Constitutional Hardball

In 2004, Mark Tushnet wrote an important article titled "Constitutional Hardball."

For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: it consists of political claims and practices-legislative and executive initiatives-that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.  It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold. 

Matt Glassman writes:

But the way hardball took over in regard to the Senate rules should give us some pause about its application at the Constitutional level. One of the key lessons of watching the Senate escalate the war over the filibuster is that the hardball tactics, once employed, are hard to stop and really hard to reverse. Taking those tactics out of the Senate and using them to fundamentally alter another branch of the government seems patently dangerous, in the existential sense, for the separation of powers system. Would the Supreme Court even exist in any independent sense if unified majorities simply recreated a Court they preferred?

On a more grand scale, court-packing is one of the key moves of autocrats throughout the world, most recently in Honduras, Hungary, Poland, and Turkey. Whatever short-term benefit one might gain from a court-packing scheme, the long-term impact would undoubtedly be to fundamentally weaken the Court, which would only serve to empower either a president or a party that sought to consolidate power more generally.

I have long experience thinking about constitutional hardball because I wrote my doctoral dissertation on the statehood process, which is perhaps the weakest board in the Constitutional flooring for anyone seeking to play hardball (see below). The main relevant lesson I learned from studying statehood is that the flexibility of our Constitutional design is usually a source of its enduring strength, but in the wrong moments can become a profound weakness.

 Todd Richmond at AP:  

Wisconsin Republicans released sweeping lame-duck legislation Friday that would move the 2020 presidential primary, restrict early voting and weaken both Democratic Attorney General-elect Josh Kaul and Gov.-elect Tony Evers.

The GOP aims to hold a hearing on the bills Monday and take floor votes on Tuesday, giving current Gov. Scott Walker a chance to reshape state government again before he leaves office in January.

"Wisconsin law, written by the legislature and signed into law by a governor, should not be erased by the potential political maneuvering of the executive branch," Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald said in a joint statement. "The legislature is the most representative branch in government and we will not stop being a strong voice for our constituents."

The package is loaded with contentious proposals, chief among them a plan to shift the 2020 presidential primary from the first Tuesday in April to the second Tuesday in March.

Republicans have acknowledged the shift is a purely political tactic as conservative state Supreme Court Justice Daniel Kelly, a Walker appointee, will be on the April ballot and the GOP fears a Democratic wave could cost him his job. They've said decoupling Kelly's race from the primary could help him.

Rob Christensen at The News & Observer:

Shortly before [Democrat Roy] Cooper took office, the GOP leaders called a special legislative session which slashed the governor’s appointments from 1500 to 300; required legislative confirmation of the governor’s Cabinet; and took away the governor’s power to appoint trustees to the campuses of the University of North Carolina system.

It turns out, the GOP lawmakers were just getting warmed up.

Now the legislature wants voters in November to pass two constitutional amendments that would further weaken the governor. One amendment would put the election machinery in the hands of the legislature by giving lawmakers control over who serves on the election board. Another would give the legislature a major role in filling judicial vacancies, increasing their power over the courts, which have been routinely ruling the legislature’s power grabs as illegal.

The five living former governors – three Democrats and two Republicans – have called for the amendments’ defeat. The state’s six former N.C. Supreme Court justices – four Democrats and two Republicans – are also urging voters to reject them.

Governors and Credit-Claiming

At The New York Times, Timothy Egan says that California is doing well.

It’s unfair to give all credit for the Golden State revival to Jerry Brown. But the man, who will be 76 next month and was both the youngest and oldest governor of California, and who just announced a plan to run for a fourth term with an approval rating approaching 60 percent, deserves the lion’s share.

This article overlooks some important things.  By one measure, California has the highest poverty rate in the United States.  By another, it has one of the highest levels of inequality. The roads are bad and the schools are mediocre.  As the governor has acknowledged, unfunded liabilities are a big threat, and some cities have already gone bankrupt.

True, the state did not have a budget crisis last year.  But if Brown deserves the "lion's share" of credit, why are so many other states -- pursuing very different policies -- doing just as well?

Jerry Brown, Chris Christie and many of their fellow governors across the country are taking credit for the effects of a national economic recovery.

A few years ago, the effects of the Great Recession were causing huge fiscal problems for the states.  Demands for spending were up and revenues were down.

After several years of growth (albeit modest), the money iscoming into state coffers and the fiscal pressures are not as great. 

In California, Brown sees an improved fiscal situation and says his policies are responsible.  In Wisconsin, Scott Walker sees an improved fiscal situation and says his policies are responsible – even though his agenda is different from Brown’s.  (See his book Unintimidated.)  Ditto Chris Christie in New Jersey, Rick Snyder in Michigan, and Andrew Cuomo in New York.  Some states are in trouble (e.g., Illinois), but most governors of both parties are in good shape. 

Of course, if there is a downturn, these same governors will morph from heroes to goats, even though they aren’t any more responsible for recessions than for recoveries.

A Romney Path Without Ohio or Virginia

It  is just possible for Romney to win without Ohio or Virginia.  An independent poll finds that Obama and Romney are in a statistical tie in Minnesota.  If he can carry that state, along with Iowa and Wisconsin, then Romney could get the minimum 270.

Here is a map from the RCP do-it-yourself page:

Recalls

Previous posts have discussed recall elections. CBS reports that Wisconsin Governor Scott Walker beat back an effort to recall him from office, defeating challenger Tom Barrett (as he did in 2010). 

Walker is the first governor in U.S. history to survive a recall election. Gov. Gray Davis of California was recalled in 2003, and in 1921, North Dakota's Governor Lynn Frazier of was ousted due to a recall.

The heated recall race began amid the controversy created when Walker released a state budget proposal that included limiting the collective bargaining rights for public union workers. In response, large demonstrations protesting Walker's plan took place at the state capital building which eventually led to a recall effort. Voters who turned out for this election narrowly supported Walker's handling of the collective bargaining issue: 52 percent approved, and 47 percent disapproved.

Voters were similarly divided when asked about the state law that limited the collective bargaining rights of government workers: 52 percent approved, and 47 percent disapproved.

As expected, those voters who approved of Walker's policies voted overwhelmingly or the governor. Opponents of his policies backed Barrett, the Democrat.

Wisconsin voters were also split in their views of unions for government workers. According to exit polls, 51 percent said they viewed these unions favorably; slightly fewer - 45 percent - held unfavorable opinions.
...

Wisconsin voters had strong opinions on the merit of recall elections. Sixty percent told exit pollsters that recall elections are only appropriate when there has been official misconduct, and another 10 percent think such elections are never appropriate. Just 27 percent of Wisconsin voters supported holding recall elections for any reason.