I’ve avoided blogging the last few weeks because I’ve got politics on the brain and don’t want to employ a University computer system for anything that could be construed as campaigning.  This has been hard because there was been a wonderfully crazy district judge’s race underway that is already been making legal history, especially for what it may show about the “anything goes” judicial electoral environment that has developed since Republican Party of Minnesota v. White.

However, I do want to encourage everyone to vote and would urge everyone to read fellow FOB (friend of Brandeis) Joe Rooks Rapport’s front page article on the CJ’s Sunday Forum.  It’s a wonderful counter-argument to the view that my-vote-doesn’t-matter. 

Also, for those interested in following the Kentucky elections on Tuesday, I’d recommend State Board of Elections website. Live state and county results are posted regularly throughout the night.  There are also historical results there that you can consult to identify trends.  If you want to look particularly knowledgeable, look at Dem./Rep. spreads in key counties in recent elections.  For example, after reviewing the razor-close 2004 senatorial election where Sen. Jim Bunning (R) beat Daniel Mongiardo (D) by a mere 22,652 votes, you can sprinkle your barroom analysis with insights like “if Lunsford runs up a margin of more than 64,000 votes in Jefferson County, then McConnell needs to win big in the [Jackson] Purchase.”      

I’d also tip you to the KET website, http://www.ket.org/election/, which will be streaming its excellent KET/PBS election night coverage live online.

Finally, after you have voted, driven a busload of voters to the polls and annoyed scores of land-line owners with phone calls, you might want to head over to the Filson Historical Society at noon to view “A Sampling of U.S. Presidential Campaigns and Elections,” where curator James Holmberg will show off the Filson's large collection of presidential campaign and election materials.

Whew!  Made it to the end without getting partisan.  Only 49 1/2 hours to go....

If the House votes for or against the Wall Street/Main Street bailout/rescue today, the response by the stock exchanges will not be the best measure of the "market" reaction. (See my regulally updated post, "Legislative History on the Fly: The Wall Street Bailout," to follow the current measure itself). Rather, as the key purpose of this massive plan is to increase liquidity in the frozen credit markets, there are some key quantifiable measures to watch:

TED Spread: this is difference between the interest rates on interbank loans and short-term U.S. Treasury bills. (Specifically it is the spread between a 3-month T-Bill and the 3-month LIBOR in Euros (more below)). It is considered a key measure of perceived credit risk because a T-bill is considered risk-free and the 3M LIBOR rate is thought to be the most reliable measure of the market rate between banks. Normally, this spead is around zero. The fact that it has been resting the last few week in the the 3s reflects serious liquidity problems. If it returns to around 1 after the bailout bill, that is a good sign. Bloomberg website tracks it at http://www.bloomberg.com/apps/quote?ticker=.TEDSP:IND .

LIBOR EUR 3M: The three-month LIBOR (London Inter-Bank Offered Rate) is considered the most stable measure of international liquidity. It is upon this rate that loans between banks around the world are based and also underlies many adjustable rates, including ARMs. Check it at this site: http://www.bloomberg.com/apps/quote?ticker=EE0003M%3AIND .

LIBOR USD Overnight: The overnight LIBOR is those most sensitive reflection of liquidity. Lately, it was been a measure of how much the the credit markets are freaking out. After the House vote on Monday, it reached 6.88%--showing that essentially the credit markets were frozen (in a "normal" economic situation, it should be ins the ones and twos). Watch it at http://www.bloomberg.com/apps/quote?ticker=US00O%2FN%3AIND .

When momentous legislation is passed--think USA Patriot Act after 9/11--the textbook how-a-bill-becomes-a-law process gets chucked out the National Park Service-maintained neoclassical window. Shadowy drafts are circulated as the political branches negotiate--then a deal breaks and the legislation is hurried through Congress in a furious rush. No full hearings, detailed conference reports, or extended debates. Try finding much documentation later on USCCAN or Thomas and you are out-of-luck.

The Wall Street bailout law looks like this kind of situation but, thanks to the Internet and the news & politics blogs, at least we get to see the shadowy drafts:

• Secretary of the Treasury Hank Paulson's three-page draft (this version from NY Times, but it's everywhere)
  • Press Release & SEC's order halting short-selling of finanacial services stocks
• The Dodd Senate bill draft, released overnight, appeared morning of Sept. 22 (via Politico)
• The House Discussion Draft, circulated mid-day Sept. 22 (also via Politico)
• President Bush's Speech to the Nation, Sept. 24 (CNN)
• House Republican Minority Plan, Sept. 25 (from MSNBC)
• Final Consensus Draft Bill, Sept. 28, 2008
• Text of the Amendment to the Senate Amendment to HR 3997, attaching the Emergency Economic Stabilization Act of 2008 (failed bill in House)
  • House Debate (Copied from Thomas.loc.gov into Word file)
• Text of Senate Amendment in the Nature of a Substitute for HR 1424, substituting the revised version of the Emergency Ecomonic Stablization Act of 2008 (mirrored version on UofL site)
  • Senate Debate, Sept. 30, 2008 (Copied from Thomas into Word file).
  • Senate Debate, Oct. 1, 2008 (Copied from Thomas into Word file).
  • House Debate, Oct. 2, 2008 (Copied from Thomas into Word File)

The feeling is that the House document is the negotiating draft for Congressional Democrats, with the plan offered by Senate Banking Committee Chair Christopher Dodd (D-Conn.) being aspirational (update: this might be wrong). Word is that House Financial Services Committee Chair Rep. Barney Frank (D-Mass) and Secretary Paulson reached agreement on incorporating some changes sought by Congress to the Treasury plan Monday night, so check this page later for more documents.

UPDATE (9/23): Secretary Paulson and Ben Bernanke, chair of the Federal Reserve System, testified before the Senate Banking Committee at 9:30 Tuesday;tape available on C-SPAN. The Senate Banking Committee website has hearing & witness preliminary statements here. After hearing, Sen. Dodd seemed a bit annoyed with Rep. Frank, whose House draft seemed to be the basis of the yet-unseen renogotiations with Paulson (though this might be some good-cop, bad-cop act on behalf of the Dems). Also, Senate Minority Leader Mitch McConnell (R-Ky.) seemed to sign on to parts of the Dodd draft, especially the part capping executive compensation for CEOS participating in the bailout. Given to the tight margins in the Senate, any Dodd-McConnell backed provision will be in the final version.

UPDATE (9/24): Fed Chief Ben Bernanke testified this morning before the Joint Economic Committee of Congress (testimony) . At 2:30 he and Sec'y Paulson testify before the House Financial Services Committee (video). President Bush announces he'll be speaking on national TV in support of bailout. Mixed signals on whether he may support some exec comp caps (with CNBC first reporting he would; then that he wouldn't).

UPDATE (9/25): McCain's dramatic parachute drop into the bailout discussions apparently had one effect: Sen. Dodd and Rep. Frank apparently have stopped sniping at each other and united around a single Democratic negotiating document, the text yet unreleased. McCain and Obama joined in bland statement, and President Bush made a speech urging Congress to pass the Paulson plan. This morning Bush, the two presidential candidates and other involved parties will meet, likely producing another plain vanilla text. Nonetheless, despite the photo-ops, Treasury and Congress continue to negotiate and all signs are that an agreement of some kind will emerge in the next day or so--unless the McCain gambit has so injected presidential politics into the delicate talks that the progress is frozen. LATE UPDATE (9/25): President Bush's meeting is an apparent disaster with House minority (GOP) leadership rejecting the Paulson-Congressional leadership plan. The House minority leader Rep. John Boehler (R-OH) pitches a new GOP plan, blindsiding everyone (except perhaps McCain). Everyone leaves angry and there is no joint statement. Speaker Nancy Pelosi (D-CA) insists that she isn't going to pass the bill with only Democratic votes and allow the GOP to rail against it in campaign ads; Frank & Dodd blame McCain for scuppering deal.

UPDATE (9/26): Day begins with foreign exchanges and US futures market in slide. Congressional leadership restarts talks with Paulson. Appears to be two options: (1) accept elements of House GOP plan to get consensus (this might however lose Democratic votes); (2) the Bush administration must sweeten the deal for Democrats, including billions more money to prevent foreclosures & perhaps a promise of no Bush veto on a stimulus package Pelosi is pushing, so that the Democratic leadership can go ahead without as many GOP votes. Looks like there are enough votes in the Senate so the House is the ball game. UPDATE (midday): Reuters is reporting that a 102-page draft proposal is being circulated; I'm trying to find the text.

UPDATE (9/27): Reuters is reporting the major features of the 102-page draft being negotiated. (No luck yet finding this text). Talks continue along the lines pursued before the disasterous White House meeting, despite the House GOP revolt, although there are efforts to add a provision from the GOP plan that would give the Treasury secretary the option to have the government insure some distressed mortgage-backed securities and so limit the amount it would have to buy. This is hoped to provide cover so that some GOP House members will support the plan.

UPDATE (9/28): At 5:15pm EST CNN is reporting that the text of a bailout agreement that can pass both houses of Congress has been nearly finalized. Party cancuses are reviewing the plan & Speaker Pelosi is meeting the press. The text is available at speaker.house.gov and financialservices.house.gov but the House website is swamped at this time. UPDATE ON TEXT. Senate Banking Committee has the plan on its website and it is currently functioning. I've mirrored it to UofL Law servers here.

UPDATE (9/29): The bailout bill fails in House; stock markets plunge. Hair on fire, hair on fire.

UPDATE (9/30): The official bill can be found on the front page of Congress' Thomas website (thomas.loc.gov). Interestingly, it was offered as an amendment to the Senate Amendment to H.R. 3997, the "Act to amend the Internal Revenue Code of 1986 to provide tax relief and protections for military personnel, and for other purposes, " the "other purposes" being (in this case) to serve as a vehicle to get the bailout before the House ASAP. (To confuse things more, this bill was known until recently as the "Defenders of Freedom Tax Relief Act.") NOTE: Since this attempt to pass the plan failed, it is possible that another piece of legislation may be chosen if the rescue plan returns for another try. I've heard reports that the Senate may take the lead on Thursday, which would likely neccessitate a switch, further tangling the legislative history. (UPDATE: This proved true, see below).

UPDATE (10/1): Senate plans to vote after sundown today on the rescue plan, as a substitute to HR 1424. The new bill revives a failed Senate version of the bill to revise the Alternative Minimum Tax that had failed in the House but is supported by House GOP members (and many Democrats). The bill also has disaster relief and other features that have balloned the text up to 451 pages. By the way, HR 1424 was originally written to ban genetic discrimination in regard to health care and employment (and was passed as such by the House), but the first line of the substitute completely strikes that language and inserts the bailout bill in the hollowed out husk. (Ironically, the original bill was named after the late Sen. Paul Wellstone of Minnesota, a liberal crusader who was not known as a great friend of Wall Street). Yet another legislative history cul-de-sac is laid upon the record. UPDATE: The Senate passed the bill at around 9:15pm EST by a 74-25 vote. McCain, Obama and Biden voted "aye." Sen. McConnell voted yes; Sen. Bunning voted no.

UPDATE (10/2): Indications are that the House will vote up-or-down around noon Friday on the Senate version without any changes, unless the party whips believe there are not enough votes.Those whips are working extra diligently that there are no surprises for the leadership like there were on Monday.

UPDATE (10/3): At 1:26 PM EST the US House passes the rescue bill 263-171 in the form sent it it by the Senate. (AP roll call here). Bush President signs the bill into law just after 3PM EST.

On Constitution Day, I’d like to highlight two UofL contributions to the celebration of our singular charter.

First, I want to direct folks to the videos by UofL law professors Sam Marcosson and Luke Milliken (with Dean Jim Chen) on the law school Constitution Day page, here.

Second I’d like to point out a recent study by McConnell Center director and political scientist Gary Gregg which highlighted important creators of our Constitution who have been neglected by history. UofL's Gregg and political scientist Mark David Hall polled more than 100 historians, political scientists and law professors to find those “who played a major role in the nation’s founding but who have been unjustly neglected by history.” The results will be detailed in a future book, but Dr. Gregg released the data in a September 15 UofL press release to give us a C-Day taste: .

The top-ten “forgotten founders” are, in order.

1. James Wilson (PA)
2. George Mason (VA)
3. Gouverneur Morris (NY)
4. John Jay (NY)
5. Roger Sherman (CN)
6. John Marshall (VA)
7. John Dickinson (PA)
8. Thomas Paine (World)
9. Patrick Henry (VA)
10. John Witherspoon (NJ)

Like any top-ten list there are quibbles and questions, but that is what makes these things fun. One thing I noticed was that three U.S. Supreme Court justices are on the list, but only one, Marshall, really made an impact as a judge. Wilson’s role is as an intellectual and Jay, though he is the answer to the trivia question “who was the first chief justice,” really made his impact as a politician and diplomat.

My big question is why is John Marshall number six? Was there an Obscurity-to-Significance matrix such that Marshall's great importance was muted by his relative non-obscurity? That might explain him falling behind the somewhat important but hugely unknown Roger Sherman, who falls fifth in the list of important American Shermans, behind John Sherman, Sherman Minton, Bobby Sherman and Mister Peabody’s boy Sherman.

Also when did Thomas Paine and Patrick Henry become so forgotten? Did the nuns at St. Basil’s beat their names into my schoolboy noggin for no good reason (figuratively, of course). Or is perhaps are the scholars suggesting that beyond the common-sense give-me-liberty stereotypes, the essential nature of Paine and Henry are unknown.

No top-ten list critique would be complete without the “who’s missing” list. For my “Freebird” nominees, I include Charles Pinckney of SC and Dr. Benjamin Rush of PA. For better or worse, it's hard to imagine the constitutional convention without Pinckney and if a political revolution needs corresponding revolution in ideas, then Rush’s innovative thinking about areas as diverse as infectious medicine and prison reform reflect it.

I’ve looked through the UofL library catalog to put together a reading list of scholarship of the ten BFFs (best forgotten founders) and have noticed a few things. First, the rakish Gouverneur Morris is certainly been un-forgotten this century, with 4 new books since 2000. Second, Sherman is really, really obscure, with nothing published in the last quarter-century. Third, John Marshall forgotten? Really? Ever? Not in legal publishing, with every decade producing a spate of books about the man who made the Constitution in his own image. I include only one title in the list, an intellectual comparison of Marshall and Jefferson’s concept of the new republic:

• Mark David Hall, The political and legal philosophy of James Wilson, 1742-1798 (Columbia : University of Missouri Press, c1997).
• Jeff Broadwater, George Mason, forgotten founder (Chapel Hill : University of North Carolina Press, c2006).
• James J. Kirschke, Gouverneur Morris : author, statesman, and man of the world (New York : Thomas Dunne Books, 2005).
• Melanie Randolph Miller, Envoy to the terror : Gouverneur Morris & the French Revolution (Dulles, Va. : Potomac Books, c2005.
• Richard Brookhiser, Gentleman revolutionary : Gouverneur Morris, the rake who wrote the Constitution (New York : Free Press, c2003).
• William Howard Adams, Gouverneur Morris : an independent life (New Haven : Yale University Press, c2003).
• Frank W. Brecher, Securing American independence : John Jay and the French alliance (Westport, Conn. : Praeger, 2003).
• James F. Simon, What kind of nation : Thomas Jefferson, John Marshall, and the epic struggle to create a United States (New York : Simon & Schuster, c2002.
• Milton E. Flower, John Dickinson, conservative revolutionary (Charlottesville : University Press of Virginia, 1983).
• Craig Nelson, Thomas Paine : enlightenment, revolution, and the birth of modern nations (New York : Viking, 2006).
• Eric Foner, Tom Paine and revolutionary America (Publisher: New York : Oxford University Press, 2005).
• Harlow Giles Unger, America’s second revolution : how George Washington defeated Patrick Henry and saved the nation (Hoboken, N.J. : John Wiley & Sons, c2007).
• Jeffry H. Morrison, John Witherspoon and the founding of the American republic (Notre Dame, Ind. : University of Notre Dame Press, c2005).

The latest Kentucky Gazette in my office mailbox (dated August 13, 2008--the word latest is relative), has an excellent article on the Kentucky Consensus Forcasting Group, the bipartisan collection of economists that monitor the state's revenues and the economy on the joint behalf of the govenor and legislature. This quiet, if not exactly secretive group, was formally established by law (KRS 48.115) in 1994 (after a period of informal existance) to make sure that the branches could spend their time squabbling over how to spend Kentucky's money, not over how much money there was to spend.

The group is made up of seven distiguished economists chosen jointly by the state budget director (currently Mary E. Lassiter) and the Legislative Research Commission. The group is staffed by the LRC but works closely with the state budget director who convenes the group in the fall and winter in the year before the even-year budget session of the legislature, and as called by the governor. The group monitors three factors: state sales-tax receipts, state property tax revenues (which together make up the bulk of the commonwealth's revenues), and the nation's economy. As the Kentucky Gazette article shows, their predicting record is pretty good, with the wild card being the national economy.

With the the economy stalled, housing prices dropping and the stock market on free-fall, it may be of interest to know who these professionals are, so I'll list them with links to existing bios, if I can find them:

• Chair, Dr. Lawrence K. Lynch (apptd. 1994; emeritis prof. of econ. Transylvania U; tax expert & consultant to LRC since 1975)
• Dr. James R. McCabe (apptd. 1996; assoc. prof. finance at UofL; former chair of UofL econ. dept. & member of faculty since 1973. Research are is market forecasting; see CV)
• Dr. James F. O'Connor (apptd. 1996; prof. econ. EKU; chair of econ. dept, 1989-97; expert in econometric modeling; see EKU webpage)
• Maria Gerwing Hampton (apptd. 2007; vp & senior branch exec. Louisville br. of Federal Reserve Bank of St. Louis; banking exec. at Linerty Nat'l\Bank One Ky for 26 years; see FRB bio)
• Dr. Bruce K. Johnson (apptd. 2007; prof. econ. Centre College; see faculty webpage)
• Dr. David E. Wildasin (apptd. 2007; endowed prof. public finance & econ at UK's Martin School of Public Policy; see faculty webpage with links to bio & CV)
• Dr. Virginia (Ginny) Wilson (apptd. 2007; adj. prof.at UK's Martin School of Public Policy; retired from LRC after years as economist for legislature)

 

Recent events have changed the profile of possible candidates for the high office of vice president, so I'd like to jump the gun on 2012, by puffing the candidacy of my old colleague at UK Law, Todd Eberle. I'm not sure what party he belongs to--which may be a plus this early--and I haven't talked to him, but I'm sure if the nation calls, Todd will answer.

Look his "executive experience" for example. For the last year or so, he has been mayor of the city of Prospect, a thriving municipality with similiar demographic characteristics with that governed by the GOP vice presidential candidate, albeit with less moose-hunting opportunities. In addition, Todd served for fourteen years as Associate Dean and Director of Continuing Legal Education at the University of Kentucky College of Law, supervising a staff and managing a real budget. He organized hundreds of CLE programs, published dozens of publications, and co-authored the Kentucky Legal Ethics Opinions and Professional Responsibility Deskbook (UK/CLE, 1999) with UK law professor Rick Underwood, tasks that required great diplomatic and organizational skill. He is also a member of the Kentucky bar and a graduate of the Vanderbilt law school.

For comparision, look at at the stats:

Executive experience:
Sarah Palin, Wasilla AL, pop. 5,469
Todd Eberle, Prospect KY, pop. 10,054

Others:
Sherry S. Conner, Shively KY, pop. 15,258
Bernard Bowling, Jr., St. Matthews KY, pop. 17,681
Clay S. Foreman, Jeffersontown KY, pop. 26,633
Doug English, New Albany IN, pop. 37,603
Thomas Galligan, Jeffersonville IN, pop. 38,100

(and some guy named Jerry Abramson of a little burg named Metro Louisville at pop. 700,000 or so ...)

With Mayor Foreman feuding with his council, and Mayor English engaged in appeasement with bar owners over a smoking ban, Mayor Eberle of the Great City of Prospect is clearly the person for the job.

 

 

A exciting new radio program launched in June that that aspires to do for American history what CarTalk did for automobile repair. Sponsored by the Virginia Foundation for the Humanities, BackStory takes a modern problem and places in its context with a "fab three" of US history: Peter Onuf, the "18th Century Guy," Ed Ayers, the "19th Century Guy," and Brian Balogh, the "20th Century Guy." Ed Ayers (left in photo) is President of the University of Richmond. Brian Balogh (center)is a professor of history at the University of Virginia and Co-Chair of the Governing America in a Global Era Program at UVA’s Miller Center of Public Affairs. Peter Onuf (right) is the Thomas Jefferson Memorial Foundation Professor of History at UVA . (While not exclusively a legal historian, Onuf has written several important books on the Constitutional period.

Backstory has an informative website, with a RSS feed and podcasts of already aired programs. Currently playing is "Traffic: How We Get From Here to There," an examination of the history of transportation in America, sparked by a discussion of traffic congestion in the Virginia-based historians' gridlocked region. The Tappet brothers,Tom and Ray Magliozzi would feel right at home.

 

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The Supreme Court's recent decision in D.C. v. Heller established an individual right to bare arms, but it has left several questions about the scope of this newly discovered right open--with only a total ban on handguns clearly prohibited. Not surprisingly, cities like New York and Chicago are combing the case to see whether their own laws are vunerable, and at least one locality, San Francisco, has been already been sued. It's pretty clear that this will be happening all over the country, so it is appropriate to point out that there is a free, though ocassionally dated, resources that collects the gun laws and ordinances of all states and local governments in the U.S.

The Department of Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives (a group that knows something about gun laws), publishes an annual (at least in theory) publication entitled the State Laws and Published Ordinances - Firearms (quaintly known to federal lawmen as ATF P 5300.5) The ATF has the (latest) 26th Edition (2005) on its website here. There seems to be some evidence that the new edition is coming soon, but it is not yet available in either print or an online format.

Another valuable resource is the Seattle Public Library's website, which has long maintained a very useful page that collects links to some local codes, to the handful of municipal code publishers, and to other pages that link to online codes of ordinances. Starting here you can find hundreds of city and county gun laws.

It will be a while before the implications of Heller have played themselves out across the pages of America's city ordinance books. But until then, these resources document the pre-Heller state of U.S. gun control.

 

Photo: Chicago Sun-Times photo of Mayor Richard Daley defending city's handgun laws.

 

 

The as yet not completely dismantled LA Times has an interesting article on the spate of Supreme Court cases that seemed to turn on the justices view of historical as much as legal writings. Reporter David G. Savage's article focuses mostly on the habeas corpus and Second Amendment cases, but he notes that even the Exxon Valdez case dipped into history (Souter's majority cited Hammurabi's code of 1760 BC--about as an old of a precedent as you can get). The article has comments from historians who give the court low marks for its use of the past, although I would note that the scholars they cite (Jack Rakove, Mark Tushnet) tend to be inveterate amicus brief signers themselves.

While visiting Frankfort this weekend, I saw this old campaign poster behind the register in the Old Capital Antiques store on Broadway (just a few doors down from Poor Richard's Books). It was not for sale--it is kind of a store mascot--but the shop's owner allowed me to take a picture.

 

My preliminary research indicates that Mr. Timmons was running sometime in the late 1960s (perhaps early 1970s) for the minor judicial office of magistrate (popularly known as justice of the peace) in either Whitley or Bell County (in eastern Kentucky). The judicial aspect of this position was removed by the 1975 constitutional amendment that reformed the court system. Among other things, the reforms set up the district and circuit courts as the only trial courts and eliminated party-line voting in judicial elections.

 

Regretfully, Earl's fluffy running-mate remains nameless at present.