The electoral college and presidential particularism

Boston University Law Review

Volumn 94, Issue 3, 2014, Pages 741-766

  Kriner, Douglas ^a   Reeves, Andrew ^b  

^a USA   (United States)

^b WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84903731573     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (82)

1. Kathleen Hunter & Derek Wallbank, Obama Signs $1.1 Trillion U.S. Government Spending Bill, BLOOMBERG POL. (Jan. 17, 2014), http://www.bloomberg.com/news/2014-01-16/senate-clears-obama-backed-1-1- trillion-spending-measure.html, archived at http://perma.cc/3FJB-HDRB.
2. For a discussion on asymmetric polarization, see THEDA SKOCPOL & VANESSA WILLIAMSON, THE TEA PARTY AND THE REMAKING OF REPUBLICAN CONSERVATISM (2012)
3. Edward G. Carmines, Review Symposium: Class Politics, American Style, 9 PERSP. ON POL. 645, 645-46 (2011).
4. While pundits often emphasize the importance of gerrymandering and redistricting, some polarization scholars are skeptical, and a wide range of forces have been identified as drivers of congressional polarization. See, e.g., Joseph Bafumi & Michael C. Herron, Leapfrog Representation and Extremism: A Study of American Voters and Their Members in Congress, 104 AM. POL. SCI. REV. 519 (2010)
5. Richard Fleisher & John R. Bond, The Shrinking Middle in the U.S. Congress, 34 BRIT. J. POL. SCI. 429 (2004)
6. Shigeo Hirano et al., Primary Elections and Partisan Polarization in the U.S. Congress, 5 Q.J. POL. SCI. 169 (2010)
7. Nolan McCarty et al., Does Gerrymandering Cause Polarization?, 53 AM. J. POL. SCI. 666 (2009)
8. Sean M. Theriault, Party Polarization in the U.S. Congress: Member Replacement and Member Adaptation, 12 PARTY POL. 483 (2006)
9. cf. JOHN H. ALDRICH, WHY PARTIES? A SECOND LOOK 270-71, 282-83 (2d ed. 2011).
10. See, e.g., Drew DeSilver, Current Congress Is Not the Least Productive in Recent History, but Close, PEW RES. CTR. (Sept. 3, 2013), http://www. pewresearch.org/fact-tank/2013/09/03/current-congress-is-not-the-least- productive-in-recent-history-but-close, archived at http://perma.cc/NC27-XSXF
11. Sarah Dutton et al, Poll: Post-Shutdown, Congress Disapproval at All-Time High, CBS NEWS (Oct. 22, 2013, 8:23 PM), http://www.cbsnews.com/news/poll-post- shutdown-congress-disapproval-at-all-time-high, archived at http://perma.cc/ 5ES3-W3AJ.
12. Frank Newport, Congress Job Approval Drops to All-Time Low for 2013, GALLUP (Dec. 10, 2013), http://www.gallup.com/poll/166196/congress-job-approval- drops-time-low-2013.aspx, archived at http://perma.cc/6ACY-XNUW (finding that Americans' approval of Congress dipped to nine percent in November 2013).
13. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 passim (2001).
14. Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 4-6 (1995) (discussing common criticisms of President Reagan's Executive Orders concerning OMB oversight of agencies).
15. Id. at 2335; see also Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 95-99 (1985) (arguing for broad delegations of power to administrative agencies, and stressing that presidential elections keep agencies in check). Kagan goes on to observe that, of course, Presidents can prioritize the needs of some constituencies over others from time to time: Take the President out of the equation and what remains are individuals and entities with a far more tenuous connection to national majoritarian preferences and interests: administrative officials selected by the President himself; staff of the permanent bureaucracy; leaders of interest groups, which whether labeled "special" or "public" represent select and often small constituencies; and members of congressional committees and subcommittees almost guaranteed by their composition and associated incentive structure to be unrepresentative of national interests. Kagan, supra note 6, at 2336 (citations omitted).
16. THOMAS E. MANN & NORMAN J. ORNSTEIN, IT'S EVEN WORSE THAN IT LOOKS: HOW THE AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW POLITICS OF EXTREMISM 172-78 (2012) (discussing the approach of transferring "more decision-making power frpm Congress to the executive branch").
17. WILLIAM G. HOWELL, POWER WITHOUT PERSUASION: THE POLITICS OF DIRECT PRESIDENTIAL ACTION 6-7 (2003).
18. See, e.g., DAVID E. LEWIS, THE POLITICS OF PRESIDENTIAL APPOINTMENTS: POLITICAL CONTROL AND BUREAUCRATIC PERFORMANCE 56 (2008) ("One way Presidents enhance bureaucratic control is to politicize.")
19. ANDREW RUDALEVIGE, MANAGING THE PRESIDENT'S PROGRAM: PRESIDENTIAL LEADERSHIP AND LEGISLATIVE POLICY FORMULATION (2002)
20. Terry M. Moe, Control and Feedback in Economic Regulation: The Case of the NLRB, 79 AM. POL. SCI. REV., 1094, 1101 (1985) (critiquing congressional dominance theories and asserting presidential influence over the bureaucracy).
21. Congressional Apportionment, NAT'L ATLAS, http://nationalatlas.gov/ articles/boundaries/a-conApport.html (last visited Feb. 4, 2014), archived at http://perma.cc/45Z3-ZG7E ("The average size of a congressional district based on the 2010 Census apportionment population will be 710, 767⋯.").
22. IRWIN L. MORRIS, THE AMERICAN PRESIDENCY: AN ANALYTICAL APPROACH 67 (2010) ("Except for Maine and Nebraska, all states allocate electors on a winner-take-all basis.").
23. See, e.g., John F. Banzhaf III, One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College, 13 Vox. L. REV. 303, 323-24 (1968) (discussing the voting power of more populous states and its effect on per capita campaign expenditures and the presidential candidate's time)
24. Larry M. Bartels, Resource Allocation in a Presidential Campaign, 47 J. POL. 928, 928-36 (1985) (analyzing resource allocation data for the 1976 Carter Campaign)
25. Steven J. Brams & Morton D. Davis, The 3/2's Rule in Presidential Campaigning, 68 AM. POL. SCI. REV. 113, 116-20 (1974) (comparing the optimal resource allocations under a popular vote model and the Electoral College model)
26. Jonathan Nagler & Jan Leighley, Presidential Campaign Expenditures: Evidence on Allocations and Effects, 73 PUB. CHOICE 319, 319-33 (1992) (analyzing television advertising expenditures in the 1972 campaign)
27. David Strömberg, How the Electoral College Influences Campaigns and Policy: The Probability of Being Florida, 98 AM. ECON. REV., 769, 787 (2008) ("[C]ampaign resources are increasing in proportion to the number of electoral votes.").
28. For example, the electoral forecasting literature argues that presidential election outcomes can be predicted with uncanny accuracy relying on only a handful of variables measuring national conditions. See generally Alan I. Abramowitz, Forecasting the 2008 Presidential Election with the Time-for-Change Model, 4 PS: POL. Sci. & POL. 691 (2008)
29. Robert S. Erikson, Economic Conditions and the Presidential Vote, 83 AM. POL. SCI. REV. 567 (1989)
30. Douglas A. Hibbs, Jr., Implications of the "Bread and Peace" Model for the 2008 U.S. Presidential Election, 137 PUB. CHOICE 1 (2008)
31. Michael S. Lewis-Beck & Charles Tien, The Job of President and the Jobs Model Forecast: Obama for '08?, 41 PS: POL. SCI. & POL. 687 (2008).
32. This view is also supported by the lengthy survey-based literature on sociotropic voting. See generally D. RODERICK KIEWIET, MACROECONOMICS & MICROPOLITICS: THE ELECTORAL EFFECTS OF ECONOMIC ISSUES (1983)
33. Donald R. Kinder et al., Economics and Politics in the 1984 American Presidential Election, 33 AM. J. POL. Sci. 491 (1989)
34. Donald R. Kinder & D. Roderick Kiewiet, Sociotropic Politics: The American Case, 11 BRIT. J. POL. SCI. 129 (1981)
35. David J. Lanoue, Retrospective and Prospective Voting in Presidential-Year Elections, 47 POL. RES. Q. 193 (1994)
36. Gregory B. Markus, The Impact of Personal and National Economic Conditions on the Presidential Vote: A Pooled Cross-Sectional Analysis, 32 AM. J. POL. Sci. 137 (1988).
37. Adam J. Berinsky et al., Evaluating Online Labor Markets for Experimental Research: Amazon.com's Mechanical Turk, 20 POL. ANALYSIS 351 (2012).
38. On the use of Mechanical Turk samples, see, for example, ANIKET KITTUR ET AL., CROWDSOURCING USER STUDIES WITH MECHANICAL TURK 453 (2008)
39. Michael Buhrmester et al., Amazon's Mechanical Turk: A New Source of Inexpensive, Yet High-Quality, Data?, 6 PERSP. ON PSYCHOL. SCI. 3 (2011). An additional concern regards the quality of the answers given by an online convenience sample. As a measure of quality control, the survey concluded with an attention filter. Embedded in a paragraph of text was an instruction for respondents to ignore the question itself and to check the other box and enter the numeric sequence 1, 2,3 instead. Eighty-two percent of subjects answered the attention filter correctly. Results are virtually identical if those who did not answer the attention filter correctly are excluded from the analysis.
40. Douglas L. Kriner & Andrew Reeves, The Influence of Federal Spending on Presidential Elections, 106 AM. POL. SCI. REV. 348 (2012).
41. DOUGLAS KRINER & ANDREW REEVES, THE PARTICULARISTIC PRESIDENT (forthcoming 2015).
42. BOB WOODWARD, THE PRICE OF POLITICS 26-27 (2012).
43. Frank Newport, Americans' Opinions on Two of Obama's First Term Actions, GALLUP (Feb. 24, 2012), http://pollingmatters.gallup.com/2012/02/americans- opinions-on-rwo-of-obamas.html, archived at http://perma.cc/C68C-JF48.
44. Keith Laing, Road to President Obama's Win in Ohio Paved by Support for Auto Bailout, HILL (NOV. 7, 2012, 9:29 PM), http://thehill.com/blogs/ transportation-report/automobiles/266691-auto-bailout-paved-the-road-for-obamas- ohio-win-, archived at http://perma.cc/X3YF-KRHY.
45. Remarks at the Closing Session of the Winning the Future Forum on Small Business in Cleveland, Ohio, 2011 DAILY COMP. PRES. DOC. 102, at 4 (Feb. 22, 2011).
46. Jerry Markon & Alice Crites, For Obama the Buckeye State May Be a Bull's-Eye, WASH. POST, Sept. 26, 2012, at A1.
47. President Barack Obama, Remarks at a Town Hall Meeting and a Question-and- Answer Session in Elyria, Ohio, 2010 DAILY COMP. PRES. DOC. 46, at 5 (Jan. 22, 2010).
48. Marcia Pledger, Miceli Dairy Products Describes Plan for Expansion in Cleveland, PLAIN DEALER (Jan. 6, 2011), http://www.cleveland.com/business/index. ssf/2011/01/miceli-dairy-products-describe.html, archived at http://perma.cc/P46P-BR4Z ('"It's not only the largest loan ever done in the history of the SBA, but more importantly it's significant because of what it means for Cleveland,' said Gil Goldberg, director of the Cleveland SBA district, which includes most of the northern half of Ohio.").
49. Leslie Wayne, American Steel at the Barricades: With Prices Low, Companies and Labor Unions Unite in a Campaign to Limit Imports, N.Y. TIMES, Dec. 10, 1998, at C1.
50. Lori Nitschke, Trade: White House, Farm Groups Stave off Senate Vote on Steel Import Quotas, CONG. Q. WKLY., June 26, 1999, at 1563.
51. See American Trade Policy: Throwing Sand in the Gears, ECONOMIST, Jan. 30, 1999, at 63. This is not to say that President Clinton was unresponsive to the electoral imperatives in play. Rather, Congressional Quarterly Weekly describes the Administration as seeking a middle ground because it "feared political repercussions for Vice President AI Gore if President Clinton were forced to choose between free-trade interests, which opposed the bill, and unions, which supported it." See Nitschke, supra note 47.
52. Paul Magnusson & Michael Arndt, Behind the Steel-Tariff Curtain, BLOOMBERG BUSINESSWEEK (Mar. 7, 2002), http://www.businessweek.com/stories/2002- 03-07/behind-the-steel-tariff-curtain, archived at http://perma.cc/G4U6-MAEN.
53. David E. Sanger & Joseph Kahn, Bush Weighs Raising Steel Tariffs but Exempting Most Poor Nations, N. Y. TIMES, Mar. 4, 2002, at A1.
54. STEPHEN COONEY, CONG. RESEARCH SERV., RS21152, STEEL: KEY ISSUES FOR CONGRESS 1 (2002).
55. See Donald Lambro, Steel Tariffs Arouse Trade War Anxieties, WASH. TIMES, Mar. 28, 2002, at A14 ("Larry Lindsey⋯ warned that higher tariffs would invite retaliation from abroad⋯. The tariffs would also mean higher prices for thousands of U.S. manufacturers and consumers, from cars to washing machines to hot-water heaters.").
56. See Kevin K. Ho, Trading Rights and Wrongs: The 2002 Bush Steel Tariffs, 21 BERKELEY J. INT'LL. 825, 826-27 (2003).
57. Ambassador William Eberle, Remarks at the Center for Strategic and International Studies 2002 Seminar of Former U.S. Trade Representatives, reprinted in Steel and Lumber, in TRADE POLICY CHALLENGES IN 2002, at 47, 49 (Ctr. for Strategic & Int'l Studies ed., 2002) ("Even if they were given this tariff, they still couldn't afford to pay the legacy costs.").
58. Bob Zoellick's Grand Strategy, ECONOMIST, Mar. 2, 2002, at 35.
59. Robert Read, The Political Economy of Trade Protection: The Determinants and Welfare Impact of the 2002 U.S. Emergency Steel Safeguard Measures, 28 WORLD ECON., 1119, 1120 (2005) (charting the USTIC recommendation and the actual tariffs imposed).
60. James Cox, Bush Slaps Tariffs on Steel Imports, USA TODAY (Mar. 6, 2002), http://usatoday30.usatoday.com/money/covers/2002-03-06-steel.htm, archived at http://perma.cc/46PA-FY6P.
61. Jennifer Rich, U.S. Admits That Politics Was Behind Steel Tariffs, N.Y. TIMES, Mar. 14, 2002, at W1.
62. Responding to such claims of political necessity, the Economist argued: This steel-tariff plan, it is important to remember, lies well outside the ordinary run of bad economic policy: it is so wrong it makes other kinds of wealth-destroying intervention feel inadequate. And was it really politically inescapable? What a depressingly feeble excuse from a president who has promised, and shown, strong leadership in other respects, and who claimed, by the way, to be a champion of liberal trade. Mr Bush and his advisers should be ashamed. Tariffs on Steel: George Bush, Protectionist, ECONOMIST, Mar. 9, 2002, at 13.
63. Harold Brubaker, EU Plans to Counter U.S. Steel Tariffs, PHILA. INQUIRER (Mar. 23, 2002), http://articles.philly.com/2002-03-23/business/25342433-1- steel-tariffs-harley-davidson-steel-imports, archived at http://perma.cc/Q5BW- NS3W.
64. Similarly, Pascal Lamy, the E.U. Trade Commissioner, argued that this specific blend of targeted tariffs should maximize political leverage: "Counter measures are there to leverage a change of decision⋯.You have to do that in sectors and places where you can build a coalition." Mark Tran, EU Plans Retaliation for U.S. Steel Tariffs, GUARDIAN (Mar. 22, 2002, 10:58 AM), http://www.theguardian.com/world/2002/mar/22/usa.eu, archived at http://perma.cc/XD7V-7U4Q.
65. Robert Manor, U.S. Steel Tariffs Must End, WTO Says, CHI. TRIB., July 12, 2003, at C1 ("The administration's response could also affect President Bush's re-election prospects.").
66. Steel Tariffs, PBS (Nov. 10, 2003, 12:00 AM), http://www.pbs.org/ newshour/bb/international-july-dec03-steel-11-10, archived at http://perma.cc/F6VX-YRRZ (discussing the appeals panel's decision).
67. DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 61-62 (1974) ("The electoral requirement is not that he make pleasing things happen but that he make pleasing judgmental statements. The position itself is the political commodity.").
68. Mark Lewis at Forbes predicted in March 2002 that President Bush knew the tariffs were illegal and that they would almost certainly be struck down by the WTO; Bush pushed forward, however, because he wanted to be able to say, "hey, I tried" to his steel supporters. Mark Lewis, Bush to WTO: Save Me from Myself, FORBES (Mar. 6, 2002, 12:20 PM), http://www.forbes.com/2002/03/ 06/0306steel.html, archived at http://perma.cc/7QNZ-E4QQ. Lewis further opined: So Bush has bowed to political realities by giving the steel protectionists much-though not all - of what they asked for. Whether that will keep Ohio and West Virginia in the Republican column in 2004 remains to be decided. But even if the WTO decision has gone against the U.S. in the meantime, Bush will be able to claim credit for at least trying to help the domestic steel producers. Id.
69. See, e.g., JOSEPH FRANCOIS & LAURA M. BAUGHMAN, THE UNINTENDED CONSEQUENCES OF U.S. STEEL IMPORT TARIFFS: A QUANTIFICATION OF THE IMPACT DURING 2002, 12-15 (2003) ("Steel-consumers⋯ lost more jobs to higher steel costs than the total number employed by steel producers.")
70. GARY CLYDE HUFBAUER & BEN GOODRICH, STEEL PROTECTION and JOB DISLOCATION (2003), archived at http://perma.cc/5X3F-2RGH ("Steel protection inevitably leads to worker layoffs in steel-using industries."). In the assessment of Robert Read, "[t]he Safeguards did not address the long-term structural problems of the steel sector - a lack of investment and competitiveness - but were rather a politically expedient strategy that appeared to assist the industry and appeased its protectionist sentiments." Read, supra note 60, at 1126.
71. Nat'l Weather Serv. Weather Forecast Office, The April 14-15. 2012 Woodward. Oklahoma Tornado, NAT'L OCEANIC & ATMOSPHERIC ADMIN., http://www.srh.noaa.gov/oun/?n=events-20120414-woodward (last visited Feb. 14, 2014), archived at http://perma.cc/QU8S-UMGG
72. LaShauna Sewell, Governor Requests Federal Disaster Assistance for Woodward, NEWS 9 (Apr. 18, 2012, 2:59 PM), http://www.news9.com/story/17526306/ governor-requests-federal-disaster-assistance-for-woodward, archived at http://perma.cc/69Y4-EX7A.
73. Meghan Pierce, Gov. Lynch Asks for Disaster Declaration, N.H. UNION LEADER, June 8, 2012, at 3.
74. Jennifer Scholtes, Political Pressure on Disaster Relief, C.Q. WKLY., Oct. 15, 2012, at 2052.
75. Daniel C. Vock & Jim Malewitz, Disaster Declaration Denials Exasperate Governors, STATELINE: DAILY NEWS SERV. PEW CHARITABLE TR. (Aug. 23, 2013), http://www.pewstates.org/projects/stateline/headlines/disaster- declaration-denials-exasperate-govemors-85899499704, archived at http://perma.cc/X6RL-69WP.
76. FEMA, A GUIDE TO THE DISASTER DECLARATION PROCESS AND FEDERAL DISASTER ASSISTANCE 2, 5 (n.d.), archived at http://perma.cc/NU4W-KJZ6 (discussing "other needs assistance" and floodproofing commercial properties).
77. DANIEL J. WEISS & JACKIE WEIDMAN, CTR. FOR AM. PROGRESS, DISASTROUS SPENDING: FEDERAL DISASTER-RELIEF EXPENDITURES RISE AMID MORE EXTREME WEATHER 1 (2013), archived at http://perma.cc/N23C-2MMP.
78. Andrew Reeves, Political Disaster: Unilateral Powers, Electoral Incentives, and Presidential Disaster Declarations, 73 J. POL. 1142 (2011).
79. Pablo Martinez Monsivais, Barack Obama, Donna Vanzant, ASSOCIATED PRESS (Oct. 31, 2012), http://bigstory.ap.org/photo/barack-obama-donna-vanzant-1, archived at http://perma.cc/4G7Z-HS9C.
80. Hurricane Relief 2004 Photo Essay, THE WHITE HOUSE, http://georgewbush- whitehouse.archives.gov/infocus/hurricane/photoessays (last visited Mar. 20, 2014), archived at http://perma.cc/J6DV-JCD3 (collecting photographs of President Bush and First Lady Laura Bush in several hurricane-damaged communities in Florida).
81. cf. John T. Gasper & Andrew Reeves, Make It Rain? Retrospection and the Attentive Electorate in the Context of Natural Disasters, 55 AM. J. POL. SCI. 340, 352 (2011) (finding that one presidential disaster declaration has an effect of 0.52 percentage points at the polls).
82. See, e.g., ANDREW GELMAN ET AL., RED STATE, BLUE STATE, RICH STATE, POOR STATE: WHY AMERICANS VOTE THE WAY THEY DO (2008).