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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Data on filibusters
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Friday, March 06, 2009
Data on filibusters
Sandy Levinson
A fascinating posting by Ben Eidelson, a graduate student at Oxford, presents some illuminating empirical information about the (un)democratic character of filibusters. It turns out that the vagaries of the equal vote rule currently "favor" Republicans inasmuch as Republican filibusters (which, by definition, require 41 senators to vote against cloture for a bill favored by a majority of Democrats (and, perhaps, a Republican ally or two) are possible with senators who are significantly less likely, in toto, to represent a majority of the American public than is the case with Democratic filibusters. Obviously, Democrats represent far more of the larger states than do Republicans, even though, as noted in my earlier posting, Democrats (or sympathetic independents) do control Vermont, North Dakota, and Montana, while the only one-representative state currently controlled by Republicans is Wyoming). At the very least, this suggests a complexity in any argument about whether filibusters are per se "undemocratic," since we also have to confront, as part of any answer, the extent to which the Senate itself is so obviously undemocratic because of the equal-vote rule.
Comments:
I will be interested in reading what Mark and Sandy have to say about this, given their ruminations on a the Senate and other structural failings. I assume this will only add more fuel to Mark's fire. :-)
I will be interested in reading what Mark and Sandy have to say about this, given their ruminations on a the Senate and other structural failings. I assume this will only add more fuel to Mark's fire. :-)
I think I said below somewhere that the filibuster bothers me less than it would if we had a truly representative Senate. If a minority of Senators actually represents the majority of the population, I don't worry too much -- that's consistent with the larger view of democracy I want to encourage. The fact that the filibustering minority might represent 45% doesn't make me feel better, though. The way I see it, modern politics has pretty much ended the era in which one party might gain 2/3 of the Senate (as we saw, for example, in FDR's day). It's been 30 years since either party had 60 seats in the Senate (cite); by that standard, a 55-45 vote is huge. It's also huge considering presidential elections -- few presidents get 55% in a national election.
Isn't the basic assumption that democracy is defined by a 50+% vote?
Another assumption is that a vote in the Senate is the same as a vote in an election. In an election someone has to win, or you could eliminate everyone except the top two and do a re-vote. But can you compare 50% to pass anything and everything with 40+% to stop "one thing"? A filibuster only stops "one thing", it can't reasonably stop everything. At the same time, 40% can't stop anything. Everyone should recognize that the electoral college could be considered unfair because less than 50% of the population could vote for the winner (even in a two way race). Most of this unfairness comes from the electoral votes which derive from the senate. Every state gets two. So if the Senate operates on pure 50% votes, it would be, in some cases, even more unfair than the electoral college. And the unfairness would be polarizing. It would be a big-states/small-states battle, exactly why we have the senate, which represents states with an equal vote.
"There are no second acts in American Lives" wrote F Scott Fitzgerald towards the end of his own monochrome career. To me it will bring optimism even when any filibuster foul up, the journey of evolution still continue
Mark:
Ok, I'm confused. Once I get past the flu and catch up on my grading, I will reread all your posts on this topic and figure it out.
I thought the fact that Republican senators have lately represented more thinly populated areas and thus can use the filibuster power in a more anti-majoritarian way was clear by now. Consider the states won by Bush in 2000.
Wasn't it a 30/20 split? Who won the popular vote? The issue of Dems representing a majority, even if they had less seats, in fact was addressed in a blog post right here, IIRC. Also, we should factor in that Republicans have been more able to vote in lockstep than Democrats, including when out of power. Telling. Bush pushed for a major tax cut plan in 2001 with much less of a 'mandate,' and many Dems simply went along. They had to votes to filibuster, if they care to do so. The split was 50/50! Finally, currently, key treasury picks have been blocked by holds. Not by 40 votes or whatever -- by one or two senators. Do away with filibusters, and by senatorial practice things like that will continue. It is in the nature of how they do business. I believe Mark Field, or someone, is concerned with the breadth of the filibuster -- it covers everything. I think it might be interesting to consider tweaking it, so it has limitations. But, this might also require a chance of mentality. To the degree Republicans now are overplaying their hand, they need to be smacked down, for in effect abusing what might be a limited good thing. Three Republicans voting for the stimulus, after clear compromise and discussion (more so than in the last eight years in many ways) underlines that. Maybe, you have to toss out the baby with the bathwater though. I don't want to though. Maybe, I'm naive. Consider if it, akin to the House of Lords as I believe, it could be used to only delay. This would not work with budgets that need to be passed, but might with substantive legislation of other types. It also might be used for limited things like judicial nominations or the like. Anyway, I also think the filibuster is not really the biggest structural problem out there. It is easy to alter, but given how things are going, some half-way path is likely the realistic result anyway. So, in effect, the fact I might be wrong about keeping it is besides the point, on some level.
I believe Mark Field, or someone, is concerned with the breadth of the filibuster -- it covers everything.
Yes. I think it might be interesting to consider tweaking it, so it has limitations. I could even support some limited uses of the filibuster. It'd be hard to define precisely what they'd be, but in general it might involve any law which restricted or limited basic rights under the Constitution such as free speech, equal rights, voting, or habeas corpus. In essence, if these are rights that courts might protect, then the anti-majoritarian argument for the filibuster makes more sense. A filibuster only stops "one thing", it can't reasonably stop everything. The increasing use of the filibuster by a united, but impotent opposition party (as we have now) can obstruct most legislation. And, of course, any filibuster actually does stop everything while it's going on (assuming the majority were to force the minority to keep talking like in the old days).
"Consider the states won by Bush in 2000.
Wasn't it a 30/20 split? Who won the popular vote?" You know, I find it annoying that anyone believes this has any significance, at all. They were both trying to win the electoral college, one of them succeeded. And it's not like Gore won a popular vote landslide, he got a half percent more than Bush. 540,000 more votes. It is entirely within the realm of possibility that, had they both been trying to win the popular vote, Bush would have still been the winner. He could have made up the whole popular vote deficit with nothing more than a bit higher Republican turnout in California. Attributing any significance to who barely managed a popular vote plurality neither of them were trying for is idiocy. Nothing more.
The "basic rights" limit to the filibuster gives away too much of the store, especially when other checks, including a veto of one person covers a lot more. Structural checks aren't just there to protect "basic rights."
As to Brett's comment, the example ("consider") was in response to the discussion of how Republicans control more states than the weight of their numbers overall might suggest. The 30/20 split partially clouded the closeness of the election. The closeness underlined by the fact that the "20" side won the popular vote. This is sorta relevent to the discussion. It should not be given too much weight, but we are talking a specific context here.
Three cheers for supermajority consensus!
Because of the filibuster, the earmarked chocked double digit expansion of government known as the omnibus spending bill has been pulled from the floor and a stopgap bill funding the government leviathan at last year's levels has been enacted in its stead. We taxpayers will be spared at least a small part of the $4.5 Trillion in interest the Obama budget predicts we will pay over the next decade.
Bart,
An honest person would have noted that the stopgap is a 5-day delay. Presumably this is so that the Republicans can decide who takes the fall on their side for getting their portion of the earmarks through. Some people seem to be able to see Kabuki theater as cinema verite, while the rest of us see an unconvincing charade. I wonder why that is? Who will break the filibuster? Will it be Snowe, Collins, or Specter? Note the similarity of this pattern to the California pattern -- which I don't see as coming recommended.
C2H50H:
Consensus does not always fall precisely along party lines. The RINOs had already caved. Reid's problem was with a fairly open rebellion of members of his own caucus who are facing the voters in 2010. Without the filibuster, this monstrosity would have passed without the votes of Dems up for re-election. There is always the possibility that the Dem leadership can buy the Blue Dog votes with yet another helping of pork paid for with borrowing against your future. However, that only means that you ought to be giving your Senators hell for mortgaging the country's future. That is if you give a damn.
Bart,
Sorry, but I vote in Minnesota, which means I don't have much say right now in what happens in the Senate. Not that I ever did... You say consensus doesn't fall along party lines, but that's counter to the observed facts, as you must admit. Since there was no vote for cloture, your theory about the blue dogs balking is unfounded on fact. Under the current rules we, the public, cannot even know who is for or against cloture unless they tell us -- and can be believed. For my part, I don't care by what means bills are proposed or opposed, so long as they are lawful, and those proposing or opposing are honest and forthright about their positions. In other words, I'm dead against the kabuki theater that takes place in the Senate every time something remotely controversial comes up.
Really, Bart, that is a ridiculous interpretation of what is happening.
I was amused to see this on Bloomberg: A dozen more Republican amendments are pending, including one offered by Nevada Republican Senator John Ensign that would drop a Democratic-sponsored plan to phase out a school voucher program in Washington, D.C. The program, created by Republicans, allows an estimated 1,700 children from poor families to attend private schools at public expense. So much for budget cutting.
C2H50H said...
Bart, Sorry, but I vote in Minnesota, which means I don't have much say right now in what happens in the Senate. Not that I ever did... You always have a say if you are a voter. Go call your one seated Senator, Amy Klobuchar, and tell her to vote against this omnibus. My Senator Mark Udall is coming to a local town meeting and I plan to ask him whether he will apply the pay go he voted for last year to the omnibus bill and Obama's proposed new programs and if not, why not.
CTS:
The same money or more would be spent on these students if they were compelled to return to DC's wretched government school system. Indeed, Obama's kids are going to the same private school as some of the poor DC kids using these vouchers. The only difference here is that Obama is wealthy and the parents of the poor DC kids are not.
The linked report is an interesting statistical slice of the parliamentary process in congress, and seems to have potential to reveal much more when it is refined and has a wider data sample. I wondered about the gap for the 107th congress in its presentation, whether the initial output from the program seemed too scattered to interpret, or if the effort was conceptualized to map onto uniform spans of time for each sample, to make the time variable factor out of the output comparisons process. Hopefully, Ben Eidelson has preserved the code for more revisions and a followup post.
Mesothelioma
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Asbestos Mesothelioma Mesothelioma Mesothelioma Asbestos Mesothelioma Mesothelioma Asbestos is the name given to a group of minerals that occur naturally in the environment as bundles of fibers Exposure to asbestos may increase the risk of asbestosis, lung cancer, Mesothelioma other cancers, and other nonmalignant lung and pleural disorders . Smokers who are also exposed to Asbestos have a greatly increased risk of lung cancer . Individuals who have been exposed (or suspect they have been exposed) to asbestos fibers on the job, through the environment, or at home via a family contact should inform their physician of their exposure history and any symptoms . Government agencies can provide additional information on Asbestos exposure. What is Asbestos Asbestos is the name given to a group of minerals that occur naturally in the environment as bundles of fibers and can be separated into thin, durable threads. These fibers are resistant to heat, fire, and chemicals and do not conduct electricity. For these reasons, asbestos has been widely used in many industries. There are two subgroups of Asbestos chrysotile, which has curly fibers and is in the serpentine family of minerals; and amphibole asbestos, which has straight, needle-like fibers and includes actinolite, tremolite, anthophyllite, crocidolite, and amosite asbestos. Chrysotile Asbestos is the form that has been used predominantly in commercial applications worldwide . How is Asbestos used Asbestos was mined and used commercially in North America beginning in the late 1800s. Its use increased greatly during World War II . Since then, Asbestos has been used in many industries. For example, the building and construction industry has used it for strengthening cement and plastics as well as for insulation, roofing, fireproofing, and sound absorption. The shipbuilding industry has used asbestos to insulate boilers, steampipes, and hot water pipes. The automotive industry uses Asbestos in vehicle brakeshoes and clutch pads. Asbestos has also been used in ceiling and floor tile; paints, coatings, and adhesives; and plastics. In addition, asbestos has been found in vermiculite-containing consumer garden products and some talc-containing crayons. In the late 1970s, the U.S. Consumer Product Safety Commission (CPSC) banned the use of Asbestos in wallboard patching compounds and gas fireplaces because the Asbestos fibers in these products could be released into the environment during use. Additionally, in 1979, manufacturers of electric hairdryers voluntarily stopped using asbestos in their products. In 1989, the U.S. Environmental Protection Agency (EPA) banned all new uses of Asbestos uses established prior to 1989 are still allowed. The EPA also established regulations that require school systems to inspect for damaged Asbestos and to eliminate or reduce the exposure to occupants by removing the asbestos or encasing it. In June 2000, the CPSC concluded that the risk of children’s exposure to Asbestos fibers in crayons was extremely low (1). However, the U.S. manufacturers of these crayons agreed to eliminate talc from their products. In August 2000, the EPA responded to reports it received about the adverse human health effects associated with exposure to asbestos-contaminated vermiculite by conducting a series of tests to evaluate the extent of the risk. The investigation concluded that the potential exposure to Asbestos from some vermiculite products poses only a minimal health risk to consumers. The EPA recommended that consumers reduce the low risk associated with the occasional use of vermiculite during gardening activities by limiting the amount of dust produced during use. Specifically, the suggested that consumers use vermiculite outdoors or in a well-ventilated area; keep vermiculite damp while using it; avoid bringing dust from vermiculite use into the home on clothing; and use premixed potting soil, which is less likely to generate dust. The regulations described above and other actions, coupled with widespread public concern about the health hazards of Asbestos, have resulted in a significant annual decline in U.S. use of Asbestos Domestic consumption of Asbestos amounted to about 803,000 metric tons in 1973, but it had dropped to about 2,400 metric tons by 2005 . What are the health hazards of exposure to Asbestos People may be exposed to Asbestos in their workplace, their communities, or their homes. If products containing Asbestos are disturbed, tiny Asbestos fibers are released into the air. When Asbestos fibers are breathed in, they may get trapped in the lungs and remain there for a long time. Over time, these fibers can accumulate and cause scarring and inflammation, which can affect breathing and lead to serious health problems . Asbestos has been classified as a known human carcinogen (a substance that causes cancer) by the U.S. Department of Health and Human Services, the EPA, and the International Agency for Research on Cancer. Studies have shown that exposure to Asbestos may increase the risk of lung cancer and Mesothelioma (a relatively rare cancer of the thin membranes that line the chest and abdomen). Although rare, Mesothelioma is the most common form of cancer associated with Asbestos exposure. In addition to lung cancer and Mesothelioma some studies have suggested an association between Asbestos exposure and gastrointestinal and colorectal cancers, as well as an elevated risk for cancers of the throat, kidney, esophagus, and gallbladder . However, the evidence is inconclusive. Asbestos exposure may also increase the risk of Asbestos (a chronic lung disease that can cause shortness of breath, coughing, and permanent lung damage) and other nonmalignant lung and pleural disorders, including pleural plaques (changes in the membrane surrounding the lung), pleural thickening, and pleural effusions (abnormal collections of fluid between the thin layers of tissue lining the lung and the wall of the chest cavity). Although pleural plaques are not precursors to lung cancer, evidence suggests that people with pleural disease caused by Asbestos exposure may be at increased risk for lung cancer . Who is at risk for an Asbestos related disease? Everyone is exposed to Asbestos at some time during their life. Low levels of Mesothelioma are present in the air, water, and soil. However, most people do not become ill from their exposure. People who become ill from Asbestos are usually those who are exposed to it on a regular basis, most often in a job where they work directly with the material or through substantial environmental contact. Since the early 1940s, millions of American workers have been exposed to Asbestos Health hazards from Asbestos fibers have been recognized in workers exposed in shipbuilding trades, Asbestos mining and milling, manufacturing of asbestos textiles and other Asbestos products, insulation work in the construction and building trades, and a variety of other trades. Demolition workers, drywall removers, asbestos removal workers, firefighters, and automobile workers also may be exposed to Asbestos fibers. However, recent studies do not support an increased risk of lung cancer or Mesothelioma among automobile mechanics exposed to asbestos through brake repair . As a result of Government regulations and improved work practices, today’s workers (those without previous exposure) are likely to face smaller risks than did those exposed in the past. Those involved in the rescue, recovery, and cleanup at the site of the September 11, 2001, attacks on the World Trade Center (WTC) in New York City are another group at risk of developing an Asbestos related disease. Because Asbestos was used in the construction of the North Tower of the WTC, when the building was attacked, hundreds of tons of asbestos were released into the atmosphere. Those at greatest risk include firefighters, police officers, paramedics, construction workers, and volunteers who worked in the rubble at Ground Zero. Others at risk include residents in close proximity to the WTC towers and those who attended schools nearby. These populations will need to be followed to determine the long-term health consequences of their exposure . One study found that nearly 70 percent of WTC rescue and recovery workers suffered new or worsened respiratory symptoms while performing work at the WTC site. The study describes the results of the WTC Worker and Volunteer Medical Screening Program, which was established to identify and characterize possible WTC-related health effects in responders. The study found that about 28 percent of those tested had abnormal lung function tests, and 61 percent of those without previous health problems developed respiratory symptoms. However, it is important to note that these symptoms may be related to exposure to debris components other than Asbestos Although it is clear that health risks from Asbestos exposure increase with heavier exposure and longer exposure time, investigators have found Mesothelioma related diseases in individuals with only brief exposures. Generally, those who develop Asbestos related diseases show no signs of illness for a long time after their first exposure. It can take from 10 to 40 years or more for symptoms of an california insurance related condition to appear. There is some evidence that family members of workers heavily exposed to Asbestos face an increased risk of developing Mesothelioma This risk is thought to result from exposure to Asbestos fibers brought into the home on the shoes, clothing, skin, and hair of workers. To decrease these exposures, Federal law regulates work practices to limit the possibility of Asbestos being brought home in this way. Some employees may be required to shower and change their clothes before they leave work, store their street clothes in a separate area of the workplace, or wash their work clothes at home separately from other clothes . Cases of Mesothelioma have also been seen in individuals without occupational exposure, but who live close to Asbestos mines or have been exposed to fibers carried home by family members working with asbestos . What factors affect the risk of developing an insurance related disease? Several factors can help to determine how asbestos exposure affects an individual, including : Dose (how much Debt Free an individual was exposed to). Duration (how long an individual was exposed). Size, shape, and chemical makeup of sex fibers. Source of exposure. Individual risk factors, such as smoking and pre-existing lung disease.
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