Path Dependency” Prof

“Path Dependency” Prof. Anthony Madonna POLS 4105 Spring Semester 1/26/2020 University of Georgia

Outline I. Introduction 1/26/2020 a. Logistics b. Legislative History Groups c. Updates d. News Left: “My name is II. Pierson Alexander Hamilton. And there’s a million a. Overview b. Defining PD things I haven’t done. c. Characteristics of the Process But just you wait, just d. Factors causing increasing returns you wait.” – Alexander Hamilton (though III. Why Does PD Occur in Politics? probably not) a. Collective action b. Free-riding c. Institutional Density d. Power Asymmetries e. Political Complexities V. Farrand’s Records a. How to Find them IV. Effects? b. Some caution a. Multiple Equilibria b. Contingency c. Critical role for timing and sequence VI. For Thursday d. Inertia a. How to write a legislative history 2

Course Logistics

POLS 4105: American Political Development

Room: Baldwin 301

Instructor: Anthony Madonna Personal Email: [email protected] Phone: 314-313-9937

Website: https://www.tonymadonna.com/pols-4105 Zoom: https://zoom.us/my/ajmadonn Office: Baldwin 407 Office Hours: TR 1:00-2:00pm

Syllabus will be e-mailed and on the class website. Above: Former House Speaker John Boehner (R- OH) AFTER leaving the U.S. House.

1 Legislative History Groups (1/26)

Students Group # Congress Year Enactment Anderson, Poteau, Zaleski, Ledet 1 112 2012 Violence Against Women Reauthorization Act of 2012 Duley, Cone, Zachary Williams 2 109 2005 USA PATRIOT Improvement and Reauthorization Act of 2005 Guzman, Leggett, Payan 3 91 1970 Comprehensive Drug Abuse Prevention and Control Act of 1970 Raley, Schiffhauer, Sorohan, Langfelder 4 92 1972 Title IX Amendment of the Higher Education Act of 1972 Ted Williams, Radermacher, Cook 5 81 1949 National Security Act Amendments of 1949 Greeson, Gagliano, Livsey, Snyder 6 93 1974 Federal Election Campaign Act Amendments of 1974 Fisher, Gregg, Cochran, Feyerbend 7 104 1995 Lobbying Disclosure Act of 1995 Pope, Campbell, Dukes, Noone 8 109 2005 Energy Policy Act of 2005 Khan, Canavino, Wooten, Ransom 9 90 1968 Civil Rights Act of 1968 Pitner, Cederboom, Wilson, Huberman 10 103 1993 Family and Medical Leave Act of 1993 McIntyre, McMillin, Crane 11 101 1990 Americans with Disabilities Act of 1990 Bishop, Lazardi, Williamson 12 106 1999 Financial Services Act of 1999 Goolsby, Schmid, Tumelty, Hignite 13 104 1995 Antiterrorism and Effective Death Penalty Act of 1996 Levy, McCallar 14 94 1976 The Hyde Amendment Kirby, Rahbany 15 65 1917 Sedition Act Couglin, Elmore, Higgins 16 103 1994 Violent Crime Control and Law Enforcement Act of 1994 Bozza, Decker, Edelson 17 108 2003 Medical Prescription Drug, Improvement and Modernization Act of 2003 Rogers, Solis, Kiefer 18 104 1996 Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Legislative History Groups (1/26)

Again, you’re in a group, but this is NOT a group Clockwise from top-left: Former Defense Secretary James assignment. Forrestal; Senate page Bobby Baker, Rep. Victor Berger (S-WI); Senator Joe Biden (D-DE), Rep. Lamar Smith (R-TX), Rep. Edith Green (D-OR); Senator Phil Gramm (R-TX), Rep. Thomas You’ll be given a separate document with prompts to Bliley (R-VA); Rep. Jim Leach (R-IA); Rep. Henry Hyde (R-IL) address. I’ll have that to you this week.

Course Updates (1/26)

ELC:

Updated some things, should continue to post more.

Legislative Histories:

Summary Sections (Due 2/11)

EMAILS:

Should be caught up.

VIDEOS:

Coming along slowly. Don’t hesitate to use selectively. Above: Former Speaker John Boehner (R-OH). According to an interview in Politico: “His heckling once provoked Don Young, an Alaskan himself, to pin Boehner against a wall inside the House chamber and hold a 10-inch knife to his throat. Boehner says he stared Young in the eyes and said, “Fuck you.” (Young says this account is “mostly true,” but notes that the two became good friends, with Boehner later serving as his best man.)”

2 News 1/26

What do you guys have here? News items you want to discuss?

Filibuster fight in the Senate; Cabinet Confirmations; Portman announcement, Impeachment; Defense Production Act ; etc.

Hastert Rule Sarah Binder, Monkeycage (2013): Most Congress watchers yesterday quickly noted the remarkable House vote to pass the Violence Against Women Act (VAWA): For the third time this year, the House passed an important bill over the objections of a majority of the majority party. Another “Hastert Rule violation,” many reporters correctly observed.

Observers noted that the leadership brought the VAWA bill to the floor (knowing the GOP majority would be rolled on final passage) as a calculated move to repair damage done to the party’s brand name in the last election. As the Los Angeles Times reported, many GOP strategists “feared that keeping the bill in limbo could expose the party to complaints they were hostile to women.” I think the coverage of the VAWA bill has been right on the mark. Still, we should be cautious in writing the Hastert Rule’s obituary. Some considerations:

First, as many reporters noted, the substance of the yesterday’s bill mattered. Concern about the party’s electoral reputation likely helped to encourage the GOP to bring the bill to the floor (on a nearly unanimous procedural vote). We see some evidence of that concern in the makeup of the sixty Republicans who broke ranks to vote against the conservatives’ alternative bill: Roughly sixty percent of them hailed from blue states won by Obama in 2012. (Note: GOP women were more likely to stick with their conservative brethren on that substitute vote, with roughly 80 percent of the GOP women favoring the more limited bill.) Moreover, on final passage, nearly three- quarters of the Republicans who voted with the Democrats hailed from blue states. I think it’s reasonable to expect that on other electorally-salient bills this Congress we might see the leadership allow party splitting measures on the floor, letting the chamber median work its will in favor of passage. As many others have noted, immigration reform could provide another such opportunity. In short, the terrain for future Hastert rule violations might be quite limited.

Hastert Rule Second, keep in mind that all three of the Hastert Rule violations occurred on legislative measures already cleared by the Senate. Mitch McConnell and Joe Biden negotiated the fiscal cliff bill that was passed 89-8 with broad bipartisan support. Hurricane Sandy relief was first cleared by the Senate on a (narrower) bipartisan vote. And the Senate had also already endorsed the more expansive version of the VAWA bill, with a majority of Senate GOP joining every Democrat in voting for the bill. The support of Republican senators (albeit to varying degrees) for Democratic measures makes it far harder for the Speaker to stick with his conservative conference majority. Instead, he offers them a vote to establish their conservative bona fides and then allows the Democrats to win the day. Split party control seems to limit the viability of the Hastert Rule, at least on those few measures on which Senate Democrats can attract GOP support to prevent a filibuster. Ironically, the new Boehner Rule of “Make the Senate Go First” (insert saltier language for full effect) undermines the Hastert Rule. Given the difficulty Boehner faces in assembling a chamber majority without Democratic votes on bigger issues of the day, perhaps we shouldn’t be surprised to see this periodic scuttling of the majority of Boehner’s majority.

Finally, yesterday’s vote helps us to better identify the far right flank of the House GOP. Here, I consider the far right of the conference those Republicans who voted against waiving the debt limit for three months, against Hurricane Sandy relief, and against the VAWA bill. That group sums to 26 GOP. Given 232 House Republicans, Boehner can’t bring party-favored bills to the floor without moving exceedingly far to the right. That’s helps to explain why Boehner insists on letting the Senate go first on issues that evoke tough dissent within his party. He has no choice, even if that sets him up for potential majority rolls on important roll call votes. Ultimately, the fate of the Hastert Rule depends on how the Speaker balances his support within the conference with the responsibility of tending to the party’s brand name (let alone to the will of the chamber).

3 Timeline 1754 – 1763 – French and Indian War 1765 – Stamp Act 1770 – Boston Massacre 1773 – Boston Tea Party 1774 – First Continental Congress 1775 – Coercive Acts 1775 – Concord 1775 – Prohibitory Act 1776 – Declaration signed 1776 – Common Sense published 1777 – Washington crosses the Delaware 1778 – French Alliance formed 1781 – Battle of Yorktown 1781 – Articles of the Confederation Signed 1784 – Treaty of Paris ratified 1786-1787 – Shays’ Rebellion 1786 – Annapolis Convention 1787 – Constitutional Convention 1788 – Constitution Ratified 2009 – Prof. Madonna takes wife on romantic vacation to see Liberty Bell, is frequently reminded that his brother-in-law took his sister-in-law to the Caribbean

The Founders…

Washington: mediocre general, prudent leader, great imagery, walked away when most thought he would not.

The Founders…

Adams: “real”, excellent policy-mind, Jefferson: excellent politically, brilliant tireless worker, emotional, mediocre writer, inconsistent implementer of policy, politically mediocre leader, poor businessman

4 The Founders…

Franklin: The “American”, respected scientifically as well as politically, very astute politically, great writer, opposed to slavery, getting older…

The Founders…

Hamilton: The “money man”, excellent Madison: Political mastermind, mediocre policy-mind, inspiring upbringing, inferiority President, greater writer, savvy predictor, complex, politically rash "if god was in the details, Madison was there to meet him at the door.”

The Founders…

Burr, Rush, Monroe…One of them is almost always there.

5 The Road to Independence

“I shall have a great advantage over you, Mr. Gerry, when we are all hung for what we are doing now. From the size and weight of my body I shall die in a few minutes, but from the lightness of your body you will dance in the air an hour or two before you are dead.” – Benjamin Harrison, Virginia (quoted in Ellis).

Path Dependency - Overview

Generically, the term is used to refer to a process or institution that persists due to consequences (often unintended) of actions taken by historical actors.

Pierson argues it has become victim to “concept stretching.” In short, it’s been used so much without being formally defined that it’s turned into a meaningless catch-all buzzword.

He attempts to rectify that by providing for a more formal definition.

6 Characteristics & Causes

Characteristics of a path-dependent process: 1. Unpredictable 2. Inflexible 3. Non-Ergodicty 4. Potential Path Inefficiencies

Factors that cause path dependency: 1. Large set-up costs 2. Learning effects 3. Coordination effects 4. Adaptive expectations

Above: Senator Strom Thurmond filibustering the 1957 Civil Rights Act.

Political Factors & Effects

Why does path dependency occur in politics? 1. Collective action 2. Free-riding 3. Institutional density 4. Power asymmetries 5. Political complexities

Effects of path dependency: 1. Multiple equilibria 2. Contingency 3. Critical role for timing and sequence 4. Intertia

Key take-away point: Many U.S. institutions Above: At the Constitutional Convention, Roger Sherman argued that should the Vice President not serve as President of the and policies do not persist today because of Senate, he would be “without employment (Farrand 1966, 537).” some grant design.

Path Dependency and the Filibuster

Path dependency: Minorities have exploited existing rules to frustrate potential reforms. In this view, the modern Senate is not what majorities have wanted but what they have been forced to accept.

Inherited Rule Source Consequence Elimination of the Previous 1806 Rules Codification The Senate no longer had a Question Motion formal method of ending debate by a simple majority.

Staggered Senate Terms U.S. Constitution The Senate is a “continuing body” and does not adopt new rules at the start of each Congress.

The Vice President’s Status as the U.S. Constitution Centralized chamber power could President of the Senate be wielded by a member that does not share the interests of the Senate majority

7 Outline I. Introduction 1/26/2020 a. Logistics b. Legislative History Groups c. Updates d. News Left: “My name is II. Pierson Alexander Hamilton. And there’s a million a. Overview b. Defining PD things I haven’t done. c. Characteristics of the Process But just you wait, just d. Factors causing increasing returns you wait.” – Alexander Hamilton (though III. Why Does PD Occur in Politics? probably not) a. Collective action b. Free-riding c. Institutional Density d. Power Asymmetries e. Political Complexities V. Farrand’s Records a. How to Find them IV. Effects? b. Some caution a. Multiple Equilibria b. Contingency c. Critical role for timing and sequence VI. For Thursday d. Inertia a. How to write a legislative history 22

Farrand’s Records

“Professor Madonna, this was great, but where can I learn more about the Constitutional Convention?”

“Great question, Billy. Why not head over to Farrand’s Records?” [Note: Hypothetical situation…Assumes student’s name is Billy.]

How James Madison doctored the story of the Constitutional Convention of 1787 WaPo (11/18/2015) - It’s been called the “foundational” story of the United States. In the spring and summer of 1787, delegates gathered in Philadelphia and labored from May through September, arguing, wheeling, dealing and ultimately hammering out a constitution for the United States. The “Federal Convention,” as it was called then, teetered on the brink of collapse several times as the delegates battled over each clause, over the shape of the presidency, over representation in the Congress and over the relative powers of the states vs. the national government, and the small states vs. the large.

It’s a dramatic story. It’s been told and retold, interpreted and reinterpreted for more than two centuries by scholars and judges alike, based largely on a single work: a tome of some 600 pages in modern book form, called “Notes of Debates in the Federal Convention of 1787 as Reported by James Madison” or more simply “Madison’s Notes,” a day by day summary of who said what about each proposition put forth by the delegates and how the votes came out on each as the document slowly evolved. The work was published after Madison’s death in 1836, when no other delegates were still living.

Their value stems in part from the fact that the no outsiders were allowed in the Philadelphia State House chamber where the delegates met and the delegates sworn to secrecy. While fragmentary notes from other delegates preceded Madison’s, none came close to telling a full story, until publication of the notes.

But now the reliability of “Madison’s Notes” as a credible contemporaneous record of what really transpired in Philadelphia is being challenged as never before in an important new book by Boston College Law School legal historian Mary Sarah Bilder called “Madison’s Hand: Revising the Constitutional Convention,” published by Harvard University Press.

8 How James Madison doctored the story of the Constitutional Convention of 1787 Bilder, using forensic techniques to date the changes he made and historical research to describe what was happening politically when he made them, has made sense of the revisions, which began right after the convention and continued up until his death. And many of them amount to what we would now call “spin.”

While scholars have known for decades that Madison revised his notes over the years, Bilder’s research suggests that they were “revised to an even greater extent than has been recognized” to the point that “as a reliable source, Madison’s Notes are a problem.”

Scholars, she writes, “have shied away from exploring the significance of the revisions,” perhaps “from an anxiety about being perceived to accuse James Madison of manipulating the notes.”

But that does appear, from her book, to be exactly what he did.

What she found, among other things, were changes by Madison that appear to be based at least in part on how he wanted to be perceived politically at the time he made the revisions — after the convention, particularly by his confidante and ally Thomas Jefferson — rather than out of a desire for fidelity to the event….

Questions, Concerns, Angry Rants?

Thursday: Writing a Legislative History