Category: US Government

The HHGTTG Approach to Cloture

In 1975, the Senate adopted a rule change that makes me think of the beginning of Hitchhiker’s Guide to the Galaxy. A chap’s house is scheduled for demolition for “progress” — a new motorway. He lays down in front of the bulldozer to prevent his house from being smashed to bits, but his neighbor wants to hop over to the pub. So they explain to the crew manager that the chap could spend the day laying in front of the bulldozer; and, as such, it should be taken that he is laying in front of the thing even if he’s not. In the book, the answer is immaterial since the entire planet is slated for destruction so an interstellar motorway can be put in … and the discussion is meant to be fascicle regardless.

A filibuster isn’t really a legal construct — debate in the Senate could continue until everyone has had their say. That’s a process intentionally designed to slow legislation — to prevent knee-jerk responses to immediate situations. Using your ability to keep “debating” the bill to stall (or table) a bill is known as filibustering. Since 1917, Senate Rule 22 defines a “shut up and let’s vote” process (cloture) that closes debate on a bill and moves it to vote. It takes more people to invoke cloture than it does to pass a bill — 67 votes in 1917, 60 votes since 1975 — meaning the minority party potentially could stall legislation until the majority party gives up on it. Unfortunately, another change adopted in 1975 — the HHGTTG one — seems to operate on the idea that … just because you could continue debating a bill for a month means that you are doing it. And, as such, you don’t really need to stand and talk. With the rule change, the minority party could require a 3/5 majority to pass any legislation by requiring a cloture vote.

Prolonging debate on a bill requires a lot of dedication — and one dude isn’t going to be particularly effective in doing so. How long can one person actually speak from the floor? Strom Thurman holds the record at just over 24 hours with a soliloquy in opposition of the 1964 Civil Rights Act. But it wasn’t just Thurman — a whole group of Senators combined to prolong debate for sixty days. Eventually there were 67 votes to close debate (and the law passed).

Since 1975, the Senate’s approach to cloture (a.k.a. the filibuster) uses HHGTTG’s bulldozer reasoning — someone could stand on the Senate floor and talk for a long time. We should all assume they are talking on the Senate floor for an infinite period of time, thus a 3/5 majority is required to close debate and bring the bill to vote.

I think the Democrats today are making a massive tactical / branding mistake — instead of trying to “reform” or “eliminate” the filibuster, they should simply eliminate the HHGTTG component whilst pointing out how silly the idea is. If you want to marshal a group of Senators to keep talking for sixty days, have at it. But you’ve got to actually talk for sixty days. Sure, read every state’s voting laws. Read every state’s laws that might almost kinda be related to voting laws — ID is required, so lets read all about how to get a drivers or non-drivers ID in each state. Read research papers about voting rights. Read speculative information about how online voting could be implemented. Read the entirety of cases from states where courts have ruled on gerrymandered districts. But you cannot just say “I would prolong debate on this forever, so bring a cloture motion to stop me now” and be done with it.

While the Democrats had enough of a majority in 1975-1979 to close debate, Congress has been more evenly split in the subsequent decades. And the resulting public impression of Congress as virtual filibusters are used to prevent legislation from coming to vote is that nothing gets done. Blame which is assigned to the majority party — you’ve got enough votes to pass legislation, why aren’t you passing legislation?!? Having video of the minority party droning on to prevent the legislation from coming to a vote could create a vastly different perception of the obstruction.

Session Years Republicans Democrats Other
94 1975-1977 37 61 2
95 1977-1979 38 61 1
96 1979-1981 41 58 1
97 1981-1983 46 53 1
98 1983-1985 55 45 0
99 1985-1987 53 47 0
100 1987-1989 45 55 0
101 1989-1991 45 55 0
102 1991-1993 44 56 0
103 1993-1995 43 57 0
104 1995-1997 52 48 0
105 1997-1999 55 45 0
106 1999-2001 55 45 0
107 2001-2003 50 48 2
108 2003-2005 51 48 1
109 2005-2007 55 44 1
110 2007-2009 49 49 2
111 2009-2011 41 57 2
112 2011-2013 47 51 2
113 2013-2015 45 53 2
114 2015-2017 54 44 2
115 2017-2019 51 47 2
116 2019-2021 53 45 2
117 2021-2023 50 48 2

 

Civics Lesson – Federal and State Laws

Civics classes seem to do a good job of explaining the framework for federal and state government. The branches and processes are covered as well. But, ironically, there’s not much information about laws enacted/enforced by these governments. Sure, you know the legislature writes a bill, both houses vote to make it a law, and the head of the executive branch (president or governor) sign their agreement with the law to actually enact it. But … then what? How do people know what the laws actually are?

Laws are maintained in the “Code”. There’s a US Code and state code — e.g. Ohio Revised Code (ORC) in Ohio. At the federal level, there are also regulations in the Federal Register — this includes rules (and proposed rules) individual executive branch departments enact. It also contains executive orders. States maintain their own registers — the Ohio Register, for example. Now, someone may think rules / orders from the executive branch fall outside the scope of the law — and that person is welcome to bring a suit challenging the law. But, unless there’s an injunction or the regulation has been overturned … it’s still a rule you need to obey.

In addition to the laws enacted by congresses and regulations written by the executive branch, the American legal system is based on “common law” — basically what a court decides about a situation based on their reading and interpretation of the laws becomes guidance for future or down-level cases. Which is to say you can read the Ohio Revised Code front to back and still not have a complete understanding of the practical implementation of laws within Ohio.

Take, for example, ORC 519.02 which states that

Except as otherwise provided in this section, in the interest of the public health and safety, the board of township trustees may regulate by resolution, in accordance with a comprehensive plan, the location, height, bulk, number of stories, and size of buildings and other structures, including tents, cabins, and trailer coaches, percentages of lot areas that may be occupied, set back building lines, sizes of yards, courts, and other open spaces, the density of population, the uses of buildings and other structures, including tents, cabins, and trailer coaches, and the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of the township

That’s pretty open ended. What is a comprehensive plan? If you’ve got a chapter in your zoning resolution that’s called “Comprehensive Plan” is that good enough [spoiler alert: it can be … see Central Motors Corp. v. City of Pepper Pike, 63 Ohio App.2d 34, 65 (8th Dist.1979)] or does the Township need to break that chapter out into its own “Comprehensive Plan” document? Who is involved in writing that plan, how often can it be updated, etc. These details emerge as someone says “hey, court, I don’t think this is right” and the court clarifies some detail of the Code.

So you’ve got federal laws, state laws, federal and state executive branch regulations, federal and state executive orders, and decisions made in court cases that make up “the rules”.  Who do you complain to when you don’t like the rules?

Every time my daughter complains to me about being unable to drive, I tell her to write her state rep. Not because I particularly think the state rep is going to do anything, but “you have to be 16 to drive” is a state law. The only ones who can change a state law is the state legislature (I expect a federal driving age would be ruled unconstitutional, but starting at the federal level to change the ‘you only get our money if’ wouldn’t be a bad direction either. Sometimes the state has the law because federal funding is predicated on having the law — that’s how the drinking age got standardized across the country. But a state could, hypothetically, opt out of federal funding and do their own thing.)

What’s my point? If your township has some rule that you don’t like, there may not be much the Township Trustees can do about it. When the State Supreme Court has made a decision that creates a rule … you need to be talking to your state rep and senator to push to have that rule changed. They could pass a law that negates the court decision. Now someone could challenge the constitutionality of the new law in court … if the court deems the law unconstitutional, then the legislature could amend the state constitution too. When the federal government has created a regulation, you’d need to be talking to your federal rep and senators.

ORC Hunting – Message to State Rep

Quick message to my new state rep trying to get airgun hunting legalized here for large game:

 

Good Afternoon!
Congratulations on taking office yesterday.

ORC presently does not allow for hunting deer with air guns. With smaller air guns, that makes sense from an ethical hunting standpoint (same reason, I assume, a minimum draw weight is defined for archery). But there are rather powerful air guns available — and I’d love to be able to hunt deer with something like an 50-cal AirForce Texan CF. There are other states that permit hunting big game with an air gun — and I’d encourage you to see about getting similar legislation enacted in Ohio.

Thank you for your time,
–Lisa

Musing on Pardons

 
Trump’s potentially got exposure in issuing pardons if he’s covering up crimes in which he was involved. Bit of a legal stretch (and proving corrupt intent would be difficult). No point *now* with the OLC policy against indicting a sitting president, and we’ll probably get another “for the sake of unity, put the past in the past” administration. But it seems feasible.
 
And I’m curious how pardons impact 5th amendment protection. If you’ve got a pardon for *your* part in the crime, you’re not being ‘compelled in any criminal case to be a witness against himself’ and I expect could be compelled to testify against others (including Trump) who were involved. Or be charged for failing to provide honest testimony.

Minority Rule

‘Having more Reps than any other state’ does not mean “the population is equitably represented”. The number of people represented by those Representatives (or electoral college delegates, for that matter)? Each House member represents ~702k Californians. Each electoral delegate represents ~677k Californians.
Congressional apportionment isn’t fractional, so there’s over- and under- representation — the distribution just advantages different states. Rhode Island had just over a million people in the 2010 census but have two reps — each of those individuals represent some 500k Rhode Islanders. There are states that fair worse in the HoR — Montana had just under a million and have one rep.
Taking the American government as a whole — low-population density states are over-represented in the Senate and Electoral College — which also means they are over-represented in SCOTUS. Asserting “the majority have a chance to win one half of the Legislature … a chance to create an impasse where nothing gets done” isn’t the most functional form of government imaginable. I understand and appreciate the “minority rights” idea behind over-representation. And, obviously, those in the minority will view the situation differently. But there’s a difference between the minority having enough power to force compromises toward their position and minority rule with … well, seemingly “fuck you”. Or minority rule with a majority who are able to prevent legislative changes (leading to the prevalence of Executive Orders).

 

Number of people represented by each rep in the Senate:

This is where I’d know small populations are over-represented. Two senators regardless of population — a state with a hundred residents would have two senators. Obviously we don’t have a state with a hundred residents — but the least populous states are the ‘best deal for residents’ list — lowest number of people represented by each Senator

Size Rank State 2010 Population per Census Senators # Represented per Senator
52  Wyoming 563,626 2                                     281,813.0
50  Vermont 625,741 2                                     312,870.5
49  North Dakota 672,591 2                                     336,295.5
48  Alaska 710,231 2                                     355,115.5
47  South Dakota 814,180 2                                     407,090.0
46  Delaware 897,934 2                                     448,967.0
45  Montana 989,415 2                                     494,707.5
44  Rhode Island 1,052,567 2                                     526,283.5
43  New Hampshire 1,316,470 2                                     658,235.0
42  Maine 1,328,361 2                                     664,180.5

And the most populous sates are the ‘worst deal for residents’ list — highest number of people represented by  each Senator

Size Rank State 2010 Population per Census Senators # Represented per Senator
1  California 37,253,956 2                               18,626,978.0
2  Texas 25,145,561 2                               12,572,780.5
3  New York 19,378,102 2                                  9,689,051.0
4  Florida 18,801,310 2                                  9,400,655.0
5  Illinois 12,830,632 2                                  6,415,316.0
6  Pennsylvania 12,702,379 2                                  6,351,189.5
7  Ohio 11,536,504 2                                  5,768,252.0
8  Michigan 9,883,640 2                                  4,941,820.0
9  Georgia 9,687,653 2                                  4,843,826.5
10  North Carolina 9,535,483 2                                  4,767,741.5

 

Number of people represented by each rep in the House of Representatives:

But the apportionment in the House of Representatives isn’t as equitable as one might assume. It’s a different list of states under- and over- represented … but one rep from Rhode Island represents half a million people. One rep from Montana represents just short of a million people!

Best deal for residents — small number of people represented by each rep

Size Rank State 2010 Population per Census Reps # Represented per Rep
44  Rhode Island 1,052,567 2                             526,283.5
52  Wyoming 563,626 1                             563,626.0
39  Nebraska 1,826,341 3                             608,780.3
38  West Virginia 1,852,994 3                             617,664.7
50  Vermont 625,741 1                             625,741.0
43  New Hampshire 1,316,470 2                             658,235.0
24  South Carolina 4,625,364 7                             660,766.3
21  Minnesota 5,303,925 8                             662,990.6
42  Maine 1,328,361 2                             664,180.5
13  Washington 6,724,540 10                             672,454.0

Worst deal for residents — high number of people represented by each rep:

Size Rank State 2010 Population per Census Reps # Represented per Rep
45  Montana 989,415 1                           989,415.00
46  Delaware 897,934 1                           897,934.00
47  South Dakota 814,180 1                           814,180.00
40  Idaho 1,567,582 2                           783,791.00
27  Oregon 3,831,074 5                           766,214.80
31  Iowa 3,046,355 4                           761,588.75
25  Louisiana 4,533,372 6                           755,562.00
28  Oklahoma 3,751,351 5                           750,270.20
18  Missouri 5,988,927 8                           748,615.88
32  Mississippi 2,967,297 4                           741,824.25

 

Electoral College:

The combination of which yields the over and under representation in the Electoral College (and the reason I think the National Popular Vote Interstate Compact is such a good idea).

Best deal:

Size Rank State 2010 Population per Census Electoral Delegates # Represented per Delegate
52  Wyoming 563,626 3 187,875
51  District of Columbia 601,723 3 200,574
50  Vermont 625,741 3 208,580
49  North Dakota 672,591 3 224,197
48  Alaska 710,231 3 236,744
44  Rhode Island 1,052,567 4 263,142
47  South Dakota 814,180 3 271,393
46  Delaware 897,934 3 299,311
43  New Hampshire 1,316,470 4 329,118
45  Montana 989,415 3 329,805

And the worst deal

Size Rank State 2010 Population per Census Electoral Delegates # Represented per Delegate
1  California 37,253,956 55 677,345
3  New York 19,378,102 29 668,210
2  Texas 25,145,561 38 661,725
4  Florida 18,801,310 29 648,321
5  Illinois 12,830,632 20 641,532
7  Ohio 11,536,504 18 640,917
10  North Carolina 9,535,483 15 635,699
6  Pennsylvania 12,702,379 20 635,119
11  New Jersey 8,791,894 14 627,992
8  Michigan 9,883,640 16 617,728

Divide by Zero Error

None of which speak to the almost five million people who are unrepresented in the Legislature. Or the just short of one million people who aren’t even represented in the Electoral College.

Size Rank State 2010 Population per Census Reps # Represented per Rep Senators # Represented per Senator Electoral Delegates # Represented per Delegate
29  Puerto Rico 3,725,789 0 #DIV/0! 0 #DIV/0! 0 #DIV/0!
51  District of Columbia 601,723 0 #DIV/0! 0 #DIV/0! 3 200,574
53  Guam 159,358 0 #DIV/0! 0 #DIV/0! 0 #DIV/0!
54  U.S. Virgin Islands 106,405 0 #DIV/0! 0 #DIV/0! 0 #DIV/0!
56  Northern Mariana Islands 53,883 0 #DIV/0! 0 #DIV/0! 0 #DIV/0!
55  American Samoa 55,519 0 #DIV/0! 0 #DIV/0! 0 #DIV/0!

 

And the spreadsheet, in case it’s useful to someone else.

Words of Obligation

Our Township recently came across a provision in the Zoning Regulations that stipulated that, upon receipt of a request, the board shall approve said request. The county prosecutor’s office advised them that this phrasing means they must approve the request. Now, that’s a risk mitigation decision, not a purely legal one. If they don’t approve the request, they could end up in court arguing over the meaning of the word “shall”. Gutierrez de Martinez v. Lamagno 515 U.S. 417 (1995), as an example, indicates it’s not apt to be a losing case. But … our County Prosecutor’s office is quite circumspect and very cautious. You could argue that shall is not a word of obligation. But you could also replace ‘shall’ with ‘must’ or ‘may’ in your text and avoid any question. Given that the ordinances can be changed, the only down side to eliminating ambiguous language is time.

Last night, we attended a meeting where they discussed the proposed new language to avoid needing to rubber-stamp every submission. And … the new text is riddled with the word shall. When a request is submitted for a special event permit, the request shall, provided the requestors have addressed this list of considerations, be approved. I brought up the scenario where multiple requests are received for the same area for the same time-period. Each individual event has sufficiently managed crowds, parking, noise, health and safety facilities, etc. But in toto three Independence Day special events within a quarter mile of each other creates a traffic concern. Or twelve Memorial Day special events across the township will strain emergency response resources. They need the flexibility to say “sorry, you’re the fifth guy who wants to do something this weekend … no”.

Reasonable Doubt

America need an org that identifies police misconduct instead of DNA testing and will file motions for new trials to present the perfectly reasonable argument that flagrant misconduct is likely not an isolated incident. Somewhat like Project Innocence, but with a different basis for their requests. 

There were some cops in Philly (well, I’m sure this isn’t unique to Philly) who got fed up with not finding evidence on people who they “knew” were clockin … so they planted what they needed to find, ignored search and seizure laws, etc. The city had to go back through a whole lot of cases because, hey, that’s reasonable doubt as Bob has been saying for three years that it wasn’t his crack. If memory serves, the city also had to fork over a bunch of money in restitution.
 
Would an officer who is willing to kill someone take the mindset of the Philly cops? ‘Knows’ the person is guilty, frustrated that no evidence can be found. Even without extrapolating additional misconduct, how many *other* people were ‘resisting’ like Mr. Floyd? People who ended up incarcerated for resisting arrest and/or assaulting an officer. The actions of the individuals in Minnesota seems like new evidence that would create reasonable doubt in other cases where the officers involved claim someone was resisting. Bob says he wasn’t resisting arrest. Officer Fred, who has demonstrably lied saying a compliant person was resisting, says Bob was resisting. That’s a far different assertion than Bob says he wasn’t resisting, Officer Fred, who is an upstanding officer with a decade of service, says Bob was resisting.

Like in the movies

Every time I’ve watched a sci-fi movie where someone builds a robot that decides to annihilate humans, I wonder how the engineer missed out on the previous thousand movies where someone’s very good idea for a robot kills us all. I mean, sure it would be a really short movie if we pan into some lady sitting in a lab with a bunch of robotic bits spread out on a table and hear her say “Wait … I’ve seen Collossus: The Forbin Project … lets not do this”. And she shuts down the computer, shelves the components, turns the lights off, and goes home. But seriously, how could anyone about to install laser cannons on a drone not think “wait … “. Some movies address this with a four-laws derivative — I know the previous thousand robots went horribly awry, but here’s my idea at coding in guardrails.

Kind of think the same thing about zombie movies — the body of work tells you that really good precautions and quarantines are totally the way to go. But what happens IRL when there’s a contagious virus about? Exposed passengers from a cruise ship are flown back to the States. HHS’s welcome committee aren’t trained for infectious disease exposure and don’t kit up.

Updated Federal Budget Distribution – 2019

Here’s the latest pie charts of how the federal government spends its money. Again, there’s discretionary spending — spending from appropriation bills and the full budget which includes spending for things like Social Security, Medicare, and Medicaid which vary depending on the number of recipients and how much each recipient is being paid. This doesn’t mean the non-discretionary components couldn’t be changed — there’s been discussion of means testing Social Security payments and Medicare eligibility — but these changes are generally considered politically untenable (would you vote for the guy who just reduced your SS cheque because you happened to have a pension or money saved in a retirement account?).

Here’s the full budget breakout, updated for 2019

And discretionary budget