2008 [Stephen]

Since my crystal ball was bit cloudy, and since I’m a big believer in the power of gambling prediction markets, I bopped over to Intrade to check the betting on the 2008 race. Which helped polish up the old crystal ball:

  1. GOP nomination: Rudy and Fred are basically tied at the moment. Romney’s third but well back. My take: Dog lovers will keep Mitt from winning. I like Fred. I think we did pretty good the last time we elected an actor President. But for most people, Thompson is more a Rorschach ink blot than a candidate. He’ll blow up in the stretch. Rudy wins nomination. Dobsonites stay home en masse.
  2. Democratic nomination: Hillary is running away with it (the last price on her contract was 54). Sounds right to me.
  3. General election: The Democratic candidate is expected to win (last price was 56.6). Not that I would ever engage in any illegal activity, of course, but I’d probably buy a few contracts at that price if I were a betting man. Third party candidates could mess up key electoral college states, however. Suppose Nader and Bloomberg are both on the ballot. Do states like NY and California tip red? Would Florida go blue? This may be a case for betting on the starting price rather than ante post odds.
  4. House: The Democrats are expected to retain control (last price was 81+). No way the GOP gets control back this year, especially given the way donations are breaking. But given how high the Democratic contract is right now, I might take a flyer on a cheap GOP wins contract in hopes that Tom Delay’s legacy of gerrymandering will come through.
  5. Senate: The Democrats retain control contract’s last price was 78.5. There’s no gerrymandering on this side of the Capitol, of course. No bet.

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Catching up re gay marriage in the courts [Stephen]

The reactions to my post on gay marriage in the courts were quite interesting. Let’s start with Liz’s comments. First, she makes the very interesting point that state courts interpreting state constitutions may be where the action is in the short term. Of course, judicial resolution at the state level inevitably implicates federal constitutional questions, most notably whether the free faith and credit clause will require, say, Alabama to recognize a same-sex marriage performed in, say, Massachusetts. Second, her point that "allowing gay partnerships in some form had popular appeal" actually gives me hope that the issue will be resolved via the political process. I think the ground is shifting on this issue faster than a lot of people realize. I’d be willing to lay a long bet that more than half the states have some form of partnership law within 5 years.

Bruce wrote:

The question of "marriage" is purely a religious one, as I see it. It’s between you and your church.  If your church does not recognize your union, then you can either try to change its mind or find a new church. As far as the government is concerned, there is no reason for it to care whether your relationship is called a "marriage" or a civil union. … I think Stephen would agree with this, but I would appreciate his thoughts since he is a legal scholar who comments often on religious matters.

I do agree, although I wonder whether the logical import of that position would be a de facto requirement of two ceremonies: a civil ceremony that the state would recognize and then a religious ceremony (for those who want one) that would have no legal import. Since that’s what France does, shouldn’t there be a rebuttable presumption against it? [insert smirk here] Seriously, my friend and fellow law professor Larry Ribstein wrote a very interesting paper on this issue entitled A Standard Form Approach to Same-Sex Marriage, in which he argued that:

This paper attempts to find a path through the recent constitutional thicket regarding same-sex marriage by analogizing marriage to a business association. This analogy provides a way to evaluate the justifications for traditional rules banning same-sex marriage – specifically, by emphasizing the advantages of providing distinct standard forms for different types of relationships. Under this approach, the same-sex marriage prohibition might be justified by the need to preserve the precise boundaries of the marriage standard form. The business association analogy also highlights what is at stake in state laws prohibiting same-sex marriage, and therefore helps determine the appropriate burden to impose on defenders of the prohibition. Like business associations, the validity of a marriage generally is governed by the law of the state in which the marriage is celebrated. This offers the potential of allowing couples, including same-sex couples, to select not only from among the standard forms in a particular state, but also from the menus of standard forms offered by various states. This analysis helps assess the infringement on liberty involved in a state’s prohibition of same-sex marriage. Moreover, as with business associations, permitting the interstate market for standard forms to operate would provide an evolutionary approach to marriage laws that is preferable to the Court’s prematurely taking sides in the marriage debate.

Finally, among Eric’s thoughtful comments, he asked re Brown:  Can you honestly say that if you could go back in time, you would prevent it from happening? Of course not. But that doesn’t solve the problem. Andrew Jackson wrote in his message vetoing the Second Bank of the United States:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Likewise, here is what Lincoln said about Dred Scott:

If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Here then is the perennial problem: How do we decide which cases are like Brown and which cases are ones like Roe, which we all seem to agree decided an issue that should have been left to politics? I think that’s a very difficult question.

Al Franken [Eric]

I think you’re seriously mistaken, Liz, in calling Al Franken “quite mad.” I’ve read some of his books and occasionally listened to his radio show, so I can kind of see how you would get that impression. But more importantly I’ve met him twice, once in late 2003 and just recently when he visited TPM. I can tell you that he is absolutely not a madman — he’s just made a career out of playing one on TV. And as the Minnesota Senate race progresses, you’re going to see a lot more of just how clever he actually is.

The latest polling shows Coleman just slightly ahead and under 50%, dragged down by Bush. And really, having the Republican National Convention in traditionally Democratic Minnesota could hurt him more than help.

Bottom line: I can see Coleman winning re-election, but I can also quite easily see Franken winning this one and actually being a pretty decent, wonkish Senator. The GOP will be making a big mistake if they underestimate him.

On 2008 [Liz Mair]

On 2008, my views are roughly as follows:

1. I don’t know that the GOP will lose the Presidency.  I think we’re at risk of it, certainly.  But, depending on who our nominee is, and how the next few months shake out, we may be able to hold it.

2. I think it is likely that we are going to lose a couple of Senate seats at least.  The GOP Senators I see as being at significant risk are John Sununu (hugely unfairly because if he loses, it will be punishment for Bush Republicanism, of which Sununu is about as representative as is Dianne Feinstein) and Norm Coleman (it is frightening to suggest that Al Franken might be capable of beating Coleman, but he’s exceptionally good at raising money and has a platform– and has anti-Republican sentiment swinging in his favor, even if he is quite mad).  I also do not think there is much chance of Bob Schaffer holding Wayne Allard’s seat when running against Mark Udall, given the way Colorado has been trending over the past five years (watch the map, it’s been getting steadily more blue, to the point I don’t think it’s accurate to call it a red state anymore– and Schaffer isn’t exactly a moderate, the kind of Republican who maybe could survive such circumstances).  Depending on whether or not John Warner runs for re-election here in Virginia, we may or may not have a decent chance of holding the seat.  The advantage is, if John Warner runs, Mark Warner may not.  But if John Warner doesn’t run, Mark Warner probably will– and then it’s probably down to a fight between him and Tom Davis which I think either could win, but which will be very close.

3. In the House, I can see Republicans winning back and/or picking up a few seats (these might include CA-11, NY-20, FL-16, GA-8, KS-2, PA-10, TX-22, IN-9, OH-18, NH-1, PA-4 and maybe even one of the lost CT seats).  However, that still doesn’t get us to a majority, and the GOP will still have to worry about holding seats like NM-1, WA-8, OH-15, IL-10 , PA-6, NV-3 and CO-4 (the latter of which, I’ll be blunt, is like last year’s PA-Sen race– I won’t cry much if that goes; that’s very much unlike WA-8, OH-15 and IL-10).

That’s how I see this playing out.

2008, cont. [Bruce]

According to Charlie Cook, there is only one toss-up House seat in the whole country at this moment. Larry Sabato says there are seven competitive Senate seats–five Republican and two Democratic. This suggests that big Democratic gains are unlikely. Furthermore, Sabato warns that as the perception becomes more widespread that the Democrats will win the White House, it could help Republicans in congressional elections. As he explains:

"In modern times, Americans have often built in an additional check and balance undreamt of by the Founders. They prefer divided party control of the White House and the Congress so that no party holds sway, and the politicians will all oversee and limit one another. Maybe Bush and Iraq are enough to elect Democrats across the board in ’08. Or maybe the Democratic edge in the national legislature is a hidden card that the Republican presidential nominee will be able to play in what may be an uphill battle to secure the White House for a third consecutive GOP term."

This is why I think it is important for Republicans to be realistic about their White House chances. If they accept that 2008 isn’t their year at the presidential level, they may still be able to salvage something at the congressional level.

Tax Progressivity [Bruce]

In an earlier post, I suggested that on balance state and local tax systems are about as progressive as the federal system. This is probably not right. The only data I could find says that state and local systems are mildly regressive. Income taxes are progressive, property taxes largely proportional for most people, but sales and excise taxes are highly regressive. I have doubts about these data, however, because they exclude the elderly, which often benefit from special tax breaks at the state and local level.

My point about the steep progressivity of the federal tax system still holds. Here is another data source that confirms those in the CBO report I referenced earlier.

Note: On another point, I am informed that partnerships are not a subset of contract law, as I erroneously posted earlier, but of agency law.