OxBlog

Wednesday, November 08, 2006

# Posted 6:17 PM by Patrick Belton  

A FEW THOUGHTS TOWARD ELECTION POSTMORTEM, EVEN MORE HALFBRAINEDLY THAN USUAL: Sitting down to email last night, I became aware through peripheral audition of the tinny dilatory speech of a political amateur, doubtless a political spouse, delivering one of the speeches designed to annihilate prime time until activists' delivery from it by an eventual acceptance or concession. It struck me as in greater degree than the usual annoying, artless and juvenile, no doubt an indicator of the deflated coinage of the contemporary American political speech, and that part of my brain which was paying attention cursed quietly that it was not Clinton.

Except that it was.

(Must remember to write off a cheque in the morning to Obama, and hope. Perhaps ones to McCain and Condi's personal bank account for good measure.)

In other boxes, I'll be very curious about ramifications of Lieberman's new status in the Senate as an independent caucusing with the Democrats. The last analogue of whom I'm aware is Vermont Socialist Bernard Sanders in the House, who also caucused with the Democrats; given his position to the left of the party one might expect his voting record to be fairly indistinguishable from the ordinary Democratic member, but with Lieberman, perceived to be situated between the two parties, it will be tantalising to see if he unfolds as more of an electoral free agent. My impression is that the precedent of Sanders is for the member freely to associate with the party whip in leadership votes (and in return be considered a member of that party in committee assignment), but otherwise is not held to be binding. There's also the question of to what extent elective party governs party affiliation within a chamber - members can cross the aisle, and though some have then submitted themselves to byelection, this gentlemanly nod to the constituency is somewhat rare and antique. I'd be interested to be informed by our readers on this point. Lieberman as TR in his Bull Moose incarnation is a pleasant thought, if not terribly fraught with prospects for his political influence.

Finally, an unnamed but cute legal source predicts that the marriage amendment resolution within Virginia is vulnerable to challenge in the federal courts. As a state constitutional amendment, I'm not sure I see how the federal judiciary has standing (apart from under guaranteeing republican government in the states?), but on the other hand, the legislation to implement the amendment might conceivably be. The ACLU is tipped to bring a test case, perhaps under partner benefits. I certainly wish them luck, as I bear that wretched amendment no love. Any legal scholars caring to weigh in on this point, the comments section is yours.
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Comments:
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"I'm not sure I see how the federal judiciary has standing (apart from under guaranteeing republican government in the states?)"

I'll take a stab at this one.

The 14th amendment?

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

See ROY ROMER, GOVERNOR OF COLORADO, v. RICHARD G. EVANS, in which the Court struck down an amendment to the Colorado constitution on equal protection grounds. Is there a countervailing doctrine by which amendments to state constitutions -- or state constitutions themselves -- are not "laws"? Note, moreover, that the prohibition on denying equal protection (among other things) is blanket in character.

The guarantee of a republican constitution is, IIRC, considered non-justiciable.
 
The real question, now that the Democrats have gained control of Congress by focusing on foreign policy, is "what now?" And that's going to be tough, because opinion surveys show the public doesn't have a lot of confidence in any of the strategies on the table. This Public Agenda survey found only two options, better intelligence gathering and reducing dependence on foreign energy, get any real support from the public.
http://www.publicagenda.org/foreignpolicy/foreignpolicy_energy.htm
 
"In other boxes, I'll be very curious about ramifications of Lieberman's new status in the Senate as an independent caucusing with the Democrats. The last analogue of whom I'm aware is Vermont Socialist Bernard Sanders in the House...."

Why wonder all this about Senator Lieberman, but not also about Senator Sanders himself?

It reads oddly, almost as if you weren't aware of Senator Bernie Sanders.
 
Sorry, I should have included this in the above comment.

"My impression is that the precedent of Sanders is for the member freely to associate with the party whip in leadership votes (and in return be considered a member of that party in committee assignment), but otherwise is not held to be binding."

I don't understand this sentence: what isn't held to be binding?

"There's also the question of to what extent elective party governs party affiliation within a chamber - members can cross the aisle, and though some have then submitted themselves to byelection, this gentlemanly nod to the constituency is somewhat rare and antique."

First of all, there are no "byelections" in the U.S.; there are special elections as required by state or more local law.

And "somewhat rare and antique"? Huh? The laws are what they are; special elections are quite common when someone leaves office prematurely, as required, as I said, by either state law, or the lesser authority (a city, county, or what have you); arrangements vary widely by state and local law; sometimes a special election is required to be called nearly immediately; in other places, an executive can make a temporary appointment until the next scheduled election; and so on.

But there's nothing in any way, shape, means, or form, "rare" or "antique" about any of this.

And in cases where a politician switches parties, again, it's a matter of local or state law as to whether a special election is necessary; few, if any, states require it, but it has nothing to do with being "gentlemanly"; it's purely a matter of law; it's not as if anyone has any choice in the matter, least of all the office-holder.
 
Dear Gary,

Thanks for your thoughtful comments, as always.

Sanders I don't personally find as interesting, as he's not a median voter - as a Socialist, it's not clear how he could do anything other than caucus with the Democrats. With Lieberman, on the other hand, there's the question of whether he'll retain his seniority from the Democratic leadership, and relatedly, undoubtedly fruitless, but interesting, efforts from the Republicans to lure him to caucus with them (see The Hill, an article which Dorothy King kindly pointed out to me by email.) From the standpoint of his constituency, tipping the Senate to Republican control would be absurd; but I'm interested in how his votes will swing on non-leadership matters. He's politically in a strong position, particularly for someone who faced political annihilation months earlier.
On party changers, I have a strong suspicion but not time really today to run down the research - I'd be grateful if anyone did - of there being premodern precedent for party switchers resigning and thereby triggering an election, in which they'd stand under their new party. I believe I'm thinking of congressional and not Westminster precedent, but again it's only a faint recollection. (Obviously in the Senate it would need to postdate the direct election of senators.) I'll see if anyone in comments or Virgin Flight 10 can illuminate me on the point. I'd be interested too to look to Bernie Sanders's voting record, and other House independents; and how much in daily political life they voted with the party with which they sided in control-of-chamber votes.

And Daniel,
Thanks for the Romer v Evans citation, which settles the point neatly.
 
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