The Monkey Cage

That it is a title of a Newsweek essay by Ezra Klein. Full disclosure: I talked with Ezra about this piece as he was writing it and I am quoted in it (more on my oh-so-profound and articulate insight below).

Ezra deserves praise for, as is his frequent practice, incorporating some political science. To wit:

But the rise of the filibuster is not just a case of rules-gone-wild: it’s evidence of a broader polarization in the United States Congress. As the party heretics lost or switched sides, Republicans and Democrats found themselves more often in agreement with themselves and less often in agreement with each other. According to the political scientists Nolan McCarty, Keith T. Poole, and Howard Rosenthal, Democrats and Republicans now vote against each other more regularly than at any time since Reconstruction.

As the Reconstruction watermark suggests, polarized parties are often the result of a polarized country. In this case, it’s the opposite. We are no more divided than we were in the 1950s and ‘60s, when civil rights and the Vietnam War and the feminist revolution split the country.

A sidenote at this point, which speaks to my “ungate my heart” post from a while back: while Ezra’s discussion here no doubt draws on various sources and conversations, in our conversation he asked me about political science research on polarization but didn’t know everything that was out there and, moreover, didn’t have access to it. So I sent him an email after we hung up, including various URLs and pdfs. I sent him two overviews of the debate, one by Marc Hetherington and another by Morris Fiorina and Samuel Abrams. I sent him the point-counterpoint of Alan Abramowitz and Kyle Saunders and Fiorina, Abrams, and Jeremy Pope. Plus a link to Sean Theriault’s book. This is hardly an exhaustive list, of course. My point is simply that an extensive and, within political science circles, reasonably well-known literature about polarization has developed. And it is largely invisible, even to someone like Ezra, who cares much more about academic research than the average journalist or commentator.

Now back to Ezra’s piece. As he has done before, he cites Frances Lee’s new book:

But it makes sense to us. The president is the main character in the media’s retelling of our politics. His approval ratings are more important than the approval ratings of Congress even when we are voting only for congressmen. And it’s getting worse: the political scientist Frances Lee has found that on average, each successive Congress spends a larger percentage of its time on the president’s agenda than did its predecessor. The result is that there’s the president’s party in Congress, which mostly tries to help him out, and the opposition party, which tries to hinder him.

So kudos to Ezra. He truly deserves some sort of medal from the American Political Science Association.

Now let me be churlish and raise a few questions about his argument:

• Ezra cites various ways in which Congress is ceding policymaking to other actors: an independent commission tackles Medicare reforms, the EPA may end up tackling climate change, the Fed tackles the bailout after TARP proves insufficient, an independent commission is empowered to tackle the deficit (and then only by executive order), the president tackles national security. One might ask two questions in response. First, doesn’t Congress sometimes want it this way? That is, recourse to outside actors may not be the unfortunate consequence of Congressional inaction, but the actual intent of Congress. In fact, given that reforming Medicare and cutting the deficit and bailing out banks necessitate politically unpopular actions, isn’t it even rational for Congress to delegate these tasks? Second, who is going to make the better decision in such circumstances, Congress or a commission? Might we rather have a fully empowered independent body that can rise above petty politics?

• Ezra’s account of the problems in “Congress” is really an account of problems in the Senate: minority obstruction, the filibuster, etc. Dynamics in the House are far in the background. Of course, in the House the situation is quite different. The same trend in partisan polarization has made the parties more willing to empower party leaders — this is John Aldrich and David Rohde’s conditional party government theory — and this has led the majority party under both Republican and Democratic control to largely exclude the minority party from governing. So when Ezra says apropos of health care reform and Social Security reform “at no point did the minority party come to the table and propose a serious alternative,” well, why should they? Minority alternatives are D.O.A. in recent Congresses on many issues, especially in an era of strong Speakers, closed rules, and the like.

And this gets to a final problem with regard to any attempt at reform. Here is Ezra quoting me:

You have to do the John Rawls thing. Go behind the veil of ignorance. Figure out the system we’d want without knowing who will be in charge or what they will be doing.

Yes, that is me, boiling down A Theory of Justice to “the John Rawls thing.” Trenchant. Anyway, I think it makes sense to do so, if you want people to reason in ways that go beyond their immediate partisan self-interest. Ezra proposes a bipartisan commission to reform the rules, but whose recommendations don’t take effect for 6 or 8 years, at which point no one can know who’ll be in the majority. And that’s all fine and good.

The problem arises because the necessary reforms, once again, only involve the Senate — e.g., abolishing the filibuster and holds. Ezra wants to make the Senate more majoritarian, but it’s pretty clear that majoritarianism, at least in the House, is at odds with his ultimate goal:

The irony is that getting rid of the rules meant to ensure bipartisanship may actually discourage partisanship. Obstructionism is a good minority strategy as long as it actually works to stymie the majority’s agenda and return you to power. But if it just means you sit out the work of governance while the majority legislates around you, your constituents and interest groups will eventually begin demanding that you include them in the process. And that’s as it should be: we hire legislators to legislate. We need a system that encourages them to do so.

Letting the majority rule is not a recipe for discouraging partisanship. If anything, what the House tells us is that a strong majority party will do very little to “include” the minority, and this leaves the minority with little recourse but to obstruct and hope the voters agree.

You can empower majorities or you can promote bipartisanship. It’s awfully hard to do both.

Posted by John Sides at 09:07 PM | Permalink | Comments (4)

Clive Crook resurrects the canard.

In the last big push to get reform through, using whatever deals, scams, ruses and parliamentary evasions fall to hand, the public and their concerns are pushed ever more to the periphery of Washington’s vision. … Recovering voters’ respect for the outcome, even assuming the outcome is good, looks an ever more distant prospect. … Democrats facing tight elections are right to worry that “in due course” might be a long time. It is hard to see how the public will forget this mess between now and November. … passing an unpopular bill by questionable means is unlikely to prove an electoral tonic.

John, of course, has been all over this. However, he merely has ‘data’ and ‘analysis’ on his side. Clive Crook, in contrast, has the punditocracy’s trump card - confidently-worded assertions. Less sarcastically (OK - only slightly less sarcastically), when I become world dictator, my first act will be to decree that pundits who promiscuously write about how “the public” thinks this or that, without any reference to data on what the ‘public’ (a dubious concept in most of these debates anyway) actually thinks will be required, under pain of death, to rewrite their columns so as to substitute the word “I” and related personal pronouns/possessive adjectives for the word “the public” throughout. In the interim, readers are invited to make the necessary substitutions themselves. As illustrated by the following

In the last big push to get reform through, using whatever deals, scams, ruses and parliamentary evasions fall to hand, me and my concerns are pushed ever more to the periphery of Washington’s vision. … My respect for the outcome, even assuming the outcome is good, looks an ever more distant prospect. … Democrats facing tight elections are right to worry that “in due course” might be a long time. It is hard to see how I will forget this mess between now and November. … passing an unpopular bill by questionable means is unlikely to win my vote.

which happily has the dual advantage of being punchier and more accurate than the original.

Posted by Henry at 11:23 AM | Permalink | Comments (4)

John Sides asked me to comment on Harry Reid’s recent announcement that, at the beginning of the 112th Congress in January 2011, he will attempt to revise the Senate’s rules and practices to reduce the impact of obstruction. I assume that Monkey Cage readers are well aware of the Democrats’ frustration with the pace and politics of the Senate over the last 14 months, contributing to inaction on climate change, student loan reform, banking reform, highway spending, nominations, and forcing excruciating delay and costly bargains to pass health care reform. The question is, what are the Democrats going to do about it? This post reviews and evaluates existing proposals for reforming the Senate’s floor procedures. In later posts I plan to discuss the process by which reform proposals can be debated and adopted and appraise the likelihood of reform actually happening.

Continue reading "Reforming the Senate 1: Reviewing the Options" »

Posted by Greg Koger at 02:41 PM | Permalink | Comments (16)

In response to the many recent discussions of the use of reconciliation both on this blog and elsewhere, Columbia University professor Gregory Wawro sends along the following guest post. It’s a tad bit long by Monkey Cage standards, but well worth the read:

Following up on Sarah Binder’s excellent posts on the reconciliation process and health care reform, I felt compelled to address some issues that have arisen over the past week, especially with regard to Republican’s attempt to equate the use of reconciliation with the nuclear option. Although Democrats have responded by spinning reconciliation as majority rule, pulling off the passage of health care may require parliamentary maneuvering similar to that which constitutes the nuclear option.

First off, it is inaccurate to equate reconciliation with legislating via simple majorities—especially for the purposes of keeping score as to how parties have used reconciliation in the past. Some in the media have assumed or asserted that the use of the process invariably means the legislation has been adopted by simple majorities (e.g., see this excerpt from an MSNBC “fact check” on reconciliation).

Here is some data on final roll call votes in the Senate on the twenty-two reconciliation measures that passed between 1980 and 2007. Only nine of these measures passed with fewer than 60 votes, and three of those nine did not become law because of successful vetoes. It is entirely possible that there is a bandwagon effect here and that senators who would have voted against the legislation voted for it once it became clear that the legislation was going to pass. Still, some of the margins here are so wide, that it’s hard to believe that a bandwagon
effect explains all of what is going on.

That said, it is clear that reconciliation has been used in some circumstances to enact legislation that otherwise would not have been passed if 60 votes had been required. And this brings us to the question of the technical and political feasibility of using it to pass health care reform in the current Congress.

The history of reconciliation has been one of innovation. In several instances, reconciliation has been used in ways that it hadn’t been used in the past, and in ways that arguably were not envisioned by the framers of the Budget and Impoundment Control Act. The use of reconciliation to pass health care reform in the 111th Congress will also be innovative in important respects, but success will probably require a committed majority to be willing to use some parliamentary strong-arm tactics to reshape the reconciliation process in areas where the rules are not entirely clear on what is and what is not permissible.

Continue reading "Nuclear Reconciliation" »

Posted by Joshua Tucker at 04:44 AM | Permalink | Comments (4)

At the request of a reader, I have created a new “Senate procedure” category for our posts. A number of old posts are now cataloged under that heading, including Greg Koger’s posts on the filibuster and Sarah Binder’s recent posts on reconciliation. Find it here or in the listing to the right.

Posted by John Sides at 09:52 PM | Permalink | Comments (0)

Political scientists Jonathan Krasno and Gregory Robinson offer this modest proposal in Roll Call. In essence, they seek to preserve the tradition of unlimited debate, but make it harder to have those debates. Their three-pronged solution:

Make them vote…Filibustering Senators are the ones trying to prevent the Senate from voting. It would make more sense to require them, after some hours of debate, to assemble 41 votes to continue, rather than the other way around. Our compromise is to allow three-fifths of Senators present and voting to invoke cloture, making votes against just as important as votes in favor.

Make voting easier…allow a filibuster’s opponents to hold a cloture vote with little delay or warning. That would….force a filibuster’s supporters to be constantly at the ready to fend off cloture whether a vote comes at 3 p.m. or 3 a.m.

Reduce debate times…This would streamline the process and give the majority some leverage to strike deals to forgo filibusters in exchange for prolonged debate.

Not that they’re hopeful that these steps will be taken any time soon:

Unfortunately, the Senate’s rules make changes like these all but impossible.

Posted by John Sides at 01:33 PM | Permalink | Comments (1)

I thought I would offer a few folllow-ups on my earlier post on reconciliation. I appreciate the many questions and corrections I have received since claiming expertise based on my collection of Budget Battle paraphernalia.

1. Can the majority bypass committee consideration of a reconciliation bill?

In response to the question raised in the comments by Jonathan about skipping the committee stage, this apparently remains an unsettled question in Congress. It is not clear whether circumventing the instructed committees is possible without encountering significant obstacles that would affect the contents of the bill.

2. Overturning rulings of the chair during consideration of a reconciliation bill

In response to Keith’s question in the comments about appeals of the chair’s rulings, I should be more explicit about the size of the majorities required to overturn a ruling of the chair on budget-related points of order (including points of order that stem from the Byrd Rule). Only a supermajority of 60 can overturn rulings of the chair on points of order that stem from the Byrd Rule. Similarly, a supermajority of 60 is required to waive the Byrd Rule. (Just an aside—There are a handful of points of order provided for in the Budget Act that require only a simple majority to waive. But the points of order to which a health care package could be vulnerable require 60 votes to waive or to overrule on appeal.) That remains one of the key barriers to Democrats’ deliberations over whether to pursue health care reform through reconciliation.

3. The 20-hour debate limit for reconciliation

A clarification of the time limitation for floor consideration of reconciliation bills in the Senate. I referred to a “time certain” for a vote. Because the Budget Act limits debate time (but not “consideration” time), time spent offering and voting on amendments (and motions and appeals, albeit none with debate) does not count under the 20 hour cap. (This is what gives rise to the “vote-a-rama” scene at the end of debate on the budget resolution in the Senate, when senators vote on often-times dozens of amendments at the close of the process.) In theory, if the minority kept offering amendments and refused to stop, the Senate would never get to a vote. Hence, “time certain” might not be so certain. Again, think Senate. Nothing is certain.

4. Expiration of committee instructions from the previous fiscal year

I suggested that the current parliamentary thinking appears to be that reconciliation instructions would only expire at the end of the Congress. Although the FY2010 instructions have not expired at this point, it is currently unsettled in the Senate as to when exactly in the current (111th) Congress they might expire — at the end of the Congress, or with the adoption of a new budget resolution.

5. Bottom line?

The bottom line, as I’ve tried to convey in the post and comments, is that reconciliation does not provide an easy vehicle for passing major policy change (and certainly less so when the parties are disposed to disagree strongly with each other). Sixty vote thresholds remain embedded in the fabric of reconciliation, even if the process is portrayed as a majoritarian work-around. I think it is also fair to say that the complexities and uncertainties about the application of reconciliation to health care reform raise innumerable questions that cannot be answered aprior (or easily in a blog post!).

I welcome your continued questions and objections!

Posted by Sarah Binder at 05:40 PM | Permalink | Comments (0)

Former guest-blogger Greg Koger was a guest on “Fresh Air” today. He was awesome.

Let me note how this came about. Greg guest-blogged for us. Ezra Klein took note and ended up interviewing Greg. “Fresh Air” came across his work in Ezra’s column, so Greg tells me. Given that a mission of this blog is to “publicize political science research,” we’re justifiably proud. All thanks to Ezra for paying attention.

Posted by John Sides at 08:28 PM | Permalink | Comments (1)

On the heels of the Massachusetts election, it appears that the easiest route to health care reform (House concurrence to Senate-passed bill) is off the table. Most of the other options under discussion involve (in one way or another) use of “reconciliation”— a budget procedure that provides a fast-track to passage by circumventing a filibuster. Given all the attention to reconciliation, I thought a little primer on budget procedure might be helpful.

Why trust what you read on the Monkey Cage about reconciliation? Because I am a six-time winner of National Journal “Budget Battle” trivia contests! As proof, here I am with my 2002 mug. If you are ever in D.C., come by and I’ll show you my pennants, mouse-pads, and t-shirt (size XXL…maybe I’ll grow into it someday).

Credentials established, here are some key things to know about reconciliation:

Continue reading "Everything (?) you wanted to know about reconciliation (but were afraid to ask...)" »

Posted by Sarah Binder at 01:01 PM | Permalink | Comments (12)

Jon Bernstein wants new polling data on the filibuster. The new CNN poll has one question about this:

As you may know, the filibuster is a Senate procedure which has been used to prevent the Senate from passing controversial legislation or confirming controversial appointments by the President, even if a majority of senators support that action. A vote of at least sixty senators out of one hundred is needed to end a filibuster. Do you favor or oppose the use of the filibuster in the U.S. Senate?

Just over half, 56%, favor the use of the filibuster, and 39% oppose it. Very few (5%) report having no opinion.

Of course, one poll with one question wording is hardly dispositive. I agree with Jon that we need more.

Posted by John Sides at 04:32 PM | Permalink | Comments (8)

If not, see Ezra Klein’s interview with guest-blogger Greg Koger. One tidbit:

Q: How many Republicans would need to be on the floor during a filibuster?

A: One.

Q: And Democrats?

A: If that Republican says I note the absence of quorum, you need 50.

Jon Bernstein adds more.

Posted by John Sides at 09:52 PM | Permalink | Comments (0)

With health care reform in the hands of the Senate, Joe Lieberman’s threatened filibuster is making headlines. This raises a more general question: why do Senators filibuster?

This paper contributes to the growing empirical literature on filibusters by examining the factors that are associated with individual-level filibustering behavior. We focus particularly on the behavior of senators in the latter part of their careers, using impending retirement as analytical leverage to determine whether decisions to engage or not in dilatory parliamentary practices are driven more by narrowly drawn considerations of instrumental utility or by compliance with institutional norms of deference and cooperation. Using data from 1975 to 1993 and employing multivariate models that allow us to control for other relevant factors, we find only limited support for a narrowly rational model of Senate “followership.” In the course of our enquiry, we clarify the notion of legislative norms, integrate our study with recent interdisciplinary scholarship on the evolution of cooperative behavior and consider how leadership can be exercised in environments largely bereft of formal leadership resources.

That’s from research by Lauren Bell and Marvin Overby (gated; ungated).

The hypothesis is that filibustering is costly and is therefore is more attractive to retiring senators, who have a shorter time horizon and therefore would pay lower costs. More crudely: retiring senators can indulge their personal idiosyncrasies without suffering the same opportunity and reputational costs. An alternative hypothesis is that senators would obey norms of deference and courtesy — norms which could be even more firmly inculcated in retiring senators, most of whom are senior — and so impending retirement should not affect filibustering.

The data are the 227 senators who served in the U.S. Senate from 1975-1993. The model, which controls for several other factors beside imminent retirement, finds:

• Minority party senators are more likely to filibuster. No surprise, but naturally this is a necessary control variable and a comforting findings.

• Ideologically extreme senators are more likely to filibuster. This also makes sense.

• Being from a small state makes no difference.

• Most importantly, imminent retirement does not matter. Only when the sample is limited to senators whose entire careers took place within the 1975-93 interval does there appear to be an effect of retirement (but this is based on only a small number of observations — 16 senators).

The model doesn’t predict much of the variance in the data, which suggests that a lot of filibustering behavior is due to other, and perhaps difficult to measure, factors.

This last finding leads Overby and Bell to write:

The fact that fewer than 20 percent of senators opt to lead filibusters in their last Congress strikes us as underwhelming and indicates, at very least, that retiring senators do not entirely and en masse disregard the chamber’s norms of comity and cooperation in order to pursue narrowly personal legislative goals.

Caveats abound in applying this research to Lieberman. The data stop in 1993, for one. Most importantly, there is no reason to think that this finding — that norms trump rational self-interest — applies to Lieberman in particular. Maybe his behavior is driven by revenge or personality. These things are hard to measure and so they don’t figure in much political science research generally or on the filibuster in particular.

But this research gives us some framework for thinking about Lieberman’s apparent decision. (And we should emphasize apparent; perhaps he is bluffing or strategically threatening.) In fact, it makes his decision all the more curious. He is not a minority party member. He is not ideologically extreme relative to the chamber. (Perhaps more so relative to the median Democratic senator.) However, although he has not announced any plans to retire, perhaps he sees himself as electorally threatened and therefore sees fewer costs to obstruction. Here’s one poll that suggests the threat.

So perhaps, in a way, the finding that retirements do matter — at least among those 16 senators whose careers were fully encompassed in the Overby and Bell data — applies to Lieberman. If he believes he is nearing the end of his career, there is less reason not to pursue a more personal agenda. This, of course, does not explain why Lieberman’s agenda on health care seems more conservative than it was in the past.

Posted by John Sides at 01:57 PM | Permalink | Comments (2)

We thank guest-blogger Greg Koger for his very thoughtful posts on the filibuster. He went above and beyond the call of duty — so much so that I want to highlight his contribution. Here are his posts:

The Fundamentals of Filibustering
Is Filibustering Constitutional?
The Rise of the 60-Vote Senate
The Case for Filibustering
Filibustering and Deliberation

At my instigation, Greg also compiled his posts into a single document, which is available here. I think the combination of these posts makes for a nice primer on the filibuster. Greg also makes some provocative arguments about the filibuster’s benefits, arguments which are in short supply these days.

Thanks again to Greg.

Posted by John Sides at 04:56 PM | Permalink | Comments (0)

As the Monkey Cage faithful know, I have been posting short essays on filibustering in an effort to contribute to the broader discussion of how Congress will (or won’t, or should) debate health care reform. My last post making a case for preserving the Senate filibuster sparked some skepticism from our colleagues Seth Masket and Matt Jarvis as well as Washington Post columnist Ezra Klein.

In this post I wanted to briefly respond to some of these thoughtful comments by making one main point: filibustering empowers the minority party to insist on a fair chance to debate major bills—and this is a good thing. Not only is it fair to the minority party—and good for the electoral process—to allow real debate on major legislation, it also enhances the legitimacy of the majority party and its actions.

Continue reading "Filibustering and Deliberation: the Case for Free and Full Debate" »

Posted by Greg Koger at 10:46 AM | Permalink | Comments (7)

[Sorry it has been a while. APSA and teaching and actual publishing intervened.]

The nice thing about studying the Senate filibuster is that it is periodically a hot topic, and civilians actually get interested in what academics have to say. Predictably, these bouts of relevance coincide with unified party control of Congress and the White House (1993, 2003-5, now) when filibustering is the last institutional barrier to the majority party’s agenda item. Filibustering has slowed several items on the 2009 Democratic agenda (the stimulus bill, FY 2009 appropriations, climate change) but it is health care that has progressives feeling the fierce urgency of now and despairing at the low prospects of a “strong” bill surviving the Senate gauntlet.

1) Health Care as a Hard Case
And they have a strong case. While the 2008 election was about many things (the economy, Iraq, race), no informed observer could deny that health care reform was at or near the top of the Democrats’ policy agenda. It was a critical point of comparison during the Democratic primary and prominently featured in Barack Obama’s fall campaign, e.g. it was the 3rd section of Obama’s Blueprint for Change (behind “Economy” and “Ethics”). While it would be a stretch to say that a majority of voters endorsed Obama’s health plan when they voted for Democratic candidates, this is as close to a mandate for action as our system permits.

And there is desperate need for health care reform. Despite the fact that 17.6% of our GDP is devoted to health care, 47 million go uninsured, receiving substandard care if any. How do we manage this feat? Not with more doctors or hospitals; the trick is lots of machines that go “ping.” And if we don’t restrain growth in Medicare spending, the critical question in health policy will become, “how many baby boomers can we fit on an ice floe?” Providing better care to millions of Americans while cutting back on health care spending means defying a deeply entrenched array of health-related corporations, interest groups, and skeptical consumers—not the sort of legislation that easily attracts Congressional votes.

Which brings us to the Senate. In short, it seems likely that there are enough votes to pass some elements of health care currently under consideration (e.g. preventing insurance companies for excluding patients for preexisting conditions) but not a “public option,” i.e. an insurance plan offered directly by the federal government in competition with private insurance companies. Progressives (including a critical portion of House Democrats) consider a public option critical to expanding coverage, cutting costs, and keeping insurers honest. Consequently, commentators have urged the Senate Democrats to consider options other than a standard cloture petition (again, cloture requires 60 votes) when they bring up a health care bill, including the budget reconciliation process (which would guarantee a simple majority vote), a prolonged “live” filibuster that would embarrass the Republicans if not wear them down, or cutting back on the right to filibuster.

Continue reading "The Case for Filibustering; or, How I Learned to Stop Worrying and Love Mitch McConnell*" »

Posted by Greg Koger at 04:00 PM | Permalink | Comments (4)

Last Thursday, I made the case for the constitutionality of the filibuster. Critics of the filibuster are right about one thing, however: in its current form, the Senate filibuster represents a major innovation on the legislative process laid out in the U.S. Constitution. This point is made elegantly in Keith Krehbiel’s 1998 book Pivotal Politics. Krehbiel puts the filibuster on par with the Presidential veto as the major brake points in the legislative process. The odd thing about this setup is that one veto power is explicitly provided in the U.S. Constitution, while the other is not even explicitly granted in the rules of the Senate. One veto has been wielded (true, with some evolution) since 1789, while the other has only become institutionalized over the last 50 years. This is the puzzle of today’s post: why has the Senate filibuster become a central feature of U.S. lawmaking?

It is clear that there has been a transformation of the Senate. Filibustering has skyrocketed from an annual average of 3.2 filibusters during 1951–1960 to 16.5 between 1981 and 2004 (based on a scan of news stories using the term “filibuster”). But this statistic only tells half the story: identifying a “filibuster” in the modern Senate is like handing out speeding tickets at the Indy 500. As a Senate leadership aide explained: “Obstructionism is woven into the fabric of things. The [party] leadership deals with it on a day-to-day, even a minute-to-minute basis. … You can’t underestimate the importance of it. There are offshoots of obstructionism every day.” (quoted in Larry Evans and Daniel Lapinski, “Leadership and Obstructionism in the U.S. Senate,” Congress Reconsidered vol. 8, 2005). Filibustering has been institutionalized into the way the Senate sets the agenda, writes legislation, and considers nominations.

The gist of my explanation is that filibustering became an everyday event because senators began responding to obstruction by attempting cloture rather than attrition, i.e. waiting for filibustering senators to become exhausted. This change in tactics decreased the costs for obstruction, and once it was easy, then more senators were willing to filibuster against a broader range of proposals. This general argument has been made by reporters and Congressional observers over the years (e.g. this column by Norman Orstein and a 2004 NYT article) and in a 1985 “Congress Reconsidered” chapter by Bruce Oppenheimer. However, this thesis has a short half-life, so reporters are constantly re-discovering and re-answering the question; while academics do better, the underlying story is often omitted from our studies, and there is a great deal we do not know about how and why Senate tactics changed.

Continue reading "Well, How Did We Get Here? The Rise of the 60-Vote Senate" »

Posted by Greg Koger at 01:49 PM | Permalink | Comments (10)

One question about filibustering which comes up frequently is whether the Senate filibuster is “constitutional”. This came up in a 1994 New Yorker piece and a recent exchange between Kevin Drum and Matthew Yglesias (Aug. 5, Aug. 6). The gist of the argument is that the Constitution already spells out all the supermajority requirements for legislative action (2/3 for treaties, removal, expulsion, Constitutional amendments) so the 60-vote threshold for most legislation and nominations to clear the Senate is an additional and unintended hurdle in the process. As evidence, they cite the inclusion of a previous question motion in the initial Senate rules as proof that the Senate was “supposed” to be a majority rule chamber, with the deletion of this motion in 1806 representing an unintended embrace of filibustering (Harold Meyerson agrees with this reading of history).
Since serious people take this argument seriously, it is worth deconstructing.

1) Persistence is 9/10s of the (Constitutional) law
Any argument that “X is unconstitutional” where X has been with us since 1789 is probably not going to do well. Many features of modern politics are not explicitly provided for in the Constitution—political parties, primary elections, interest groups, the Daily Show, bloggers—and yet I don’t expect the Supreme Court to go Robert Bork on them. There is a profound case to be made that the influence filibustering has increased dramatically over the last fifty years, but this is an extraconstitutional development.
And, the historical record is more complex than the authors discuss. There was filibustering in the Continental Congress (e.g. a case of quorum-breaking in 1778) and Madison refers (favorably!) to quorum-breaking in the Virginia legislature during a discussion of quorum thresholds in the Constitutional Convention. That’s not to say that the authors of the Constitution generally approved of obstruction; just that they anticipated it would happen, sometimes with positive effects and sometimes with negative effects.

Continue reading "Is Filibustering Constitutional?" »

Posted by Greg Koger at 02:33 PM | Permalink | Comments (5)

1) Definition
If we want to understand filibusters, it helps to start with a clear definition. Filibustering is delay, or the threat of delay, in a legislative chamber to prevent a final outcome for strategic gain. The key features are the purpose (delay) and the motive (gain) and NOT specifying the legislature or the method.

2) Obstruction occurs in many legislative settings.
Although the current focus is on the U.S. Senate, filibustering is a general phenomenon. While collecting data on filibusters in the modern Senate, I found references to filibustering in 20 state legislatures, 19 foreign countries, and the United Nations. In 2003, for example, Democrats in the Texas legislatures fled the state to block a redistricting plan. These other legislatures provide case studies that can help us understand the Senate.

3) Methods
There are lots of ways to kill time. We might associate filibustering with long speeches, but this is because Southerners opposed to civil rights favored germane speeches as the most legitimate form of obstruction (and hence more difficult to shut down). However, legislators can also delay by calling for unnecessary roll call votes, e.g. on motions to adjourn. Another classic technique is and by refusing to vote in the hopes of “breaking” a quorum, aka a “disappearing quorum.” The U.S. Constitution requires a simple majority to be in the chamber (or, the classic interpretation, joining in a vote) in order for a vote to be valid. So, if attendance is low, a minority of those present can block a decision by NOT voting. This was the Republican strategy in 1988, when then Majority Leader Robert Byrd had the Senate sergeant-at-arms drag Bob Packwood (R-OR) to the Senate floor.

Continue reading "The Fundamentals of Filibustering" »

Posted by Greg Koger at 04:36 PM | Permalink | Comments (2)

It has been said that a little knowledge is a dangerous thing, and I think we have a good current example of this in the current discussion on the likelihood that health care reform will be passed by the Senate sometime this year. While most people have now gotten used to the fact that it takes 60 votes to end a filibuster, those of us who are “in the know” politically are aware that health care reform will only take 50 votes to pass because it was included in the budget reconciliation process. (See, for example, yesterday’s discussion on Politico’s Arena, where I and others made this very point). Likewise, this seems to be the dominant message in the media as well; see for example the Economist, which wrote:

That pledge of bipartisanship may not survive. And it may not matter much, for Mr Obama has made it clear that he will sign health reform as part of the budget reconciliation process if necessary—a controversial manoeuvre that would need only 50 votes in the Senate, not the normal 60.

But is this really the case? In a in excellently titled post on his blog (Will Republicans Flip Health Care the Byrd?), Nolan McCarty writes that the ability of the Senate to pass health care reform using the budget reconciliation process (which is governed by the Byrd rule, hence Nolan’s title) is not nearly as straightforward as it seems. While I’d recommend reading the whole post, here is the main point Nolan makes:

The second relevant provision of the Byrd Rule is that the bill cannot contain provisions that increase the deficit in a year not covered by the reconciliation instructions unless their effects lead to an overall reduction in the deficit. Consequently, because the budget resolution is based on a five-year window, a health care reform bill passed via reconciliation must be budget neutral or decrease the deficit beyond 2014 (its short term costs are covered by the $635 billion set aside contained in the budget resolution)….

…So I think it is the second Byrd Rule objection that may be the more dangerous one. The effects of the health care bill on the deficit will be scored by the Congressional Budget Office. It will be much more difficult politically to confront the CBO over an adverse scoring decision than it would be to fire the parliamentarian. So budget neutrality is an absolute necessity for the reconciliation gambit to work.

I believe it will prove very difficult to produce a meaningful health care reform bill that is budget neutral over the long run (or at least one that will be scored by the CBO that way). First, any budgeting for a health care plan is going to rely heavily on cost savings through hard to quantify reforms like electronic medical records. If the CBO comes back with a low number for these savings, other cuts or revenue increases will be required. Second, many of the revenue enhancements expected to be in any reform bill such as employer “play or pay” or the taxing of some employer-provided benefits may not sit well with many moderate Democrats. As these provisions get scaled back to keep the moderates on board, expenditure cuts will be necessary to ensure Byrd Rule compliance.

Bottom line: we don’t know if the reconciliation process will ultimately be in play for health care reform, which means for now we don’t know how many votes it will take to pass this legislation.

Posted by Joshua Tucker at 11:20 AM | Permalink | Comments (0)

Over on Marginal Revolution today, I see that the economists are puzzling over the allocation of highway spending dollars to the states in the newly enacted stimulus bill. According to data posted on ProPublica , it appears that infrastructure spending in the recently enacted American Recovery and Reinvestment Act (aka the stimulus bill) is not targeted to the states with the highest unemployment rate. It appears from the data that low population states (Wyoming, the Dakotas, and others) make away like bandits. A reasonable question is raised whether better targeting of stimulus dollars should have occurred.

Now Lee, as a loyal South Dakotan, might have some interesting thoughts about the merits of South Dakota. Still, left unanswered by the economists is why Congress chose to allocate infrastructure spending without regard to the states’ economic needs. In fact, this is not the only pot of money directed to the states in the stimulus bill that provides disproportionate dollars to small states: In the final version of the bill, 65% of the Medicaid dollars were distributed by formula across the states (with the formula giving relatively small weight to population) and only 35% based on state unemployment rates. If the Senate had had its way, only 20% of the dollars would have gone to to the unemployment bonus.

Are senators from populous states just less institutionally savvy than their small state colleagues? More likely, the allocation of federal stimulus dollars is a function of malapportionment and Senate rules. As Frances Lee and Bruce Oppenheimer show in Sizing Up the Senate, spending formulas are typically biased towards the interests of the small states. It takes 26 states to form a majority coalition, and small state senators’ votes are the cheapest to buy.

But whoa there, Binder. A majority coalition? What about the filibuster? Yes, sixty Senate votes were needed to pass the stimulus, so the spending allocations had to be acceptable to the pivotal senators. Call the roll! : Ben Nelson (Nebraska), Susan Collins (Maine), Olympia Snowe (Maine). What a surprise that stimulus dollars don’t appear to be terribly well targeted to economic needs of the states.

Posted by Sarah Binder at 10:55 AM | Permalink | Comments (2)

A: Send a stimulus bill to the Senate for quick approval.

Playing out on the Senate floor and in the party cloakrooms is a stunning example of why one should never count on the Senate when time is of the essence. The Senate— true to form— has tied itself in knots as the two parties squabble over voting procedures for considering an economic stimulus package.

Although 80 senators voted on Monday to invoke cloture on the motion to proceed to consider the House-passed version of the stimulus bill, GOP senators are insisting on using all 30 hours alloted under the Senate’s Rule 22 for “post-cloture” debate. With me so far? Meanwhile, as the post-cloture clock ticks, Democrats are working to secure 60 votes in anticipation of a Republican filibuster of the substitute stimulus package approved by the Senate Finance Committee. Still with me? At the same time, Republicans are working so sustain 41 Republican votes against this next cloture vote, preferring to offer their own amendment to the package (which might also require 60 votes) or to pass the House stimulus bill endorsed by House party leaders and the president.

The Finance Committee substitute on which Democrats must secure cloture extends tax breaks to wealthier Americans, low-income senior citizens and disabled veterans, extends unemployment benefits, and offers low-income heating assistance, in addition to numerous other add-ons to the House-passed bill. Not surprisingly, given the extension of rebates to a broader set of constituencies, the Democratic package has given pause to more centrist GOP senators who are up for re-election in competitive states and who hail from cold states (Collins and Smith of Maine, Coleman from Minnesota, Smith from Oregon, and possibly Stevens and Murkowski of Alaska). (I can see the regression now, modeling the cloture vote controlling for each state’s average daily temperature in February.) Add in Grassley and that totals (at best) 58 votes for cloture (assuming Hillary and Barack fly in for the pivotal vote currently scheduled for Wednesday night). Meanwhile, the new GOP whip, John Kyl, is working to keep 41 senators in line against the Finance substitute while the Senate minority leader holds out for the right to offer a trimmer GOP amendment to counter the Democratic package and to give cross-pressured GOP moderates something to vote for.

Should the Democrats fail to reach 60 votes for the Finance substitute, will they allow Republicans to offer their own amendment to the House package? It depends on who blinks first. The majority leader on Tuesday “filled the amendment tree,” a Senate procedure that prevents other senators from offering any amendments to the pending bill and amendment on the floor. Unless the Democrats relent, no other amendments would be in order for the stimulus bill. You’re still with me, right?

On the bright side, at least while the Senate is tangled in knots over voting rules for the stimulus bill, the chamber can make progress on the other contentious issue before it, the overhaul of surveillance rules for the government. Perhaps, but only if the GOP consents to moving forward on the so-called FISA bill— which yesterday they refused.

Legislating? Hostage-taking? You be the judge. Let’s just say that Treasury Secretary Henry Paulson might have been a tad optimistic— even naive— when he noted that the $150 billion economic stimulus package worked out by President George W. Bush and House leaders was a “rare bipartisan moment” likely to be repeated in the Senate. A rare moment indeed. And not likely to be repeated in the Senate.

Posted by Sarah Binder at 08:45 AM | Permalink | Comments (0)

With increasing frequency, congressional observers refer to the “sixty-vote” Senate. Lacking a rule that would allow a simple majority to vote to end debate and bring the chamber to a vote, the Senate instead relies on its Rule 22 — otherwise known as the cloture rule — to end debate. If 60 senators — three-fifths of the chamber — vote to invoke cloture, the chamber moves to a vote on the underlying amendment, motion, or bill.

I’ve been curious about reports that cloture voting is at an all-time high in the Senate. So I ginned up the simple graph below that shows the average number of cloture motions filed per month, reaching back to 1973. Not only did Senate leaders rely more often on cloture last year than ever before, the chamber’s reliance on cloture increased exponentially. No wonder a House member joked last year (was it really a joke?) that it takes 60 senators to vote to order pizza. (Because I grew up in New Haven, the home of truly awe-inspring pizza, I do not take pizza jokes lightly.)

Why the surge in cloture motions? Senate Democrats blame Republican filibusters, and argue that GOP obstruction aims to derail the Democrats’ agenda. Republicans accuse Democrats of jumping the gun on cloture before measures have been fully debated. The truth likely falls somewhere in between. Still, roughly half of the cloture motions were filed on measures related to Iraq or other Democratic priorities. It seems quite plausible that Republicans would prefer to block, rather than vote on, a wide range of Democratic initiatives. Of course, as the chart shows, Democrats did their fair share of filibustering when Republicans controlled the Senate in recent years. A recent Brookings report provides a fuller assessment of the arguments and evidence here.

Posted by Sarah Binder at 01:04 PM | Permalink | Comments (1)