Tuesday, December 29, 2009

The power in being the swing vote

In a post titled Four new kings of the Hill in Washington , Julian E. Zelizer of Princeton begins:

Last month, Sen. Sherrod Brown of Ohio, a strong defender of the public option for health care, warned: "I don't want four Democratic senators dictating to the other 56 of us and to the country, when the public option has this much support, that it is not going to be in it."

But in the end, those senators won the battle over the public option, as well as several other provisions in the health care bill.

They have emerged as the powerhouses of the Senate.

Zelizer goes on to criticize the Senate rule requiring 60 votes to end a filibuster: The Senate now requires 60 votes on any piece of legislation given that senators are willing to use the filibuster on almost any bill. If the majority party needs 60 votes to pass a bill, and it can't win votes from the other side, a handful of moderates wield tremendous power.

IPBiz notes that the issue is not 60 votes vs. 51 votes or some other number of votes in the Senate. The issue is that when one has comparable number of votes on each side, the swing vote gets a lot of power. The US Supreme Court, wherein there are only nine votes, has the same dynamic.

ED LAZARUS wrote in Time magazine in May 2009:

On today's court, the most powerful Justice is Anthony Kennedy. His power comes not from the art of persuasion (which Kennedy rarely practices) but from the simple arithmetic that five votes beats four — and Kennedy's is the swing vote on almost every issue.

Also, from the Christian Science Monitor: Justice Kennedy maintained his role as the most powerful justice, wielding influence as a centrist swing voter. He cast the decisive fifth vote in each of the three blockbuster decisions and personally authored two of them.

from bbwforums: Anthony Kennedy - With 4 conservatives and 4 liberals, Anthony Kennedy is the supreme court, and gets to decide every case of import.

[See also Schmidt and Yalof and Lynn A. Baker]

**Also: http://ipbiz.blogspot.com/2008/10/michael-kirk-on-patent-reform.html: "When you say that the patent system is broken and needs fixing or that it puts innovation at risk, a lot of people are going to believe you. I can even see their influence in the Supreme Court’s decision in the KSR case, written by Justice Kennedy."

**In passing, IPBiz moved up to the most searched IP blawg on blawgsearch on Dec. 29.
See http://blawgsearch.justia.com/blogs/categories/intellectual-property-law

**Further, in writing "They [including Ben Nelson] have emerged as the powerhouses of the Senate", Zelizer might note the following:

A new Rasmussen Reports poll shows that if he were running for re-election today, Mr. Nelson would lose to Nebraska's GOP Governor David Heineman by a stunning 61% to 30%. Only three years ago, Mr. Nelson won his current term with a solid 64% of the vote.

Clearly, the senator's fall in public esteem is a direct reaction to his having voted for the health care bill as part of a deal in which Nebraska was exempted from the costs of new federal Medicaid mandates. The ObamaCare bill was already unpopular enough in Nebraska but became even more so when state residents discovered they would be saddled with it anyway, plus exposed to national ridicule over Mr. Nelson's sweetheart deal. Now 53% strongly oppose the bill, while another 11% somewhat oppose it. Only 17% favor the deal that Mr. Nelson struck in order to vote for the bill.

[from Ben Nelson's Purgatory]

***Update. The top 3 IP blogs on blawgsearch on 3 Jan 2010:

Sorted by Popularity

IPBiz [Feed]
Intellectual property news affecting business and everyday life. From patent lawyer Lawrence B. Ebert.
Last Updated: December 28, 2009 - Rank Ths Week: 6

IPKat [Feed]
Covers copyright, patent, trade mark and privacy/confidentiality issues from a UK and European perspective.
Last Updated: December 27, 2009 - Rank Ths Week: 14

Philip Brooks' Patent Infringement Updates [Feed]
Covers infringement litigation case news, litigation case management, patent trolls, reverse payments, software patents and willful infringement.
Last Updated: December 28, 2009 - Rank Ths Week: 28


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