Blogs > Cliopatria > Tuesday

Oct 31, 2004 2:23 am


As a congressional historian, I follow races for Congress, especially for the Senate, with great interest. Excluding Texas, which is in flux because of redistricting, there's a very good chance that more Senate seats could switch parties than House seats, something that (I believe) has never before occurred in American history. I continue to think that Melissa Bean will oust Phil Crane in Illinois, and wouldn't be surprised to see Connecticut's Rob Simmons become the only other Republican incumbent to lose, although Heather Wilson in NM and Max Burns in GA also could fall. Potentially strong Dem challengers in Arizona, Colorado, and Nevada have seen their candidacies fizzle. Meanwhile, right now no Democratic House member is trailing in polls, although Utah's Jim Matheson and Oregon's David Wu have been slipping noticeably, the latter after revelations that he had been punished for a sexual assault while at Stanford nearly three decades ago.

The race for control of the Senate is potentially more interesting. Right now, six seats seem likely to change hands: Illinois, Colorado, and Alaska from Republican to Democratic; Georgia, SC, and Louisiana from Democratic to Republican. Of these six, the only one that is a missed opportunity is LA, where the Democrats seem to have been overconfident that they could prevail in a runoff and allowed Republican David Vitter to amass too large a lead. (It now appears as if Vitter might win on Tuesday without even needing the runoff.)

Beyond this list, only four seats--Florida, North Carolina, South Dakota, and Kentucky--seem like possibilities to change hands. Potential Republican efforts in Wisconsin and Washington have not gained steam, and Oklahoma appears likely to elect (arguably) the most conservative Senate delegation since the institution of direct election for senators by choosing Republican Tom Coburn to join Jim Inhofe. Three historical patterns seem relevant to predictions on these seats: (1) that generally close contests tend to break toward one party; (2) strong Dem candidates in the South generally can run at least 5 points ahead of their national ticket; and (3) there's always at least one Senate upset. (2) suggests that Dems Betty Castor in Florida and Erskine Bowles in NC should prevail; Kerry figures to get at least 45% in NC and, at worst, close to 50% in Florida. I didn't think the race in SD would be as close as it has been, but still find it hard to believe that the state will oust Tom Daschle, one of the most talented politicians of the last quarter-century. Daschle began his career, by the way, by capturing a House election by less than 200 votes, so he knows how to win close races. He also has some important endorsement: from the unified leadership of the state's Indian tribes, and from the state's largest paper, the Sioux Falls Argus-Leader, which enthusiastically endorsed Bush earlier in the campaign. Finally, in Kentucky, Jim Bunning has done just about everything he could to lose this race (his latest was claiming that the WTC attacks occurred on November 11th), and Democrat Dan Mongiardo seems to have all the momentum. He certainly is the target of this year's most vicious smear in a congressional race, as two prominent Kentucky Republicans publicly termed him"limp-wristed," a"switch-hitter" and not a"man."

If Mongiardo and Daschle both prevail, the resulting Senate would be split 50-50, casting all eyes on Rhode Island's Lincoln Chafee, who has already announced that he won't vote for Bush and would be a candidate to mimic Jim Jeffords and declare himself an independent.

I think the presidential election is too close to call, but if forced to choose, would lean toward Bush, for two below-the-surface reasons. The first involves the anti-gay backlash. The attacks against Mongiardo, who is straight, were no accident: Kentucky is one of the states with an anti-gay marriage constitutional amendment on the ballot, and the most recent poll shows the measure with the approval of 76% of the voters. Bush, obviously, will carry Kentucky in any case, but in one state, a surge in Christian right turnout associated with an anti-gay marriage amendment could make a major difference: Michigan, which polls have shown surprisingly close (Bush is actually ahead in the most recent Zogby poll), and a state that Kerry absolutely needs to prevail.

The second hidden issue is Ralph Nader. He's clearly not going to get much of a vote in 2004. But if--as appears likely, at least right now--Ohio and Florida split between Bush and Kerry, the race will be decided by Wisconsin, Minnesota, and Iowa, three states where Nader polled very well in 2000 and where, if he gets 2% in 2004, he could tilt the election to Bush. This gets at one of the stranger issues of this year's election for me--the trend of these three states toward the Republicans, which began in 2000 and has continued this year.

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Richard Henry Morgan - 11/2/2004

Good points. Interestingly, the federal government could thereby compel states to recognize homosexual marriages from other states (for the purposes of state law?) without compelling the federal government to do likewise for the purposes of federal law.

Oscar Chamberlain - 11/2/2004

If the right to marriage is considered essential to liberty it can be imposed via the 14th amendment. That would be a controversial intepretation.

However, a federal law that required states to recognize the marriages of other states would be on firmer ground, as it would be based on the full faith and credit clause.

Article IV, section 1: "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. "

Richard Henry Morgan - 11/2/2004

I had misunderstood the argument due to poor reading. I thought it had been argued that, via the supremacy clause, a federal statute could promulgate a stipulative definition of marriage that trumps state constitutions or state statutes. Indeed it can, if it falls within the federal power (and marriage doesn't). A federal constitutional amendment is, of course, a different matter. (I was reacting to Prof. Chamberlain's post, not the broader argument. There is a limit on federal statute law trumping state law, and that is the limit on federal powers).

Lloyd Kilford - 11/1/2004

Article 14 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"). Section 5 of the Article gives the Congress power to enforce this (which in turn derives from Article I, clause 18 (it's one of the "other Powers").

I think there might still be an argument, somehow, that marriage doesn't fall under this, but it's not an argument that I really want to make (not being a fan of the "separate but equal" doctrine). Although I'm not sure that this is really a legal issue - my personal feeling is that people make the decision in a political way, then work out a legal argument to support their decision later.

Richard Henry Morgan - 11/1/2004

Perhaps I see faintly, in the distance, a chance for converting some to the constitutional concept of federalism and a federal government with limited expressed powers. By what right does the federal government pronounce on marriage? Interstate commerce? I don't think so. National defense? I don't think so. Read again Article I, Section 8, and tell me this falls under the powers given the federal government -- and I include the "necessary and proper" clause.

Lloyd Kilford - 11/1/2004

Okay, that settles it for me - the US Supreme Court can strike down portions of State constitutions if it wants to. I guess that if you're going to have a country and not the Articles of Confederation entity, you need something like that.

Jonathan Dresner - 11/1/2004

Plus, you get a boost to the economy: my friends' wedding in Amsterdam was two complete ceremonies, with refreshments, etc., for each one. Wedding Planners Unite!

Ralph E. Luker - 11/1/2004

Yes, exactly. That's why I think that we really ought to disconnect "marriage" talk from civil relationships. We should understand that marriage is, essentially, a religious relationship that has no standing, one way or another, in the eyes of the state. Civil union is a civil relationship from which no citizen can reasonably be barred.

Oscar Chamberlain - 11/1/2004


The relationship between family and rights is a tricky one. It's a reminder that not all rights are stated in Bills of Rights. As an example, there is no stated right to bear a child or to be a parent, but state and federal courts have held pretty universally that people cannot be barred from either having a child or keeping a child that they have without due process.

Even more to the point, there are rights that couples have vis-a-vis their children, particularly when the couples are married. Again these rights are almost never stated in constitutions though they may be reflected in law. Access to the full nebulous range is one reason that same sex partners would like the status of marriage. That is also the reason that many people who think same sex relationships are unhealty (evil, whatever) are finding it easier to draw a line at marriage than they did at civil unions.

Oscar Chamberlain - 11/1/2004

Any federal law as well as any provision in the federal constitution trumps anything contrary at the state level.

Article VI, section 2: "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. "

Jonathan Dresner - 11/1/2004

I'm not constitutional scholar, but wouldn't marriage have to be a right before the 14th amendment was applicable? As things stand now, it is not a right, but a state-sanctioned administrative procedure which is actually quite limited in applicability. Perhaps a case like Loving defined it differently, and that's a key on which this could turn, but it's not clear to me that the fourteenth amendment applies yet.

Lloyd Kilford - 11/1/2004

I have indeed heard of the 14th Amendment and I have just re-read it. I see that the wording is "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ..." (and there is of course more, about equal protection).

It does not constrain the Federal government in any way whatsoever, so the Federal Marriage Amendment would not be disallowed by the 14th.

The question that comes to my mind is this: what does "law" mean in this context? Does it just mean "a law passed by a State legislature" or does it mean "amendment to a State constitution"?

Does the US Supreme Court often strike down (sections of) State constitutions? For instance, Lawrence & Garner V State of Texas concerned an unjust sodomy *law*.

Derek Charles Catsam - 11/1/2004

Oscar --
Fair point on the US Constitutional Amendment, but of course not really germane to the majority rules state constitutional issues on the table. All of those SHOULD be illegitimate, though the court as currently constituted won't see it that way, I'd bet.
Those who support these amendments support bigotry. They are bigots. It's as simple as that. Of course now we'll get a sort of weird inverted PC claiming to be outraged at being called a bigot, but one cannot be a bigot, get called on it, and be outraged at the accusation. If you are trying to deny people (adults) equal status in US society based on their group identity, you are a bigot. Period.

Oscar Chamberlain - 11/1/2004

Derek, I was responding to the possibility of a marriage amendment to the national constitution. If ratified in the appropriate manner, it would trump the 14th amendment.

On a practical level, the Supreme Court is going to be reluctant to overturn large numbers of state constitutional amendments. Their existence tends to refute any reference to an evolving moraliry that is more tolerant of long-term same sex relationships.

The provisions outlawing civil unions in some of these amednments are more vlunerable, because they infringe on the right to make contracts and because they do not distinguish clearly (if at all) between legal and illegal contrances.

For what it's worth, I abhor discrimination against people on the basis of sexual preference. And I think the 14th amendment can and should be interpreted to protect their rights. But concern with same-sex rights is very new; a lot of people are uncomfortable with it; and constitutions can be changed for the worse as well as for the better.

Derek Charles Catsam - 11/1/2004

Lloyd and Oscar --
Your (in this case false) differentiations between good and constitutional in this case forget a little thing I like to call the 14th Amendment. Check it out -- it's good reading and won't take you long!

Oscar Chamberlain - 11/1/2004

Your distinction between the "good" and the "constitutional" is an important one. Whenever I'm giving a general overview of constitutions, I try to remember to say, "not all good actions by government are constitutional, nor are all bad actions unconstitutional."

The framers hoped to make the national constitution constrain certain sorts of mistakes and crimes, but they understood that for a government to be able to respond to circumstances it had to have a level of freedom to act. That freedom inevitably opens the way for bad or stupid actions.

Lloyd Kilford - 11/1/2004

I agree that a majority *should* not curtail the fundamental rights of a minority - this is morally wrong, as you say. But the US Constitution knows nothing of "fundamental rights" - the only thing that a federal amendment cannot now do is deprive a State of its equal representation in the Senate without the State's consent (Article 5).

I do not feel that the Federal Marriage Amendment would be a *good* idea, but if it were proposed in the correct form, and ratified by the States in the correct way, then it would be as Constitutional as the First or Fifth Amendments. It might not be right, or good, or just, but it would be legal.

Robert KC Johnson - 10/31/2004

I agree completely. It's also not at all clear to me why or how these amendments will stand constitutional muster: discrimination is discrimination whether it's contained in a piece of legislation or embedded in a state constitution.

I do think, however, that the amendments will have an effect on turnout, and as this election will be decided on turnout, their presence works to the advantage of Bush (and Bunning). Even in oregon, where it initially seemed as if the anti-gay marriage amendment might fail, the measure now leads by 4 points in the latest poll.

Oscar Chamberlain - 10/31/2004

Ralph, I'm sorry to feel compelled to reason that way. I respect the people you mention. It is quite possible that they would be the better person in a campaign. Ideally I would vote for the better individual.

But the reinvigoration of party disclipline that conservatives in the Republican party have forged (and which Democrats are beginning to imitate) means that one must judge the candidate's party leadership as well as the individual candidate in voting.

For what it's worth, none of the founders (except maybe Hamilton) would have liked that logic either.

Derek Charles Catsam - 10/31/2004

Who cares how popular gay marriage or civil unions are? Some things, fundamental rights, are beyond the scope of majority-rule politics. Mississippians did not have the right to decide who could vote. Virginia did not have the right to decide who could marry someone of another race. Kentuckians ought not to have the right to decide who can have the benefits of an institution that straight folks never need to be questioned about. majorities are not supposed to be able to impose bigotry on minorities. it's too bad that this is precisely what will happen on tuesday. It's even more too bad that not enough good people can stand up against this. History will not be kind to this bigotry.

Jonathan Dresner - 10/31/2004

It's not quite the way you put it.....

The power in the Republican party is very strongly in the hands of three groups: neoconservatives, culture warriors and libertarians. If you don't belong to one of these three groups, how does the party represent your interests?

Whereas the Democratic party, particularly the leadership, has been shifting away from the (drasticly overstated) social progressive model towards a center-left model, and still contains within it a myriad of small and diverse interest groups and a range of leaders many of which bear a striking resemblance to Republicans past, but not so much to Republicans present.

I don't think the Republican party needs to be, or is, or should be, a 'wingnut' party, but the way in which power is allocated and handled within the party has turned it into something very distinctive and I honestly don't understand how moderates such as yourself fit into it.

Ralph E. Luker - 10/31/2004

Sorry you think that way, Oscar.

Robert KC Johnson - 10/31/2004

This is a very interesting point. The political commentator Charles Cook has written that there was probably nothing exceptional about Florida 2000 in terms of the chicanery--only that everything came to the public light. This time, we're seeing this sortof attention spread to multiple states. For historians of campaigns and political scientists, all of this information will be very useful in the future.

Nathanael D. Robinson - 10/31/2004

This election has the potential to be the most studied, and ultimately the most researched, electoral campaign in American history. The themes are, of course, larger than life. However, the numbers of people who will observe people voting will be huge. I was just trained to be a "challenger" by GOTV (although all I will do is record the names of people who vote). Other organizations want to observe from the inside as well:Move On and ACT, for instance. Furthermore, because the Republican challenger will likely call voter registrations into question, many wards and precincts will have lawyers on hand. All those people will be just inside the polling places--there will be many more working on the outside. I am astounded by the wealth of information that might be discovered about voting habits--very detailed information about times of day, awareness of rights, etc. Of course, I will have one job and one job only.

Oscar Chamberlain - 10/31/2004


A vote for these fine people is a vote for the yahoos who make up the Republican House and Senate leadership. Given the moderates's minimal ability to moderate that leadership, I would, if I lived in one of those states, sadly but firmly vote against them.

Lloyd Kilford - 10/31/2004

I remember saying to my friends some time ago that when the voters of California were given the choice to define marriage as between a man and a woman in 2000, they did so decisively (61% in favour). I think that there have been initiatives in a few states since then (Virginia?) and they've also passed easily.

A lot of people don't realise just how unpopular gay marriage is amongst a large swathe of the American public. Like you, I am interested to see how things go on Election Night.

Ralph E. Luker - 10/31/2004

Polarizer! No, seriously, what makes you believe that all reasonable people must be in one party and all the wing-nuts in the other? It's a sort of political manichaeism which doesn't serve us well. You like pluralistic party systems. I don't. I like two party systems, but I see no reason why virtue must all be grouped in one or the other. I prefer its distribution.

Jonathan Dresner - 10/31/2004

Maybe it's just me, but I honestly don't understand what the place for a moderate or 'left-wing' Republican is in the party at this point. It's not lust, it's pity.....

Ralph E. Luker - 10/31/2004

We left-wing Republicans get _real_ tired of Democrat's lust for Lincoln Chaffee, Olympia Snowe, and the few reasonable brothers and sisters we have left in the Congress. The logic of that lust would only tend to further congressional polarization.

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