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Monday, January 27, 2020

Congressional design, Senate partisanship by class, and impeachment trial politics

Post-17th Amendment, both the House and the Senate are directly elected--a change from the earlier dual constituency of state legislative election of senators. Still, important differences remain that result in intra-branch friction such as we're seeing in the impeachment process.

By design, the House would be more democratically responsive than the Senate due to its shorter terms and its method of direct election. One perceived downside was the House would be "liable to err also, from fickleness and passion." This is consistent with the apocryphal explanation that the Senate was designed to "cool" the politically responsive House as a tea saucer cooled hot tea.  The chambers’ different characters were features, not flaws, such as the requirement that the more politically accountable House “hold the purse” by originating all tax revenue measures but requiring Senate concurrence for them. Like hot and cold faucets, the chambers could deliver warm, but non-scalding (and non-freezing) water to the public.

Beyond Senate direct election and the 17th Amendment, consider an important political development on the House side that makes the House's "water" even more scalding. Aggressive gerrymandering in the House effectively allows representatives to choose their voters rather than the other way around. This bipartisan opportunity has changed over time and is far more effective now than it was at the founding. The House has very heavily gerrymandered districts (except for 1 representative states with at large districts, e.g. Wyoming, Montana, etc.) with very low rates of incumbents losing those seats. The increase in polarized House districts maintains that body's penchant for fiery politics, but it also makes the seats securely partisan. The Framers were right the House would prove hot headed, but not because the body was being responsive to what Americans in the aggregate in the several states would want. In a sense, with the new gerrymandering, the House lost some of the feature but kept the flaw - the House now is only modestly politically responsive, but still subject to fits and passions from partisanly gerrymandered, center fleeing districts.

The House-side development is not a phenomenon that occurs in isolation, however. If the House's still scalding water temperature is to be cooled, it requires the Senate to be more removed from partisanship. But today's elected Senate seats, incapable of being gerrymandered, are more competitive than House races. Consequently, senators up for reelection must be more politically responsive to their states’ voters in the run up to an election as they try to capture the median voter for their state. In the continuous body of the Senate, different Senate classes of senators (I, II, or III) will weight their responsiveness to voters depending on their proximity to election. Senators temporally closest to Election Day will, relatively speaking, be most responsive to voters in their states and the donors who facilitate their reelection. As one unidentified senator reported to political scientist Richard Fenno, “[w]e say in the Senate that we spend four years as a statesman and two years as a politician.” Those most distant to election will be able to vote their independent judgments. The basis for acting with greater independence includes beliefs that voters have short memories, that time will vindicate the wisdom of a senator's vote, or that voters back home will find subsequent action that they approve to outweigh earlier displays of independence.

Steven Levitt modeled (JSTOR access required) how senators vote, estimating the relative weights of overall voter preferences of the state electorate, supporter preferences, the national party line, and the senator’s personal ideology. His research called into doubt the median voter theorem as it found the primary determinant of a vote was a senator's ideology (63%). Importantly, though, the effect of election proximity and Senate tenure did bear out Fenno's anecdote: “[a]s elections near [i.e. votes in the election year for non-retiring senators], the weight given to overall state voter preferences doubles [from 9% to 18%], with that increase being offset by a decline in the weight placed on the party line.” In short, senators in classes I (reelection in 2024), II (reelection in 2020), and III (reelection in 2022) can be expected to vote differently.

Turning to impeachment votes to be held prior to November 2020, I've noted the Senate was selected to act as the court of impeachment because it was considered to be "sufficiently independent." But the level of independence will differ across the body given senator proximity to election. There is no legal sanction for breaking one’s impeachment trial oath to "do impartial justice according to the Constitution and laws." The only here-and-now sanction for oath breaking is the republican remedy of election. And the administering of that remedy lies in the hands of electorates back home.

So, on this account, laying impeachment law and evidence aside, it's unsurprising that Class II senators McConnell (KY, in state Trump net approval +14) or Graham (SC, Trump net approval +5) would coordinate with Trump or otherwise support a Trump acquittal; or that Collins (R-ME, Trump net approval -6) would position herself as independent; or that McSally would prove taciturn (R-AZ, Trump net approval -3); or that Jones would withhold judgment yet question whether there was enough evidence to convict (D-AL, Trump net approval +22); or that Coons would signal his approval of the case made by the House managers (D-DE, Trump net approval -15), etc.

This is not to say "it's all politics" in response to voter preferences or that all voter preferences are bad, especially if in the context of impeachment voters are demanding non-partisanship and the exercise of judgment. But it might mean Senate Classes I and III will need to be the segments of the continuing body willing to exercise "sufficient" independence.

Posted by T. Samahon on January 27, 2020 at 11:45 AM in Constitutional thoughts, Law and Politics | Permalink

Comments

See here by the way, and links therein:

" Wisconsin governor creates non-partisan redistricting commission"

Here:

https://www.jurist.org/news/2020/01/wisconsin-governor-creates-non-partisan-redistricting-commission/

Posted by: El roam | Jan 28, 2020 12:33:41 PM

Just illustration to my comment down there:

"Florida Republican: ‘We should hang’ treasonous Democrats"

Here:

https://apnews.com/25e2f36b05b5eb2ad6c050493f195202

Thanks

Posted by: El roam | Jan 27, 2020 2:59:47 PM

Very interesting. Beyond issues of relationship between both Houses and synchronization between them both in strategic electorate terms, one should not forget, that in terms of independent vote in impeachment, one should take to consideration the national or global mood projecting on it:

Harsh debates, polarized society in political terms, would divert rather votes along lines, over, crossing lines. It is rather, us v. them, extending it, beyond the specific case of impeachment. And indeed, under Trump, new terminology have emerged, suggesting how deep is the division or how bitter is the controversy:

Fake news, witch hunt, deep state, and so forth...So, more extreme is the debate, less chances one may argue, for independent votes.

Thanks

Posted by: El roam | Jan 27, 2020 1:52:59 PM

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