The Dobbs Story

 Jodi Kantor and Adam Liptak at NYT:

At every stage of the Dobbs litigation, Justice Alito faced impediments: a case that initially looked inauspicious, reservations by two conservative justices and efforts by colleagues to pull off a compromise. Chief Justice John G. Roberts Jr., a conservative, along with the liberal Justice Stephen G. Breyer, worked to prevent or at least limit the outcome. Justice Breyer even considered trying to save Roe v. Wade — the 1973 ruling that established the right to abortion — by significantly eroding it.

To dismantle that decision, Justice Alito and others had to push hard, the records and interviews show. Some steps, like his apparent selective preview of the draft opinion, were time-honored ones. But in overturning Roe, the court set aside more than precedent: It tested the boundaries of how cases are decided.

Justice Ginsburg’s death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind of move that has prompted dismissals of other cases.

The most glaring irregularity was the leak to Politico of Justice Alito’s draft. The identity and motive of the person who disclosed it remains unknown, but the effect of the breach is clear: It helped lock in the result, The Times found, undercutting Chief Justice Roberts and Justice Breyer’s quest to find a middle ground.

In the Dobbs case, the court “barreled over each of its normal procedural guardrails,” wrote Richard M. Re, a University of Virginia law professor and former Kavanaugh clerk on a federal appellate court, adding that “the court compromised its own deliberative process.”

AI and Deliberative Democracy

 From Helene Landemore at the International Monetary Fund:

We now have the chance to scale and improve such deliberative processes exponentially so that citizens’ voices, in all their richness and diversity, can make a difference. Taiwan Province of China exemplifies this transition.

Following the 2014 Sunflower Revolution there, which brought tech-savvy politicians to power, an online open-source platform called pol.is was introduced. This platform allows people to express elaborate opinions about any topic, from Uber regulation to COVID policies, and vote on the opinions submitted by others. It also uses these votes to map the opinion landscape, helping contributors understand which proposals would garner consensus while clearly identifying minority and dissenting opinions and even groups of lobbyists with an obvious party line. This helps people understand each other better and reduces polarization. Politicians then use the resulting information to shape public policy responses that take into account all viewpoints.

Over the past few months pol.is has evolved to integrate machine learning with some of its functions to render the experience of the platform more deliberative. Contributors to the platform can now engage with a large language model, or LLM (a type of AI), that speaks on behalf of different opinion clusters and helps individuals figure out the position of their allies, opponents, and everyone in between. This makes the experience on the platform more truly deliberative and further helps depolarization. Today, this tool is frequently used to consult with residents, engaging 12 million people, or nearly half the population.

Corporations, which face their own governance challenges, also see the potential of large-scale AI-augmented consultations. After launching its more classically technocratic Oversight Board, staffed with lawyers and experts to make decisions on content, Meta (formerly Facebook) began experimenting in 2022 with Meta Community Forums—where randomly selected groups of users from several countries could deliberate on climate content regulation. An even more ambitious effort, in December 2022, involved 6,000 users from 32 countries in 19 languages to discuss cyberbullying in the metaverse over several days. Deliberations in the Meta experiment were facilitated on a proprietary Stanford University platform by (still basic) AI, which assigned speaking times, helped the group decide on topics, and advised on when to put them aside.

For now there is no evidence that AI facilitators do a better job than humans, but that may soon change. And when it does, the AI facilitators will have the distinct advantage of being much cheaper, which matters if we are ever to scale deep deliberative processes among humans (rather than between humans and LLM impersonators, as in the Taiwanese experience) from 6,000 to millions of people.

Civic Thought and Deliberation

Many posts have discussed deliberation.

Civic Thought: A Proposal for University-Level Civic Education b Benjamin Storey & Jenna Silber Storey at the American Enterprise Institute

• There is widespread, bipartisan concern that American universities are not adequately preparing students for citizenship. The most ambitious efforts to attend to this problem to date have been undertaken by Republican-led state legislatures, which have mandated that state universities create new academic units for civic education.
• While this innovation has been undertaken to meet political needs, its success or failure will be determined by academic standards. To meet those standards, these new academic units will need to define and execute a distinctive intellectual mission.
• An intellectual mission in the fullest sense requires a coherent program of teaching and research in a specific and demanding discipline. This report sketches the outlines of such a program, which we call “Civic Thought.” As its core elements are derived from a consideration of the intellectual demands of citizenship, it may be useful to all those working toward the renewal of university-level civic education.

.In a democratic republic such as our own, citizens need to learn howto deliberate with others who have different perspectives and experiences. They need to be capable of evaluating different arguments and considering different needs as they consider the best possible course of action for the country as a whole.

...

Contemporary citizens should learn to consult and evaluate different forms ofexpertise in the course of deliberating between alternative courses of action. Insofar as the citizen’s responsibility is, however, for the whole of our common life in all its complexity, political decisions cannot be derived from the counsel of any particular specialist.

...

 Since citizens need to learn to deliberate together about problems that call for action, the approach of Civic Thought is best characterized by a phrase borrowed from Hannah Arendt—the “willingness to take joint responsibility” for the problems one’s country faces and the remedies that might be employed to address them. For example, while considering the national debt, scholars of Civic Thought would consider it as our problem, and they would inquire into how fiscal accountability might be restored without neglecting areas where spending is truly necessary. The willingness to take joint responsibility for the challenges facing one’s country means, in Arendt’s words, refusing to adopt a posture of “estrangement” from it, an attitude of unquenchable “dissatisfaction . . . and disgust with things as they are,” and striving rather to understand oneself as implicated, for better and worse, in the unfolding history of one’s political community

Technological Expertise and Congress

Maya Kornberg and Martha Kinsella at the Brennan Center:

Nost public attention on Congress’s struggles to legislate has focused on partisan roadblocks — the increasingly sharp ideological divisions between the two parties and anachronistic procedural hurdles such as the Senate filibuster — that make decisive action a challenge, even during periods of unified party control.

footnote8_o0lnh008 But a related driver of congressional dysfunction is lawmakers’ shrinking access to the high-quality research and data and nonpartisan expertise needed for them to comprehend complex technical issues. In a 2016 survey, 81 percent of senior congressional staffers said that access to high-quality, nonpartisan policy expertise was “very important,” but only 24 percent were “very satisfied” with the resources available.footnote9_ydajgm09

Congress has many in-house subject matter experts. Each member has personal staff, and each committee has staff from each party. Legislators are also assisted by a number of support agencies, including the Library of Congress and the Congressional Research Service (CRS) housed therein, the Government Accountability Office (GAO), the Congressional Budget Office, and the Government Publishing Office. Yet staff levels in Congress and at its support agencies have atrophied substantially over the past several decades, primarily as a result of cuts Congress has made to its own budget.footnote10_i9mgmtn10

Insufficient access to and absorption of high-quality, nonpartisan science and technology resources have many adverse consequences, including the allocation of billions of dollars in funding for technologies that do not work. These deficiencies also contribute to partisan gridlock because lawmakers increasingly rely on one-sided information from external sources — including those supported, directly and indirectly, by major political donors — making it harder to find common ground about basic facts and metrics for policy solutions.footnote11_4180msp11

Whether dealing with climate change, emerging AI technology, or myriad other complex issues, Congress has a need for science and technology support that continues to grow.footnote12_nbhe49x12 And while lawmakers have often issued broad statutory directives that defer to the expertise of executive branch agencies to fill in the gaps, the Supreme Court has put limits on the policymaking authority of those agencies.footnote13_3u2oaq913 Congress itself will need to legislate with more frequency and greater detail in response to complex problems. It does not have the support it needs to fulfill this responsibility.

The Senate's Deliberative Slump

Paul Kane at WP:

Robert X. Browning, a political-science professor at Purdue University who serves as the director of archives for C-SPAN, has catalogued congressional action in a meticulous, revealing way.

At this stage of the 114th Congress, in late June 2015, the Senate had devoted more than 255 hours to debate and speeches, more than 42 percent of the time the floor was open for business. By late June 2017, about 440 hours had been dedicated to debate, more than two-thirds of all Senate action.

This year, senators have engaged in less than 60 hours of debate during the 118th Congress — less than 14 percent of their time on the floor. Conversely, the time it takes to hold votes has soared in recent years, from just 85 hours as of late June 2017 to 148 hours through the middle of this week, according to Browning.

Media and Deliberation

Many posts have discussed deliberation, argument, and the value of viewpoint diversity.

Geoffrey Baym at JSTOR Daily:

For proponents of deliberative democracy, the challenge therefore is twofold. On one hand, some have recognized the need to design deliberative processes specifically for and within the ecosystem of social media, processes structured to encourage inclusion and reasonableness. On the other, deliberation itself is a learned skill. Educators, particularly at the secondary school level, are exploring strategies of deliberative pedagogy, of requiring and in so doing teaching face-to-face discussion of polarizing political issues. The bottom line here is that democracy ultimately depends on our ability to talk with one-another, and that our media—both mass and social—could do vastly better in helping us to do so.

Consulting the Public

Kevin Kosar and John Maxwell Hamilton at RCP:

 Fixing Social Security is a straightforward arithmetic problem. Revenues need to cover the outlays. The tricky part is to decide who pays more or gets less.

To see if a mutually acceptable solution was possible, the University of Maryland’s Program for Public Consultation surveyed 2,500 Americans. These women and men received a battery of facts, figures, and policy options. And, lo, a consensus emerged that touched on both the revenue side of the equation and the outlay side.

Strong majorities favored lifting the level of income subject to Social Security taxes, which is currently capped at $160,200. They also favored lifting the payroll tax rate from 6.2 to 6.5 percent. John and Jane Q. Public also thought benefits should be trimmed a little by raising the retirement age from 67 to 68 years.

These solutions would keep Social Security solvent for 75 more years.

...

It is one thing to inveigh against the other side of the aisle, and quite another for individuals on the fringes to argue excluding the great mass of Americans from the political process.

One way to organize such an approach is for legislators to partner with nonpartisan research outfits like Professor Kull’s or Ohio State University’s Connecting to Congress initiative. They can convene cross-sections of Americans to deliberate with members about public problems. These meetings would not be anarchic public townhalls that, as often happens, feature cranks shouting nonsense. Nor would they be like the typical congressional hearings, which are adversarial proceedings that encourage acrimony and showboating. These panels would have legislators and citizens having a structured conversation to better understand a public problem and to come up with solutions.

A Civility Test

 At The Conversation, Robert B. Talisse offers a three-part test for civility:

• First, take one of your strongest political views, and then try to figure out what your smartest partisan opponent might say about it.
• Second, identify a political idea that is key to your opponent and then develop a lucid argument that supports it.
• Third, identify a major policy favored by the other side that you could regard as permissible for government – despite your opposition.

If you struggle to perform those tasks, that means one has a feeble grasp on the range of responsible political opinion. When we cannot even imagine a cogent political perspective that stands in opposition to our own, we can’t engage civilly with our fellow citizens.

Committee of the Whole

Don Wolfensberger at The Hill:

The rules of the House today still provide for a Committee of the Whole to process all revenue measures and bills that directly or indirectly appropriate money. However, until last week the COW had not been used since the first session of the 116th Congress in 2019.

So why was it suddenly back the week of July 18 to process an omnibus appropriations measure that combined six of the 12 regular money bills into one? The most obvious answer is to lend stature to the six, non-member delegates from D.C., American Samoa, Guam, the Northern Marians, the Virgin Islands and Puerto Rico. Thanks to a rule change in 1993, they were allowed to vote in the COW, but not in the House, at least in those Congresses in which Democrats were in the majority and made the rules.

But, in 2020 they were shut out from any floor voting when the Democratic majority stopped using the Committee of the Whole. The delegates were obviously very upset and pressured for restoring their floor voting privileges in the COW. (They are still members of the standing committees and fully participate in those proceedings.)
…

One of the more recent practices in the House has been to make a multitude of amendments in order to major bills – 650 to the defense authorization bill the week of July 11, and 190 to last week’s omnibus appropriations measure. The way the House has managed this gargantuan challenge is to give the bills’ floor managers authority to bundle multiple amendments into single, en bloc amendments. On the appropriations bill, for instance, 639 amendments were filed with the Rules Committee which then made 190 of them in order for floor consideration. The appropriations’ floor managers for the six-part bill then proceeded to bundle 188 of those amendments into eight en bloc amendments, five of which were adopted, and three rejected. The number of amendments in each en bloc varied from two to 45, with most averaging around 30.

The use of these massive, en bloc amendments, whether in the House, as with the DoD authorization, or in the COW, as with the appropriations bill, is not a shining example of deliberative democracy, let alone of comprehensibility. Whether the House continues to use the Committee of the Whole in the future or not, en bloc amendments are here to stay on mega-amendment bills. The best that can be said of it is that it is a time-saving device; the worst is that it is a mockery of democracy.

Deliberative Democracy and Citizen Assemblies

Claudia Chwalisz at Noema:

Since the 1980s, a wave of such citizens’ assemblies has been building, and it has been gaining momentum since 2010. Over the past four decades, hundreds of thousands of people around the world have received invitations from heads of state, ministers, mayors and other public authorities to serve as members of over 500 citizens’ assemblies and other deliberative processes to inform policy making. Important decisions have been shaped by everyday people about 10-year, $5 billion strategic plans, 30-year infrastructure investment strategies, tackling online hate speech and harassment, taking preventative action against increased flood risks, improving air quality, reducing greenhouse gas emissions and many other issues.

...

While the Parisian Citizens’ Assembly stands out for the extent of its competencies, it is not the only example of citizen representation and deliberation being institutionalized. In my recent OECD policy paper, I have outlined eight models of institutionalization, with examples spanning the globe and levels of government, from Bogotá to Toronto, Oregon to Brussels, Vorarlberg to New South Wales, Victoria, and more. Reflections in more places are taking place.

...

Other models including standing citizens’ advisory panels, such as the two-year Toronto Planning Review Panel, where residents are chosen by lot to provide input on planning issues after an initial series of learning sessions. In Brussels, the Austrian state of Vorarlberg and in numerous Polish cities, regulations give citizens the right to trigger the establishment of a citizens’ assembly if a petition collects enough signatures. The Australian state of Victoria has taken yet another path by embedding representative deliberative processes in local strategic planning through its Local Government Act 2020.

Public Consultation

From the Program for Public Consultation:

Ahead of the 2022 midterms, an in-depth survey finds that large bipartisan majorities of voters favor Members of Congress using new tools for consulting representative samples of their constituents on policy decisions, and to take the recommendations of their constituents – as a whole – into account when voting. More than four-in-ten are even ready to cross party lines to vote for candidates who make this commitment–even when an incumbent of their own party is named.

The survey of 4,309 voters, conducted by the University of Maryland’s Program for Public Consultation, finds widespread dissatisfaction with the current relationship between Members of Congress and the public. Eighty-three percent believe that there is not currently “an adequate system in place for the voice of the American people to be heard in Congress.”

Demand for an alternative approach is strong. Respondents were presented with a hypothetical candidate who commits to a new approach for consulting representative samples of their constituents. A university program working online would select a representative sample of citizens, give them a briefing on current proposals in Congress, have them evaluate competing arguments, reviewed by experts on different sides, and then make their recommendations. The hypothetical candidate committed to take the constituents’ recommendations into account and give them a higher priority than the views of their party leadership.

Substantial bipartisan majorities expressed positive views of such a candidate and readiness to vote for them.

For respondents who have an open seat in an upcoming Congressional race, seven-in-ten said they would likely vote for a candidate who makes this commitment. Most striking, 79% of Democrats said they would likely cross party lines and vote for a Republican who made such a commitment, while 64% of Republicans said they would likely vote for a Democratic candidate who did so.

A separate sample in states with a Senate incumbent likely to run in the upcoming election were also asked how they would respond to such a hypothetical candidate challenging their Senator listed by name. Over six-in-ten said they would likely vote for the challenger. The willingness to cross party lines to vote for a Senate candidate who commits to consulting their constituents is resilient: 44% of Democrats said they would likely vote for a Republican challenger and 41% of Republicans said they would likely vote for a Democratic challenger.

“Americans do not think that the will of the people is reflected in actions of elected officials and it is fueling distrust in government,” commented Steven Kull, director of PPC. “The demand for Congressional representatives who will genuinely consult their constituents can even override partisan loyalties–enough to swing many elections.”

Support for candidates who commit to consulting their constituents is strikingly resilient to attacks. Presented four strongly worded critiques, in all cases less than half (29-48%) found them convincing. All of the rebuttals were found convincing by overwhelming majorities. After evaluating both, the percentage saying that they would likely vote for the candidate committed to public consultation increased by several percentage points.

Contrary to the view that Americans are overwhelmingly partisan, a bipartisan three-in-four said that Members of Congress should be “responsive” to the views of “all their constituents as a whole” (Republicans 73%, Democrats 77%) rather than the views of “the people who voted for them” (26%). Similarly, a large bipartisan majority of 71% said that the majority of the public as a whole is most likely to show the greatest wisdom on questions of what the government should do (Republicans 69%, Democrats 67%), rather than just the majority of Republicans (13%) or Democrats (15%).

An overwhelming bipartisan majority (88%) said that if MoCs were more influenced by “the people” than they are now, they would be more likely to find common ground, (Republicans 92%, Democrats 87%, independents 81%). An analysis of surveys using the public consultation method found that majorities of Republicans and Democrats do agree on 172 positions on issues that have generated Congressional gridlock.

A key question is whether support for consulting the public will be sustained when people encounter majority-supported positions they do not like. In the survey, respondents were presented with some of the public’s 172 bipartisan common ground positions, told these were majority-supported positions and asked whether they agreed with them. Even among those who disagreed with half of the positions they were presented, a majority said they would nonetheless likely vote for a candidate committed to public consultation (56%), and that these positions should have influence on policy decisions in Congress (64%).

The survey was conducted between July 13 – September 15, 2021, and the margin of error was +/-1.5% for questions that were asked to the entire sample. For questions that went to partial samples the margin of error varied from +/- 2.1% to as high as +/-9.2%. All surveys were conducted online with a sample provided by Nielsen Scarborough from its larger probability-based panel recruited by telephone and mail. Report: The Demand for Public ConsultationWebsite: https://publicconsultation.org/demand-public-consultation/
PDF: https://publicconsultation.org/wp-content/uploads/2022/07/Demand_for_Public_Consultation_Report_0722.pdf Survey Questionnaire: https://publicconsultation.org/wp-content/uploads/2022/07/GBP_Quaire_0921.pdf

Campus Climate

Daniel Stid:

Recurring Knight Foundation / Ipsos surveys of college students show that the proportion of students who say their free speech rights are secure has dropped from 73% in 2016 to 47% in 2021. The decline is driven primarily by students who identify as Republican (-25%) and Independent (-13%) vs. those who identify as Democratic (-2%). In 2021, 65% of students agreed “the climate at their school or on their campus prevents some people from saying things they believe because others might find it offensive.” This is up more than 10% from 2016.

The Heterodox Academy’s 2021 Campus Expression Survey offers another sobering snapshot. The good news is that “88% of students agreed that colleges should encourage students and professors to interact respectfully with people whose beliefs differ from their own.” The bad news: “63% of students agreed that the climate on their campus prevents people from saying things that they believe.” In aggregate, 60% of students reported being reluctant to discuss at least one of five potentially controversial topics in their classrooms: politics, religion, race, sexual orientation, or gender. And here too there is a clear progressive political skew. Students identifying as Republican and Independent reported being more reluctant to discuss these topics than their Democratic counterparts.

The strong signals pointing to the diminishment and political skewing of freedom of expression and viewpoint diversity in higher education parallel those in other domains. We see similar patterns in journalism, media, and entertainment companies, professional services firms, philanthropic foundations, and many of the nonprofit groups they support.

Correlation is not causation, but the vast majority of up and coming employees in these organizations have something in common. They have spent four or more years being acclimatized in colleges and universities en route to what are currently the commanding heights of our society and culture. The worldviews and politics of the 38% of American adults who have at least a bachelor’s degree are diverging from those of the 62% who do not. Widening educational polarization is not good for a liberal democracy bedeviled by mounting populist disdain for elites.

As some of us have been noticing, and Ryan Grim recently reported in telling detail, it is not even good for progressive organizations and causes. To the great detriment of their missions, they are increasingly prone to Bolshevik vs. Menshevik-style infighting and stance taking. Colleges and universities must do better in preparing their students to participate productively amid the rough and tumble of our disputatious democracy–and the full sweep of viewpoints they will encounter within it.

Madison and Campaign Finance Reform

Michael J. Malbin * | 23.5 | Article | Citation: Michael J. Malbin, A Neo-Madisonian Perspective on Campaign Finance Reform, Institutions, Pluralism, and Small Donors, 23 U. Pa. J. Const. L. 907 (2021).

Recent events remind us of the importance and fragility of the institutions that undergird a healthy democracy. This article steps away from the speech-and-corruption debates dominating campaign finance since Buckley v. Valeo to suggest an approach it calls “neo-Madisonian.” It begins with the Federalists’ views about fostering a multi-factional and deliberative Congress but tempers their vision with departures relating to parties and pluralism. The article agrees with scholars who see parties as important but disagrees with shaping campaign finance to enhance national party leaders. The time members spend raising funds instead of legislating, the use of member “dues” to select committees, and repeated “message voting,” are symptoms of a larger party-related disease that feeds polarization and hinders Congress’s ability to perform its needed role.

With respect to pluralism, the article argues that Madison’s large-republic framework has clear advantages but leaves too many outside. Accepting the advantages of size should carry with it a duty to address this shortcoming. Small-donor public financing is often proposed as a remedy. The article refutes claims that link small donors to extremism. Nevertheless, the article does point out important risks. To address the risks, it puts forward empirical analysis to support a new approach adopted in New York State that will target generous public financing to empower within-district small donors.

The article thus casts a metaphorical net in two directions—urging reformers to take institutions seriously, while urging institutionalists to reach out to those left aside. These goals are not contradictory. Public resources can help correct pluralism’s flaws, but the correction should simultaneously serve institutional goals for the common good.

Real Debate is Missing on Capitol Hill

 Kevin Kosar at The Hill:

Major debates on the floor of the Senate and House of Representatives are increasingly rare. This is not by accident.

Leaders in both chambers do all they can to prohibit arguing between legislators when bills are brought to a vote. The House precludes debate by adopting closed rules before voting on a bill. Said rules limit debate to mere minutes and forbid legislators from offering amendments. The Senate achieves much the same by operating under unanimous consent agreements, wherein the majority leader gets each senator to agree to not speak on the legislation to be voted upon, and to forgo the ability to offer amendments.

How it came to be that some of the most garrulous of all Americans — politicians — agreed not to debate is a long, complicated story.

Partly, it is an adaptation to the presence of television cameras. What person who has to run for reelection wants to admit that someone from the other party has a stronger point, and then, heaven forbid, accept a change to a bill?

Partly, the present situation also is an adaptation to the intense conflict between the political parties and attendant mutual distrust. Over the past 30 years, partisan control of the chambers has shifted back and forth between Democrats and Republicans at a rate not seen since the period immediately after the Civil War. Whomever is the majority wants to defend their majority and therefore views honest debate as threatening. The leader of the majority party does not want to have a vote on legislation fail, let amendments be offered, or even permit the expression of views for fear they might make his or her party look bad before the public eye. Party leaders’ desire to manage public opinion, which is a bit of a fool’s errand, trumps the responsibilities of governance.

Local Deliberation

Jonathan E. Collins and Julian Bessinger have a Brookings article titled " The case for participatory democracy during educational crisis."

In 2010, an organization called Everyday Democracy (ED) organized the Strong Start for Children (SSFC) citizens’ deliberation to identify policies and practices that could be used to strengthen the quality of early childhood education. ED partnered with local community organizations, which recruited 290 community members from across Albuquerque to participate in small group deliberations called “dialogue circles.” Through these deliberations, they shared ideas with representatives who then raised the ideas at the 2011 SSFC Policy Forum in Santa Fe. The policy forum itself featured small group deliberations with community members and policymakers. As a result of SSFC, the University of New Mexico Family Development Program created an early childhood development and education resource directory. There was even healthy spillover, as the New Mexico state legislature went on to pass a tribal-language preservation bill.

State of the Union

Gary Schmitt at AEI:

[P]residents from both parties now view the broader public more than Congress as their addressee. Instead of engaging in dialogue with the other branch of government, presidents hope to mobilize public opinion in their speech, generating poll numbers that, they believe, might pressure members to pass the various measures they are putting forward. In other words, instead of talking to Congress, they are talking over their heads as often as not.

It’s no surprise, then, that the members themselves understand their role, in turn, to be cheerleaders or frowning faces depending on their side of the aisle. The function of the president’s co-partisans is to reinforce the view that the president has the popular wind at this back. The last thing on their minds is how some proposal might be put through the deliberative and sausage-making process of committee hearings and floor debate.

Instead of the State of the Union address being a singular constitutional moment, whose formal audience is the Congress, we get a follow-on act that is meant to dismiss to some degree or another almost instantaneously whatever the duly elected chief executive has to say. There is no due deference to the fact that one person has been selected as president and he or she is not just the head of a party but, in this instance, is doing his or her constitutional duty. The fact is, the State of the Union Address is in a sorry state.

Biden: Unlike two trillion dollar tax cut passed in the previous administration that benefited the top 1% of Americans, the American Rescue Plan
Republicans: Boo
Schumer: *waits to clap*
Biden: The American Rescue plan helped working people
Schumer: *claps* pic.twitter.com/gXxcvTsR8K

— Acyn (@Acyn) March 2, 2022

Congressional Hearings and Witnesses

Jerry Hartz and colleagues at The Hill:

On the committee front, we note that, contrary to popular belief, the House is holding a historically low number of hearings compared to the previous 40 years. That has led to five times fewer witnesses being called in today’s Congress than at the witness peak in the late 1970s. One important change recommended by the Select Committee would be to de-conflict committee schedules to allow for member participation in considered and deliberative lawmaking. Committee scheduling is currently left to individual chairs but could be further centralized. This would also increase committee flexibility to host bipartisan events that foster collaboration and further develop working relationships, another Select Committee recommendation.

John D. Rackey, Lauren C. Bell, and Kevin R. Kosar at The Washington Post:

In our new research, we collect and code every identifiable witness who appeared before every standing committee in the U.S. House of Representatives between 1971 and 2016, accounting for 435,293 witnesses appearing in 42,509 hearings over that 45-year period. Several patterns emerge from the data. First … the number of witnesses appearing before Congress has sharply declined in recent decades. That number peaked in the 95th Congress (1977-1978), when House panels heard from 32,898 witnesses. By the 114th Congress (2015-2016), the number declined by nearly 80 percent, so that panels heard from only 6,632 witnesses.

Second, congressional hearings feature fewer witnesses on average today than they did in the past. In the 95th Congress (1977-1978), Congress heard from an average of 17.1 witnesses per hearing; by the 114th Congress (2015-2016), only 4.2 witnesses on average appeared. Recent scholarship and our own data suggest that witness appearances continue to fall. In the House Financial Services Committee, for example, the average number of witnesses per hearing fell to 3.7 during the 115th Congress (2017-2018) from 4.5 in the 114th Congress (2015-2016).

Declining witness participation cannot be explained by tumbling numbers of committee hearings or bills introduced. =..[A]lthough lawmakers introduced more bills during the 114th Congress than in the previous Congress, panels still heard from fewer witnesses than in the session before.

So, what are lawmakers doing instead of hearing from witnesses? They’re taking the limelight for themselves in ways that bring coverage in the news media. The media pays attention when a Cabinet secretary, a celebrity, or a well-known business tycoon appears before a congressional committee. But even congressional hearings on more-mundane policy matters can make the news when there’s a particularly heated exchange between legislators or when a legislator berates a witness or makes exceptional use of questioning time.

Deliberating about Civil Asset Forfeiture

 From C-SPAN:

Britannica defines civil asset forfeiture as a “legal process that enables a government to seize property and other assets belonging to persons suspected of committing a crime.” This law enforcement tool has been used throughout United States history, dating back to the earliest days of the country and the nation’s foundation on English law. The Legal Information Institute at Cornell University describes the tool as having gained popularity during the Prohibition era, as the government sought to seize illegal alcohol and prevent further illicit production.

The tool once again grew in popularity through the 1980s’ War on Drugs. Legally, the tool was federally codified in the Comprehensive Crime Act of 1984, which allowed the government to “seize first, and defend the forfeiture in court later.” Since that decade, the use of the tool has been subject to robust debate regarding its appropriate use and potential safeguards. For example, the Department of Justice under the Obama Administration issued a 2015 order that eliminated most types of federal adoptions of state and local seizures. This order was then reversed by the Department of Justice in 2017 under the leadership of the Trump Administration.

Supporters of civil asset forfeiture describe its effectiveness in reducing potential crime and limiting the impact of organized crime groups. Opponents of the tool argue that law enforcement agencies have a clear bias and incentive to seize property, as law enforcement agencies are able to use the funds or proceeds from sales for regular operations. Regardless of perspective, the use of the tool has exponentially escalated since 2000.

This deliberation guides students through a review of both the historical and contemporary arguments for and against the use of the tool. After a careful review of multiple perspectives, students will determine whether federal, state, and local law enforcement officials should continue the practice of civil asset forfeiture.

Objectives and Outcomes

• Students will be able to describe key vocabulary terms and concepts associated with the debate surrounding the continued use of civil asset forfeiture.
• Students will be able to identify and explain aspects of the civil asset forfeiture debate including those of civil liberties, due process, criminal justice, and law enforcement.
• Students will be able to evaluate arguments relating to the continued use of civil asset forfeiture and formulate an opinion on this question.

Reid Rules

 James Wallner at R Street Institute reflects on Harry Reid:

Reid’s skill as a leader allowed him to essentially eliminate genuine deliberation on the Senate floor while ensuring that the Senate still legislated, a balancing act that his successors have struggled to perform.Reid’s  tenure as majority leader set the standard for what senators expect of their leaders. That is, before Reid, senators understood the majority leader’s primary responsibility to be facilitating the participation of interested senators in floor debates and keeping the legislative trains running on time. After Reid, senators understand the majority leader’s primary responsibility to be protecting senators from taking votes they want to avoid, crafting legislative compromises, and structuring the legislative process to ensure that the Senate approves them.

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Reid’s leadership skill is evident in his creative use of the Senate’s rules and practices to tightly control the floor and ensure that nothing happened there without his permission. For example, Reid pioneered the now-ubiquitous tactic of filling the amendment tree and filing cloture on bills preemptively once the Senate began debating them. Filling the amendment tree blocks opponents of the bill from offering alternative proposals and protects its supporters from having to cast votes that could be used against them in their future efforts to win re-election. And filing cloture preemptively speeds Senate consideration of legislation and often confronts senators with a fait accompli, forcing them to choose between offering their amendments and passing the underlying bill.

 

Most controversially, Reid set the precedent for ignoring the Senate’s rules when he could not use them to his advantage. In 2013, Reid led his fellow Democrats to invoke the so-called nuclear option to effectively eliminate the filibuster for most presidential nominations. And McConnell and his fellow Republicans followed in Reid’s footsteps by using the nuclear option to effectively eliminate the filibuster for Supreme Court nominations and to shorten the amount of time permitted under the rules after the Senate has invoked cloture on a nominee but before a final confirmation vote.

Gene Editing and Deliberative Polling

Many posts have discussed deliberation, argument, and the value of viewpoint diversity.

A release from the Hastings Center:

- A new report released by The Hastings Center, a leading ethics research institute, finds that the complex issues raised by releasing gene-edited species into the wild demand deep and broad public engagement. The report, Gene Editing in the Wild: Shaping Decisions Through Broad Public Deliberation, provides a path forward to move decision-making from the realm of experts to a more inclusive, values-based approach using the technique of public deliberation – or deliberative democracy.

The goals of gene editing in the wild efforts are wide-ranging, and the benefits potentially transformative--such as preventing mosquitoes from spreading disease. But this work poses major trade-offs that require the public’s consideration.

The report’s twelve essays take up fundamental questions: how should public deliberation be designed? Who should participate? How should deliberation be linked to policy?

The introductory essay, “Public Deliberation About Gene Editing in the Wild,” summarizes the key design elements that can improve broad public deliberations about gene editing in the wild: Framing the question and deciding when to hold broad public deliberation, choosing participants, addressing power, and accounting for and capturing perspectives that are hard to express. The introduction was written by the special report editors: Michael K. Gusmano, Gregory E. Kaebnick, Karen J. Maschke, Carolyn P. Neuhaus, and Ben Curran Wills.

“Regulating Gene Editing in the Wild: Building Regulatory Capacity to Incorporate Deliberative Democracy,” by Karen J. Maschke and Michael K. Gusmano, says that there has not been enough attention to how we should connect public deliberation to the existing regulatory process. The authors argue that, while federal agencies may have capacity to undertake public deliberative activities, there may not be sufficient political support for them to do so.

“Deliberative Public Consultation via Deliberative Polling: Criteria and Methods,” by James S. Fishkin, makes the case that Deliberative Polling, an approach developed by the author, can be usefully employed to engage representative samples to deliberate in depth in controlled experiments so as to yield a picture of the public’s considered judgments. Another it can be cost-effectively conducted online.

“The Decision Phases Framework for Public Engagement: Engaging Stakeholders about Gene Editing in the Wild,” by S. Kathleen Barnhill-Dilling, Adam Kokotovich, and Jason A. Delborne, puts forth a framework for shaping public engagement that tackles when and whom to engage on genetic engineering questions.

“Empowering Indigenous Knowledge in Deliberations on Gene Editing in the Wild,” by Riley Taitingfong and Anika Ullah, identifies Indigenous peoples as key stakeholders in decisions about gene-editing in the wild and argues that engagement activities need not only include Indigenous peoples but also should be designed, conducted, and analyzed in ways that confront longstanding power imbalances that dismiss Indigenous expertise.

The special report grew out of a Hastings Center project funded by the National Science Foundation, The complete report is available for download here.

For more information, contact:

Susan Gilbert or Mark Cardwell
communications@thehastingscenter.org
845-424-4040, ext. 244