The Not-So-Popular Popular Branch

Kevin Lewis

November 28, 2009

An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve

David Shaw
Georgetown Law Journal, August 2009, Pages 1739-1766

Lindsay Graham is a colonel in the Air Force Reserves. As such, Graham has done three "minitours" in Iraq since 2006. On these tours, he carried a firearm, bunked with another colonel, and served under the direct command of a general. What makes Graham unusual is that he is also a United States Senator. The Constitution prohibits members of Congress from holding "any office under the United States." Since World War II, however, numerous congressmen have been officers in the Armed Forces Reserve. While this apparent contradiction has provoked a lawsuit, no scholarly literature addresses the contradiction, and thus, it has never been reconciled. This Note will take up the question of the constitutionality of members of Congress holding reserve commissions. Part I will examine the constitutional text, history, and precedent, concluding that the practice is likely unconstitutional. Part II will provide an overview of the two principle defenses that have been mounted in favor of the practice - Senator Goldwater's floor statements and Solicitor General Bork's brief in Schlesinger v. Reservist Committee to Stop the War. Part III will then evaluate those defenses in light of constitutional text, history, and precedent, concluding that the defenses provided by Senator Goldwater and Solicitor General Bork ultimately are not persuasive and that the longstanding practice is unconstitutional.


MPs for Sale? Returns to Office in Postwar British Politics

Andrew Eggers & Jens Hainmueller
American Political Science Review, November 2009, Pages 513-533

Many recent studies show that firms profit from connections to influential politicians, but less is known about how much politicians financially benefit from wielding political influence. We estimate the returns to serving in Parliament, using original data on the estates of recently deceased British politicians. Applying both matching and a regression discontinuity design to compare Members of Parliament (MPs) with parliamentary candidates who narrowly lost, we find that serving in office almost doubled the wealth of Conservative MPs, but had no discernible financial benefits for Labour MPs. Conservative MPs profited from office largely through lucrative outside employment they acquired as a result of their political positions; we show that gaining a seat in Parliament more than tripled the probability that a Conservative politician would later serve as a director of a publicly traded firm-enough to account for a sizable portion of the wealth differential. We suggest that Labour MPs did not profit from office largely because trade unions collectively exerted sufficient control over the party and its MPs to prevent members from selling their services to other clients.


Cashing in on Capitol Hill: Insider Trading and the Use of Political Intelligence in Beating the Market‏

Bud Jerke
University of Pennsylvania Working Paper, August 2009

Recently, government officials have been scrutinized for using privileged information acquired during the performance of official duties to gain market trading advantages. Additionally, lobbyists have similarly been criticized for collecting little-known, material political information from Capitol Hill contacts and selling it to their clients - most notably wealthy hedge funds - who presumably use the information in their market transactions. Is this insider trading? Most likely not. Should it be insider trading? A few Members of Congress have responded by introducing legislation in the past three congresses that would statutorily bring trading on this 'political intelligence' - by both government insiders and outsiders - under the umbrella of federal securities laws. Not surprisingly, the legislation has failed to garner significant political support. Yet, a renewed sense for 'cleaning up' Washington ushered in by the Obama-Biden administration, coupled with the current economic crisis, has reinvigorated the campaign and the bill was reintroduced in early 2009. In addition, recent academic scholarship is now calling for the passage of the legislation and the regulation of political intelligence trading under the insider trading regime.


The Stop Trading on Congressional Knowledge Act

Stephen Bainbridge
UCLA Working Paper, August 2009

A 2004 study of the results of stock trading by United States Senators during the 1990s found that that senators on average beat the market by 12% a year. In sharp contrast, U.S. households on average underperformed the market by 1.4% a year and even corporate insiders on average beat the market by only about 6% a year during that period. A reasonable inference is that some Senators had access to - and were using - material nonpublic information about the companies in whose stock they trade. Under current law, it is uncertain whether members of Congress can be held liable for insider trading. The proposed Stop Trading on Congressional Knowledge Act addresses that problem by instructing the Securities and Exchange Commission to adopt rules intended to prohibit such trading. This article analyzes present law to determine whether members of Congress, Congressional employees, and other federal government employees can be held liable for trading on the basis of material nonpublic information. It argues that there is no public policy rationale for permitting such trading and that doing so creates perverse legislative incentives and opens the door to corruption. The article explains that the Speech and Debate Clause of the U.S. Constitution is no barrier to legislative and regulatory restrictions on Congressional insider trading. Finally, the article critiques the current version of the STOCK Act, proposing several improvements.


Fiscal Consequences of Electoral Institutions

Christopher Berry & Jacob Gersen
Journal of Law and Economics, August 2009, Pages 469-495

There are more than 500,000 elected local government officials in the United States. The most electorally dense county has more than 20 times the average number of elected officials per capita. This paper offers the first systematic investigation of the link between electoral density and fiscal outcomes. Electoral density presents a tradeoff between accountability and monitoring costs. Increasing the number of specialized elected offices promotes issue unbundling, reducing slack between citizen preferences and government policy; but the costs of monitoring a larger number of officials may offset these benefits, producing greater latitude for politicians to pursue their own goals at the expense of citizen interests. We predict diminishing returns to electoral density and a U-shaped relationship between the number of elected local officials and government fidelity to citizen preferences. We find that public sector size decreases with electoral density up to a point, beyond which budgets grow as more officials are added.


The Not-so-Popular Branch: Bicameralism as a Counter-Majoritarian Device

Matias Iaryczower, Gabriel Katz & Sebastian Saiegh
Caltech Working Paper, September 2009

We estimate a model of voting in Congress that allows for dispersed information about the quality of proposals in an equilibrium context. The results highlight the effects of bicameralism on policy outcomes. In equilibrium, the Senate imposes an endogenous supermajority rule on members of the House. We estimate this supermajority rule to be about four-fifths on average across policy areas. Moreover, our results indicate that the value of the information dispersed among legislators is significant, and that in equilibrium a large fraction of House members (40-50 %) vote in accordance with their private information. Taken together, our results imply a highly conservative Senate, in the sense that proposals are enacted into law only when it is extremely likely that their quality is high.


Dilatory or anticipatory? Voting on the Journal in the House of Representatives

John Patty
Public Choice, forthcoming

In this paper, I examine a simple procedure in the United States House of Representatives, approving the Journal, and its implications for legislative business. In this paper, I examine the hypothesis that such votes are more than simply pro forma motions or dilatory tactics by the minority party. Considering the 102nd-107th Congresses, I show that votes on the Journal's approval are just as frequently requested by the majority party as by members of the minority party. Furthermore, I find that votes recorded on days on which a vote was also recorded on the House Journal were more likely to be close and more likely to be party-line votes than those recorded on other days.


Leadership PAC Formation and Distribution Strategies in the United States Senate

Connor Raso
Journal of Political Marketing, June 2008, Pages 25-47

Fundraising through leadership PACs, or political action committees associated with members of Congress, became increasingly prevalent during the 1990s. Such fundraising has become a critical component of how senators market themselves to colleagues, party leaders, constituents, and journalists. This paper first analyzes what motivates senators to form PACs to test the theory that senators are rational, self-interested actors who use PACs to achieve four major goals: reelection, good public policy, influence within the Senate, and higher office. These goals do not conflict with regard to PAC creation, and results show that creation is influenced by seniority, ideology, electoral margin, leadership candidacy, and presidential candidacy. The article then asks why some senators distribute most PAC funds for their own travel and administrative expenses while others donate primarily to colleagues. Although member goals may conflict, analysis of disbursement patterns indicates a relationship between goals and PAC behavior. Presidential candidates spend relatively more on administrative expenses, while majority party members donate a higher proportion of funds to colleagues.


Executive Branch Contempt of Congress

Josh Chafetz
University of Chicago Law Review, Summer 2009, Pages 1083-1156

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed and a compromise was reached. This Article examines the constellation of issues arising out of contempt of Congress proceedings against executive branch officials. After briefly describing the Miers litigation, it examines the development of legislative contempt against executive officials in Anglo-American law. It shows that the contempt power played a significant role in power struggles between the Crown and Parliament and between the Crown and colonial American legislatures, and that this role continued into the early state legislatures. It then traces Congress's uses of the contempt power against executive branch officials, including in two cases that have generally been overlooked by both judicial and academic commentators, in which a house of Congress sent its sergeant-at-arms to arrest an executive branch officer. The Article then uses that history to consider how cases of executive branch contempt of Congress should be dealt with today. It notes the variety of political tools that Anglo-American legislatures have used to enforce their contempt findings, as well as the fact that they did not turn to the courts to resolve such disputes until the late twentieth century. It then argues that the resolution of such disputes by the courts does significant harm to the American body politic. This Article therefore concludes both that Congress erred in seeking judicial resolution of the Miers dispute and that the courts erred in finding it justiciable.


Call and Response: Citizen Communication with Congress

Emily Hickey
Harvard Working Paper, August 2009

Conventional wisdom holds that the citizenry is unlikely to make contact with their members of Congress or other public officials. However, the volume of electronic mail to members of Congress has forced shutdowns of the e-mail service for citizens to contact their representatives. Using new survey data, I examine the means and causes of citizen contact with their members of Congress, including information about use of electronic mail. Preliminary results indicate that a larger proportion than anticipated indicates making contact with their member of Congress, and a more diverse group than the prior literature would predict. As the costs of contact are lowered, it appears that some inequalities in political expression are ameliorated to some degree. This has broader implications for issues of representation, as members of Congress must adjust to a more responsive and active constituency.


The policy impact of unified government: Evidence from 2000 to 2002

Nathan Monroe
Public Choice, January 2010, Pages 111-124

Do the outcomes of government action differ between periods of unified and divided government? Using "event study" methodology, this articles addresses the question by looking at sudden shifts between divided and unified government-Bush v. Gore, the Jeffords switch, and the 2002 election. The results show that oil and gas stocks (i.e. Republican "constituent firms") rose abruptly as Republicans took unified control, while renewable energy stocks (i.e. Democratic "constituent firms") fell. The pattern reversed, however, when Democrats took back control of the Senate. These outcomes call into question non-partisan theories of law making.


Closing the Deal: Negotiating Civil Rights Legislation

Gyung-Ho Jeong, Gary Miller & Itai Sened
American Political Science Review, November 2009, Pages 588-606

Our investigation of the Senate politics of four major civil rights acts indicates that they did not result from winning coalitions bulldozing helpless minorities, nor did they result from some unpredictable chaotic process. These critical bills were the result of a flexible, multidimensional coalition-building process that proceeded by offering amendments carefully constructed to split off pivotal members of the winning coalition. Ideal point estimates of U.S. senators reveal that this coalitional negotiation process led to outcomes at some distance from the first choice of the winning coalition, testimony to significant compromise, both in early proposals and in refinements. This negotiation process resulted in outcomes apparently constrained by the boundaries of the uncovered set (McKelvey 1986; Miller 1980). "Closing the deal" in the U.S. Senate meant finding an outcome that could withstand robust attacks on pivotal coalition members - and that meant finding an outcome in the uncovered set.


Measuring Changes in American Party Reputations, 1939-2004

Jeremy Pope & Jonathan Woon
Political Research Quarterly, December 2009, Pages 653-661

Scholars increasingly emphasize that party reputations are valuable electoral assets. The authors measure temporal change in the parties' relative reputations across several distinct policy areas and find that each party tends to have advantages on certain issues but that the patterns are far from permanent. Democrats have strong advantages on social welfare issues, but Republicans have made some gains. Republican advantages on taxes and "law and order" have been weaker. The authors also find that party competition has strengthened impressions of the parties. Results support the notion that parties carry a collective - if occasionally transitory - reputation on a host of issues.


Local Media, Public Opinion, and State Legislative Policies: Agenda Setting at the State Level

Yue Tan & David Weaver
International Journal of Press/Politics, October 2009, Pages 454-476

This study aims to explore first-level agenda setting at the state level. In particular, it examines the relationships among media coverage of local newspapers, state-level public opinion, and state legislative policies. In addition, it tests two state-level intervening factors: state legislative professionalism and state political culture. This study includes a geographic scope of eighteen U.S. states and a time period of twenty-two years from 1984 to 2006. The media agenda is represented by the news coverage of a state's most popular newspaper. The public agenda employs a survey question asking, "What is the most important issue facing the state?" The policy agenda is defined by the number of bills that are introduced in the state house. This study finds a moderate and positive relationship between the newspaper agenda and the public agenda in five U.S. states from 1984 to 1997, a strong positive relationship between the newspaper agenda and the policy agenda in fifteen U.S. states from 1989 to 2006, and a weak positive relationship between the public agenda and the policy agenda in South Carolina in 1989 and 1990. State political culture moderates the degree of agenda-setting effects between the newspaper coverage and the legislative policies.

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