Saturday, June 30, 2012

The Latest 2012 Big Map, The Supreme Era of John Roberts

2012 Presidential Update
Days Until the Election: 129
Projected Popular Vote Total: Obama +3.2% (Obama down 0.3% from last week)
Projected Electoral Vote Total: Obama 332, Romney 206 (Obama +18 from last week)

The national polling was fairly flat last week, but the geographic dynamics shifted slightly but significantly from an electoral standpoint.

Ohio, was has switched back and forth over the past month, switches back to President Obama, as he establishes a narrow lead there.  New England, meanwhile, moves a little closer, with New Hampshire now only a Lean Obama state and Massachusetts shifting down one notch (although not seriously predicted to be competitive.)

Virtually all of the polling included in this update was conducted prior to the Supreme Court's ruling on the Affordable Care Act, which the effect of (whatever that may be) should show up in earnest next week.

John Roberts, Meet Warren Burger
The Supreme Court decision to uphold almost all of the Affordable Care Act, most notably the so-called individual mandate by a 5-4 vote was a minor surprise.  Most observers, myself included, expected the most likely outcome to be a 5-4 vote to strike the mandate, with the outcome that actually happened being the second most likely scenario.

What virtually all of us anticipated was the liberal wing of the court, including Ginsburg, Sotomayor, Kagan and Breyer on one side, with the conservative wing of Thomas, Scalia, Alito and Roberts on the other side and the fifth and deciding vote being cost by moderate Reagan appointee Anthony Kennedy.

But something happened on the way to a Supreme Court ruling.  Kennedy sided with the conservatives, as was narrowly expected.  But Chief Justice John Roberts broke ranks to uphold the individual mandate.

This tells us a few things.  First of all, Roberts has a deep-seated belief in the separation of powers.  There is virtually no question that John Roberts considers the ACA to be poor legislation.  Prior to his time on the bench, Roberts was a member of the steering committee of the right-wing Federalist Society, a libertarian/conservative think tank who are certainly no fans of the ACA.  Roberts worked for the Bush campaign in 2000 in the Florida Recount.  He is a political conservative - no question.
But Roberts clearly believes that a Supreme Court ruling striking down the health care law would be an undue exercise of judicial power - substituting the Supreme Court's judgement for the judgement of elected officials.

In fact, Roberts took great pains to make clear in his opinion that this was not a judgement in favor of the policies in the ACA, stating, "we do not consider whether the act embodies sound policies.  That judgement is entrusted to the nation's elected leaders."

In my opinion, Roberts got it exactly right on the constitutional question, ruling that the government does not have the authority to require people to purchase health insurance but does have the power to tax those who do not.  Roberts wrote:
"The federal government does not have the power to force people to buy health insurance.  The federal government does have the power to impose a tax on those without health insurance...It is reasonable to construe what Congress has done as increasing taxes on those that have a certain amount of income, but chose to go without health insurance."

There were two principal arguments for the constitutional authority of the law.  The first, and actually primary argument was under the commerce clause of the constitution, the federal government has the right to "regulate commerce among the several states".  This has been construed by the court in the past as a broad power, with the federal government having been seen to have a right to not only regulate trade that moves across state borders, but trade within the borders of states that impacts the marketplace of other states - for instance, regulate the growing of corn in Iowa even if that corn is being sold within Iowa because it impacts national prices.

What has never been tested before is the authority of the federal government to require people to DO things versus NOT DO them.  Requiring an affirmative purchase from an individual by requiring them to purchase something would be an expansion of historical power, one that the 4 liberal justices were comfortable with, but one that the other 5 more conservative justices were not.

In other words, the court ruled that it would be unconstitutional to, for instance, throw people in jail if they didn't purchase health insurance.  This seems to me to be a very prudent interpretation of the constitution as a ruling on the commerce clause that allowed the government to require people to do things would open the door to virtually unlimited power over individual actions by the federal government.

The taxation question is a different question as the governments authority on taxation is considerably more broad.  The clause in the constitution (Article I, Section VIII) states:
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States"
Note that the original text also went on to restrict taxes to only allow that the taxes be uniform (i.e. proportional to population or trade) but that this restriction was removed with the ratification of the 16th Amendment in 1913.

There are essentially no restrictions on the right of Congress to pass any tax it sees fit, so if you construe the financial fee charged in the ACA to those without individuals as a tax, which both Roberts and I see as a reasonable interpretation.

Some will argue that the issue is the same as with the commerce clause in that this is a tax on inactivity versus a tax on activity (say an income tax or a consumption tax), or, more bluntly that you are taxing people for NOT having health insurance versus taxing someone for purchasing something or earning income.

This argument falls flat to me for two reasons:
1.  It is a distinction without a difference - Congress creates tax credits all the time to provide incentives for behavior - tax deductions for charitable contributions, tax credits for education and solar panels, tax credits for oil exploration and many, many others.  If Congress had worded the health care bill as a general tax increase with a tax credit for those who purchase health insurance, the net effect would have been the same - an increase in tax costs for those who don't purchase health insurance and a net neutral tax position for all others.
2. Even if you construe this as a new and different tax on inactivity, there is no reasonable interpretation that I can make of the constitutional authority above that prohibits taxes on inactivity.  The taxing power of Congress is fairly absolute.

Roberts, in breaking with the conservative wing on this issue, follows a long tradition of judicial independence.  Few today remember Chief Justice Warren Burger.  Burger was appointed to the court by Richard Nixon in 1969, replacing the liberal Earl Warren, who had presided over many liberal decisions with the most famous being Brown v. Board of Education (which ruled racial segregation in public schools illegal) as part of what was, at the time, perceived as a conservative effort to stack the court.  Playing far from the script, Burger, once on the court, presided over several surprisingly liberal decisions, the most notable being Roe vs. Wade in 1973, which he wrote himself.  Burger also wrote the 9-0 ruling that the Nixon White House had to turn over crucial information about the Watergate break-in and wrote the 9-0 decision in a case that required expansive busing of school children in Charlotte to better integrate public schools.  Burger, in other words, became a reliable liberal on the court.

Similarly, David Souter, a George Herbert-Walker Bush nominee, was seen as part of a new conservative majority when he was appointed to the court in 1990.  Far from following script, Souter became a reliable liberal vote on the court.

This is exactly why the judiciary is independent.  And the system works, largely, whether you agree with you agree with all the courts rulings (and few do - most liberals detest the Citizens United ruling that allows essentially unlimited corporate spending in elections and most conservatives will detest the ACA ruling.)

In my opinion, Roberts did exactly what a Supreme Court Chief Justice should do.  He exercised independent judgement on a difficult constitutional question.  And in my opinion, he also got it exactly right.

If you like this site, tell your friends.

Sunday, June 24, 2012

The Big 2012 Electoral Map - Good Week for Obama, The Future of Obamacare, Commerce and Justice Departments in Disarray

Electoral Map Update
Days Until the Election: 135
Projected Popular Vote Total: Obama +3.5%
Projected Electoral Vote Total: Obama 314, Romney 224

Mitt Romney's closing of the gap against President Obama sure didn't last long.  Obama gained over two and a half points in the national polls (more on that and the outlier Bloomberg Poll later) and appears to now hold a small lead in Florida, a state he had been trailing Romney in marginally for some time.

The two bright spots for Romney are that he held onto a razor-thin lead in Ohio, a must win state, to be sure, and moved far closer in Michigan, which moves into the "lean" category for the first time.  Winning Michigan would be game-changing for Romney, as it takes him out of the narrow electoral box that I have been describing for several weeks.  Flipping just Michigan and Florida from the current electoral map would yield a 269-269 electoral college split, more than likely enough for Romney to win the Presidency, given the Republican house.  Of course, it would also make the couple of electors that I have not been closely tracking in Nebraska and Maine, the two states that are not winner-take-all, crucial.  If a winner-take-all scenario yields a 269-269 split, Obama need only win one congressional district in Nebraska (as he did in 2008) and Romney need only win one of the two districts in Maine (which certainly seems possible, given how much more competitive Maine is than in 2008.)  Deciding a Presidency on this basis would probably be extremely unsatisfying, but the rules are what they are.

National polling was thrown a big curve ball this week when the Bloomberg Presidential poll, which is a fairly respected non-partisan national poll, showed President Obama with a 13 point lead over Mitt Romney.  I've looked at the polling report and there is nothing obviously wrong with the sample selection or methodology, which is in line with other national polls.

So what are we to make of this poll?  Clearly I don't think President Obama has a 13 point lead, as every other national poll shows a much closer race, but this is a good lesson in poll sampling error and statistical outliers.

The way polling works, fundamentally, is by sampling a small portion of the population and using that to project the larger national picture.  Polling is a statistical science, by which taking a sample, if the sample size is large enough relative to the group that you are attempting to sample, you can provide an accurate picture most of the time.

There are two statistical elements which describe the possible variability of a poll - they are expressed statistically as the confidence interval level and the confidence interval range.  The confidence interval range is typically referred to in the media as the "Margin of Error".  This isn't strictly correct, since it ignores the confidence interval level, which is typically not published, but usually 95%.  National media also tends to ignore the fact that the confidence interval runs both other words if it is 3%, then you would have to subtract 3% from one candidate AND add 3% to the other candidate to find the outer range of the confidence interval, or a 6% swing.

In the case of the Bloomberg Poll, the confidence interval was a 95% confidence interval and the confidence interval range was +/- 3.5%.

The media would simply report "the poll had a margin of error of 3.5%".

A statistician would say "We have 95% confidence that each candidate's actual total is within 3.5% of the reported total in the poll".

So, the Bloomberg Poll could be the 1 time in 20 that the poll is just flat wrong.  Or it could be that the 13 point lead that it is reporting is really a 6 point lead and the poll, is, in fact, withing the "margin of error".

Regardless, other national polls from the week, show the following:
Pew Research - Obama +4%
Assocaited Press - Obama +3%
Gallup - Even
Rasmussen - Romney +5%

So, clearly the Bloomberg poll is a high outlier for Obama and the Rasmussen poll is a high outlier for Romney, with the other three showing somewhere between a 0 to 4% lead for the President.  Aggregating all the poll results gives us a 3.5% lead for the President, so the Bloomberg poll does have an impact on the numbers, but not an outsized one.

Monday Is the Day (Probably) for SCOTUS and Obamacare
Monday is the last scheduled day for the Supreme Court to issue rulings and is therefore the probable date for it to issue its ruling on Obamacare.  Now, the Supremes have utter discretion to extend the date if they need more time to finish the ruling, but the odds are still in favor that we will see a ruling early this week.

So what is likely to happen?  The Supreme Court appears to be the last institution that is highly effective at preventing leaks, so I don't have any intelligence that isn't public knowledge, but, like everyone else, I can speculate based on the questioning during the arguing of the case.

There appears to me to be a clear 5-4 majority that favors striking down the individual mandate.
George W. Bush nominees John Roberts and Samuel Alito plus George H.W. Bush nominee Clarence Thomas will join Reagan nominees Antonin Scalia and Anthony Kennedy to form the 5 vote majority, opposed by Clinton nominees Ruth Bader Ginsberg and Steve Breyer and Obama nominees Elena Kagan and Sonia Sotomayor.  I mention the nominating Presidents to make one simple point - this appears poised to be a straight party-line vote, rather than a debate of complex legal theories.

Kennedy was thought to be the swing vote, but made it fairly obvious by his questioning in the case that he is highly skeptical of the mandate.

What is very much in debt is whether striking down the mandate (assuming the court does) will lead it to invalidate the entire law or whether it will allow the law to stand without the mandate.  I don't really know, but I believe it is likely, also by a 5-4 vote, with Kennedy swinging the deciding vote, that it will rule that the rest of the law can stand.  To strike down the rest, in spite of a clear notice in the law of severability would be a massive overreach of power by the Supremes, and the fact that 4 "strict constructionist conservatives" appeared poised to do it largely invalidates their complaints of judicial activism.  There is certainly some chance that the court will rule 5-4 the other way, with Kennedy not swinging his vote, but I think it is more likely than not that the rest of the law will stay intact.

Hit and Runs and Fast and Furious
The now very well publicized Fast and Furious scandal at the Justice Department reached a new level of rancor this week, with President Obama asserting executive privilege over Justice Department memorandum related to the ill-fated program.

This is now a full-fledged scandal, with Holder for months denying the program, which sold guns to Mexican cartels, then subsequently lost track of the guns, which were used to slaughter Mexican civilians and a U.S. agent, then admitted it existed and has consistently dodged congressional inquiry.

Now, Republicans love to witch-hunt scandal in an otherwise clean Obama administration.  But they have good cause in this case.  Obama should stop letting Holder hide behind him, live up to his stated commitment of public transparency and release the information.  We have a right to know what is in those documents.  And Holder should resign for his role running the department.  Loyalty to Holder should not trump national interest.

In addition to the well-known Justice Department troubles, Obama continues to struggle with the Commerce Department.  The Commerce Department has plagued the President since before he took office.  It took three tries to get a suitable nominee to head the department, with Obama's first pick of Tom Daschle withdrawn due to a tax scandal, his second nominee, Republican Judd Gregg, withdrawn after Gregg decided he didn't want the job.  Obama' third nominee, Gary Locke, actually made it to running the department, but lasted scarcely two years before talking.  Obama's fourth nominee and second secretary, John Bryson, took office last October, but resigned under strange and questionable circumstances last week after being arrested for a hit and run and blaming the situation on a seizure.  With Bryson gone, we may never fully understand what happened during Bryson's traffic accident, but Obama has a hole in his cabinet again.  Don't expect any nominee to get approved before the election.

If you like this site, tell your friends.

Friday, June 15, 2012

Electoral Map Update - Ohio Shifts to Romney

Days Until the Election: 144
Projected Popular Vote Total: Obama +0.8%
Projected Electoral Vote Total: Obama 285, Romney 253

Shifts Since Last Week:
Ohio moves from Lean Obama to Lean Romney

Not a lot has actually changed in the past week in the Presidential race.  The average of averages for national polls is almost identical (+0.8% this week for Obama versus +0.9% last week.)  And we only had a single state shift categories.

The reason it feels different is that one shift happened in Ohio and its 18 electoral votes swing from Obama to Romney in our total, edging him closer to 270.

But it feels more different than it is.  Both last week and this week we have a very tight race.  And both last week and this week, the clearest path for Obama to be re-elected is still the same (hold what you've got) and the clearest path for Romney to win the Presidency is still the same (win Ohio, Virginia and either Iowa or Colorado.)

From a strategy standpoint, there are a number of ways the candidates could approach this race.

For Obama, he could:
(1) Try to hold what he's got
He has enough electoral votes to win, as I project today.  Concentrate resources on holding Virginia, which would effectively block most of Romney's paths to the Presidency.

(2) Go for the Dagger in Ohio or Florida
Losing either Ohio or Florida makes it, for all practical purposes, impossible for Romney to win the Presidency.  If the President can make a stand in economically recovering Ohio or heavily Hispanic Florida by focusing on relevant issues in those areas, he can win.

(3) Play a road game
The Democratic National Convention is in North Carolina.  Certainly, a Democratic win there would be a deathblow for Romney.  Obama could also force Romney to play defense in Indiana (which Obama won in 2008), Missouri (which he very nearly won) and Arizona (which is now more in play without McCain on the GOP ticket.)

For Romney, he could:
(1) Go for the path of least resistance
Hold his current leads and push hard in Virginia, Colorado and Iowa, hoping for the Virginia + 1 strategy mentioned above.  It's certainly his cleanest path to victory and if the national polls move another 2 to 3 points in his favor, it seems very viable.

(2) End it All in Pennsylvania
It is very difficult to see a path for Obama to win re-election without winning the state of Pennsylvania.  Romney could focus his considerable resources there, especially in Pittsburgh, Harrisburg and the conservative rural areas and ease his path to victory.  Of course, John McCain tried this strategy and failed.

(3) Broaden the field
Wisconsin seems to swinging more conservatively these days.  Michigan's economy is still rough and it's Romney's birth state, where his name still carries some clout.  Both seem ripe for a competitive fight and both would seriously complicate Obama's re-election bid.

I suspect that early in the race, the candidates will attempt to play road games and broaden the field, given the massive amount of money at both of their disposal and the fluidity of the electoral map.  However, as the race winds down, in the last 30 days, I'd expect them to focus on the closest of swing states.

The national lead and the state-by-state breakdown coming out of the two party conventions will be very telling in shaping the race.

But, for now, we have a very close race, led marginally by President Obama.

Saturday, June 9, 2012

A Tightening Race Thanks to Bad Circumstances and Bad Strategy, The All Out Battle for Congress

Days Until the Election: 150
Projected Popular Vote Total: Obama +0.9%
Projected Electoral Vote Total: Obama 303-Romney 235

Projected Senate Total: Republican 50, Democratic 48, Independents 2
Projected House Total: Republican 260, Democratic 175

The Top of the Ticket
Lousy employment news isn't helping President Obama, but neither is a campaign that is off-message and a Presidency that seems out of ideas on the economy.  Infighting among Democrats, including Newark Mayor Cory Booker and former President Bill Clinton over private equity has been a complete distraction, eliminating any air space for him to fight presumptive GOP nominee Mitt Romney.  With the stimulus money spent, monetary policy about as loose as it can possibly be (between near zero interest rates and quantitative easing) and both payroll and income tax cuts extended through the end of this year, it's not clear at all where the President goes from here on the economy.

While the electoral count doesn't look any different than my last posting, the national polls have tightened significantly and the close states make a Romney win look more viable than it did just a few weeks ago. 

Ratings shifts from my last map:
Colorado - from Likely Obama to Lean Obama
Wisconsin - from Lean Obama to Likely Obama
Michigan - from Strong Obama to Likely Obama
Maine - from Strong Obama to Likely Obama

Mitt Romney's road to the White House is fairly simple now.  Win the states he is presently leading (i.e. hold on to Missouri, North Carolina and Florida) and win the Lean Obama states.  Ohio, Colorado, Iowa and Virginia have a combined 46 electoral votes.  If Romney takes that path, it will give him 281, more than enough to win.  He can afford to give up either Iowa or Colorado, but Ohio and Virginia are must-haves, just as they have been all race.

Do I hear a call to Rob Portman for the Veep spot?

The Senate
The Democratic Party has a near-impossible task of retaining the Senate in 2012, with all of the unlikely upsets they pulled off in the sweep of 2006 up for re-election and a slim majority.  They are hanging on by a thread at the moment, with just enough seats to hold the majority, assuming Bernie Sanders (Independent/Socialist - Vermont) continues to caucus with the Democrats and that likely Maine winner Angus King does as well (as he is expected to), plus the Democratic ticket wins at the top.  But they have a lot of seats at risk.

Excluding the seats up for election this time,  there are 37 Republicans and 30 Democrats who will return to Washington next year.

Of the 33 races up for grabs, here are my latest projections:
Safe or Strong Democratic (13)
California, Connecticut, Delaware, Hawaii, Maryland, Michigan, Minnesota, New Jersey, New York, Pennsylvania, Rhode Island, Washington, West Virginia

Safe or Strong Independent (2)
Maine, Vermont

Likely Democratic (1)

Lean Democratic (4)
Florida, New Mexico, North Dakota, Virginia

Lean Republican (6)
Indiana, Massachusetts, Missouri, Montana, Nevada, Wisconsin

Likely Republican (2)
Arizona, Nebraska

Safe or Strong Republican (5)
Mississippi, Tennessee, Texas, Utah, Wyoming

So, in the range of likely scenarios, Republicans could up their total to as many as 54 seats or, if the national tide somehow turns, fall back to 42.  Clearly there is a lot yet to be decided in the Senate.

The House
Republicans have a massive structural advantage in this year's House elections thanks to redistricting.  Republican victories in state houses and gubernatorial races over the past few years have given them the right to draw a lot of congressional districts to their advantage.  Plus, the continued practice of drawing black-majority districts (a product of the Voting Rights Act) naturally concentrates heavily Democratic black voters in a smaller number of House districts, leading to a few solidly Democratic districts in urban areas and a number of modestly Republican seats in the suburbs and exurbs.

How big is the GOP structural advantage?  Looking at the Cook Partisan Voting Index, which measures how much more Republican or Democratic a district is than the nation as a whole, with the new house districts we see:
Solidly Democratic Districts (RPI +10 Democratic or higher) = 111
Likely Democratic Districts (RPI of 5 to 9) = 44
Lean Democratic Districts (RPI of 1 to 4) = 37
Toss-Up Districts (RPI = 0) = 9
Lean Republican Districts (RPI of 1 to 4) = 45
Likely Republican Districts (RPI of 5 to 9) = 78
Solidly Republican Districts (RPI +10 Republican or higher) = 111

What this means is that if the Congressional vote split exactly 50/50, the GOP would win between 234 and 243 seats, a solid majority in either case.  For the Democrats to get to the magic number of 218, they would need to win nationally by about 2%.

And at the moment, they trail in the generic ballot by 2%, leading to a very solid GOP majority.

A lot could change in this projection as a few point swing can have big effects on the House total.  But it sure looks good for the GOP in the House at this stage of the game.

If you like this site, tell your friends.