In regards to the constitutionality of Senator Hillary Clinton becoming secretary of state, people on the left, I think, might be quick to dismiss this case as silly and simply politically-driven, and people on the right might be quick to dismiss this case because it would widely be viewed as politically driven if they (other Senators charged with confirming Clinton) challenged her nomination based on the constitutionality of it (not to mention having a past lack of concern with the Bush Administration’s, shall we say, cavalier attitude to certain parts of the Constitution).

For a recap, here’s Article I, Section 6, Paragraph 2 of the U.S. Constitution:

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office

So, no senator or representative can be appointed to a civil office (e.g. a cabinet position) during their current Congressional term if that office received a pay increase during their term in Congress.   As I wrote last month, the Office of the Secretary of State received a pay raise this year, during Senator Clinton’s current Senate term.   Thus, according to Article I, Section 6, she is ineligible.

Congress, however, has dealt with this problem before in what has been called “the Saxbe Fix.”   President Nixon appointed Ohio Senator William Saxbe to be attorney general, but the office received a pay increase while he was serving his Senate term.   In response, Congress lowered his pay to the level before he began his term.   This again happened in 1993 when President Clinton appointed Texas Senator Lloyd Bentsen to be secretary of the treasury.   This past Wednesday, Congress took up the issue again and passed S.J. 46, a joint resolution lowering the salary of the secretary of state to the January 2007 level before Senator Clinton was sworn in to her current Senate term.   Here’s the text of the resolution, now in President Bush’s hands:

• (a) In General- The compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007, and ending at noon of January 3, 2013.
• (b) Civil Action and Appeal-
  • (1) JURISDICTION- Any person aggrieved by an action of the Secretary of State may bring a civil action in the United States District Court for the District of Columbia to contest the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States District Court for the District of Columbia shall have exclusive jurisdiction over such a civil action, without regard to the sum or value of the matter in controversy.
  • (2) THREE JUDGE PANEL- Any claim challenging the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution, in an action brought under paragraph (1) shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. It shall be the duty of the district court to advance on the docket and to expedite the disposition of any matter brought under this subsection.
  • (3) APPEAL-
    • (A) DIRECT APPEAL TO SUPREME COURT- An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. Any such appeal shall be taken by a notice of appeal filed within 20 days after such judgment, decree, or order is entered.
    • (B) JURISDICTION- The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal.
• (c) Effective Date- This joint resolution shall take effect at 12:00 p.m. on January 20, 2009.

To my point about people on the left blowing this situation off, Greg Sargent at TPM Election Central, a branch of left-leaning Talking Points Memo, had this to say last week:

Is Hillary really Constitutionally ineligible to be Obama’s Secretary of State, as some right-wingers are claiming?

Well, as I wrote here and last month, yes, she really is constitutionally ineligible, but I’m hardly a right-winger.   And he called the Emoluments Clause (Article I, Section VI) a “frivolous legal technicality.”   So I guess that would make the Constitution is a frivolous legal document as well?

For people on the left, complaining about the current president violating the Constitution while giving the president-elect a pass seems to make the former moot, no?   They’d argue that the former’s violations were detrimental to the rule of law, separation of powers, etc., but that the latter’s violation was okay because nobody got hurt from it and you’re willing to look the other way?

I’m not saying Senator Clinton shouldn’t be secretary of state.   Although I’m no fan of the Clintons, she’s an ambitious, smart person and has strong connections with and a strong rapport amongst world leaders.   But as I wrote last month, I’m fairly certain no one could argue Senator Clinton is receiving this appointment out of some corrupt practice, which the Emoluments Clause was to protect against.   Nor can anyone argue she’s taking this office for the money.   The Saxbe Fix ought to be enough to get her by the Emoluments Clause.

But the Saxbe Fix isn’t enough for the conservative no-fans-of-the-Clintons Judicial Watch.   Manu Raju at Politico reports Judicial Watch

is considering litigation to prevent Hillary Clinton from becoming the next Secretary of State, saying Congress’ action Wednesday to clear a legal hurdle for her nomination runs counter to the Constitution.

I’m not sure what standing they would have to base their case on before the appointment and confirmation, but after is a different story.   Eugene Volokh quotes Michael Stokes Paulsen’s 1994 Is Lloyd Bentsen Unconstitutional? article:

A person adversely affected by a Treasury Department regulation promulgated by Secretary Bentsen say, for example, new Treasury or IRS regulations implementing President Clinton’s tax hikes would have standing to sue to have such regulations overturned on the ground that the Secretary of the Treasury was illegally appointed.

Likewise, someone could use this argument against a Secretary Clinton.   And I find it interesting that Congress built in a “Civil Action and Appeal” section to the joint resolution.

But before someone could bring a case against her appointment, she has to be appointed, and this week Congress cleared the way for said action.   We’ll see what comes next.   Again, though, this side-stepping of the Constitution is dangerous.   Adhere to the document or take the necessary steps to change it.   There shouldn’t be some dubiously-questionable middle ground like the Saxbe Fix.

This weekend, New Orleans Representative William Jefferson (D) lost a bid for a tenth term in Congress.   About time.   I wrote last month he was one of eleven Congressmen running for election while under investigation.   He’s now the second name to drop off that list, with Uncle Ted Stevens being the first.   Jefferson, of course, was found hiding $90,000 of cash in his freezer.

Citizens for Responsibility and Ethics in Washington (CREW) list their report of the 20 most corrupt members of Congress.   Here they are:

• Rep. Vern Buchanan (R-FL)
• Rep. Ken Calvert (R-CA)
• Rep. John T. Doolittle* (R-CA)
• Rep. Tom Feeney* (R-FL)
• Rep. Vito J. Fossella* (R-NY)
• Rep. William J. Jefferson* (D-LA)
• Sen. Mary Landrieu (D-LA)
• Rep. Jerry Lewis (R-CA)
• Rep. Daniel Lipinski (D-IL)
• Sen. Mitch McConnell (R-KY)
• Rep. Gary G. Miller (R-CA)
• Rep. Alan B. Mollohan (D-WV)
• Rep. Timothy F. Murphy (R-PA)
• Rep. John P. Murtha (D-PA)
• Rep. Steve Pearce* (R-NM)
• Rep. Charles B. Rangel (D-NY)
• Rep. Rick Renzi* (R-AZ)
• Rep. Harold Rogers (R-KY)
• Sen. Ted Stevens* (R-AK)
• Rep. Don Young (R-AK)

*Doolittle, Fossella, and Renzi retired; Pearce lost a Senate bid; and Feeney, Jefferson, and Stevens were defeated in their reelection bids.

Looks like with these deletions, we’ll be adding some more names to this list (or could it be that these were the only corrupt Congressmembers and there are no more to add to the list? Yeah, right, sadly).   I was going to write we can now add NY Rep. Charlie Rangel to the list, but he’s already on there.

In talking about President-elect Barack Obama’s nomination of retired General Eric Shinseki to be Secretary of Veterans Affairs, James Fallows at The Atlantic said this:

Whenever he talks about this selection, Obama (plus his lieutenants) can describe it completely, sufficiently, and strictly in the most bipartisan high-road terms. They have selected a wounded combat veteran; a proven military leader and manager; a model of personal dignity and nonpartisan probity: an unimpeachable choice. Symbolic elements? If people want them, they can work with Shinseki’s status as (to my recollection at the moment) the first Asian-American in a military-related cabinet position, not to mention a Japanese-American honored for lifelong military service on Pearl Harbor Day.

As for the other symbolic element that Obama is elevating the man who was right, when Rumsfeld, Wolfowitz, Cheney, et al were so catastrophically wrong that is something that neither Obama nor anyone around him need say out loud, ever. The nomination is like a hyper-precision missile, or what is known in politics as a “dog whistle.” The people for whom this is a complete slap in the face don’t need to be told that. They know and know that others know it too. So do the people for whom it is vindication. And all without Obama descending for one second from his bring-us-together higher plane.

Well said, and classic Obama style: taking the high road while being oh-so sly about it.

After I said I was thankful for 20 January 2009, a former professor of mine sent me a link to a National Review article by Mona Charen. Whether from personal ignorance and total dismissal of anything positive or from skewed media and lack of coverage, I didn’t know this admirable thing about President Bush:

From the beginning of his administration, President Bush has pushed for more aid to Africa. Motivated perhaps by his deeply felt Christian faith (relieving poverty in Africa has become a major charitable push among evangelicals), the president has pressed for greater aid to Africa across the board. The original PEPFAR legislation (President’s Emergency Plan for AIDS Relief), which passed in 2003, was the largest single health investment by any government ever ($15 billion). At the time the initiative was launched, only about 50,000 sub-Saharan Africans were receiving antiretroviral treatment for AIDS. Today, 1.7 million people in the region, as well as tens of thousands more around the globe, are receiving such treatment. PEPFAR has also funded efforts to prevent mother-to-child transmission of the AIDS virus, provided compassionate care to the sick and dying, and cared for 5 million orphans. One aspect of the program has been to reduce the stigma of the AIDS diagnosis in Africa.

In July of this year, the president requested that funding for PEPFAR be doubled to $30 billion. The new funding will be used to train 140,000 new health-care workers. It would also address other illnesses, like tuberculosis, that often complicate AIDS.

The president also backed a malaria initiative that has provided an estimated 25 million Africans with nets, spraying, and other prevention and treatment options. Separate from the AIDS funds, the president has tripled development assistance and humanitarian aid to Africa since taking office.

This victory and accomplishment for President Bush is, sadly, lost amongst his administration’s many failures and controversies.   I am disappointed I didn’t know this.   As my professor pointed out, “he’s not all bad.”   President Bush certainly deserves some well-deserved credit here.

Ben Smith today adds some new facts I didn’t know about to the story I first learned about from Matthew Berger, guest-blogging for Marc Ambinder.   The original story was Senator Hillary Clinton is constitutionally ineligible from accepting the Secretary of State job because of Article I, Section VI:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Emoluments defined as:

the returns arising from office or employment usually in the form of compensation or perquisites

So if the civil office received a pay raise while the representative or senator was serving in Congress, the person in question cannot take the job.   In 2007, cabinet secretaries made $186,600, and in 2008, they made $191,300 (actually, their pay has increased every year as far back as 2003).   Clinton, of course, was elected in 2006 to serve a six-year term, so the Secretary of State’s pay has increased while Clinton was serving her term, thus making her constitutionally ineligible from becoming secretary of state.

Does this matter?   Technically, it does.   The Constitution, after all, is the supreme law of the land.   There is precedent, however, for this situation as Ben Smith points out:

It is not, however, an actual political problem, any more than it was when Sen. Lloyd Bentsen became Treasury secretary in 1993 or when Richard Nixon made Sen. William Saxbe attorney general in 1973.

Nixon’s lawyers used what’s now known (in very small circles) as the “Saxbe fix,” by which Congress re-lowered the salary for the job, deciding that that got around the constitutional issue.

The dodge actually goes further back than that, though: Taft’s secretary of state, Philander Knox, came through the same loophole; his salary was brought back down to $8,000 in February of 1909.

I’m no consitutional lawyer, but I’m assuming her resigning before she’s nominated wouldn’t matter because the clause in Article I, Section VI says “during the time for which he was elected.”   So regardless of whether or not Clinton is a sitting senator, she was elected for a term from 2007-2013.   The clause makes no reference to the represenative or senator being a sitting or former (retired, resigned) representative or senator.

But the best part of this pseudo-debate is the technicality to the technicality:

But one of the original troublemakers on this, Michael Stokes Paulsen who wrote a 1994 paper titled “Is Lloyd Bentsen Unconstitutional?” is holding the line, though he suggests Hillary could slip through on a different technicality: The constitutional clause refers to “he.”

While the “he” may be technically sufficient to get Clinton by Article I, Section VI, I think the reduction of her salary to the 2006 level should be enough.   The clause was originally inserted to bar Congressmen from raising salaries in civil offices and taking the jobs for themselves in other words, to curtail corruption.   Reducing the salary of the secretary of state avoids the reason the clause is part of the Constitution, and I don’t think anyone can argue Clinton becoming secretary of state is a result of some corrupt practice.   I think we can, however, make the arguement that creating laws to sidestep parts of the Constitution we don’t like is a potentially dangerous precedent.

Where else can former Vice President Al Gore not only influence policy on energy and environmental matters, but actually draft and have an official, high-level, and direct engagement of policy other than as the head of the Department of Energy?   The DoE website lists its five “strategic themes” as:

1. Energy Security: Promoting America’s energy security through reliable, clean, and affordable energy
2. Nuclear Security: Ensuring America’s nuclear security
3. Scientific Discovery and Innovation: Strengthening U.S. scientific discovery, economic competitiveness, and improving quality of life through innovations in science and technology
4. Environmental Responsibility: Protecting the environment by providing a responsible resolution to the environmental legacy of nuclear weapons production
5. Management Excellence: Enabling the mission through sound management

Sound like a good fit?   I think so.   You?

I was talking with a friend and former professor of mine (who is much smarter than I) the other day, and he disagreed with my proposal of Senator John McCain as Secretary of Defense in an Obama cabinet.   He said McCain is too rash and represents too much of an old type of thinking.   I agree, but I am still too attached to the now-cliched team of rivals idea to not believe in a Secretary McCain.

The rumors say, though, that current Secretary of Defense Robert Gates will stay on for an indeterminate amount of time.   This does a couple things: it gives continuity in command during two wars (don’t change horses in mid-stream?); it gives Obama his discussed Republican in his cabinet; and it confirms something else: Obama likes the Bush 41 National Security Adviser Brent Scowcroft Republican mentality a realist, pragmatic approach to dealing with the world.

But the question is, who comes after Gates?   If not McCain, then I think it should be this guy.

Any thoughts?

(Nod: Talking Points Memo)

Check out (and vote on how they should count) these examples of challenged ballots in Minnesota’s senate race recount.   I suppose an argument can be made for why can’t people read and follow the directions on how to vote, but perhaps an argument can also be made for why can’t we develop a nationally-standardized, user-proof, and user-friendly ballot.   One of the many things wrong with the voting process in this country.

(Nod: FiveThirtyEight.com)

Barack Obama has on countless occasions spoke of the need to heal the nation and bring divisiveness to an end.   He has on countless occasions spoke of there not being red states and a blue states, but a United States and has stressed the need to come together and work together to forge a more perfect Union.   If he truly believes what he says he believes, he will assemble not a team of yes-men and -women, not a team of people who agree with him, but, as Doris Kearns Goodwin put it, a team of rivals.   Not a team of homogeneous political makeup, but a team of varying and diverse political philosophies.   That team looks likely to include Senator Hillary Clinton as secretary of state, and it should include Senator John McCain as secretary of defense.

As former rivals to Obama, Clinton and McCain would do a great service for their country by serving in his cabinet.   Obama spent many months critiquing Clinton’s policy proposals and calling McCain an extension of President Bush.   Would his appointment of these two senators invalidate his campaign and mean he said these things simply to be elected?   No.   Having advisors who don’t necessarily share your opinion is necessary for healthy debate and should be encouraging for the rest of us that our leaders can set aside partisan and political differences.

Obama has spoken in the past about his interest in modeling President Abraham Lincoln’s cabinet, one consisting of a group of advisors who, previous to Lincoln’s election and subsequent nominations of them to their respective jobs, loathed him.   He chose them not because he wanted them to like and admire him, which they eventually did, but because Lincoln thought they were the best people he could enlist.

With Clinton and McCain, the question isn’t why Obama would put rivals, two people he spent months demonizing, in his cabinet.   It is a question of whether these former foes can place personal strife aside and serve the country.   It is a question of whether they are willing to set asides their specific differences with Obama should he ask them to enact policy contrary to theirs.   And can anyone argue neither Clinton nor McCain are qualified for their respective positions?   After all, the two came extremely close to being elected president.

But would Clinton or McCain shirk responsibilities of serving the president and create foreign policies or defense policies, respectively, on their own and perhaps divergent of Obama’s?   If they truly serve at the pleasure of the president, then no.   They would be asked to leave or would be passive-agressively forced out, no doubt severely damaging what’s left of their political careers if not their legacies.

Does it matter that the three may not like each other?   And again, does it matter the three have heavily disagreed on policies throughout the presidential campaign?   Absolutely not.   Because coming together, working together is putting country first.   And with two wars, an economic catastrophe, and environmental, health care, and education crises, that is what matters.

Strange Maps posts this very interesting two-part map.   The red and blue are the county-level results from the 2008 presidential election.   The overlayed black dots represent where 2,000 bales of cotton were produced in 1860 (larger image):

Barack Obama’s campaign spurned some great design work from both the campaign itself and from independent designers/supporters.   DesignForObama.org catalogs some of the artwork inspired by the candidate:

(Nod: Alana Taylor)

Marc Ambinder has an outstanding article on the secrets of Obama’s success.   One such secret:

Scale / Force Of Numbers: No matter how you measure this election, the Obama campaign was able to do so much because it had so much. What ifs abound. What if they were limited to the federal match? What if they weren’t able to raise as much money? What if they didn’t spend more than $150 million on field? Can this possibly be replicated? Can the Democrats ever again have hundreds of paid staff in states like Ohio weeks before election day? Can they ever find two million active volunteers?

A colleague of mine at work sent this to me.   Great play on the Obama poster.

(Nod: SL)

Going into the election last Tuesday, ProPublica, “an independent, non-profit newsroom that produces investigative journalism in the public interest,” reported there were eleven Congressmen under investigation who were also seeking reelection.   And how many of those eleven were reelected?   Nine of them.   Nine!   Here’s the list:

• Sen. Ted Stevens (R-AK)
• Rep. William Jefferson (D-LA)
• Rep. Ken Calvert (R-CA)
• Rep. Jerry Lewis (R-CA)
• Rep. Alan Mollohan (D-WV)
• Rep. Gary G. Miller (R-CA)
• Rep. Timothy F. Murphy (R-PA)
• Rep. Don Young (R-AK)
• Rep. Charles Rangel (D-NY)

ABC notes some of these lawmakers’ troubles.

What is amazing to me is that how ever much people complain about an unethical Congress or corrupt system, people are willing to reelect Congressmen with dubious ethical standards.   Why?   Because:

“I’ve got to believe that the reason why [they’re reelected] is that they’ve developed this network of support that’s based on bringing business opportunities and earmarks to the community,” said Craig Holman, a campaign finance lobbyist for the watchdog group Public Citizen. “The more they develop a network in their communities, the more likelihood they can survive a criminal investigation or indictment.”

Somehow, I feel it should be a red flag when your Congressman is found hiding $90,000 of cash in his freezer.   Just saying.

(Nod: Ben Smith)

Gregg Merksamer at the New York Times reports President Obama will be riding in a new limousine, seen here unfinished and on a road test:

Speculating on some of the armament, Merksamer says:

[…] television clips showing George W. Bush entering and exiting the rear doors of his limos indicate that the windows are at least 5 inches thick, nearly twice the depth of what was used on presidential limousines in the 1980s and ’90s.

While I do not know what type of weapons such thick windows are designed to guard against, a half-inch of transparent armor is enough to stop a .44 Magnum round at point-blank range; at a thickness of 1.25 to 1.5 inches, the same material can withstand higher-velocity bullets fired from military assault rifles.

Were an attack to occur, the ballistic forces of bullets fired into the windows would be absorbed within a succession of glass and plastic layers, after which a flexible inner coating known as an antispall shield would keep glass from entering the passenger compartment.

The Times also has a gallery of past presidential rides. Interesting to see the progression from car to tank.

Please may we have debates that don’t devolve into recitations of talking points?

With all the talk about Joe Six-Pack, Joe the Plumber, and Joe the Vice-Presidential Candidate, how about this little piece of Joe trivia: Joe Biden marks the first time in American history that a Joe president or vice president will occupy the White House.   Now that’s change I can believe in.

Although still unofficial, the Omaha World-Herald is calling the Nebraska second congressional district for Barack Obama:

Obama won 8,434 of 15,039 mail-in ballots counted Friday by Douglas County election officials. These early ballots arrived in the election commissioner’s office too late to be included in Tuesday’s election results.

The additional votes gave Obama a 1,260-vote lead over Republican John McCain in unofficial returns. McCain won the popular vote statewide and four electoral votes.

About 5,000 provisional ballots in Douglas County remain to be counted next week, but they are unlikely to change the 2nd District outcome. About half of such ballots typically are disqualified.

I’m very curious if this will have any influence on discussions about Electoral College reform (or if there will be any discussions at all).   How exciting, though!

One reason why the Electoral College will never be abolished: small-population states would lose the enormously disproportionate influence they have and would fight to the death to protect it.   The New York Times posted this map (larger image):

The NYT notes:

This map shows each state re-sized in proportion to the relative influence of the individual voters who live there. The numbers indicate the total delegates to the Electoral College from each state, and how many eligible voters a single delegate from each state represents.

A great set of photos from behind the scenes of the Obama campaign on election night.

(Nod: Political Wire)

Mark Newman at the University of Michigan Department of Physics and Center for the Study of Complex Systems has a very interesting set of maps from the 2008 and 2004 election.   Here is the county map from 2008:

And from 2004:

One of the best stories I read from voting day was this one.   I can’t quote it; you have to read the whole thing.

And this story falls into an interesting data point discussed by Nate Silver: Barack Obama outperformed John Kerry among parents.

Conversley [sic], there is a hidden source of strength in this table that hasn’t been talked much about before: Obama markedly overperformed Kerry among parents. In a sense, it was those people who have most reason to be concerned about the future who voted for Obama: people who are young themeslves, or people who have young children at home.

A presidential debate remix:

Tom Toles:

Nebraska, since 1992, uses a congressional district allocation method to allocate its electoral votes.   Maine, since 1972, also uses this method.   Nebraska has three congressional districts; add two electoral votes for the two U.S. Senators, and Nebraska has five electoral votes.

Here’s how the congressional district method works. Candidates receive one electoral vote for each congressional district won.   The popular vote winner in the state gets the remaining two.

Never have either Nebraska or Maine actually split their electoral vote.   This year, however, could be different in the Cornhusker State.   The Nebraska Second Congressional District, as of this writing, is up for grabs.   Omaha is in NE-2, and according to WOWT in Omaha:

Barack Obama trails John McCain by 569 votes in unofficial returns from the district.

Election officials estimate there are 9,000 uncounted provisional and absentee ballots in Douglas County alone. Sarpy County estimates there are 1,000 provisionals yet to be counted. Counties have seven days to verify and count the remaining ballots.

This, of course, is of particular interest to me after my thesis project on the Electoral College charted results of past presidential elections using the district allocation method.

Whether or not NE-2 goes for Obama, the possibility is exciting for political junkies like me.

(Side note: once all vote returns are processed in the several states, I will be updating my thesis to include 2008 election data!)