A Simple Point

There seems to be alot of confusion around whether or not the Senate needs 51, 60, or 67 votes to change the filibuster rule. The answer is the former. Quite simple and it rests on a basic principle of majoritarian institutions: decision-making within a majoritarian institution is *always* and *only* subject to the majoritarian structure of the instituion. Specificaly, in regards to the U.S. Senate, there is NO vote that the Senate can take establishing *any* other standard than that which is proscribed in the Constitution. It is 50+1 and is *only* a different standard where the Constitution establishes such (such as on veto overrides).

Now, any Senate can establish a 'rule' for supermajoritarian (or non-majoritarian, for that matter) votes on any class of issues or personel. However, that rule is *just* as subject to the fundamental structure of the institution as any other vote on the floor. And the fundamental structure of the Senate is essentially the same as the House: 50+1. The only reason supermajority rules (and other rules, for that matter, such as the unanimous consent agreement) continue to persist from year to year is because *at least* 50+1 Senators agree that those should be the rules. So as long as 50+1 Senators think you need 60 votes to get judicial nominees through...then that's the number of votes that you need (leaving aside the issue of whether employing a supermajority requirement on judicial nominees interferes with the president's power to appoint judges to the courts). But as soon as we cross that 50 vote threshold where Senators no longer cling to such beliefs, then the only thing left is for them to give said beliefs effect. And there is *nothing* in the Constitution that should or can prevent them.

As, indeed, the Senate has done: changing the rules regarding filibusters several times in the last century. Indeed, cloture required, at one time, 67 votes rather than 60 votes. There seems to me no abiding principle that one could articulate that would permit a majority to reduce the cloture requirement on all issues from 67 to 60 yet would forbid a majority from reducing the cloture requirement from 60 to 50+ on a narrow class of issues or personel. However, even if we could come up with such a principle, it simply would not matter. It is beside the point. Because it is the institution itself that determines the how and the why of decisions and rules in a legislative body.

This becomes rather obvious when you contemplate what the Republicans could do to change the 67 vote requirement for a veto override. Clearly they cannot change it with a 50 + 1 vote because the 67 vote requirement is in the Constitution: part of the institutional structure of the Senate itself. A modification of the founding document is required in order to give effect to that wish. All potential actions taken in a legislative body are restricted by, and only by, the structure of the institution. Since the fundamental structure of the Senate is majoritarian, the rules put in place by Senators are only restricted as such. No decision *within* the institution (which the filibuster most certinaly was) can alter the institution itself. That must come from without. This is just as true for the *full* filibuster as well. The only thing *allowing* the filibuster of any legislative act is 50+1 Senators implicitly agreeing that there should be a 60 vote supermajority requriement to kill debate. Once that threshold is gone, so goes the filibuster entirely. An no amount of bellyaching will change the fact that this is perfectly appropriate and constitutional. D.GOOCH

A Lampley Aside

Just thinking out loud: if we can conclude that the election was fixed because John Kerry was going off at 2:1 on election day...exactly who fixed the Kentucky Derby? The Derby winner was going off at 50:1. Man, those oddsmakers. Infalible, aren't they? ;) D.GOOCH

Burkeian Rationale for Eliminating the Filibuster
At first glance, it would seem that significant filibuster reform would be on the outs with a true Burkian conservative. Afterall, the filibuster has been around long enough to become a substantial aspect of an important American institution...and conservatism is all about conserving institutions according to Burke. However, too many confuse Burke's cautions against radical change with a general position against change at all. Burke accepted and often supported incremental changes in social institutions. Indeed, Burke sometimes endorsed significant change (the American Revolution) where the end was, indeed, protecting essential societal institutions (in that case, the autonomous rulership of the Americas that had developed over centuries and to which George, III's radical policies represented a significant threat). "She [England] is never to intrude into the place of the others, whilst they are equal to the common ends of their institution." Likewise I think a credible argument can be made that the filibuster must be reformed, significantly, in a Burkian sense: that it intrudes on the province of the proper workings of the legislative institution. As long as it was used in a benign fashion, much like the Empire's delicate and deft touch on the Americas for much of its existance, it served a good. But when it began to threaten the fabric of the institution itself (i.e. majoritarian democracy), it must be fought...just as King George had to be fought by the colonists. That the true radical position is not in opposition (the American Revolution, elimination of the judicial filibuster), but rather in the commission (George's Stamp Act, the employment of the filibuster by Democrats on judicial nominees). And this puts aside the entire question of Constitutionalism. D.GOOCH

The judges war is commmmmming.
I recently met with Gary Jacobson, a political scientist working on party polarization. He believes that if Republicans force issues like Social Security and (by implication) judges, they are bound to alienate voters in the next election. However, I believe Gary's argument (that the electorate has become increasingly polarized) belies such a conclusion. If the parties have become more polarized, then it is quite rational for the Republican party and the Democratic party to take the positions they have (leaving aside issues of ethics, morality, and tradition of course). Pushing forward on judges appeals to the Republican base...and a stubborn filibuster approach appeals to the Democrats (and particularly their interest groups). As such, I'm predicting that no compromise will be worked out. This is going to come to a head...and the Republicans have the votes to win. As for the electoral consequences, I do not believe them to be as severe as Gary suggests. But we will see. D.GOOCH

Welcome Cornerites!

A big shout-out to John Podhertz for the link. Welcome and enjoy the blog. I try to go for quality over quantity. Well...at least I've got the quantity part down. ;) D.GOOCH

The Real Explanation for the Bush Victory in Ohio

Innovative, exhausting, and determined GOTV.

Red State has the goods. D.GOOCH

More on Lampley

A Leftist observes:
> Lampley's point *is* that oddsmakers have been guessing correctly up
> until now.

And the change in their guess on election morning was a direct result of the rumors regarding the election polling. They constitute no independent confirmation of the accuracy of the exit polling because they depended on the exit polling. The logical string of Lampley's argument is essentially: oddsmakers are smart folks, oddsmakers relied on rumors about exit polling on election morning, thos rumors had Kerry ahead, hence Kerry must really have been ahead, and hence there must have been some vast conspiracy to alter vote tallies to give Bush the election. Our presumption would have to be that oddsmakers never rely on faulty information in order to support such a conclusion. That presumption is clearly false...quite funny, really. Because as we have seen, the oddsmakers had *Bush* ahead prior to election morning. So either they were relying on faulty information the day before the election (i.e. public polling results)...or they were relying on faulty information the day of the election (exit polling results). Either way, at some point, the oddsmakers were relying on faulty information...completely collapsing the foundation upon which Lampley builds his argument. Lampley's thesis is, to be kind, fatally flawed. A house of cards built on sand doesn't quite encapsulate this thesis.

Fisking Jim Lampley on the 'Stolen' 2004 election

Jim Lampley posits that the oddsmakers in Vegas give us a big clue as to how the 2004 presidential election was stolen by Rove et al.:

"Oddsmakers consulted exit polling and knew what it meant and acknowledged in their oddsmaking at that moment that John Kerry was winning the election.

And he most certainly was, at least if the votes had been fairly and legally counted. What happened instead was the biggest crime in the history of the nation, and the collective media silence which has followed is the greatest fourth-estate failure ever on our soil."

When you get outlier results you look to a problem with your exit polling ...not to some idiotic (and I mean idiotic) conspiracy theory to attempt to discount the real vote tallies. Mitofsky, who *did* the exit polling, argues that it was a self-selection problem in the sample (see below). This is a reasonable and rational explanation. A vast conspiracy to alter the election tallies is not. Exit polling is a survey of a sample of voters. The vote tallies are the *population* of voting results. Exit polling is an attempt to get an estimate on that population. You don't favor an estimate from a sample over a census of the population! You don't learn that in upper-level survey sampling classes (which I have had, by the way), you learn it in STAT 101. This is akin to having a sensor go off on your engine suggesting you are low on oil. It is quite reasonable to conclude that you are, in fact low on oil. Indeed, you take your car by a reputable mechanic, and he draws the same conclusion. However, you personally check the engine oil the next morning and see that it is, in fact, full. But instead of concluding that you have a problem with the sensor, you decide that someone must have snuck into your garage last night and filled the oil in your car. Why? Because the mechanic thought you were low on oil, too. This stolen election nonsense is *just* that ridiculous.

Lampley's point is essentially that oddsmakers know what they are doing, hence their placing the odds for Kerry at 2:1 is supposed to tell us something.

"People who have lived in the sports world as I have, bettors in particular, have a feel for what I am about to say about this: these people are extremely scientific in their assessments. These people understand which information to trust and which indicators to consult in determining where to place a dividing line to influence bets, and they are not in the business of being completely wrong."

Of course, Lampley ignores the fact that Kerry wasn't at 2:1 the night before, as can be seen in this Washington Post article.

"Maybe all the academics and pollsters should spend less time fine-tuning their election algorithms and just pay attention to the Vegas odds. "Online traders wagering on the outcome of next week's presidential election are giving President Bush slightly better odds of victory than Sen. John Kerry. But trading-exchange operators caution against reading their data too strongly in Bush's favor, saying the race remains remarkably close," Wired News reported on Tuesday. "On two real-money wagering sites, TradeSports and the Iowa Electronic Markets, traders give Bush a 59 percent and 61 percent chance, respectively, of being re-elected, as of Monday. A third site, NewsFutures, where traders wager for prizes and bragging rights, has the race virtually deadlocked, giving Bush a 51 percent chance of victory." "

The oddsmaking results that Lampley cite are *entirely* the product of the exit polling results that were circulating the morning of the election. Just as our mechanic's conclusion was entirely based on the sensor. Hence, talking about those results is no different than talking about the exit polls. That oddsmakers would respond to this exit polling information doesn't provide *any* more information than the exit polling itself provides. As the computer geeks say, 'garbage in, garbage out.' Lampley in no way addresses the argument that the exit polls are flawed. He assumes they can't be flawed because the oddsmakers relied upon them. This is obviously silly.

Again, all we have here is the exit polls...the same thing that we started with. Lampley doesn't add any new information by noting that oddsmakers relied upon this information. And the exit pollers themselves offer a more reasonable conculsion:

"Our investigation of the differences between the exit poll estimates and the actual vote count point to one primary reason: in a number of precincts a higher than average Within Precinct Error most likely due to Kerry voters participating in the exit polls at a higher rate than Bush voters. There have been partisan overstatements in previous elections, more often overstating the Democrat, but occasionally overstating the Republican. While the size of the average exit poll error has varied, it was higher in 2004 than in previous years for which we have data. This report measures the errors in the exit poll estimates and attempts to identify the factors that contributed to these errors."

Now, I know several political scientists who think Mitosfky screwed up (and will say harsher things than that in private). But even Mitosfky himself doesn't cling to the fantastical notion that his exit polls were on the money and what really happened was some vast, multi-state conspiracy to increase the President's vote tallies. Indeed, he specifically *denies* that the exit polls support the stolen election thesis:

"Exit polls do not support the allegations of fraud due to rigging of voting equipment. Our analysis of the difference between the vote count and of the exit poll at each polling location in our sample has found no systematic differences for precincts using touch screen and optical scan voting equipment."

You can read their report here

Oddsmakers are no more 'scientific' than stock brokers...and we well know that they have responded to erroneous information in the past. Indeed, the sensitivity of the markets to jobs reports (reports that are often revised substantially after the fact) illustrates this very point. And the exit polling data *was* erroneous. As admitted by the exit pollers themselves. The simple fact is this, *all* of the indicators prior to the election indicated that this would be a close election and most average estimates had Bush ahead by 1-3 points. Indeed, the rolling average I used to make my own prediction had Bush ahead 2.5 points on election eve. The exit polling numbers were well out of line with all of our previous indicators. As an outlier, we should be even more inclined to look towards problems with their methodology or data collection. We certainly shouldn't jump to idiotic conspiracy theories. Conspiracy theories that make the JFK conspiracy look simple, practical, and on a small scale! Sell crazy somewhere else, Jim Lampley. We're all full up, here. D.GOOCH