Madam Speaker: Use the Rules!

There's an extensive commentary about whether the bailout is the right thing to do.

And there's also an extensive commentary about why the bailout failed in the House yesterday.

I think the bailout vote failed in part because the majority party didn't make good use of their most powerful ally: creative rules.

Most major legislation is brought to the House floor by using a rule. As I tell my students in my Legislative Process class, when bills emerge from committee they are placed on the House Calendar. However, very often major pieces of legislation need to be acted upon before their place on the calendar. In these instances, the majority party leadership will ask the rules committee for a rule to bring the bill up for debate earlier. And in the case of major legislation that is very carefully crafted, the majority party will ask for a rule to protect the carefully crafted compromise from hostile amendments.

In absence of a rule governing debate on a bill, nearly anything can happen. Anyone might submit an amendment, and debate might drag on for sometime. Instead, rules typically proscribe the length of the debate and the amendments that will be in order. Before taking up a bill with a rule, the rule is debate and voted upon first, and then--once the rule passes (a near-certainty)--debate will be take up under the guidelines of the rule.

For example, a rule might indicate that debate will be for one hour, with time equally divided between proponents and opponents of the bill. No points of order will be allowed, and only two amendments made by the chair of the committee of jurisdiction will be allowed.

The vote on the bailout was a difficult choice for many members, particularly members in the majority party from marginal districts or those running for higher office. Nearly all of them voted no. Had members from marginal districts voted yes, then the Democrats would have had an ample margin to pass the bill.

Why didn't those Democrats vote yes? Because the bill put them in a tough position. Much of the public is opposed to the bailout, and in this instance, those members chose to act as delegates rather than trustees. And who could blame them?

Pelosi, though, could have anticipated this and drafted a rule that would have allayed the concerns of these members. For example, she could have brought the bill up for consideration under a King of the Hill rule. This rule allows votes on several alternative versions of the bill. The bill that is in the final position is the only vote that will count.

So, one could imagine crafting several different versions of the bill to allow those members in tough re-election fights to vote for or against several other versions of the bill and then casting their vote in favor of the final version. Then they could go back to their constituents and say: "I voted against all these harsher versions" or "I voted for all these harsher versions" before I doing the "right" thing and voting for the compromise legislation.

But Pelosi didn't do that. The bill failed, and the stock markets collapsed.

Pay careful attention to what the leadership does next. Stay tuned, and follow the rule and the proposed legislation here.

Nomination Rules Matter

As the 2008 race for the Democratic primary continues to play out and Obama strings together victory after victory, some have reported that Texas and Ohio on March 4 are do or die for Hillary Clinton (see here). I tend to agree.

What is more interesting from my perspective, however, is how the differences between the Democratic and Republican nomination rules have produced very different delegate count outcomes between the two parties. I tell my students that rules matter, and this is yet another example. A series of winner-take-all rules in a number of states have allowed McCain to magnify the effect of close, plurality victories in the popular vote. The Democratic Party, however, does not allow winner-take-all contests. Rather, the vote in each nomination event must be apportioned proportionately.

If the Democrats had winner take all rules for their contests, could that alter the dynamics of the nomination fight?

What I've done in this chart is to calculate the culmulative delegate total under two scenarios: a winner take all scenario for each nomination contest and the proportional rules that currently exist. Then, I totalled the number of delegates each candidate wins on each day of the election calendar thus far. CWTAC and OWTAC are the culmulative vote totals for Clinton and Obama under a winner take all scenario at the end of each election day, and CP-C and OP-C are the proportional vote totals for Clinton and Obama, respectively.





What are the consequences of winner take all rules? Look at Super Duper Tuesday. By the close of business that day Hillary would have had a 300+ delegate advantage over Obama. But under the existing arrangements, Obama had the pledged delegate advantage by 16.

Under Winner Take All, Super Duper Tuesday would have clearly given Hillary the Big Mo. Under the plurality system, Barak is able to claim to have carried his momentum from South Carolina into Super Tuesday and beyond.

Now, let's do a little predicting. Let's see what competing under each set of rules does to the February 19 and March 4 contests. I've awarded wins to Obama in HI and WI (Feb. 19) and in Vermont on March 4. Hillary wins Texas, Ohio, and Rhode Island. For the sake of argument, let's say Barak wins WI and HI with 60 percent of the vote, and Hillary wins her states with 55 percent. Obama wins VT with 60 percent.

Now, look at the next chart. Under winner take all, Hillary moves ahead of Obama in the delegate count by more than 200. Under the existing rules, Obama is still the front runner.






The consequence of the Democratic plurality rules is clear: it makes it very hard for a candidate in a competitive two-way race to break away. The end result of the 2008 Democratic primaries and caucuses might be a decision made by the superdelegates. What an irony in a system that was devised, initially, to be more responsive to the will of the people. Had winner take all rules exist, Super Duper Tuesday--as the Clinton's had argued all along--probably would've had sealed the deal for Hillary as the nominee.

I'll leave it up to you to decide whether the superdelegates should ratify the choice of the electorate or to select the nominee based upon their own set of criteria (which, of course, is the classic delegate versus trustee tradeoff members of Congress make all the time).