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Unformatted text preview: Kasinathan Politics 1/Sanders POLITICS 1: THE AMERICAN POLITICAL SYSTEM Siva Kasinathan Fall 2006Professor Sanders Page 1 of 34 Kasinathan Politics 1/Sanders Table of Contents The Constitutional Convention & Federalist Papers 10 & 51 The Constitution The Electoral College & Devolution The Balance of Power in the Federal System The Media Patterns in the Media Public Opinion Parties and Voter Turnout Voter Turnout and Picking Who We Vote For Third Parties The Executive Branch: An Introduction Presidential Powers & Limits on Power Limitations on Presidential Power (continued) The Courts Limitations on the Courts 3 4 6 9 10 11 12 15 18 21 23 24 27 29 32 Page 2 of 34 Kasinathan Politics 1/Sanders Sep 5, 2006 The Constitutional Convention & Federalist Papers 10 & 51 The founders held meetings of the Constitutional Convention in secret because they didn't want legislatures to influence decisions made. The Bill of Rights represents a drastic change that came from criticisms of the Constitutionan open process could have prevented the Bill from being a list of amendments, however increased openness could have stunted other deliberations. The Convention itself was radical since its original purpose was to rewrite the Articles, but the Convention produced a new documentthe Articles took unanimous consent from the colonies. So, the Constitution would have never been passed as an amendment. The Constitution had an adoption procedure built in. The founders had no real governmental system to look to. The British model really wasn't a model since there wasn't an aristocracy or a king that existed. Pure democracy also didn't work because a small community is requisite. "If I don't know my neighbor's, I'll oppress them." People are by their nature oppressiveas Madison said "If men were angels no government would be necessary." Madison is an economic determinist in his view that the unequal distribution of property causes the creation of faction. The definition of a faction is a group that looks out for itself rather than the public good or interest as Madison notes. Destroying the causes of faction, according to Madison, would entail destroying liberty and giving everyone the same opinion. So, it's pretty damn near impossible to destroy the causes, which means we have to deal the problem. Two ways to deal with the problem: 1. Large republic (safeguards in three ways): [a] Size itself prevents factions from becoming large enough to oppress. [b] Representation prevents oppression since each representative will have to look out for more people since districts themselves will become bigger. Districts will become more heterogeneous so you can't just look out for one interest. [c] Number of "good" peoplethere are a lot more of good people (people like Madison) in a larger country since percentages remain constant. Doesn't make any sense. 2. Separation of Powers w/ Checks and Balances: This system will work because people have their own interests; in Madison's words, "Ambition will be made to counteract ambition." Page 3 of 34 Kasinathan Politics 1/Sanders 3. Specify limits: There are things that government cannot dothe original Constitution doesn't really have many of these limits, but they do exist: i.e. writ of habeas corpus (no detain w/out charge), etc. These are also built into the Constitution. The specification of limits did not go far enough according to critics of the original Constitution (Bill o' Rights resulted). The federal structure of government itself is the overarching principle by which the government forms a stable means by which tyranny and oppression do not recur. Sep 7, 2006 The Constitution The basis of liberal political theory is the notion that government is limited in its scope and power. The Constitution's structure is the based on compromisedthere were four major compromises: 1. Bill of RightsCompromise made so Virginia would ratify, 2. Legislative StructureThe theory favored by federalists was representation in proportion to population (the Virginia plan). The New Jersey plan called for equal representation for all states. The big states wanted the Virginia plan and the little states wanted the New Jersey plan. There was a compromise made in which a bicameral legislature was set upthe senate came from the NJ plan and the house a result of the Virginia plan. Agricultural policy is played out in the Senate since Representatives in the house from urban areas far outnumber those from rural areas, but because of equal representation in the Senate, it's much easier for Senators to make agricultural policy a focus. 3. Article VTwo vectors for proposing new amendments (either you call a Constitutional Convention and then have 3/4 of the states ratify; or you get a super majority in Congress [2/3] and then have 3/4 of the states ratify). Within the text of Article 5, "Provided that no state without its consent shall be deprived of equal suffrage in the senate." That means the Constitution cannot be changed to change representation in the senate, i.e. you can't change equal representation in the Senate unless every state agrees.s 4. SlaveryThe institution does not fit the Declaration or the spirit of the Constitution. Two major compromise made within the issue of slavery. Page 4 of 34 Kasinathan Politics 1/Sanders How do you count the slaves? - Taxation: Do the slaves count when the states had to pay the tax bills/ collect taxes (since states were tax collectors at the time). - Representation/Three-Fifths Compromise: Counting slaves meant increased representation for the Southern states. The north did not want to count the slaves since it would give the South more power. Article I, Section 2 states "..adding to the whole number of free persons...and excluding Indians not taxed, three-fifths of all other persons...". Slave TradeArticle I, Section 7 says congress can regulate interstate and international trade. Congress could either ban or tax out of existence the slave trade. Congress didn't want to give up this power and accede to Southern requests. Section 9 of Article I was added which allowed slavery until 1808, but allowed a tax on slavery. The Southern states got control of slave trade for twenty years, and the Northern states got tax money, constitution, powerful congress, and money from the trade itself. Article V notes that the constitution cannot be amended to get rid of Article I, Section 9 so slavery could be done away with. - This issue was very,very divisive and a Civil War was required to resolve the issuethis is perhaps the greatest failure of the Constitution. 5. Structure of the Executive BranchDidn't want a prime minister or a king since both were based on different forms of government. The president needed independence from the legislature (and this was agreed upon by most). Unlike slavery and the legislative branch, there was no clear reason that would divide states (except selection process). Washington was willing to serve because he was a highly visible and qualified characterthey wanted to institute the rules after Washington took office. A four year term with the possibility of reelection was finally decided upon after considering many options. In his farewell address, Washington set the two-term precedent after serving two terms. Roosevelt served almost four terms. After that, the Constitution was formally amended so there's a two term limit. Election process was contentions as wellElectoral college resulted. The District of Columbia got three electoral votes (amendment passed in 1960) so the citizens of DC could vote for president. During the Convention, two methods proposed: either let the people vote or the House vote. Instead, the electoral college was set up and the states were in charge of deciding how the electors were elected. The number of electors in a state was equal to number of representatives plus senators. States shifted to the unit plan rather than the district plan (although two states Page 5 of 34 Kasinathan Politics 1/Sanders still use district plan). The states have more influence with the unit plan. Also, if your party control the legislature, your party is likely to win the state. - The method of selecting the electors has changed as well. The national political parties creation was originally encouraged by the presidency, i.e. a group of people get together to decide who should run for president. Along with increased democratization, electors were no longer chosen for who they were, but rather for who they say they'll support for president. This made it easier for people to choose electors. - You don't see names of electors on ballots anymore, but you see the name of the presidential candidates. - Faithless electorsomeone that votes for the candidate they're not supposed to vote for; some states have state laws that say you have to vote for whoever won the state. Usually a protest vote. The most faithless electors was seen in the election of 1872 when there were on the scale of 40 or 50 faithless electors since the candidate died. - Each elector cast two votes originally, and the person with the most votes as long as it was a majority was the president, and the person with the second most votes was VP. The house breaks ties. The constitution was amended in the 12th amendment so that each elector cast two votes and if no one got a majority the house would choose among the three leading candidates and each state got one vote. The senate chooses VP if there's a tie. - Electors cannot vote for two people from their own stateso you can't look out for your own state's interest. Sep 12, 2006 The Electoral College & Devolution The politics of the electoral college makes abolishing it impossible (the Constitution needs to be amended). Political muscle is required to amend the Constitution along with public pressure. The public would prefer direct election of the president (somewhere around 2/3-3/4 want this). The electoral college hasn't been abolished through Constitutional amendment because it is not a high enough priority to decide senate and house election. The pressure, however, manifests itself when the "wrong person" wins, i.e. in 2004 when Bush won the electoral vote but not the popular vote. However, in these circumstances, one party is happy (i.e. in the case of 2004, the Republicans were happy since Bush won and weren't going to vote against the system that elected him) and one is unhappy (the Dems in the case of 2004) and the happy party will never vote for an amendment, making it literally impossible to abolish the college, on another level. Page 6 of 34 Kasinathan Politics 1/Sanders Arguments against the electoral college; The electoral college violates the equal protection clausevote weights are different; that is, one citizen does not necessarily mean one vote. It strengthens the two party system. If a third party candidate does well, no one will win in the electoral college, which will force the House to decide and since the House is composed of mainly Democrats and Republicans, the third party candidate has no chance. The faithless elector is also a potential problemyou feel like your vote doesn't count, especially if one candidate wins your state and the electors vote for a different candidate. It might discourage turnout (i.e. Republicans in New York won't turnout because they'll think their vote doesn't count). Even if a state has a higher turnout, it may not matter since your state might not have as many electoral votes as another state. Fraud is encouraged because you can target fraud effectively, i.e. if the race is close then you make sure you get a few states you need, for example in the 1960 election Kennedy may have won by stealing Illinois. Arguments for the electoral college: It lowers the cost of elections since not much money is spent in populated statesadvertising is cheaper as well; candidates stopped buying network ads in the 1990s since most of the people that watch live in states where their votes don't count. So most people go to states and buy ads on state networks. Without the electoral college, a national campaign would have to be run and more money would have to be spent on campaigns. Fraud would be easier without the electoral college because the fraud could be spread out, i.e. a few thousand votes here, or there could add up to hundreds of thousands. So in a sense, the electoral college helps make fraud more visible. It changes the relationship between president and states. For example, presidents might promise to help states that matter once they win (i.e. ethanol got a boost because of Iowa's importance in the nomination process and the electoral college). The college in its own way helps to strengthen the states in the federal systemthat is, it requires the national government to consider states as states rather than conglomerations of people. There were two major theoretical issues left unresolved by the Constitution: 1. The issue of the relative powers of the states. (Locus of power in states or in national seat?) Page 7 of 34 Kasinathan Politics 1/Sanders The trend has been to increase the power of the national government at the expense of the states. Communication has facilitated the development of truly national intercourse. The growing role of the United States within the international forum and changes in the world (i.e. globalization) has forced the United States to become more national especially because foreign policy has become even more important. Complexity of the economy and increased mobility have caused many problems to become interstate issues (i.e. pollution and other environmental problems). As the US becomes more industrialized, it's difficult to deal with these problems on a state-by-state basis, especially environmental issues because the environment has no regard for state borders (i.e. if Iowa cleans up the Mississippi, it doesn't make a difference if Minnesota still practices dumping in the river). National rules help regulate things completely. National security issues often start to take powers away from states, i.e. the federal government got involved with education in 1957 after the launch of Sputnik and the perceived Soviet threat; the highway system was built in each state because of Cold War pressures requiring troop movement within the United States (the plan was vehemently supported by the Pentagon). The Supreme Court has interpreted the Constitution in favor of the national government rather than the states. This reversible trend started early on in McCulloch v. Maryland (1819)this had to do with the elastic clause of the Constitution aka the necessary and proper clause. Article I, Section 8 lays out the powers of Congress, "To coin money, to establish post offices, constitute make all laws which shall be necessary and proper..." McCulloch v Maryland had to do with the Bank of the US; nothing in the Constitution allowed a bank to be set up. The Supreme Court read the Constitution in favor of the USFG. Marshall wrote if the end is legitimate, if the end is Constitutionally allowed, all the means are appropriate. In 1930s the Supreme Court said that if Congress justifies something in terms of interstate commerce, then it flies because the distinction between interstate and intrastate commerce became increasingly blurred. Constitutionally, the states have been reigned in. In particular, the Fourteenth Amendment led to a clear Constitutional shift of power from the states to the federal government. The Fourteenth Amendment gives more power to the national government by providing greater protection to individual citizens. The Fourteenth Amendment tells states what they can or can't do with regard to their citizens (i.e. civil rights legislation and equal protection, etc). If states violate rights, then you go to national government to have the Fourteenth Amendment enforced. Further, Congress can pass laws to enforce the Fourteenth Amendment, giving the federal government unprecedented powers to protect citizens from the state governments. Page 8 of 34 Kasinathan Politics 1/Sanders 2. Nature of the strength of the national government and protection of individual liberty. Sep 19, 2006 The Balance of Power in the Federal System The Fourteenth Amendment shifted power away from the states and transferred this power to the national government. It was designed specifically to protect individual citizens from state governments (especially former slaves from state governments in the south). Structuring the Amendment that way gave the federal government broad powers since it gave the federal courts quite a bit of power and allowed Congress to pass laws in the guise of enforcing the Fourteenth Amendment. There are a few specific ways in which the state government powers are decreased; 1. Defines citizenshipstates decided citizenship of states and you were considered a citizen of the United States if you were a citizen of the state. The Amendment set up national and state citizenship privileges. 2. Privileges and Immunities clauseit states that no state shall deny these privileges and immunities that are granted to citizens. The clause is not entirely clear. There was a lot of litigation in the 1950s and 1960s involving interracial marriage (i.e. some states did not consider marriage in one state legal if it it involved marriage between races). Part of the push for a Constitutional ban on gay marriage stems from the fear of the Supreme Court interpreting the Privileges and Immunity Clause to uphold gay marriages. 3. Due Process clauseNo state can deny the right to life, liberty, or property without the due process of law. It does not say that states cannot ever take these rights away, but the states are forced to follow the due process of law. However, it is unclear, because the due process of law. It does ensure the states do not arbitrarily deny rights and it ensures a procedure is followed. The clause has been used to expand protections provided by the Constitutions (in a process called incorporation). For example, the Constitution only prevents Congress from passing laws that would deny First Amendment rights, not the state governments, the process of incorporation essentially placed the Bill of Rights (unofficially) in the Due Process clause. This extension of Bill of Rights occurred over a long period of time starting at about the beginning of WWI when First Amendment rights were incorporated. This has caused this clause to become one of the most controversial in the Constitution. The protections can be extended to rights not expressly guaranteed by the Bill of Rights, i.e. the right to contract (state economic regulations were struck down because businesses and people had this implied right to contract; but this was struck down in the 1930s when the Court changed its mind and minimum wage laws were put into place). The Court contends that the Due Process clause implies a right to privacy. In Page 9 of 34 Kasinathan Politics 1/Sanders order to have life, liberty, and property protected by due process, there needs to be a certain amount of privacy. The right to privacy was announced in the 1963 in Griswold v. Connecticut (contraceptive use in states was banned). The courts went on to rule that the right to privacy implies a right to abortion as well. 4. Equal Protection clauseEqual protection of the laws is extended to all citizens. This was vital in civil rights politics and policy. The Fourteenth Amendment essentially reins in the states with the above four clauses. The passage of the Amendment represented a significant paradigm shift in power from the states to federal government. According to Thurgood Marshall, the Constitution before the Fourteenth Amendment and after the Amendment represented two different Constitutions for African Americans. In terms of the power and structure, the Fourteenth Amendment was huge in that it realigned power significantly. The Media Free press and free speech are largely analogous. The free speech/free press tests made by the Supreme Court are essentially the same. The First Amendment says that Congress can make no law that limits the freedom of press; however, no law does not mean "no law." Why we would want a free press? Market place of ideas could lead to the right ideas working themselves out Holds government accountablea powerful and relatively streamlined press would keep the government in check since many people would read the same thing; however, if the press is fragmented, it would be easier for the government to "divide and conquer." Watchdog institution that could sound the alarm Why would we want a restrained press? Libellying about someone in a way their reputation is hurt Revealing military intelligence/national security issues. Pornography, etc. Under FCC regulations, rules can be created for non print media that cannot be created for print media, i.e. FCC regulations call for air waves to be distributed freely since they are a public resource with once requestthat these airwaves are used in "public interest, convenience and necessity." The general trend since the 1980s is deregulationthat is, making it easier to meet these standards (each license comes under re Page 10 of 34 Kasinathan Politics 1/Sanders view every seven years). The public interest requirement only applies to broadcast stations not cable stations like MTV. A broadcast station implies that a signal is transmitted using antennae, etc. With regard to politics, there are rules about political advertising that hold for political ads that do not hold for any other types of ads. If a station decides to sell time to one candidate, they have to make available time for other candidates, etc. The content of political ads cannot be regulated in any way with the exception that the ad must say who paid for it. Ads cannot be refused for any other reason except for not meeting legal requirements. The station cannot be sued if the ad is libelous. The only unclear aspect is the pornographic content of ads. the rules say stations cannot run pornography. A station could refuse on the grounds of pornography, possible. The courts have yet to decide. Another rule on elections is that if a station editorializes about anything, they have to provide equal time to opposing views. This serves to deter stations from editorializing. The editorializing rule regarding broadcast media only applies to broadcast media and not newspapers since newspapers are protected by the First Amendment. Sep 26, 2006 Patterns in the Media There are a number of major trends (Lance Bennett) within the modern broadcast news media, and perhaps even television in general: 1. The news is fragmentedThe news is broken up into little sections (often story-bystory) and there are often no connections between stories (and even if they are, they're often not presented). The news is fragmented because of the very structure of the programnetworks want to cram in as much as possible in the limited amount of time each program has. People's attention span is very, very short, so networks keep stories short to ensure they don't lose viewers. Further, everyday there are different stories, so it is difficult to connect the stories of yesterday, to today, to tomorrow, etc. You can't stick social, political, economic, and geographic background together because it is almost impossible to do so within the parameters, contributing to the fragmentation. 2. DramaticThere is often a focus on scandal, celebrity gossip etc. Conflict confrontation are often used as themes. There is a sensationalization of news because of the increased dramatization practiced by the news media, i.e. the clip of OJ Simpson speeding away in his Bronco. Doing things live makes the news a lot more dramatic. The implications of dramatization are broad based. Desensitization is one possible implication where the big events, i.e. disasters, crimes ,etc, just don't mean as much anymore. Further, we get cynical and distorted views of the world partly because we Page 11 of 34 Kasinathan Politics 1/Sanders recognize the sensationalism that is expressed by the news. We get the perception of the world as a more violent and chaotic place than it really is. 3. PersonalizedBring stories closer to home by focusing on specifics, i.e. the local news is focused largely on local news and the national news is national. This practice yields a large distortion in priorities since stories are presented because people can relate to them rather than being presented by priority. The international news doesn't get a stage because there is a perception that the international news does not affect those of us in the United States. Things flow in and out of news as their personalization increases or decreases, i.e. if something is very personalizeable, it becomes a story, but as it becomes less personalizeable, it falls out of vogue. This is also expressed when there are stories specifically bout people. 4. Authority-disorderTwo part pattern in which the news relies on people that hold positions of political authority, i.e. the President, mayors, governors, Senators, etc. The cost of covering the news is also another significant factor. It's cost effective to follow those that "make" news around. The president in these days is followed around so there's footage in case he's assassinated (no network cameras in the JFK shooting). The disorder comes from the alternative do authority, that is the authority figure is wrong, etc. Oct 3. 2006 Public Opinion There is one overarching facet of public opinion that influences elections, etc: Most people don't pay attention to politics most of the time. This does not imply that people don't pay attention to politics, it means that they don't pay attention all the time (i.e. they pay attention when something dramatic occurs in the political arena such as 9/11 or the invasion of Iraq). People also sometimes pay attention to the flow of politics because they feel the responsibility to vote (which is why people pay more attention to politics during the election season). Politics is often off on the periphery because we pay attention to other things. Those who do pay attention to politics represent a relatively small minority of the general populace. Campaigns themselves would be useless if everyone paid attention to politicseveryone would know and understand the issues and TV ads, etc would have no role whatsoever. People needs shortcuts as they try and surmise the political world (heuristic devices in a psychological sense). What kind of shortcuts can we use? Broad valuesinstead of specifying what to do in a specific issue, we tend to focus on the big ideas by leaving the details out and talking about the broad values, i.e. instead of "we're doing a,b, c, and d to solve the problem," people say "we're going to prevent Page 12 of 34 Kasinathan Politics 1/Sanders government from becoming too powerful." Some issues are clear, but on some other issues there is quite a bit of moral ambiguity. For example, there is a considerable amount of conflict over issues like abortion, so people use ambiguous terms like "prochoice" and you never hear something like "anti-choice" or "anti-life." We apply the values we espouse to lots of things, politics included. Peoplewe judge people (as we do all the time). We look for leaders and the qualities that make them in candidates. If somebody is a good leader, then most consider them a political leader. Examples of good leaders people give are usually not political, they involve leaders in their every day lives like their bosses, etc. This leaves room for manipulation because we don't really know the candidate because what we judge them upon is incomplete. Campaigns spend time trying to make candidates personable, i.e. in 2000 many would have preferred to have dinner with Bush than Gore. How are things goingwe're voting for people that are going to lead us into the future. We don't have an easy way of deciding whether future policies will work, so we turn to the present and try and judge how things are going in the present, i.e. is the economy doing well right now? It's easier to ask these questions about some kinds of issues rather than others, i.e. the economy (inflation is a good metric because we go shopping and buy gas, etc) is relatively easy because we can relate to it, unemployment is a little abstract (unless you live in a community where there are layoffs). We have some sense of whether or not our neighborhoods are safe, so crime can be a moderately effective metric as well. Some issues we can't really measure well are things like education. When we look to political shortcuts, we vote for the incumbent in office or the party in office now if the economy is perceived as being good, etc. and if things aren't going well we vote for other candidates or the other party. With the Congressional elections that are coming up, the public believes that we're on the "wrong track" because our country is in miserable shape (according to the general public). Parties probably the most used heuristic. The one question that is most often asked to gauge public opinion is "Generally speaking, what party do you think you can relate the most to?" Most people pick the top three (independent, Republican, or Democrat). Party identification is responsible for thisit is a broad underlying level of support for a party's certain ideology. It is not the same as "who are you voting for in the next election?" since it is not the same as part loyalty. The above heuristics can often influence who you vote for in an election regardless of party identification (party identification does not necessarily imply party loyalty). Although, most of the time, we tend to vote for the party we identify with. Party identification is a private thing, while registering to vote for a certain party is a public act (so you might have other reasons for registering as a member of a certain party). Voting, on the other hand, is private, so you can vote for whoever the hell you want to fricking vote for. The following are theories of party identification: 1. Sociological theoryit's an an attachment that develops through socialization, etc. It's a group affinity that you have because you feel "closer" to a certain party. It has a lot to do with the image of the party that you have. Some evidence: Party Page 13 of 34 Kasinathan Politics 1/Sanders identification often develops very early in life (way before we have a real sense of politics, etc). Identification also comes from family ties, i.e. children associate with the same parties their parents subscribe to. This isn't as strong in part because parents don't make an effective effort to inculcate political beliefs in their children. The party identification theory posited by sociology is a much more stable identification than it would be if it was a response to political response that were/are occurring (i.e. people naturally tend to some party rather than pick parties based on political and current events). The sociological theory can't be all right since it means people don't base decisions solely on political events, but rather only on their learned political leanings. 2. EconomicThis theory posits that party identification works by making rational short term decisions (this doesn't imply people care about the economy more than anything else). This is based on pragmatic cost-benefit analysis (weight the pros and cons and make decisions that way). It is based on the fact that everyone makes rational decisions. In a way, it's a running party balance sheet. The way we decide is by getting a sense of where we stand with the party, i.e. although I'm a Democrat, I'm going to vote for the Republicans because they're doing a good job. The stability is a function (in the economic model) is from the fact that the parties are stable in their image, the policies they support, and the groups they support. Since our social structure doesn't move too much, we stay loyal to the parties we believe has the most points on the balance sheet. The best evidence for this theory is the shifts that occur tend to reflect the shifts predicted by the theory, i.e. Republican party identification increased following 9/11 but since then has decreased because people don't think the Republicans are doing a very good job. This theory can't be the only reason because the loyalties run a little too deep. Party identification has become a less important shortcut than it was in the 1950s and 1960s. Since the 1980s, it's largely been a little bit more Dems that Republicans and independents (of course, there have been shifts). By the end of the Reagan years, it was a one third even split and then during the Clinton years, it reverted to the 40-30-30 split (with the Dems leading). Now, the Dems are doing well and are back to their old 40-30-30 antics. The decrease in importance of party identification has made the other heuristics more important. TV and computer technology makes it easier for weak partisans to see things and it is easier to convince them to defect. The weak partisans are more likely to vote for the other party because they can be easily convinced. The ones most involved in politics are pretty strongly partisan. Which is why we don't want to overestimate the willingness of independents to vote for one part or the other. When it comes to the role of government, according to a study conducted in the 1950s and 1960s, the people are conservative when it comes to the role of government, but are operationally liberal. Which is why candidates talk about small governments (Republicans) and Democrats talk about the benefits of the programs (since most Democrat policies spawn big government). Page 14 of 34 Kasinathan Politics 1/Sanders Oct 5, 2006 Parties and Voter Turnout There are direct and indirect effects of parties. The direct effects include the casting of ballots for candidates from your party. People rarely have to rely on direct party identification because of the amount of information that is available on each candidate. But, this isn't to say that people don't use direct identification. This is more common in elections with low visibility, i.e. voting for state senator as opposed to president. Parties can also be important in an indirect way, i.e. parties can act as a kind of filter. The information we get is filtered through the lens of the parties. You filter things through your party identification when issues are confusing, i.e. the Dems are usually right so we'll listen to them because they know what they're talking about. This is a subconscious kind of filtering. This is especially seen when you ask about the economy. If there's a Republican president, the Dems will this things are going horribly even if the economy is only doing slightly worse than it was during the previous administration. Eventually, the realities may take over. If the economy still seems bad and no change is made, then the Republicans themselves may change their mind (political realities tend to make shifts in identification). This filtering dumbs things down, so you can get things wrong sometimes. This isn't jingoismblind loyaltyit's a heuristic device, it's a way to make sense of a very complicated world. If we couldn't filter information through our prejudices, then society would come to a standstill because we'd be essentially incapacitated. There are two separate but related decisions people make when it comes to elections. In some ways the things that we need to calculate the decisions are different, which is why we think about them separately. It's essentially: To vote or not to vote, that is the question. 1. We should vote. One big reason is that it's good for the democratic way of government. The candidate we want to win is more likely to win (each vote counts). We hope the candidates will be responsible to us because we voted for them. 2. We shouldn't vote. If you vote, in most states, you become eligible for jury duty. It takes time to vote and you have to show up at the polls sometime during the day (which implies a transportation cost). You might have to take off from work if its a work day. Page 15 of 34 Kasinathan Politics 1/Sanders It takes time to find out who the candidates are and who to vote for. If you vote with a cost benefit analysis, then you've got to know your stuff and figure out which candidate you like. According to social scientists, the paradox of voting is that it doesn't make any sense for any individual to go and vote because the likelihood that your vote is significant is pretty much next to zero. Candidates will win whether or not you can vote. The paradox of voting is that the benefit as an individual is essentially zero, but the costs are pretty high and you can just let the other people vote. You essentially save yourself the costs of voting. But, if everyone has this mindset that voting isn't worth it will cause no one to vote. But, in reality, these calculations do occur. In elections that are expected to be close, voter turnout is higher because people perceive the fact that their votes will count (the costs and benefits do make a benefit). For example. weather makes a difference in voter turnout since bad weather can increase the costs of voting. That's why campaigns lie to people and say we absolutely have to have your vote, etc. If people act in the way predicted by the paradox and the above terms, then voter turnout should be much lower than it is. But many people still vote, mainly because of the broader reasons, i.e. a sense of civic duty and patriotism. It's something that isn't necessarily in your self interest (unless you define self-interest very broadly). In the context of voting, something other than pure self interest is at work. This is one of the reasons that party identification has such an effect on voter turnout, i.e. partisans tend to vote more than those who think of themselves as independents (this is because the partisans feel a significant tie to the system). These kinds of broader systemic loyalties do matter in the end. Voter turnout in the United States is comparatively low. From the 1960s until 2000 or so, voter turnout has steadily decreased (with a few small exceptions). In 2000, it went up a bit over 1996 and in the last election, it increased again. There is a second paradox of voter turnout that applies to the decline in voter turnout. The things that make people vote and what we know about turnout lead us to believe that from 1960 to 2000, voter turnout should have increased. Starting with demographic factors: People with higher incomes tend to vote (they have flexible job schedules, don't work as hard, they feel that they have a stake in it, etc.) - Really poor people vote less than you think they would given their amount of educationhere incomes seem to have an independent effect, as you get up higher, education tends to outpace income as the determining factor. People with higher educations tend to vote more often (education tends to lower the cost of voting since you know how to process information) - From 1960-1980 education has overall increased. If one of the costs of voting is how difficult you make it for people to vote (i.e. registration rules and other laws), then people are less likely to vote. In states where it's eas Page 16 of 34 Kasinathan Politics 1/Sanders ier to register, turnout tends to be higher (i.e. in ND, you don't have to register, you just have to show ID and you can vote). - From 1960-2000, it's becoming increasingly easier to vote. - The passage of the Voting Rights Act (1965) was a large change in the voting system. The Voting Rights Act reformed the system so all kinds of people were enfranchised, and turnout among African Americans skyrocketed after the Act was passed (poll taxes were struck down by Constitutional amendments). But nationally, voter turnout has gone down, - The Motor-Voter Bill made it easier for people to vote by enabling registration when you apply for a driver's license. The bill was not aggressively implemented in some states, but still it has made registration easier. - Absentee ballots have made early voting possible, further making it easy to vote. So, why have we seen voter turnout go down? Discontent with government, and other trust issues has increased over the years. We feel much less connected with government than we once used to. The elections haven't always been very close, so people don't really see a need to turnout. The closest election in before 2000 was the 1976 election, which was the first post-Watergate election People are becoming less satisfied over time with the choices made by candidates. The American National Election Series (an academic study) tells us that people (via the feeling thermometer test) that people are becoming disillusioned with candidates. The Bush-Kerry election represented a really low feeling thermometer number. We're less likely to think an election is going to be close because TV tells us exactly what's going to go down because they do polling all the time. The major demographic factor that fits with the declining turnoutthe young people are less likely to vote. The electorate, has overall, been getting younger, especially during the period 1958-1962. Prior to the passage of the 26th Amendment ratified in 1971, there were three states that allowed people younger than 21 to vote. Lowering the age of the electorate significantly, so there was a huge influx of young voters. But immigration patterns are once again creating a younger electorate. Why the hell don't the kids vote like they should? - One of the things we know about voting is that voting is a habitual thing. young people don't necessarily have that habit of voting yet and it's a little tough to get people into that habit. Election day is Constitutionally on a Tuesday, so amending the document makes changing election day to weekend (like it is in most other democracies). Page 17 of 34 Kasinathan Politics 1/Sanders Sometimes we resist changes that would make it easier for people to vote. Why? People would rather have their vote be worth more (a larger electorate means your vote is diluted). The Voting Rights Act of 1965 brought up this argument (it supposedly diluted white votes). The filter argument says that voting isn't something that should be done lightly. A few barriers in the way would ensure only those who want to vote and are informed vote. Voter Fraud ArgumentThe easier you make it for people to vote, the easier it is for people to cheat. It's harder to cheat with more regulations. Bottom line: Getting people to vote is a bitch of an issue in our democracy. Oct 10, 2006 Voter Turnout and Picking Who We Vote For Voter turnout is always just an estimateyou know the number of people that voted (sort of). It's a percentage. The numerator is easy to figure out since you count the number of people that voted, but the denominator is difficult to figure out because you have to count the number of eligible voters. With the 2000 elections, voter turnout was higher than in the previous few decades. So why did voter turnout increase? Answer: Mobilization and Motivation. Efforts to increase voter turnout (PACs, etc). This mobilization effort was very, very important. Millions of dollars were spent on this effort. Political scientists attribute a third of the increase to this mobilization. The ability to use technology, especially the internet, was essential in coordinating elections and the like. In a cost benefit sense, people are more likely to vote they think it'll be a close election. Both the 2000 and 2004 elections, they seemed close going into the election. Some scientists argue that two thirds of the increase was caused by increased motivation. There really hasn't been a reversal of the trends discussed in the previous sectionpeople still feel all of these, but the mobilization and motivation has served to effectively counteract the trends that have driven the turnout down. Change of Focus: The second of the two important questions is which candidate we choose to vote for (the first question is to vote or not to vote). Candidates spend an enormous amount of time, money, and energy to get people to vote for them. We need to examine the dynamics of the political campaign and ask our Page 18 of 34 Kasinathan Politics 1/Sanders selves, "If we're trying to win votes and people don't like campaigns, then why do candidates keep doing things the people don't like?" Why do we have so many attack ads? People may hate them, but they work. We ask questions about the candidates. We're faced with important decisions to make in campaigns and the attack ads can be a very useful tool, especially if you're the candidate that's losing. In this case, the easiest way to get the public to change their mindset is by using these negative ads. These ads are more cost effective. You have to get people to remember what you're doing. If they don't remember, then these ads don't do a damn thing. People remember negative things more easily than the positive ads, so it's the best way to maximize ad response for the lowest cost. Content analysis of negative ads tells us that the ads really aren't as negative as things are. But, it reflects the fact that these ads are effective and thus we pay attention to them although we may not like them. What is the effect of negative ads on the broad public? There are two separate effects. First, for those voters that care about politics, the attack ads tend to be mobilizing. If they attack your candidate, they get mad and they want to go out and vote. If you're candidate does the attacking, you say damn right and you agree. But, if you're in the segment that doesn't care about politics, then attack ads are a big turnoff. It becomes old as both candidates take swings at each other. In the long run, it decreases voter turnout, but in the short run, the effect isn't as clear. Why don't campaigns talk about the issues much? The people who know a lot about the issues are pretty clear on who they're going to vote for to begin with. When you're running the campaign, you don't care too much about those who are strong partisans. You want to try and convince the weak partisans and the independents because they're least likely to be issue voters to begin with. So, talking about the issues is less likely to win over the non-issue voters because they don't really care about the issues that much. When you start talking about the issues in a specific sense, then there is the chance that you can lose some the voters. Valence issuesnot an issue in the traditional sense. That is, thinking about issues in a broad sense, i.e. "I want better education." No one really wants worse education, so these issues don't really mean much. These are broad generalizations that don't really mean much. These are more like goals. Position issuesthese position issues tell us how to achieve the goals set out in the valence issues, i.e. how are we going to better the education system. People tend to vote on the valence level, and when you start laying out how or why you'll fix education, for example, then you can lose voters. Page 19 of 34 Kasinathan Politics 1/Sanders Part of the reason people talk about the issues is so they don't look like they don't look like they have this "all style, no substance" image. Sometimes, candidates take positions so it will affect the image people perceive. This is one of the reasons candidates talk about issues. Issue positions can be used to reach specific audiences, i.e. you could talk about stem cell research when speaking to a group of biologists. You can take particular stances because it is important to your campaign strategy. For example, if you're running for office in Iowa, then you take positions on farm issues that don't matter to those living in urban and suburban Des Moines. But, you get the vote from the farmers and their support. Further, while the average voter may not pay attention, interest groups often pay attention to campaign dynamics. These groups can provide votes, but they can also provide other resources. Position issues are more important than valence issues when it comes to groups. Activists in the parties also want to hear position issues, so you take up positions to get them mobilized. For most candidates, they have an issue they're passionate about. They don't always do things for the vote. They have some sense of the policies they want to enact because they sincerely care about an issue. So they take a stance on the issue, sometimes and sometimes they don't (i.e. a political advisor could advise against it). In a broad sense, candidates prefer valence issues, but they know they have to deal with position issues for other reasons. In the end, these positions don't have a significant impact on the election. Partisanship guarantees you get a significant amount of votes. You always focus your campaign on the segment of the populace that does not care too much about politics. It's this segment that is swayed more by negative ads and valence issues. But for most voters, they see things that they don't like at all, but the campaigns end up influencing them anyway. There's very little that we can do about it since the dynamics of the campaign forces candidates to act that way. Which is why the most positive and substantiative campaigns are run by third party candidates because they don't have a chance at all. We can think about what matters to people in campaigns in terms of long term and short term factors. The long term factors set the parameters in which a campaign occurscampaigns are not fought on a blank slate. The two big long term factors are: 1. Partisan identificationit is difficult in the course of a campaign to cause a shift in the partisan identification of people. In a campaign you work on short term factors, instead of causing people to switch parties, you get them to say I may identify with party X, but I'm going to vote for party Y in this election. This long term factor changes over time, but often helps decide elections and campaigns. Page 20 of 34 Kasinathan Politics 1/Sanders 2. Sense of how we think things are goingthese are retrospective evaluations we make. You can't tell a candidate the economy isn't as bad when people think the economy is horrible, and vice versa. The incumbent president has an advantage if people think the economy is doing well, and the incumbent has a disadvantage if the economy is bleeding all over the place. The incumbent is often saddled with the benefits (and sometimes the disadvantages) of these retrospective evaluations. It's all based on perceptions. What do you do with these retrospective evaluations? Then you focus people on the benefits and if you're the candidate that doesn't benefit, you encourage people to look forward and not backward. Iraq is a prime example. If you're the Dems, you want people to focus on what a godawful shitty mess it is. If you're the Republicans, you want to focus on what's coming in the future and not the past blunders. It's easier for the party that wants to look back than the one that wants to look forward since people are more comfortable looking back than forward. The other factors are short term factors and these are the ones the campaigns focus on. The two main short term factors are: 1. The issuescampaigns tend to focus on these as valence issues. The other important thing is there are quite a few issues out there. A good portion of the campaign battle is deciding which issues we want to the voters to think about. Campaigns will want voters to think about different issues. Political scientists think of this in terms of salience, that is how important we think these issues are. Sometimes the voters who think a particular issue is salient are in the minority when it comes to the position. For example, the broad public doesn't mind gun control. For people who think gun control is a low salience issue, they support it. But, for people who hate it, it's a high salience issue. Candidates often fight more about the salience of an issue than the actual issues themselves. We think more or focus more about salience and valence than position. 2. The candidateswe have quite a few ads about the character of the candidates. Candidates often sell themselves as people. Candidates find this the easiest way to reach the undecided voters and convince the weak partisans to go against their party. Oct 19, 2006 Third Parties We use an electoral system that is incredibly unfair to third party candidates with the winner-take-all attitude. It, however, is not the only way to run a democratic election. Rather, a European method, in which proportional representation is used could be used. In a representational sense, this encourages the rise of other parties. The Israeli method where the whole country is treated as one district with proportional representa Page 21 of 34 Kasinathan Politics 1/Sanders tion also works this way. The single-member district idea prevalent in the United States encourages the emergence of only two parties. It ends up so that if you don't vote for one of the two parties, you end up "wasting" your vote because of the winner-take-all attitude. Third parties tend to spring up and then disappear (historically). They spring up because people get disgusted with certain politicians or policies, but then they die down because they're hard to keep alive since the issues that causeds their creation don't last forever. What draws our two parties together is the election of the executive. The parties have to unite behind one or another presidential candidate. There are advantages and disadvantages to having two parties. Representing a heterogeneous electorate is a disadvantage because there are only two party choices. The two party system often falls short when it comes to electoral choice. When faced with the actual proposition of voting for third parties, the public often doesn't (although they often call for the rise of third parties). When it comes to election time, third parties lose support because people realize that the third party is not going to get them anywhere. The other disadvantage is that our electoral rules reduce voter turnout since it's proven that in countries where there is more choice, more people turnout to vote.There are significant advantages to a two party system: You have to figure out how to get a majority coalition if there are third parties. This can lead to instability and legislative gridlock because you often can't get a continuous government. Coalitions often break down very often. But, with a two party system, you can build broad cross national coalitions and government can run smoothly. In terms of policies, certain kinds of policies may not be representative at all. For example, you can buy off small parties so they'll go along with you on certain big issues. Buying off these small parties gives the people these small parties representing a bigger voice than they deserve because the bigger parties in a multi party system would bargain with them so they could have the smaller party support on other issues. It's a trade-off. However, in a two party system, the voice of the people isn't distorted as much. Two suggestions to encourage minor parties: 1. Single Transferrable Vote (STV)There is a single candidate with a single winner (like in the current system), but on the ballot, you rank order candidates. In this system no one wastes a vote. You have to have a majority to win. You redistribute votes of the losers to the other candidates (starting with the lowest percentage and so on). In this system, representation is fair and allows representatives to acknowledge third party support. This encourages third parties to spring up for this reason. The German system uses a variance of the STV system. The problem with this system is that it can be very confusing to citizens (especially if you have many small parties). People can't really make accurate ranking choices because most people don't pay attention to politics most of the time. They could just randomly pick after their first or maybe even second pick. If you have only three candidates, then the system would work beautifully. Page 22 of 34 Kasinathan Politics 1/Sanders 2. Cross-EndorsementThis system is used in three or four states. Only one state does it with a set of rules that makes it meaningful. In New York, candidates can be cross-endorsed by multiple parties, i.e. Kerry was on the ballot as a candidate for the Democratic Party and the Labor Party while Bush was on the ballot for the Right to Life Party, the Republican Party, and the Conservative Party. Come election time, you add up all these votes for the candidates (i.e. Kerry's votes were a total of the votes for the Democratic Party and the Labor Party). As long as your party gets a certain percentage of the vote, you automatically qualify for the next election (in a presidential election, you need x percent in that election, and in other elections you pick the election that is "ranked" the highest, i.e. in the upcoming elections, it'll be the gubernatorial election that will be the determining factor). So, this encourages the existence of these third parties. In the states other than New York, it doesn't work as well because their rules aren't set up properly. Quite a few states have rules that specifically prohibit cross-endorsement (these rules were passed in the 1890s to drum out the populist party). The Executive Branch: An Introduction We think of the president as the most powerful actor in our political system, and rightfully so. All presidents want a bit more power and are often frustrated, but this doesn't negate the fact that they are powerful. What are the sources of presidential power? The Constitutionthe president is elected to office indirectly by the people (directly by the electoral college). This is a formal source of power. Informal powers The people constitute a significant source of power. Other than election, he gets this political capital from the people. Next is the power of persuasion. The President often has to persuade both the public and Congress to get things done (with Congress, you often bargain, with the people, you can't bargain you have to persuade). CongressBy law, Congress can give the president certain powers. For example, the President has to submit a budget to Congress, etc. Once Congress gives the president a power, it's nearly impossible to to take the power away (since it'll probably require a super majority to overcome a presidential veto). Declaring a state of emergency and spending money that hasn't yet been appropriated in such a situation is another such example. Now a better look at the formal powers of the president, especially those stemming from the Constitution. The legislature was laid out very explicitly in the Constitution. The presidency was not defined very clearly and is rather vague. So what powers does the president have under the Constitution? Appointment powers (with subsequent Senate approval)the president can appoint justices to the Supreme Court, federal judges, the entire executive branch (cabinet, Page 23 of 34 Kasinathan Politics 1/Sanders and other agencies). We usually give the president a lot more discretion in executive appointments than in judicial appointments. The Constitution is not very clear on how these officials (i.e. in the cabinet) are removed from office. Many of these people serve at the pleasure of the president. Congress really has no say in removing executive appointments (not judicial appointments) from offices. Further, the president has the authority (with the consent of the Senate) to appoint foreign ambassadors. The president also receives foreign ambassadors according to the Constitution. Commander-in-Chief of the armed forces. The founders wanted civilian control of the military. Congress, by statute, can order certain things to happen, but the president, at the end of the day, has the most authority in this province. Congress also has the power to declare war. The War Powers Act curtails some of these powers, but it is unclear. Veto Powerthis is the basis of the President's legislative power. The president can't even propose a law. The president only has the power to stop legislation (since it's quite difficult to override a presidential veto; it requires a super majority in two houses). The threat of a veto enough is alone to cause most to quiver in their boots. The exercise of a veto is a sign that the president wasn't able to succeed. Because the veto is a negative, it's easier to stop Congress from doing something rather than getting it to do something it doesn't want to do. Oct 24, 2006 Presidential Powers & Limits on Power According to the Constitution, the President is allowed to negotiate and sign treaties with the consent and advice of the Senate. Presidents normally do not rely on the advice of the Senate, but rather just the consent of the Senate. The President's power in foreign policy is much more explicitly defined that his/her power in domestic policy (the domestic policy role often relies on informal powers). This in some ways was a result of design. In order to represent the country, a single individual is required to be the head of state. Congress would complicate these issues (i.e. who would you send to negotiate a treaty from Congress). Additionally, the President also has a national constituency (which no member of Congress has). This implies that the President is responsible to the whole country. Congress is not always in session, while presidents are always at work. Bottom line: Foreign policy can't follow the dictates of an organization that is sometimes in session and sometimes out of session, rather it follows its own contours since quite a bit of foreign policy is reactionary. There are quite a few limits on presidential power: Page 24 of 34 Kasinathan Politics 1/Sanders The presidential power of persuasion is a limit since the president has to persuade two audiencesCongress and the public. If bargaining tactics are used, then the lofty kind of speech required to engage the public is limited, and visa versa. The courts present a limit. The courts can declare actions of the president unconstitutional and they can intervene and get in the way. Courts are usually deferential to the president (often in times of emergency). Courts also allow a means by which power can be expanded because decisions tell administrations what they can't do and let them glimpse what they can do. This can be seen with the Bush administration. The courts ruled that the administration cannot hold people indefinitely without a day in court, etc. So, the Bush administration passed legislation (the Constitutionality of which is still an open question). - In Youngstown Sheet and Tube v. Sawyer (1952) President Truman invoked emergency powers when there was a strike at the Youngstown steel plant in Ohio since the steel was needed for soldiers fighting in Korea and ordered the strike to end. The Supreme Court struck this down saying that Truman could not declare a strike to be ended because there are limits to these emergency powers (these powers are not unlimited). There was no evidence that this issue was a real emergency (no evidence that steel mill shutdown would affect the war effort). - In US v. Nixon (1974) it was discovered that President Nixon had taped all conversations. The tapes were requested and the Nixon administration's stance was that the tapes could not be released because of executive privilege (certain conversatins, memos, or correspondence the have with advisors are privilege since it allows a president to get open, candid advice from all kinds of people). There's nothing in the Constitution that specifically says anything about executive privilege and the courts had never really addressed the issue. The courts recognized the fact that there are privileged conversations, but you can't make a blanket claim that all conversations are privileged, i.e. if there are certain conversations that affect national security, then those can be kept private, but the rest need to be released (this was a unanimous decision). In the end, the tapes were just given up and it didn't seem to affect national security. The courts recognized that executive privilege existed, but they narrowed executive privilege. Executive privilege was further narrowed during the Clinton impeachment hearings. The Clinton impeachment hearings essentially said that only conversations between Clinton and his lawyers were protected and not any conversation with his advisors. The ultimate limit is the power to impeach. According to the Constitution, the President, Vice President, and other civil officials can be impeached for treason, bribery, and other high crimes. Impeachment is a political act and not a legal act. The Senate conducts the trial. The only responsibility the Chief Justice of the Supreme Court has in Congress is to preside over the impeachment trials conducted by the Senate. Presidents are unlikely to be impeached since they're good vote counters. If they know they're going to be impeached they'll resign. If they realize they have enough votes to avoid impeachment, then they'll stay and fight. Page 25 of 34 Kasinathan Politics 1/Sanders Congress has to pass laws and Congress has the power of the purse. The president can't sent policy without Congress and can't spend money without the appropriation power of Congress. It's even difficult when the President's party controls Congress. Members of Congress, by Constitutional design, have different constituencies from the President and have different electoral cycles, and thus have different political perspectives so they're bound to see things differently from the president. In that sense, Congress provides a check on the president. There is a limitation that flows from the executive branch itself. The federal bureaucracy is vast and often hard to control. The reason the bureaucracy grows is because we need it to do quite a few things. The result is that it's difficult to make the damn thing efficient in economic sense. When it gets large enough, you have to follow standard operating procedures (i.e. the red tape). We can't deal with each case on an individual basis and evaluate the circumstances and such. It would take too long and you run the risk of major inconsistencies. As a general rule: The longer the bureaucracy administers a program, the longer the forms and more complicated the procedures get. The bureaucracy is large and it keeps growing. Every time a new program is set up, there is a tendency to create a new agency to deal with it. We give the bureaucracy multiple goals which can conflict. Each basic unit of the bureaucracy is charged with (1) solving the problem it is charged with and (2) using as little money as possible doing it. These two goals often conflict. The bureaucracy, as a result, ends up being difficult to control. Further, the goals of different bureaucracies may conflict in fundamental ways. Classic example: The Department of Agriculture wants to keep tobacco farmers (for that matter, all farmers) in business. The Department of Health and Human Services want people to stop smoking (so, tobacco farmers will go out of business). So, what's government policy? For the longest time, it was both of those things. But, in the last 10-15 years, the bureaucracy at the upper echelons has sided with the Department of Health and Human Services. So, how do presidents work to overcome these limitations? There are three major strategies presidents often follow. 1. The most formal is asking Congress, through statute, to give the president more power. Example: Fast track authority and financial treaties. 2. Presidents tend to centralize bureaucratic power within the White House. The bureaucracy can be controlled, first and foremost, through the method by which bureaucrats are chosen (they can either be appointed through patronage or they can be appointed through some kind of merit system). The patronage appointments are appointed by the president and confirmed by the Senate. The merit system involves taking a test (and have required qualifications, etc). The first civil service reform passed to move towards a merit system was the Pendleton Act (passed in the 1870s). The law was passed because of a combination of the corruption of the patronage civil system, i.e. the system had turned into cronyism, and the fact that the Republican party had controlled the bureaucracy since the Civil War and there was concern within the party that if a Democrat had won, all Republicans would be fired. Page 26 of 34 Kasinathan Politics 1/Sanders In passing the act, they grandfathered in the Republican office holders. The jobs that are at the patronage level are in the upper echelons of the bureaucracy (which often involve some policymaking power, i.e. secretary of state) and jobs that are in the lower echelons are based on the merit system. Presidents also push the locus of bureaucratic power into the White House through agencies: The establishment of the National Security council served to coordinate the efforts of the State Department, CIA, etc in an attempt to coordinate foreign policy. The job of the National Security Advisor is to coordinate foreign policy and allow the White House to maintain control over various agencies. 3. See next set of notes. Oct 26, 2006 Limitations on Presidential Power (continued) What the President does to combat limits on presidential power: 2. Continuing (2) from above. Some more agencies: Bureaucratic power (number 2 from above) is centralized in the White House further through the Office of Management and Budget (OMB). It's mission was not only overseeing the budget, but also oversight of the large government bureaucracy. With regards to moving power into the White House, beginning with President Reagan, the presidents have required any regulation any federal agency is going to issue first has to go through OMB so there are no potentially disastrous budgetary implications. Which implies that through the OMB, the White House can control these regulations for any reasons that they want. The OMB thus gives the president an unobstructed power over the government bureaucracy. Homeland Security further serves to unite organizations with Homeland Security duties, i.e. FBI, CIA, Justice Department, etc. The Department of Homeland Security grew out of the 9/11 tragedy where the lack of communication was blamed for the incident. Bottom line: we might have known about the attacks if there was a centralized organization that coordinated information sharing between the various organizations with homeland security responsibilities. Through the Department of Homeland Security, the president can battle the fragmentation that occurs in the federal bureaucracy. There are essentially three different types of federal agencies. 1. Cabinet level agencies (i.e. State Department, etc). These are tied to the political process. Quite a few of the workforce is political (patronage) appoint- Page 27 of 34 Kasinathan Politics 1/Sanders ments, i.e. ambassadors, etc. There are no term limits, etc. That is, the people serve at the pleasure of the president. 2. Independent regulatory agencies (i.e. FCC, Federal Elections Commission, the Federal Reserve Board). These agencies are designed to be independent of the political process. There are more merit appointments in these agencies, even in the higher echelons (except for those at the very top, who are usually patronage appointments). Those appointed by the president have terms. They can only be fired for cause and not on a whim. 3. White House itself. This includes the heads of the NSC, OMB, and Homeland Security (their offices are actually in the White House) and then the other people that make a difference, i.e. White House Chief of Staff, etc. Congress gives the president a budget, and Congress has a little bit of control over the president. The people at this level also serve at the pleasure of the president. Presidents try and push power into the White House (often by using NSC, OMB, and Homeland Security). 3. (Continuing from 3 above). Presidents often take actions unilaterally to assert power. The most prevalent example of this is in "signing statements." After signing a bill, the President includes his interpretation of the law and sometimes these statements fly in the spirit of the law. The Courts have never heard a case where the president has been charged in violation of a law that he interpreted broadly so he wouldn't be in violation. The McCain Torture Bill is an example of this (the President asserted that the US can torture if its absolutely necessary). In part, signing statements are, in a legitimate sense, the president saying, "this is what I think this means." Congress doesn't really have much say over this. Similarly, it's difficult to pass treaties (since it requires a super majority in the Senate). To circumvent this, the president often enters into "executive agreements" with other countries. These are informal treaties agreed upon by the heads of state of a country and the president. The executive agreements don't roll over when a new president is elected into officeit's up to the new president whether or not to honor the executive agreements of the old president. The president's constitutional authority to see that the law is faithfully executed gives the president quite a bit of unilateral authority. Bureaucrats often have quite a bit of discretion. Sometimes this discretion is good (i.e. the speed limit). Sometimes this discretion is bad (i.e. racial profiling and the speed limit. There's always a risk when you give discretion to the bureaucrats, and the president, after all, is the chief bureaucrat. The way to reduce this risk is to pass rules that are a little more specific and aren't as intentionally vague. Laws are intentionally vague because: 1. Congress often lacks the expertise (i.e. what concentration of pollutants in the air should be allowed) 2. Laws are political compromises. In order to get Congress people from various states to get what they want it has to be vague because specificity would mean that one state would benefit more. Page 28 of 34 Kasinathan Politics 1/Sanders 3. The executive branch and cabinet officials push for the laws to be left vague so the executive branch can have more discretion. Which is why presidents don't like vagueness stemming from the independent regulatory commissions because there is no reason for these laws or policies to be vague. 4. Circumstances change (or we know that they will change). For example, for pollution this level might be right now, but three years down the road, the levels might change. This is often done so Congress doesn't have to revisit the issue. Congress often puts sunset provisions on bills so that Congress is forced to reinterpret it over time. But, an informal sunset provision would be leaving the bill vague so it can be reinterpreted over time. Part of the political debate over whether or not the president has too much power depends on how much people trust the president (if they trust him, they'll support charging him with more power; the opposite is also true). This is why people's views of presidential power often flip when the party in office switches. In general, liberals have promoted stronger, more active federal governments and presidents and conservatives have done the opposite. It is interesting to observe that in the current Bush administration, this paradigm has changed. Oct 31, 2006 The Courts Tocqueville once wrote that every political question in America becomes a legal question. A good deal of that comes from the notion that our government is based on the principle that people have rights. Part of the goal of the Constitution was to outline what those rights are. This means that government has to be limited in some ways so that we have rights. The institution that determines how the government is to be limited, etc is the courts. The power that we grant the courts is the power of judicial review. Courts can look at actions of the president, actions of the federal government, and even actions of the state governments and determine whether or not these actions violate the Constitution. If these actions are prohibited by the Constitution, laws are null and void (both national and state). That's quite a bit of power vested in the courts. Judicial review is not specifically listed in the Constitution. It's also very clear that many, if not, most of the Founders believed that the Courts should have this power. When you base a government on the proposition that individuals have rights that the government cannot violate, unless you want to rely on constant revolution, it is implicit in the nature of the government that we adopted that every political question does indeed become a legal question, as Tocqueville noted. Bottom line: we have a rights based culture and the courts are inherently important. Page 29 of 34 Kasinathan Politics 1/Sanders The power of judicial review was established in Marbury v. Madison (1803). But, a little background first. The Constitution is relatively vague regarding the courts. The Executive is less explicitly delineated than Congress and the Courts are even more vague. The Courts are described in Article III of the Constitution and do not even explicitly set up a clear procedure for the establishment of the courts. All the Constitution says is there is to be a Supreme Court and lower courts, but not much more. It doesn't even say how many justices there are to be (Congress can shrink the size of the court only when there is a vacancy). The size of the Court has changed, especially in the first 100 years of the nation. FDR's court packing scheme is the most recent case in which the makeup of the court was to be changed (this occurred since the Court consistently voted against New Deal legislation). This so-called Court Packing Scheme didn't get very far. Because the courts were so vaguely defined, one of the first jobs of the first Congress was to set up the courts system. The result was the Judiciary Act of 1789 which set up a three-tiered system which we still have today. It was designed to give us a working legal regime. Breakdown of the three-tiered system: 1. Supreme CourtHas both original and appellate jurisdiction. 2. Circuit Courts of Appeals There are 11 circuits. No circuit is divided into more than one circuit, but these courts can cross state lines. There is no original jurisdiction; only appellate jurisdiction. Presumably, the only questions posed within the realm of the Circuit Courts are questions of law and not questions of factthese questions of fact are often settled in the district courts. This has a big implication: Different circuits often have different interpretations of the same federal laws, etc. So, it's a little complicated. 3. District CourtsThere are 92 districts, with each state having at least one district, and no districts crossing state lines. Washington, DC has its own district. At the District Level, the President's power to appoint judges is more restricted than one might think. The Senate follows an informal rule that if there is a senator from the party of the president in a state where the district court has an opening and if that senator opposes the president's appointment, then the appointment doesn't occur. These courts only have original jurisdiction. Courts can hear cases in two different ways: Original jurisdiction and appellate jurisdiction. Original jurisdiction is where that court is the first court to hear the case, appellate involves appeals. The Supreme Court only has original jurisdiction in very few cases, and often serves as an appellate court. So what the hell does this have to do with Marbury v. Madison? Congress realized that if the Supreme Court had to hear all the different types of cases outlined in the Constitution, then enforcing that rule meant the Court would have to deal with an unlimited pool of cases. The Eleventh Amendment fixed this technical issue by taking certain cases out of the original jurisdiction of the Supreme Court. The Judiciary Act of 1789 said some other important things about the courts as well, as illustrated by Marbury v. Madison. In 1800, with the election of Jefferson, the Federalists got nervous since they wanted a significantly powerful federal courts system. Before the new Congress came into office Page 30 of 34 Kasinathan Politics 1/Sanders and before Jefferson took over in March of 1801, President Adams appointed all kinds of people to the federal courts system. These people were confirmed by the Senate and the only thing left was a letter of appointment that had to be sent out by the Secretary of State (Marshall was the Secretary of State). Marshall was rushed and didn't get a chance to send out a few letters, notably one to Marbury. Madison, the new Secretary, did not send these letters out. So, Marbury, under the Judiciary Act of 1789, asked the Supreme Court to issue a writ of mandamus (which is essentially a court order) to Madison to send him his appointment letter. The Jeffersonians ended up passing a law saying that the court couldn't meet for two years and then they began impeachment proceedings against a justice. The Jeffersonian attacks on the courts was very strong. When the Court finally reconvened in 1803, Marhsall was faced with two choices in the matter of Marbury v. Madison: (1) Issue a writ of mandamus because Marbury was right, or (2) side with Jefferson and Madison because they stated they would not uphold the law since the courts do not have the force and will and only judgement. However, to not issue the writ, there had to be a clear legal reason, which did not exist. So, Marshall came up with one. Marshall said that Marbury was right, but the Supreme Court does not have the power to issue this kind of writ. Well, why can't the Court issue this writ? It's because there's a conflict between the Judiciary Act and the Constitution, and the Court ruled parts of the Judiciary Act is unconstitutional since the Judiciary Act gave the Supreme Court original jurisdiction which the Constitution did not grant. This set the precedent for judicial review. Congress and the executive acted as if Marhsall's decree was true. The next time the Courts interpreted the law in a major case was the Dred Scott case in which the Court's decision was disliked and overturned by explicit Constitutional Amendment (the 13th, which specifically outlawed slavery). The question now is how the Court decides what's Constitutional and what's not. Look at common law meanings of things. Compare a law to the Constitutionwe can look at the strict language of the Constitution. Look at things like original intent (i.e. did the authors of the law intend this when they wrote it). Framer's intent is one way to try and figure it out. You can look at things in a strict dictionary definition or in a broader context, i.e. the meanings of words change over time. There are two broad ends of the spectrum (that are not necessarily mutually exclusive) that the courts approach Constitutional issues with. 1. Judicial DeferenceStrict constructionists often fall in this category. It starts out with the assertion that there is no good way to deal with Constitutional issues, i.e. looking at Founder's Intent. There's no guarantee that we'll get anything more than the opinion of nine people. Why should nine people get to decide these issues? This philosophy says that unless the issue is clear, you defer to elected bodies so that democracy can work these issues out. Page 31 of 34 Kasinathan Politics 1/Sanders 2. Judicial ActivismIt doesn't necessarily contradict the first philosophy. It stems from the belief that people have rights. This has two implications: (1) Governments can violate these rights, and (2) You are granted these rights regardless of majority opinion. This view is supported by the insularity of the courts from the political process, so it's seen as the responsibility of the courts to protect these rights. The courts follow different philosophies in different cases, i.e. they did not defer to the State of Florida in Bush v. Gore. Rather, they took an activist stance. Both philosophies need to be taken seriously. The standard of "if I like it, then it's constitutional" demeans the document, which highlights the need for an independent judiciary. The courts have to be isolated from the political process so they can strike down something that's popular but unconstitutional. Nov 2, 2006 Limitations on the Courts When it comes to deference vs activism, it's a little difficult to decide which side to support (even justices have problems with this). Sometimes, it's a good idea to be deferential, but when rights are being trampled upon, it's almost expected that judges be activist. So the issues are tough. Because the government is based on the separation of powers with a system of checks and balances, the power of the courts is limited. There are numerous ways in which the power of the courts are restrained. EnforcementThe courts have neither force nor will, merely judgement. The executive branch can just choose to not enforce decisions. Informally, the courts are cognizant of this fact and can tailor their decisions so the rulings will be enforced (this can be seen in Marbury v. Madison). ImpeachmentJustices can be impeached from the bench. There have been about a dozen justices who have been impeached. The first attempt to impeach a justice was the Jeffersonian attempt to weaken the courts by impeaching Chase (the impeachment failed). As a result, the consensus developed that impeachment should not be used as a political tool when it comes to the courts. Rather, impeachment came to be based on personal or moral issues, i.e. taking bribes, etc. The last federal judge to be impeached and convicted is now serving in Congress representing Florida. Congressional PowerCongress has a certain amount of power over the way courts operate, i.e. creating new districts, circuits, etc. This power can also be used to limit power by destroying districts as well. Congress can also make other kinds of rules, i.e. with cases that don't arise from issues that are explicitly state in the Constitution. Congress can decide whether or not the courts can hear these things. They can de Page 32 of 34 Kasinathan Politics 1/Sanders cide whether or not the court will be in or out of session. Congress can also restrict jurisdiction by saying that the courts can't hear certain kinds of cases, etc. Constitutional AmendmentIt's the ultimate check on judicial power. It's not an easy thing to do, but it's been done explicitly thrice. The first is the 13th Amendment which affirmed the end of slavery (this was a response to the Dred Scott case); the second is the 16th Amendment which affirmed the individual income tax (this was a response to the court's decision that the only way Congress could tax is through direct tax to the states and tariffs); and the last is the 24th Amendment which banned the poll tax (courts declared one provision of the Voting Rights Act of 1965 which banned the poll tax since the Constitution leaves voting regulations up to the states except for a few minimal provisions). Pass Laws in Slightly Different WaysThese laws have subtle changes in language that try and accommodate the ruling of the courts and hope that the courts don't rule it unconstitutional. No Advisory OpinionsSomeone has to bring the cases in front of the courts. The courts can't just say some thing is wrong. And not anyone can bring a case in front of the courts because you have to be suffering the effects of a law to go to the courts. This is very important because it is a big check on the courts (in France, the judiciary can issue advisory opinions). In many ways, the most important limits on the courts are self-imposed limits. Part of that comes from the belief in judicial deference. Justices often believe they shouldn't be out there expressing opinions and believe that the should be tied to the language of the laws and the Constitution and believe that they should leave some things up to the democratic institutions of the government. They also limit themselves for practical reasons, i.e. they know someone has to enforce the laws so they might want to cater to the enforcers (usually the executive). Further, the courts believe in the principle of stare decisis; that is, if a previous court has made a decision, then you uphold it (i.e. precedent matters). This extends the power of the courts over time and it makes the courts more legitimate because they are consistent. The principle of stare decisis is the centerpiece of the decision made by Justice O'Connor in the Planned Parenthood case. It's difficult to overturn precedent, but it can be done since the courts do make mistakes. For example, Brown v. Board overturned the line of rulings that separate but equal is legal (Plessy v. Ferguson). The decision written by O'Connor is a joint opinion signed off by Souter and Kennedy. Some of the justices like Stevens didn't depend on stare decisis, but based on the fact that Roe was rightly decided. Justices such as Scalia were opposed based on the fact that Roe was wrongly decided. Griswold v. Connecticut set much of the precedent for right to privacy, especially in terms of reproductive rights. The courts said the law in question said, according to Justice Douglas, "The right to privacy can be found in the penumbras of the Constitution." The 14th Amendment essentially unites the penumbras into something tangible. Roe v. Wade and subsequent cases brought into question whether or not the 14th Amendment protects abortion. In the Planned Parenthood case, the court's ruling involved an inter Page 33 of 34 Kasinathan Politics 1/Sanders pretation that the underlying premise of Roe v. Wade is correct. But, they changed in important ways, the "under what circumstances" part. Instead of a three-trimester system, they discussed a question with fetal viability outside of the womb. O'Connor says you can't prohibit abortion prior to the point of viability. Once you reach the point of viability, states can step in in any way they want. The courts said that the states can regulate various aspects of abortion right from the beginning as long as they are not in undue burden on the mother. As a result, they upheld almost all of that Pennsylvania law. The parental notification, the 24 hour waiting period, etc. were all upheld, which would not have been upheld under Roe. The only part struck down was the spousal consent section. This was struck down because it is an undue burden. Page 34 of 34 ...
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This note was uploaded on 04/01/2008 for the course POLS 001 taught by Professor Sanders during the Fall '07 term at Drake University .

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