs to be done.

Legislation has been introduced in the current Congress, by Heath Shuler (D-NC) that would end partisan redistricting. The proposed legislation, requires "redistricting to be conducted through a plan developed by the independent redistricting commission established in the state, or if such plan is not enacted into law, the redistricting plan selected by the state's highest court or developed by a U.S. district court."

Want to make sure that this is the last cycle subject to partisan redistricting? Want to undo the mess created by the GOP in states like PA, TX or NC and by the Democrats in IL and MD? Call your member of Congress and demand action on The John Tanner Fairness and Independence in Redistricting Act (H.R. 453).

Understand, gerrymandering is used by both parties. The simple and unfortunate truth is both parties eagerly engage in this systemic abuse. Maryland's 2nd and 3rd Congressional districts have been highlighted as being among the worst gerrymandered in the nation since appearing a decade ago. Republican drawn districts in Texas (or Pennsylvania) are no worse than Democratic drawn districts in Illinois (or Maryland).

In 2008, a bipartisan group of Representatives sponsored legislation to enact nation-wide, non-partisan redistricting reform (Congress has that power under the Constitution) and called on then Speaker Nancy Pelosi to hold hearings - but it went no where.

2008 offered a perfect storm for reform - under divided government and 2 years prior to a new Census neither party knew who would be in control of drawing new district lines. That uncertainty would have made reform achievable.

If you worry that President Bush would have vetoed the measure, the legislation was reintroduced in 2009. At that time Democrats controlled the whole process - the House, the White House, and held a filibuster-proof majority in the Senate. President Obama was on record opposing gerrymandering having once commented "too often, our representatives are selecting their voters, as opposed to the voters selecting the representatives. That is a situation that I think the American people should not accept."

But these efforts at bilateral disarmament went nowhere. In fact, as these legislators were advocating nationwide, bilateral disarmament, Nancy Pelosi joined an effort opposing non-partisan redistricting reform in her home state of California.

Proposals were ignored under Republican Congresses as well and are now languishing in the GOP-controlled House and Democratic Senate. Speaker John Boehner has shown no interest in redistricting reform. The simple fact is both parties, when presented with opportunities to end this process and put the parties on a level playing field - subject only to the judgement of the voters - have balked.

Partisan redistricting is an issue driven by each party's desire for power and neither party wants to surrender power - even if it is the form of bilateral disarmament.

The John Tanner Fairness and Independence in Redistricting Act (H.R. 453) is currently languishing in the House Judiciary Committee's subcommittee on the Constitution. House leadership seems to have no desire in moving this bill forward, but House leadership can be bypassed.

If a simple majority of House members (regardless of party) sign a Discharge Petition then the supported legislation can move to the floor regardless of leadership opposition or failure of committee action. Call your member of Congress  demand they sign a discharge petition for H.R. 453.

Through the creation of safe seats, gerrymandering creates a reality where the greatest threat to a member of Congress comes from a primary challenge within their party - not from a general election contest. The result being members of Congress more concerned with pleasing the small (but highly motivated and partisan) segment of the electorate who participate in primary elections. For Democrats this means committed liberal activists and committed conservative activists for Republicans - neither group represents the broader electorate.

Help reclaim the House of Representatives for the people and free it from the grip of the parties and ideologically motivated issue activists. Rejecting Maryland's newly created map in November would be a small victory in a much larger war. But it would be an important victory. It may even help spur interest in the John Tanner Fairness and Independence in Redistricting Act or another proposal for national reform. Partisan redistricting undermines the very concept of democratic representation - nothing could be more damaging to American democracy.

When you go to the polls in November put your particular party affiliation aside. Opposing Maryland's gerrymandered mess is not an act of partisanship, but supporting it is. Urban Dictionary defines a Partisan Hack as "Someone who cares more about supporting a particular party or ideology than supporting what is morally right, or factually true." The maps in Maryland and Texas and myriad other states were created by such hacks. Take a stand against the ideologues in November and vote to toss the map.

Who Really Won the Health Care Battle?

Other work is keeping me from the blog today, but here's just a bit of what I'm working on:

Democrats are right to celebrate their substantial political victory, but they must understand that it was a short term victory. I believe the Robert's opinion delivers a far more substantial long term victory to Republicans.

The contemporary welfare state is premised on two things 1) the commerce clause and 2) the power use money and the threat of withholding money to compel states to do things they may not otherwise do (mostly the latter). The contemporary regulatory state is premised on the same two things (mostly the former).  This ruling just drove a stake part way through each of those and severely cracked the foundation of the contemporary welfare and regulatory state. I will post more on this aspect of the ruling later.

On a more immediate issue, as a tax, the law is now susceptible to repeal using budget reconciliation - a measure created by the Congressional Budget Act of 1974 to avoid obstruction of important budget bills. It limits debate in the Senate to 20 hours and eliminates the possibility of a filibuster. As a tax bill, health reform repeal would certainly proceed under the reconciliation process.

If after 2012 Republicans have the White House (very likely based on current polls - ignore Romney's numbers at this point, anywhere Obama is at 47% or below Obama is losing), 50 seats in the Senate (very likely at the very least based on the states in play), and at least a 1 seat majority in the House (a certainty) then health reform is a goner. Democrats could not filibuster.They could not block it in the House. It would just be gone.

With regard to Medicaid. The court just told states they could opt out of the expansion. That expansion was supposed to cover 17 million folks. The states with the highest number of uninsured are the very states most likely to now say "no thanks." So much for expanding coverage.

As to the idea being floated that Roberts somehow expanded the avenues by which a tax can be used to compel people to do what the government wants - it's just not true. Roberts applied the taxing power in the same way it is currently used to reward folks with children, student loans, mortgages, and 401ks. Take two people with the exact same income and wealth living in identical houses. Person A has a mortgage, 2 kids, student loans, and contributes to a 401k, and a flexible spending account. Person B does none of these things. Rather she paid for college as she went, has no kids, puts her money in individual stocks instead of a 401k, and uses a savings account instead of a flexible spending account for medical services. Person A will have a substantially lower tax burden than will person B because our tax code allows him to deduct his interest and his contributions from his income. He will, in effect, receive tax forgiveness for doing things the government wants him to do. Person B cannot be mandated to have a kids, a mortgage, a 401k, or any of the other things Person A does but because she does not do them she pays more in taxes - it's not called a penalty. But to Person B it is in every way a penalty. Health insurance is now part of that list of things people may be rewarded or penalized for not having.

As a quick aside, this tax-based approach to "rewarding" folks with health insurance is actually what conservatives used to advocate. Contrary to the popular talking point, conservatives did not advocate a mandate.

Justice Roberts just turned PPACA into the model of Republican health care reform from 20 years ago...

Kinda funny... in the late 1980s and early 1990s conservatives called for an end to the free rider problem in health care. They did not, as some have argued, call for an individual mandate, rather they called for a tax benefit for those who had insurance (much like mortgage deductions, child tax credits, etc). The flipside being a penalty for those who did not have insurance. But they did not advocate compelling people to buy it. Conservatives also long fought expansions of Medicaid that forced states to cover more people under the threat of the loss of all funds.

Justice Roberts just turned PPACA into the model of Republican health care reform from 20 years ago...

I'll quote as well from the folks at SCOTUSblog "The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress's authority to pass social welfare laws. Using the tax code -- especially in the current political environment -- to promote social welfare is going to be a very chancy proposition."

Consider, the mandate now rests on the size of the tax penalty imposed - good luck ever increasing that tax. In effect, the mandate has been declawed.

Democrats must not Assail the Court in Health Reform Battle

In 1983, Newt Gingrich and conservative Republicans formed the Conservative Opportunity Society (COS). COS members were tired of being the happy minority party. They knew, however, that after 30 years in control of Congress the American people needed a real reason to dump the Democrats - a party that at the time was a still a centrist party that worked often with President Reagan. So the COS decided they needed to undermine confidence in the institution of Congress.

After 30 years Congress and Democrats were synonymous. Undermine confidence in Congress and you undermine confidence in Democrats. So the COS began an all out assault on Congress. They obstructed lawmaking, they used ethics reforms adopted in the 1970s to target Democratic leaders. In quick succession ethics inquiries and investigations led to the resignations of Democratic Speaker of the House Jim Wright and Majority Whip Tony Coelho in 1989 – that same year Gingrich gained election as Minority Whip, the second highest-ranking Republican leadership position in the House.

A scandal involving the House bank in 1991 and the House Post Office in 1993 followed the resignations of Wright and Coelho. Though Democrats and Republicans alike were found to have overdrawn their accounts in the House bank, the scandal contributed to a COS narrative of a corrupt Congress controlled by Democrats. Nearly 80 House members either retired or were defeated in 1992 because of the bank scandal. The election 47 freshman Republicans to the House accompanied the election of Democrat Bill Clinton as President in 1992.

The House Post Office scandal erupted in 1993 and effectively ended the career of Democratic Representative Dan Rostenkowski (D-IL) the very powerful Chair of the House Ways and Means Committee. The cumulative effect of the scandals and public dissatisfaction with President Clinton was the Republican sweep of the 1994-midterm elections. In the 1994, election Republicans realized a net gain of 54 seats in the House and 8 seats in the Senate and assumed full control of the U.S. Congress for the first time since 1954. Gingrich gained election as Speaker of the new Republican controlled House.

Other actions taken by the new Republican majority reduced congressional influence and power. They reduced committee staffs, the Congressional Research Service and the General Accounting Office endured budget cuts and dramatic staff reductions - the institutional memory and policy expertise of Congress shrank.

Make no mistake, Democrats were not blameless. The party had grown arrogant in its power and had for years increasingly excluded Republicans from the lawmaking process. The use of restrictive rules and limits on debate aided in undermining public confidence in Congress. But Republicans waged an all out assault on the institution. Public confidence in Congress collapsed and has never recovered. When Democrats found themselves in the majority they took from the GOP playbook and continued the attack on Congress - considered the claims of corruption in 2006 and Nancy Pelosi's battle cry that we "drain the swamp!"

Cumulatively, these attacks on Congress served to make it a less congenial place. They fed into growing partisan differences and undermined cooperation and compromise. A minority party now relies on Congress failing and on public disdain for Congress in order to win elections. Cooperation and compromise might actually cause public opinion of Congress to improve - this is something no minority party can risk. The end result is a Congress that becomes incompetent, inefficient, and ineffective. It's a self fulfilling prophecy that need not have been.
This brings us to the Supreme Court and tomorrow's likely decision on the constitutionality of the atient Protection and Affordable Care Act (PPACA). All indications are Democrats are planning an all out assault on the court if it overturns PPACA:

We'll find out this week if the Supreme Court is listening to the American people and following the U.S. Constitution," said Rep. Xavier Becerra (Calif.), vice chairman of the House Democratic Caucus, "or if it's becoming more and more what we've seen in the past: a partisan body no different from the Congress.
House Democratic leaders said Wednesday that a move to overturn the healthcare law would similarly call into question the court's impartiality.
Rep. John Larson (Conn.), chairman of the House Democratic Caucus, said it would be "illogical and blatantly political if the Supreme Court were to rule [against the law]."
Joining the Democratic leaders in the Capitol, AFL-CIO President Richard Trumka blasted the current court for its "activist" agenda."What we have is several justices on the Supreme Court that, while they were being confirmed, talked about how they would be activist, [and instead] have become the most radical activist judges we've seen," Trumka said.

The logic is of course ridiculous. The Democrats are arguing that a 5 to 4 ruling against PPACA would be evidence of a radical and activist court, but a 5 to 4 ruling upholding PPACA would show that all is well and good with the court.

Tomorrow the Supreme Court will do what it was designed to do - determine the meaning of the U.S. Constitution and its applicability to a law enacted by Congress. Regardless of what many scholars have suggested, there is every reason to question whether the commerce clause empowers Congress to compel citizens to purchase a private product. If the court determines the individual mandate to be unconstitutional then it may well toss the entirety of PPACA. But not out of some activist agenda - rather because Congress failed to include a severability clause in the legislation. Severability clauses protect legislation from being completely overturned should a court find individual aspects unconstitutional. Democrats chose to exclude a severability clause precisely because they needed the support of the health insurance industry and the industry would not support a bill that would allow the individual mandate to be severed by the courts.

If the Supreme Court overturns PPACA (and I believe that it will) Democrats must not make the Supreme Court and the court's legitimacy an issue. Fight the GOP. Fight for constitutional reforms. Accept that PPACA had a fatal flaw. But do not attack the court. about to do the same to the Supreme Court should it rule against the health reform law. Such a tactic might offer short term political gain, but the long term damage would be substantial. If the reputation of the Supreme Court is ruined by Democrats the way the Republicans destroyed Congress then the damage to our system of government may be beyond repair. The court is not elected. More than any other branch, its power and legitimacy rests upon a foundation of public confidence. Democrats should not undermine that all because of a single ruling on a very questionable issue of congressional power.

And let me be clear, I'm not saying Democrats should abstain from attacking the court just because it would harm the court's reputation. I'm saying they should abstain because a ruling to overturn PPACA would NOT be evidence of a radical or activist court - any more than the House Post Office and Bank scandals were evidence of a corrupt and incompetent Congress.

On Vacation!

The FreeStater Blog will be on hiatus for a few weeks as I enjoy some summer vacation with my family.

I will be out of regular phone contact until June 15th, but can be contacted via e-mail at teeberly@smcm.edu.

Do Independent Voters Matter?

Are independent voters a myth? That is certainly the conclusion of many who study political science. Research by respected political scientists has demonstrated that, when pressed, independent voters often reveal significant partisan preferences – they lean Democrat or lean Republican. When leaners are reclassified and grouped among their partisan peers the share of pure independents in the electorate falls – by some accounts – to less than 10% of the electorate.

If the true number of independent voters is less than 10% of the electorate then independent voters are of little concern. In an age of narrow victory margins in the national popular vote for the presidency and control of the House of Representative winning a majority of that 10% can be crucial, but appeals to a party’s partisans would be a more important focus.

But what if the number of independent voters is greater than 10%, what if it’s greater than 20%? Suddenly, winning a majority of independent voters becomes more important. In a recent report written for the centrist Democratic organization Third Way I examined whether or not leaners are indeed independent. For my research I used the 2000-2004 panel study conducted by the American National Election Studies (ANES). I selected the panel study for a simple reason – it’s one of the few studies available that tracked the same group of voters across multiple elections. That’s important. Most studies of voting and partisanship capture only a snapshot of a point in time and allow researchers to measure partisanship only during a given election year.

Such snapshots would be fine if partisanship were permanent and not subject to change. That is very much the view of partisanship taken by those who consider independent voters to be a myth. In the research conducted for Third Way I compared the partisan voting loyalty of Democrats and Republicans by looking at their partisan vote choice across three House elections (2000, 2002, and 2004) compared to their strength of partisanship in 2000. Survey respondents were classified as being strong, weak, or independent partisans (leaners). I found that weak and independent partisans are less loyal to party in the short term and especially across time. While roughly 90% of strong partisans voted the party line in 2000 approximately a quarter of weak and independent partisans crossed party lines that year. In 2002 and 2004 strong and weak partisans held steady at roughly 90% and 75% loyalty, but independent partisans were more volatile – especially independent Democrats. In 2002, 46% of those who identified as an independent Democrat in 2000 voted Republican. The share was 38% in 2004. I also found that independent partisans were far more likely to switch their partisan identification over time - so 2000's independent Democrat could well be 2004's independent Republican - something a non-panel series could not account for.

The study suggested that during a given election period independent partisans are as loyal to party as their weak partisan peers – but that loyalty wanes over time. To me, a voter who switches their partisan vote choice from one election cycle to the next is not a loyal partisan – rather that voter is an independent voter. My findings were criticized largely based on my selection of the 2000-2004 data series. Some contend that the events of September 11th and the subsequent War on Terror made that time period unique and therefore unrepresentative. Unfortunately there is no other comparable data set exploring the same respondents across multiple elections. In a recent post refuting the findings contained in the Third Way report, Alan Abramowitz looked to the 2008-2009 panel study and compared the partisan loyalty and partisan vote choice of respondents in the 2008 presidential election. Abramowitz came to the same conclusion as did I in my Third Way report – that independent partisans behave much like their more partisan peers in a given election.

Unfortunately the 2008-2009 panel survey does not allow one to follow partisanship or partisan loyalty across multiple elections. As such it is not a useful data source for the study of partisan loyalty and the presence of independent voters. Additionally, I researched partisan loyalty by examining House elections as it enables one to study multiple elections across a relatively short timeframe.

To address concerns about the 2000-2004 data I conducted additional analyses with that data source and with the 1992-1997 panel survey by ANES. Having already demonstrated that leaners are less loyal to party over time I wanted to focus on estimating the number of true independent voters in the electorate. Based on my study for Third Way I placed the number at approximately 25% of the electorate. A number also endorsed by Linda Killian in her book The Swing Vote – a book recently and rather poorly critiqued by Ruy Teixeira (and by that I mean to suggest the critique was poorly done).

I compared the 1994 and 1996 as well as the 2002 and 2004 partisan vote choice to the choice made in 1992 and 2000 respectively. In other words, what share of the folks who voted Democratic in 1992 voted Republican in 1994 or 1996? What share of folks voting Republican in 2000 voted Democrat in 2002 and 2004?

As I am interested in two-party vote shares, I limited my study to only those who voted, and only those who voted for one of the two parties in each of the elections covered. Of those who voted for a Democrat in the 1992 House elections, 25% opted to vote Republican in 1994, 24% opted to vote Republican in 1996. Among Republicans, 12% voted for a Democrat in 1994 and 21% voted for a Democrat in 1996. Based on the two-party vote shares in each election, nearly 19% of those voting in 1992 and 1994 changed their partisan vote choice. The share was closer to 23% between 1992 and 1996.

When looking the more recent era, of those who voted for a Democrat in the 2000 House elections, 16% voted Republican in 2002 and 21% voted Republican in 2004. Among Republicans 11% voted Democrat in 2002 and 21% voted Democrat in 2004.

Both panel series show that partisan loyalty declines over time and that Democratic voters are less loyal than Republican voters. Consistent with the findings of the Third Way report both panel series show that partisan loyalty is weakest among weak, but especially among independent partisans (most defections came from independent partisans). Much is made of surveys by Gallup and Pew which suggest that a plurality of voters are independents – perhaps as much as 40%. This is simply incorrect. But so too are arguments that independent voters make up less than 10% of the electorate. The stability of a partisan coalition is dependent upon sustained loyalty across elections, but roughly 20 percent of the voting electorate are not loyal partisans. In an era of closely matched political parties, relatively narrow two-party vote shares, and vacillating partisan control of government winning and maintaining the support of that 20% is crucial.

Maryland Needs a Full-Time Legislature

As fallout from the Great Annapolis Meltdown of 2012 continues to reverberate word comes that the most likely solution to the Tax Increases/Casino Gambling impasse will be to have two special sessions of the General Assembly. The first special session will take place in May and will deal only with the issue of tax increases so as to avoid the $500 million in spending cuts contained in the "Doomsday Budget." The second special session would likely be called in August and would focus on gaming.

Commenting on the possibility of two special sessions a mere two months apart Governor O'Malley said: “I think that both issues deserve a hearing and some resolution... What made this session very disappointing and frustrating by the end was considering both of those issues at the same time.”

In other words, the General Assembly attempted to walk and chew gum at the same time and wound up falling face down with its bubblicious stuck to the sidewalk.

The catastrophe that was the end of the 2012 legislative session inflicted serious damage on the reputations of the state, the Assembly, Governor O'Malley, Speaker Mike Busch, and especially Senate President Mike Miller. Calling two special session to "resolve" the issues of taxes and gaming will do nothing to restore those reputations. Quite the contrary, the possibility of two sessions raises serious questions about the judgement of those managing the Free State.

Not only could the Assembly not manage to walk and chew gum during the 90 day session with its clearly defined and constitutionally prescribed timeline, the Assembly is apparently so incompetent as a body that it cannot be trusted to deal with more than one issue during a special session - that's the message being sent.

In reality, what all of this makes abundantly clear is that Maryland needs to abandon its antiquated part-time legislature and adopt a full-time Assembly.

Yes, you read that correctly. I realize that in the face of the Great Meltdown it may seem counter-intuitive to call for a full-time legislature. Perhaps it sounds like a recipe for multiplying the failings of the current Assembly - but hear me out.

Every year the General Assembly convenes in January and embarks on a hectic 90 day legislative marathon that ends in early April. Every year there are hundreds of bills left unpassed and dozens of issues left unaddressed as the constraints of the 90 day session force everything into a position secondary to the budget. For 90 days, the voices of every day Marylanders are drowned out by a horde of lobbyists camped out in Annapolis

The Assembly has made similar adjustments in the past. In 1948 the Assembly passed a constitutional amendment requiring an annual session and the length alternated annually between 30 and 90 days. In 1964 the annual sessions were set at 70 days and then in 1970 the current 90 day session was adopted.

In the late 1960s the Assembly added to its legislative capacity by creating the Department of Fiscal Services to offer analyses of the budget and generate fiscal notes for proposed legislation. The operating budget of the Assembly was increased allowing for more staff support and other resources. In the 1970s the Assembly reasserted some of its role in budgeting - first requiring a balanced budget and then empowering itself to mandate certain expenditures. But the trek toward true professionalization ended in the 1970s.

In 1979 Maryland was ranked 14th among the states with regard to legislative professionalization, when states were ranked again in 2003 Maryland had fallen to 18th. According to the National Conference of State Legislatures, Maryland is among a large number of states that occupy a middle ground between a part-time, citizen legislature and a full-time, professional legislature.  Our neighbors - New York, Pennsylvania, and New Jersey all have full-time, professional legislatures.

Since mid-century, the trend in the states has been toward more professionalization. The Maryland Assembly's committee system, leadership structure, and professional support all tilt toward a fully professional legislature. But its 90 day session, pay, and mostly otherwise employed legislators all tilt toward a part-time legislature. The fact that its standing committees meet once per week when the Assembly is not in session show the tug of war between being a full-time or a part-time Assembly. But weekly committee meetings cannot substitute for a working legislature.

What would a full-time legislature deliver to the states? Studies show that full-time legislatures spend more time responding to constituent demands and are more responsive to constituents. Full-time legislatures are more prone to enact governmental reforms, especially with regard to personnel. Full-time legislatures demonstrate more efficient legislating (as opposed to what we just witnessed) and a greater willingness to enact more complex measures.

I know that some may recoil at the though of more efficient legislating - as it means more legislating, but consider the challenges facing the state. The population is expected to grow by 1.5 million people in the next 2 decades. Where will they live? Where will their kids be educated? Where will they work? How will they drive to work? What impact will those 1.5 million folks and their cars and houses have on the health of the Chesapeake? Will Maryland address its aging and inadequate infrastructure? Neither Beltway is sufficient to traffic demands. The Bay bridge is no longer sufficient and there is an argument to made that the state needs a new span connect southern Maryland and the Eastern Shore - creating a new connection with Virginia via that states Bay/Bridge Tunnel. The Nice bridge on 301 connecting Maryland with Virginia is no longer sufficient. Public transportation in Baltimore is inadequate - in fact public transportation in the state is insufficient and geared toward those living right on the I-495 beltway periphery.

If the Assembly is not able to address gaming and tax increases in a 90 day session how will it possibly meet the challenges awaiting the state?

Let me offer a few other defenses of a full-time legislature. Imagine making all legislators full-time employees of the state. With that full-time employment would come a full-time salary and benefits AND a ban on outside employment and "consulting." No more conflicts of interest, no more quarter of a million consulting agreements. Also, the shift from part-time to full-time and the prohibition on outside employment would cause a more than a few of the current members to retire and provide Marylanders the chance to elect some new blood. A full-time legislature would empower individual members at the expense of Assembly leaders. Now, the 90 day window gives Assembly leadership power over members via their control of the calendar. It's easier to threaten to bottle up a legislator's bills in a short session than in a continuous session. A full-time legislature would also offer a stronger counterbalance to the state's executive centered system. Maryland's governor is considered to be among the most powerful in the nation - especially with regard to budgeting. A full-time legislature would be more likely to reclaim the powers that have been ceded to the governor over time.

For these reasons and more I think it is passed the time for Maryland to adopt a full-time legislature. As part of the reforms we must also stagger our legislative elections and place Delegates and Senators on different electoral schedules. At present, every member of the Assembly and every elected member of the executive branch is elected at the same time for the same 4 year term. This denies voters the opportunity to make mid-course corrections and express support for or displeasure with a governor's or Assembly's agenda. It puts every member of the Assembly on the same election cycle making it unlikely that anything difficult or even slightly controversial will be considered in the two years prior to the next election.

We have a full-time and fully professionalized executive branch, we have a full-time and fully professionalized judiciary. Yet the one branch that is actually tasked with representing the people is part-time and disadvantaged with regard to balancing the power of the executive. If you believe in separation of powers and checks and balances it's time to raise the legislature to a status equal to the other branches.

Maryland's Assembly is in need of reform. These reforms will make the General Assembly a more effective policy making body and one more responsive to voters. The Great Annapolis Meltdown has revealed real structural problems in Maryland government. The solution cannot be one special session, or two or three special sessions. The true solution involves fundamental reforms that would bring the Assembly into the 21st Century and provide it with the governing capacity to meet the multitude of challenges facing Maryland.

I welcome your thoughts (as opposed to rants), join the discussion on Twitter #fulltimeMDlegislature

The Garagiola Loss and the Turmoil in the Maryland Democratic Party

4/9/2012: As a quick update - any doubt about the present dysfunctional state of the Maryland Democratic party should be put to rest by looking to the mess that is the final day of the 2012 legislative session. Seeing conference committees or vote-oramas on the final day is neither new nor a sign of chaos but seeing the House Ways and Means committee meeting to discuss gambling in PG county INSTEAD of the two chambers reconciling the budget is a sign of chaos. Two party competition has a way of focusing parties....

Original Post:
Senate Majority Leader Rob Garagiola's defeat in the MD-6 legislative primary will have reverberations felt well beyond the district. In many ways, the Garagiola defeat is a sign of hard times ahead for the Maryland Democratic party. First, let's address the Garagiola loss. Garagiola is a powerful member of the state Senate and he enjoyed the backing of most of the Democratic party establishment in the state. Senate President Mike Miller drew the district for Garagiola and Steny Hoyer backed Garagiola in the primary. John Delaney was a novice politician running in a Democratic primary on a platform of fiscal conservatism. Gargiola had the backing of the unions and Moveon.org. By all accounts, Garagiola should have won a closed Democratic primary. So why did he lose? Because Maryland's Democratic party is quite different from most other state Democratic parties.

Nationally, the Republican and Democratic parties have sorted rather neatly into two ideologically homogeneous parties. The Democrats have become the home of political liberals and the Republicans are home to conservatives. More moderate voters either loosely associate with one party or the other or eschew both. The ideological sorting is especially evident among elected officials and it began in earnest at the end of the 1960s.

But something odd happened in the Free State. In many respects the great American ideological realignment passed Maryland by. Maryland remains home to a species long thought extinct by many a political observer - the conservative Democrat. They defeated Senator Millard Tydings in 1950 and his son Joseph in 1970. They delivered the state to George Wallace in the 1972 primary. They nominated perennial candidate George Mahoney for Senator in 1952 and again for Governor in 1966 - only to see him lose both times to a moderate Republican. They nearly helped elect Ellen Sauerbrey in 1994 and embarrassed Kathleen Kennedy Townsend in the 2002 Democratic primary (Fustero who?) and in the general elected Republican Bob Ehrlich. They elected John Delaney on Tuesday night.

Democrats have long enjoyed a voter registration advantage in the state, though it has declined. In 1966 Democrats claimed 72% of the electorate, that fell to 67% in 1986, and 56% today. Republicans were 26% in 1966 and remain 27% today. Now the growing number of independent voters tend to vote Republican - suggesting they came from among the Democrats' once large conservative ranks, but conservative Democrats remain and are crucial to the party's dominance in the state Assembly. Conservative Democrats help send Kevin Kelly, John Donoghue, Johnny Wood Jr., John Bohanan, Roy Dyson, Jim Brochin, Ronald Young, John Astle, Jim Mathias and others to the Assembly from districts that could as easily elect Republicans.

The Democrats' success in Maryland has stemmed from the party's ability to maintain a balance between the interests of more rural southern Democrats an urban and suburban liberals and minority voters. For decades the party has done this well. Contrary to the claims of many Republicans, "the Peoples Republic of Maryland" has never been the overtaxed, over-regulated, business hating environment they claim. Rather Maryland's lawmakers have often found a middle ground. The balancing act has kept liberals happy and prevented conservative Democrats from casting, or defending, votes on many divisive issues. When conservative Democrats have considered a revolt, considered joining with minority Republicans, The House Speaker and Senate President could keep them in line via the power they enjoy to reward or punish.

The Assembly leadership is quite powerful in Maryland. They control committee assignments, they control access to the floor and the calendar. If you cross them they can harm your career and sideline your initiatives. Please them and they can reward you... but there are growing signs that there are limits to the rewards they can offer and power based only on the ability to punish cannot be easily maintained.

Consider some of the supposed rewards - I'll start with committee assignments. Most members of the Assembly want to advance in their careers. They want a shot at being chair, they want a shot at a significant committee. The problem is the Assembly is a body in great stasis. As chronicled by Josh Kurtz in a great piece at CenterMaryland Mike Busch is the "longest-tenured speaker in state history... Adrienne Jones... the longest-serving speaker pro tem... Kumar Barve... the longest-serving House majority leader... Joe Vallario and Sheila Hixson...the longest-serving chairmen of their respective committees." That long service may be great for some, but for others it just means no upward mobility. For Busch it means fewer prime spots to offer as rewards. Perhaps the next time Busch creates a dual committee supercommittee just to avoid the defeat of a bill he supports more members of his party will be speak up.

In the Senate, Majority Leader Rob Garagiola was supposed to be heading to Congress. Mike Miller gerrymandered a district just for him - MD-06. This would then create a reverse domino effect of open positions and allow for some advancement - even if it meant advancing to a figure head position like majority leader. It would also prove that loyalty to Miller can mean great things - like his endorsement and a tailor-made congressional district. But then a novice named John Delaney crushed Garagiola. The high powered help provided by Martin O'Malley and Steny Hoyer delivered nothing to Garagiola. The early pressure placed on Delaney by party higher ups to stay out failed. Now, Garagiola remains majority leader, so no advancements, no dominoes. Perhaps worse, the defeat calls into question Mike Miller's ability to deliver, his ability to reward. Perhaps next time a bill arises opposed by Republicans and conservative Democrats those Democrats won't fear joining a Republican filibuster. The loss also revealed schisms in the state party establishment - and it showed that even the support of the most prominent members of the party establishment is of little help. And never mind that to create the district for Garagiola, Rep. Chris Van Hollen's once safe 8th district was drastically redrawn and Van Hollen - chair of the Democratic Congressional Campaign Committee - will now have to fight for his seat. What a great way to treat a former colleague who has made the jump to Congress.

Even as Busch and Miller seem to have less to offer their members they seem to have plenty to offer themselves. Though very much ignored in the press, many members of the Assembly took note of how Busch and Miller treated themselves in the redistricting process. Speaker Busch has always been a little vulnerable in his Anne Arundel district - often finishing in a tight cluster among the top 4 candidates in a three member district. Busch remedied that situation by dividing district 30 into a new single member 30B and a two member 30A - 30A was made more Democratic and that's where Busch will run. Never mind that the division of districts into single member subdistricts was meant to be reserved for geographically large rural districts. Miller, not to be outdone, shifted his Prince Georges/Calvert county district 27 a bit further south into Calvert county to protect his own seat. But in doing so, Miller drew fellow Democrat Del. Joseph Vallario Jr. out of 27 and placed him in District 23B along with another Democrat Del. Marvin Holmes.

One may as well consider the treatment of Democratic Senator Jim Brochin. Brochin is a conservative representing a marginally Democratic district in Baltimore county. Frequently a thorn in the side of Miller and Gov. O'Malley. Brochin's district was shifted north and made decidedly more Republican so that Democrats in his district could be used to maintain the size of Baltimore City's delegation. Many members, even those who disagreed with Brochin, were shocked by the willingness to sacrifice a member to settle a political score.

Starting to get the picture? There's seemingly little to offer members other than punishment and the rewards are reserved for the leadership. What's to keep dissident voices in line? Even reliable Democratic voices are starting to openly challenge Miller.

With regard to Governor O'Malley, he was quite cautious during his first term.  After an initial special session and modest tax increases the Governor spent the rest of his term holding most spending flat and avoiding any groundbreaking or controversial issues. Then he won reelection, then he became chair of the Democratic Governors Association, then he started thinking about 2016.... then things changed.

As his national star has risen O'Malley's Maryland star has dimmed. Prior governors have used redistricting to curry favor with members of the Assembly, to win support on key initiatives. Yet last session O'Malley introduced a modestly ambitious agenda and then stood on the sidelines and watched it be ignored - ignored after winning re-election by 14 points, by an Assembly dominated by members of his own party and soon to be subject to redistricting at his hands... but nothing. O'Malley watched as same-sex marriage legislation died and then only took it up as an important issue after New York Governor Andrew Cuomo was able to push it through a divided legislature - and then it was all about 2016 and a Democratic presidential primary. But who actually delivered same-sex marriage? It was Speaker Busch and his joint committee and it was President Miller and his ability to quash any threat of a filibuster by a coalition of Democrats and Republicans (at least on this issue).

This session Governor O'Malley rolled out his most ambitious agenda ever. The elimination of tax deductions for upper income earners, the application of the state sales tax to gasoline, a state-imposed ban on septic systems, off shore wind (again)... just to name a few initiatives. But the session started with O'Malley suggesting an increase in the sales tax on the opening day - suddenly a day always dedicated to ceremony found Busch and Miller answering questions about the sales tax. As the session began President Miller quipped that he hoped O'Malley would find more time to spend in the state. The Senate essentially dismissed the O'Malley budget and created their own. Miller was unable (or unwilling) to stop the Democratic and Republican coalition that joined to filibuster the septic bill. As the 90 day session nears a close the House and Senate are far apart on the budget and the one person who seems to have no role in the negotiations? Martin O'Malley. Rather than deal with the unfinished O'Malley agenda the Assembly is wasting time ratifying the 17th amendment - in effect since 1913. And as the Assembly is caught up in a budget debate that threatens much of the rest of the O'Malley agenda the Governor is suddenly talking about increasing the sales tax again.

Maryland's Democratic party is in disarray. The Garagiola defeat simply shined a bit more light on the problem. Leadership in the Assembly are faced with restless members eager to advance, yet there is little the leadership can offer. The state faces significant challenges, but its governor has shifted his gaze to a national stage. His proposals are more about national primary politics than about Maryland politics. O'Malley is forcing the state Democratic party to defend issues that are well in-line with the national Democratic party but more left of center than the Maryland Democratic party. As party leadership is less able to hold members in line many conservative Democrats and moderate Democrats from rural and even suburban parts of the state are going to become more concerned with their electoral needs than with the party's needs.

To look at the House and Senate today based solely on numbers it would be easy to dismiss any talk of a party in trouble. But Republicans hold 43 of 141 seats in the House. A review of the election results from 2010 suggests the party came close to holding quite a few more. If Democrats cannot fix their current problems they will face, within the next two election cycles, a House with over 50 Republicans - unprecedented in Maryland. In the Senate, Republicans took a hit in 2010 falling to 12 out of 47 seats - but consider the Democratic seats in Districts 3, 29, 30, and 38 - they are far from safe and a few other districts have seen Democratic margins shrink significantly since 2006. Republicans need only 19 seats to mount a filibuster and therefore alter the power balance in the chamber. So far, Democrats have been able to capitalize on the fact that the Maryland Republican party has been an organizational mess frequently unable to field credible candidates. There are signs that is ending.

After the 2010 elections Republicans for the first time hold 50% of all local offices - though some are quick to ignore this milestone to do so is narrowminded. This marked a significant movement by state Republicans. For 2012 Republicans are fielding credible challengers (as opposed to challenges) against Dutch Ruppersberger in the 2nd congressional district and Chris Van Hollen in the 8th. Dan Bongino is likely to make a serious run against Senator Ben Cardin - none of these GOP candidates are likely to win but it's a sign of life in a party that has often offered no or only token challenges. Even in the 5th district, Steny Hoyer faced a credible challenger (as opposed to challenge) in Charles Lollar in 2010 and will again from House of Delegates Minority Leader Tony O'Donnell. Hoyer is in no danger, but Republicans are learning that the party cannot afford to let Democrats go unchallenged. Yes, Lollar lost by 30 points, but his coattails elected many Republicans to county office in St. Mary's and Calvert county in 2010 - two counties that he won easily.

To focus only on the margin of victory or loss while ignoring the effects on the rest of the ballot is a mistake made by armchair analysts in some random blogger's forum. It's not a mistake that can be made by party leadership. It's from these local offices that the party develops a bench of potential candidates for the Assembly or other offices. Republicans are realizing that to win down ballot they must run up ballot - even if it's a losing race. Even if the Democrats' real registration advantage means winning a statewide race will likely always be a losing battle for Republicans it's a battle they seem to be waking to the need to fight. In 2010 the the state GOP hung its statewide hopes on Bob Ehrlich and did not bother to mount real challenges for any other statewide office - why would voters take such a party seriously?

Now I've been writing about Maryland politics long enough to know that I will soon be the recipient of numerous e-mails telling me how the "radical, right wing, tea party Republicans" will never be competitive in Maryland. Well sorry folks, regardless of how much the national Republican party has moved right the Maryland Republican party is little more conservative today than it was in 1994 when Ellen Sauerbrey came with 6,000 votes of being governor. But the Maryland Democratic party has moved left - moved closer to the national party. That movement is placing real pressure on the state party coalition. Perhaps more challenging for the party has been the Republicans' newly discovered weapon - the internet driven petition initiative and referendum. Now, when conservative Democrats cast a vote "for the party" on a tough issue they can't rely on voters' short memories. Likewise, even if they vote against the issue the petition and referendum will keep the public focused on it - it's only a matter of time until a hot button referendum vote coincides with a state election. The presence of same-sex marriage and the Maryland Dream Act on the 2012 ballot may well boost Republican chances in the 2nd, 6th, and 8th districts and in the senate race. Imagine the impact in a non-presidential election.

The Maryland Democratic party needs a shakeup. It needs leadership that is concerned with - of all things - Maryland. Democrats claim 56% of registered voters to Republicans 27% - but the fastest growing segment of the Maryland electorate is unaffiliated voters... and they vote Republican. Maryland is not a 2 to 1 Democratic state. At best it's about 60/40 in actual voting. Democrats have been able to use their institutional advantages to turn that 60% of the vote into 70% of House seats and 75% of Senate seats. But for how much longer? If the party continues to push conservative Democrats away a 55/45 state is not impossible to imagine - and with it a power balance in the General Assembly unseen in the modern era. And O'Malley's new found passion for tax increases (in the midst of a very weak economic recovery) and opposition to rural development (sorry about the collapse in value of your family's farmland) is providing Republicans with an incredible opening - 2012 and especially 2014 will tell whether the minority party is truly ready to compete.

The party also needs to ask whether it will continue to be the uniquely Maryland Democratic party that has dominated the state since the age of Jackson (never mind that little respite during Reconstruction) or whether it will become a state-based clone of the national party. That would make the party more ideologically homogeneous and as such much easier to mange. But, like the national party it would emulate, it would be smaller and less powerful than it once was. The next Democratic governor will have a lot to do with how that internal party conversation will go. I suspect much of the primary will be dedicated to that conversation and the election may well provide the decision. I hope it's a good one.

Thoughts on the Maryland Primary

The headline of course is the Romney sweep of Maryland. Romney won the state and all 8 congressional districts. He won every county accept for Somerset and Garrett. Add that to the Wisconsin (and DC) win and this race is over - whether Rick Santorum wants to admit it or not. Santorum was strongest where one would expect - western MD, southern MD, and the eastern shore. But in those areas he was not a s strong as he should've been. He won Garrett but lost Allegany. In the south he ran well in St. Mary's but was crushed in Calvert, a pattern repeated on the shore. Romney won the state by 20 points and is on the cusp of 50% of the vote in a 4 man race. Maryland delivered the nomination to Romney.

In the Senate contest between Ben Cardin and Anthony Muse, Muse failed catch fire. Muse claimed 16% of the vote, but only ran strong in his home base of Prince Georges county - where he pulled nearly 40% of the vote. In Baltimore City he finished shy of 20%. Muse should've focused his efforts on Baltimore City.  That said, Cardin received just under 75% of the vote and received 42,000 fewer votes than President Obama.

In 1970, incumbent Democratic Senator Joseph Tydings was seeking reelection against a relatively unknown GOP challenger. That same election Governor Marvin Mandel was running and widely expected to win comfortably. Indeed Mandel did win, but a sufficient number of voters withheld their vote from Tydings (he had taken some actions that angered the party base) that he narrowly lost the race. Cardin needs to find out why 25% of voting Democrats opted for someone else. Cardin was weakest in Baltimore City, Charles County and Prince Georges County - clearly suggesting a weakness with African American voters. The lesson to learn for Joseph Tydings is that Cardin cannot take for granted that folks who turnout in November 2012 to vote for President Obama will vote for Cardin as well. Cardin is the clear favorite to win, but there is an opening for the GOP nominee Dan Bongino.

The other big story of the night was in the newly drawn 6th Congressional District. The 6th district had been a reliably Republican district, but Maryland Senate President Mike Miller redrew the district specifically for MD Senate Majority Leader Rob Garagiola. He took care to draw the boundaries such that potential challengers lived outside the district. Garagiola had the backing of state Democratic party establishment including Steny Hoyer and Martin O'Malley. But he was crushed last night by John Delaney. Delaney has never held elective office and - to add insult to injury - he doesn't even live in the district. This was an embarrassing defeat for many Democratic bigwigs, especially O'Malley. Delaney was endorsed by current O'Malley foil Comptroller Peter Franchot. Delaney's victory raises questions about O'Malley's level of influence in the state and boosts Franchot's expected run for governor in 2014.

Another very interesting aspect of the 6th district contest was the number of Republicans and Democrats voting. As redrawn Democrats hold a voter registration advantage over Republicans of 183,000 to 141,000, with "Unaffiliated/Other" at about 90,000. The real contest in the 6th was in the Democratic primary as everyone expected GOP incumbent Roscoe Bartlett to win. Yet in this newly created Democratic district with a hard fought Democratic contest more Republicans cast ballots. In every other district (except the conservative 1st) Democrats outvoted Republicans - but not in the 6th. Come November, the presence of several high profile ballot measures (same-sex marriage, the MD Dream Act, and possibly even the new Congressional Districts) will boost turnout by Republicans and social conservatives. At this point, I would not be surprised to see the GOP hold onto the 6th district seat.

Inappropriate and Uninformed Attacks on the Court

I support universal health care - I just want to make that clear. I understand and sympathize with the reasoning behind the health care reform law's individual mandate as well. The health care reform law precludes insurance companies from denying coverage to folks with pre-existing conditions. This means that many folks, needing costly medical care, will now come into the insurance market. Unless the cost of providing care to those sick folks can be offset by the premiums collected from healthy folks insurance premiums will skyrocket and more healthy people will opt to drop coverage - until they are sick. An individual mandate solves that problem.

But.... I happen to believe the individual mandate is unconstitutional. I certainly believe that it falls well outside Congress' "commerce clause" power. Though many legal commentators dismissed any suggestion that the mandate was unconstitutional that conventional wisdom was turned on its head last week when several justices on the Supreme Court asked very pointed questions about the constitutionality of the law. Indeed many court observers subsequently concluded that the individual mandate was likely to be overturned.

Now, proponents of the law have decided to start attacking the Supreme Court for daring to question an act of Congress, for behaving like a legislative body. Even President Obama broke his (very short period of) silence on the matter and warned the court to not overturn a law passed by a democratically elected legislature - Obama said to do so would surely be judicial activism.  Legal analyst Jeffrey Toobin wrote "Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government."

These attacks on the court are as unjustified as was the confidence in the constitutionality of the mandate. It is quite correct that the Supreme Court has recognized tremendous authority within the commerce clause. The commerce clause allows for a federal minimum wage, it empowers Congress to limit crop yields for personal use, to protect our air and water, and to prohibit discrimination by private businesses. But what the Supreme Court has never recognized is a Congressional power under the commerce clause to compel a citizen to first engage in commerce and then regulate it. The individual mandate requires citizens to purchase a private product - health insurance - from a private company - an insurer. This is quite unprecedented. Under the 10th amendment such a power would be considered as reserved to the states like most health and welfare powers such as education. The Supreme Court has frequently expressed limits on Congress' commerce clause power. In US v. Morrison, NLRB v. Jones & Laughlin Steel Corp., and US v. Lopez (you look them up!) the court struck down attempts to expand the scope of the commerce clause and specifically referenced traditional state powers.

Had Congress simply imposed a new tax to fund health care subsidies and then granted a tax credit to anyone who show proof of health insurance there is no doubt it would have been a constitutional exercise of the power to tax. Had Congress made Medicare universal it would have been constitutional - as it would be a government provided service. The government collects taxes and provides Social Security - that's constitutional. But the government cannot compel us to purchase stocks or bonds or to start a 401k. There is a line between providing a service and compelling an action. The individual mandate crosses that line.

I offer my opinion not as a casual observer but as someone who wroked in healthpolicy for a decade and as a professor who regularly teaches commerce clause precedent in several classes. I'm well aware of the arguments in favor of the court upholding the mandate and I am well aware of the arguments for overturning the mandate - I find the arguments against the constitutionality of the mandate to be the more sound.

All this is to say no one should have believed the mandate would be a constitutional slam dunk.

Now that it's in question no one should be attacking the court for questioning the law. With all due respect to President Obama, Jeffrey Toobin, E.J. Dionne and the others aghast at the court I will defer to Alexander Hamilton in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm... that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

In other words it is up to the courts, and not Congress, to decide whether an act of Congress falls within the powers afforded under the Constitution. The fact that Congress was elected and the justices were not is a meaningless point. The courts exist as an unelected body precisely because those subject to election may at times be driven to enact unconstitutional laws in response to electoral pressures - or to create electoral pressures.

If the Supreme Court were to strike down the individual mandate it would be no more unprecedented or outrageous than when the courts over-ruled democratically elected legislatures with regard to white primaries, school segregation, inter-racial marriage, the right to privacy, or the line-item veto.

Rather it would be the courts acting as they were intended to act - as the final arbiter of the meaning of the constitution and all laws made under its delegation of power. I'm used to making this argument in response to conservative attacks on the court... clearly are equally in need of this basic civics lesson.

It's Super Tuesday!

Guest post by Mark Snyder

Tonight looks like it'll be a pretty bleak night if your name isn't Romney. Gingrich will win Georgia, but won't get back 50% so it'll be by congressional district and Romney might be able to pick off some of those delegates, Virginia and Massachusetts are non-contests, and the fact Mitt is running only about a point behind Santorum in Tennessee really spells the end to the idea that "anyone but Mitt" might run away with this.

The race up until this point has been about narrative, and it would be hard to imagine waking up to another Colorado/Minnesota/Missouri surprise. At this point Santorum is just shooting himself in the foot left and right, no one is willing to give Gingrich another surge because we've seen him fall too many times already, and Paul will never appeal to more than 30% of the electorate. The narrative is now that Romney has repeated beat back his opponents with his superior money machine and organization at the state level, even though much of that "organization" is a single office in the state it's still comparatively better.

So if Romney wins Massachusetts outright, a popular/delegate advantage in Ohio (bonus points if he wins by more than 5%), picks up some delegates in Georgia, takes all of Virginia, gets close or wins Tennessee, and doesn't get romped in Oklahoma/the caucus states he's going to lock this thing up in all but name. He'll have trouble in Alabama and Mississippi, but if he does better than expected in Tennessee and Oklahoma tomorrow he might sail through the states on the claim of inevitability. Republican voters will start seeing the advantage he has and settle. And after that it's even smoother sailing.

Now a warning. This contest seems to settle into the paradigm for just long enough to have people think they've figured it out, and then we have the revolt in South Carolina or Santorum's triple win. In the end Michigan really was the "anyone but Mitt" contingent’s Waterloo. The media keeps building them up only to have them torn down, first in NH, then Florida, then Michigan and Arizona; eventually voters will start listening less to how a candidate is doing right now and focus on the long term.

Romney continues to have an enthusiasm gap as compared to the supporters of Santorum and Paul, but in the general election much of his base will be made up of disaffected moderates who will be voting against Obama more than for Romney. The attacks of Romney’s moderate tendencies may in fact help him in the long run if a majority of the Republican electorate recognizes that he is their best bet to beat Obama.

After Super Tuesday we'll finally see that Republicans may not have fallen in love with Romney over the last few months, but they're going to fall in line to beat Obama.