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Monthly Archives: November 2014

Gentle Criticism of the Day: Has Everybody Come Down With a Case of the Stupids?

Hmm. That may have come across as a little harsh. There are three topics in particular that seem to have distracted a number of otherwise-intelligent political correspondents. To say that they have all gotten a case of the stupids is not particularly fair, but what can I say? I’m feeling a little crabby lately.

1. The Ivory Tower Comes To Perry’s Defense! Or With Enemies Like These, Who Needs Friends?

Okay, I would have loved to be a fly on the wall as Governor Perry’s criminal defense attorneys negotiated with various parties to put together their bipartisan dream team of constitutional law scholars who jointly wrote to decry Perry’s criminal indictment for misuse of his office.

The secret ingredient for assembling this coalition was convincing a bunch of law professors that the Travis County District Attorney’s Office was indicting Perry because he had exercised his authority to veto legislation; that effort was likely aided by the flurry of national news stories all reporting that Perry was being indicted because he had vetoed a budget item.

“Mon dieu!” the professors all said, absolutely aghast that anyone would be so, … so, … barbaric as to actually criminalize a gubernatorial veto. “That’s terrible! What an abuse of the criminal process, to dare to criminalize the very instruments of government! To inform a sitting Governor that the mere act of vetoing legislation is illegal! Outrage! Despair! Ennui!”

Sigh. If these towering geniuses of constitutional law had actually bothered to do the class readings, they would have discovered that the criminal charges against Perry are not based on the fact that he vetoed state funds for the Public Integrity Unit at the Travis County District Attorney’s Office.

The criminal charges against Perry are based on the fact that Perry used threats in an effort to intimidate the Travis County D.A. and suborn a number of criminal investigations, including pending investigations of Perry’s own government. That the threats were actually followed up by a veto is more or less irrelevant to the criminal act itself. In fact, if Perry had just quietly vetoed the funding without having engaged in snaky bits of quid-pro-quo threats, no charges would have been filed.

See the difference?

It’s subtle, I know, but I’m confident that with the help of careful tutoring and some time hitting the books, even the slowest constitutional law expert can be guided to the correct answer.

But really, people. Don’t raise your hand in class if you haven’t bothered to brief the case.

2. Dark Money Isn’t That Bad, Right? Right?

Sometimes, statistical analysis can be used to justify genuinely odd theories. In particular, Alan Abramowitz, a clever, clever analyst for “Sabato’s Crystal Ball” blog at the Center for Politics website did a regression analysis of the correlation between the disparity in dark money for U.S. Senate races with the outcome of those races in support of the argument that campaign spending didn’t “buy” the election for the Republicans. Except …, the study’s author forget that when you add two apples and three oranges, the answer is not five apples.

The gist of the argument is that differential spending levels, in and of themselves, could only be seen to predict or track election outcomes with a correlation of .23 (i.e., if one were predicting outcomes solely based on campaign spending differentials, one would get the right answer only one time out of five), while incumbency of a Democratic Party candidate was an accurate predictor with a correlation of .76 (i.e., if one were predicting outcomes solely based on whether an election involved a Democratic incumbent running against a non-incumbent challenger, one would get the right answer nearly three times out of four).

Can you spot the error?

The error is one of false equivalency, and of a failure to control for hidden correlations between dark money spending and the encouragement of conservative challengers to Democratic incumbents. In other words, the clever, clever study has proceeded on the assumption that the victories against Democratic Party incumbent candidates were not in any way the result of dark money donations that roused otherwise restive conservative challengers to those Democratic Party candidates.

What was the mistake? The error lay in failing to identify a control sample wherein Democratic Party candidates lost their elections when no dark money whatsoever had influenced competition for the office. Instead, we could just as validly conclude from this superficial analysis that a tidal wave of conservative dark money swept all liberals before it.

The study ultimately only confirms a tautology, that all other things being equal, Democratic Party incumbents got absolutely shellacked in the November 2014 election. Well, duh.

The only interesting result of the study is that it suggests that conservative dark money might have been spent more efficiently than liberal dark money (i.e., that in terms of absolute spending levels, conservative candidates with smaller war chests than their liberal opponents did comparatively better than one would predict, based solely on the proportionate difference in funding between any two candidates, and that the size of the war chests wasn’t what determined victory).

What I want to know is the answer to a simpler question. In particular races, did the existence of a dark money source (of any amount) sway the outcome of the election? But that’s a harder question to answer, because the person creating such a study actually has to go out and discover not only how much money a campaign raised, but also the specific tactical uses to which that money was put.

Therefore, I don’t think my assertion that the election was bought and paid for by conservative dark money has been refuted, at least not by this study.

3. Aw, Picture I.D. Laws Ain’t That Bad, Right?

I’m a little troubled that Professor Hasen seems to have been involuntarily enlisted by the right in support of this argument. Among certain writers who are striving to appear thoughtful and even-handed about the 2014 election, there is a trend to argue that (1) restrictive new voting laws energized turnout among minorities, and that (2) ultimately, one cannot show that the historically poor turnout in the 2014 election had anything to do with voter I.D. laws, so therefore it must be the case that the new laws aren’t as bad as everyone has made them out to be.

Note that Professor Hasen wasn’t saying that voters weren’t suppressed, but merely that Wendy Weiser’s off-the-cuff remarks about the North Carolina races in 2014 didn’t offer clear evidence of voter suppression. His call for greater rigor in statistical analysis isn’t the same thing as an endorsement of the view that voter I.D. laws are hunky-dory.

Such displays of intellectual gymnastics are truly thrilling. To leap and bend and twist in such a way as to refute all meaning, and then wait for the thunderous applause of a grateful nation. “Oh thank you! We thought these new laws were not only bad, but damaging. You’ve shown us that they are merely bad, but that they haven’t caused any harm. What were we worried about?”

Sigh. Again. Sigh.

Okay, here’s some intellectual subtlety to wrap your noggin around, geniuses. A bad voter I.D. law (such as the bad voter I.D. law passed by the Texas Legislature in 2011) can simultaneously do two things in an election. It can (1) terrify politically aware and savvy minority voters and drive those voters to the polls, (2) actually function to effectively bar eligible voters from casting a valid vote, and (3) suppress turnout by discouraging voters from participating in the election.

Um. How can someone simultaneously acknowledge that turnout in the 2014 election was the lowest in any national election in living memory, while also asserting that the effects of voter suppression (including new voter I.D. laws) had no measurable effect on voter participation? C’mon, people.

I’ll grant you that the “science” of “political science” is a bit grandiose, given the inability to test certain causal hypotheses about historical events. But isn’t it just a tiny bit possible that improvements in relative minority turnout (i.e., that among a shrunken number of November 2014 voters, a relatively larger percentage of those voters were minority voters than in prior elections) could go hand in hand with successful large-scale vote suppressions that curbed turnout?

Until someone comes up with an argument based on actual scholarship, rather than just a “gut feeling” that the Brennan Center’s own studies of the suppressive effects of voting restrictions on the poor, the elderly, the young, and minority voters are somehow flawed, I’ll trust in the argument that laws designed to make it harder to vote can actually accomplish their intended goal, and make it harder to vote. I’ll further assume that because it was harder to vote in the November 2014 election, fewer people cast votes in the November 2014 election than would otherwise have done so in the absence of laws making it harder to vote.

I mean, people, please. Use your god-given brains for a second.

What It Feels Like When Money Gets To Vote

There are lots and lots of think pieces about the disastrous November 2014 general election, both with respect to the outcome in Texas and in the United States as a whole. When I say that the election was “disastrous,” I want my meaning to be clear – the overwhelming victories accorded to well-funded conservatives in this election cycle presage years of needless human misery and suffering, no matter what victories ordinary people may ultimately wrest from the plutocrats. Suffering is the price we pay for sliding further into the grim age of the corporate state, and recompense for that suffering (which must inevitably be paid for with blood, in French Revolutions and other terrible ways, as James Anthony Froude was wont to say), will only add to the agony.

It turns out that when money votes, one gets the kind of result that one would expect from an inanimate object with political opinions. The results tend to be inhuman and buoyed up by the sorts of self-justifications and myths that only make sense to things that don’t have central nervous systems.

With respect to second-guessing and dissing Democratic Party GOTV efforts, I think Charles Kuffner’s analysis is better and more on-the-nose than most of the other political reporters in the State. His review of turnout and comparisons with the 2010 gubernatorial election help counter the popular narrative that the 2014 disaster in Texas was solely the result of errors and missteps by Battleground Texas.

Given the collapse of Democratic Party efforts outside of Texas, involving candidates and races supported by other fundraising and campaign organizations that weren’t Battleground Texas, it’s clear that the 2014 election outcome in Texas was not an outlier, or the result of some terrible gaffe or strategic misstep peculiar to the Texas elections.

Battleground Texas demonstrated that concerted efforts did improve Democratic Party candidate outcomes (compared to 2010) in a number of conservative state legislative districts. Among other things, Wendy Davis’s numbers in Tarrant County showed her remarkable strength in a blood-red county, improving on Bill White’s 2010 turnout among Democratic Party voters (and in pouring rain, to boot).

Battleground Texas was extremely good at building a statewide volunteer network, and its volunteers and staff worked very hard to protect voting rights in general. I say this with only a slight whiff of personal bias, given that I did some volunteer work on Election Day for the Battleground Texas Voter Protection Hotline. ;^)

However, (as Mr. Kuffner notes) Battleground Texas is not exempt from criticism for some of its mistakes. In particular, county precinct chairs complained that Battleground Texas used its volunteers ineffectively in some circumstances, with poor and out-of-date precinct voter data, ineffective block-walking efforts, and non-existent or token communication with local Democratic Party officers and candidates. But these are all correctable mistakes that really reflect nothing more than the fresh-faced naivete of itinerant out-of-state campaign runners who lacked experience with regional Texas elections. And despite the mistakes, (as Mr. Kuffner’s review suggested) there are a number of Republican incumbents in the Texas Legislature who are only going to become more vulnerable.

If Battleground Texas had run a flawless campaign, would it have made any difference? The national picture suggests that a comparative analysis of the mountains of dark money pouring into campaigns would have been a far better predictor of outcomes than any other metric, and that the Republican Party candidates gave themselves the best election that money could buy.

Links: http://offthekuff.com/wp/?p=63720;

http://offthekuff.com/wp/?p=63746; and






For God’s Sake, Let Us Sit Upon the Ground And Tell Sad Stories of The Death of Kings

Here are a few thoughts on the election, offered up as I process my grief.

1. Um, you do know that there are actual ballots remaining to be counted, right?

One of my frustrations with media treatment of elections is the insatiable need for everyone to know RIGHT NOW exactly what has happened. As things stand, at this very moment, the tally of the election has not been completed, and will not be completed until after the end of the “cure period” for provisional voters who voted without sufficient I.D.

But it was unseemly (to the point of malpractice) for national news outlets to pull the sheet over the Texas body politic and call the time of death WHILE VOTERS WERE STILL IN LINE. There were huge long lines in Tarrant, Dallas, Harris, Travis, and Bexar counties, and many polling places across the state were still processing voters at 8:30 p.m.

So I hear you say, “But Joe, so what? Even if you pretend that every uncounted ballot was for your slate of candidates, it won’t matter. The outcome will be what it is. Why quibble over calling the election at 7:30 p.m. versus calling the election a week from today?”

Because it’s wrong, that’s why. Because elections are complex, multivariate events, where what seem like long shots and unshakeable trends don’t necessarily conform to the selective sampling of early-received precinct totals. Because none of the provisional ballots have been counted yet – the very same provisional ballots that provided some safety net for the voters who may have needed to cure issues with their voter I.D.s, or for the voters who, but for the offer of a provisional ballot, would have been denied an opportunity to correct some misunderstanding or bureaucratic error regarding their registration status.

What all of the news media outlets were doing was insulting to the people whose ballots haven’t been counted yet, because it amounted to a hasty refutation of the very voters who are most poorly served by society in the first place.

Well viewers, with a whopping 2 out of every 100 ballots counted, we can confidently say that among the voters who matter (disproportionately white suburban voters with drivers’ licenses and quiet, uncrowded polling places), the choice is clear. And for those of you still in line (disproportionately minorities, the young and elderly, living in areas where voting equipment and personnel were rationed and throttled), give up, chumps. You could be home watching Matlock reruns and eating cold cat food out of the can.

And for those of you who voted by mail (disproportionately old or disabled), or voted provisionally (disproportionately minorities), or voted from overseas, may we say, uh, we appreciate that you wanted to get a gold sticker for your pathetic attempt to participate in the democratic process, but seriously, who ever believed that we really cared what you thought?

2. Why Concede Before the 10:00 p.m. News?

My advice to the statewide Democratic Party candidates in Texas would have been to delay the concessions until this morning at the earliest. Why on earth would anyone want to hand Greg Abbott additional TV time right in the news cycle sweet spot? It’s an act of submission that benefits no one, and that further erodes the public capacity for patience and delayed gratification.

3. I Keep Waking Up In The Wrong Universe

Seriously, it’s like a Philip K. Dick novel around here.

On Election Day, I did volunteer work on the Battleground Texas Voter Protection Hotline, and I want to thank the Director of Voter Protection for Battleground Texas for her too-kind invitation and encouraging words.

Mimi Marziani, an energetic and unflappable civil rights litigator, voting rights organizer, and unstoppable whirlwind, is still tirelessly hard at work at this moment, helping voters and fighting the fight right now, and was incredibly generous to invite me (a complete stranger!) to help voters. Welcome to Texas, Mimi!

I’d also like to thank all the attorneys and staff in the Statewide Voter Protection Hotline in Fort Worth – (I apologize for not being better with names, but you were all incredibly welcoming, wonderful, kind, hard-working, unflagging, brilliant and brave people), with a special thanks to my fellow voter protection attorney Michael Ybarra for transporting me all the way from Austin to Fort Worth and back.

All the volunteers in the field, at polling places, and at all the regional boiler rooms and the state and national boiler rooms worked fiercely and unwaveringly to defend the rights of voters to cast their ballots, and there are many, many voters across the state who owe a debt of gratitude to these volunteers. Thanks to all of you, and safe travels.

I’ll have no postmortems today, as I don’t approve of the vivisection of an election that hasn’t even been completed yet.

Voter Reaction To News That Abbott Funneled $42,000 in Taxpayer Money To Anti-Abortion Activist

I’ve been quick to criticize the Austin-American Statesman for silly election stories, and so it’s only fair that I should praise them profusely for today’s top story (behind a paywall, alas) – that the Attorney General paid thousands of dollars in state money to anti-abortion activist Vincent Rue, who was a consultant for the State’s defense of its recent anti-abortion law. Veteran political reporter Chuck Lindell has managed to scoop every other state and national news outlet on this story.

In writing about the secret contract between the A.G. and Mr. Rue, Lindell notes that:

[H]iring Rue as a trial consultant backfired when U.S. District Judge Lee Yeakel overturned key parts of the state’s sweeping abortion law on Aug. 29, ruling that Rue’s involvement undermined the credibility of the state’s expert witnesses.

Yeakel also admonished Abbott’s office over its strenuous pretrial fight to withhold Rue’s email exchanges from lawyers for abortion providers, writing that he was “dismayed by the considerable efforts the state took to obscure Rue’s level of involvement with the experts.”

According to Rue’s contract, he was an independent contractor who could be paid no more than $40,000, plus expenses. Other documents show he was paid just over $42,000, but a breakdown of expenses wasn’t available.

Other contract provisions enhanced privacy:

• Rue couldn’t issue press releases or make public announcements about his work.

• The document specifies that Rue had a “confidential relationship” with Abbott’s office in connection with the court case.

• No written reports could be generated without prior approval from the office.

The decision not to release the contract to the Statesman came two weeks after state lawyers argued — unsuccessfully — that emails between Rue and the state’s expert witnesses were protected from disclosure.

 Lindell, Chuck, “Greg Abbott’s office reveals contract with abortion opponent” (Austin American-Statesman, November 1, 2014) A1, at p. A7.

In part, the story is about open government records and about Abbott’s efforts to deny access to information about how taxpayer money is spent, and in part, it’s about how ideology and money intersect in the demimonde of the extreme right wing.

And of course, it’s partly a story about an election, about timing and news cycles, and about the potential effect that scandalous news has on Election Day voting (the story came out one day after early voting ended in Texas).

Abbott comes off particularly poorly in the story because of his personal supervision and control of the secret contract, and because his cloak-and-dagger tactics were ultimately disastrously damaging to both his and the State’s credibility in court.

In general, scholarly studies of scandal, corruption, and the effect of political controversy on electoral choice have focused on U.S. Congressional elections, because the number, public visibility, and geographic variety of these elections make them popular fodder for academic scrutiny.

Although the methodology and definitions of what constitutes a “scandal” vary, common themes emerge when looking at the literature on this subject.

The studies consistently find that when compared to non-scandal-ridden candidates;

(1) a candidate’s association with a scandal has a material effect on the election outcome, losing the candidate between 5% and 10% of the vote, especially if the scandal is of a nature that fails to benefit the financial interests of voters, and that

(2) when scandals break, they generally prompt an increase in advertising spending by opponents, with a consequent secondary effect on vote outcomes. Peters, J. and S. Welch, The Effects of Charges of Corruption on Voting Behavior in Congressional Elections, (The American Political Science Review, v. 74, p. 697 (Fall 1980)); Welch, S. and J. Hibbing, The Effects of Charges of Corruption on Voting Behavior in Congressional Elections 1982-1990, (The Journal of Politics, v. 59, p. 229 (1997); Basinger, Scott, Scandals and Congressional Elections in the Post-Watergate Era (Political Research Quarterly, June 2013, v. 66(2) p. 385) (abstract available online at http://prq.sagepub.com/content/66/2/385.full.pdf+html).

However, because this scandal broke after in-person early voting was completed, the effect is muted because roughly half of the votes in this election have already been cast. Additionally, because the story has not broken widely beyond the Statesman yet (in part because the Statesman is justifiably proud of its scoop and hasn’t shared it widely), there are as yet few ripples of public reaction to the story in the instant media Panopticon.

If I were to hazard a guess, I’d say that if the Davis campaign puts a targeted ad into wide circulation this weekend (along with widespread social media promotion, push-polls, mentions in public addresses, etc.), that it might peel away a little less than 10% of Abbott’s Election Day vote, cumulating in maybe a 5% hit to Abbott’s vote totals.