Filibuster

The legislative filibuster isn’t going anywhere any time soon

By Joshua C. Huder

It’s a nuclear week in the Senate. Majority Leader McConnell has hinted that he has the votes to go “nuclear” on Judge Gorsuch’s nomination to the Supreme Court. In effect, McConnell would invoke the same process then-Majority Leader Harry Reid used in 2013 to change the Senate’s interpretation of Rule XXII. The effect would reduce the cloture threshold to break a filibuster on SCOTUS nominees from 60 to 51. This change affects the final 9 judicial seats not already confirmed by a strict majority thanks to the 2013 nuclear option. These 9 seats are very important. And you can expect a fundamentally different style of politics on Supreme Court nominees for the rest of our lives. But this is not a fundamental change to the Senate. Procedurally speaking, it’s actually quite limited.

The broader question is will this change create a slippery-enough slope to kill the legislative filibuster? In the short-term: no. In the mid-term, also probably no. Short of something extraordinary pushing Senate majorities over the edge (maybe not that far after all), it’s likely here to stay for a while. Why? The filibuster empowers all senators. It gives senators – majority and minority alike – the ability to affect all policies that come before the Upper Chamber. If a senator doesn’t like bill language, they can filibuster, force an amendment, force a compromise, and otherwise alter the text and intent of that legislation. If a bill adversely affects their state, they have significant leverage to kill it or at least mitigate its impact.

The filibusters on judicial and executive branch nominees offered a similar power. The president had to consult the minority before making a nomination. But historically speaking this is not often a controversial process, even in the post-nuclear Senate. For example, of the 23 judges confirmed by the Senate from April 2015 to January 2017, only three received more than 10 votes against. In the 113th Congress – the original nuclear Senate – there were more judges confirmed by voice vote and unanimous support than there were votes that garnered even a little opposition. Party line votes on judicial nominees are not the norm. Nominees confirmed unanimously and voice vote are far more common.

What this tells you is senators do not consider confirmation votes critical to their reelection, at least not to the same degree as legislation. Some confirmations matter a great deal. At some point in history, a confirmation vote surely affected a senator’s reelection. But those cases are rare. The overwhelming majority of senators who voted for the current Supreme Court justices remained in the Senate after their votes.  And if voting patterns indicate how important confirmations are to reelection, most senators, most of the time, have not considered them anything close to a career ender.

In short, there’s a reason the legislative filibuster has a special exemption. Giving up the ability to affect legislation would be the equivalent of a majority of the Senate (or at least 50) giving up what makes being a senator cool. Many, if not most, aren’t happy they are giving up power on nominations. The ability to force presidents to moderate their choices for someone more personally appealing is nothing to scoff at. However, the individual power to affect policy has defined the Senate. It is a fundamentally different power. Majority Leader McConnell doesn’t have the votes to nuke the legislative filibuster. And in all likelihood, he hasn’t even seriously considered it.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

How will Congress respond to a Trump win?

By Joshua C. Huder

Republicans won both elected branches of government on Tuesday night. They will add the Third Branch soon as a SCOTUS nominee will be among the first orders of business for the new president and majority. That said, this unified government will be an interesting one to watch. The way that Paul Ryan and Mitch McConnell addressed the media following Trump’s win yesterday you may have thought that they had won the presidency. McConnell flatly stated some pieces of Trump’s agenda are off the table. The rift between congressional leadership and the president-elect brings the potential for real tension between the Congress and President. In all likelihood, congressional Republicans will try to impose their will on the new president. The big question is if President Trump pushes back or goes with the flow.

This government will pursue lots of policies. Rather than write them down in piecemeal fashion, here’s what we can expect from a procedural standpoint.

Paul Ryan remains Speaker. Many around DC believed that if Paul Ryan wanted a legitimate shot at the 2020 nomination, he had to find a way to step down from his current position. Presiding over a unwieldy House of Representatives for four years, enduring multiple attempts to remove him from his position, and failing to enact routine business like a budgets and appropriations bills doesn’t set one up well for a run at the nation’s highest office. After Trump’s upset win everything changes. Suddenly, he has as president he can work with, a Senate majority to negotiate with, and real potential for making a lasting impact on national policy. And further, his earliest run for the presidency likely won’t happen until 2024. What looked like the country’s worst political job 48 hours ago suddenly looks much better.

The budget process will unbreak. The budget process will be critical for Republicans to enact their agenda. Tamping down spending, repealing Obamacare, cutting Medicaid, reforming Medicare will all have their roots in passing a budget resolution. The first order of business for House and Senate Republicans will be finding a way forward on this process. It all starts here.

Reconciliation will be used. In January of this year Republicans used the reconciliation process (which is not subject to filibuster in the Senate) to repeal Obamacare. There are some restrictions on what can be passed under reconciliation. Reconciliation bills must have a budgetary effect. And unless Republicans want to go nuclear on the legislative filibuster from day one of the 115th Congress (not likely), reconciliation offers Republicans the path of least resistance to their policy goals. This is why the budget process is crucial. Without that resolution, reconciliation can’t move forward. The biggest question remaining is what will Republicans use it for? Will they use reconciliation for just one policy (i.e. repealing Obamacare) or as a vehicle for several bills wrapped up in an omnibus. Best guess is that this process will be used for basically everything that can be justified.

Filibuster is on borrowed time. While Republicans held the Senate they lost two seats. Put differently, there are more Democrats available to filibuster bills. With a unified government the conditions are now ripe for filibuster reform. While McConnell lamented Reid’s use of the nuclear option you can also bet he took good notes on how to replicate Reid’s procedural maneuver. And if the filibuster is the only thing standing between Republicans and their entire agenda, you have to imagine that the 115th Congress will go down as the one that killed the filibuster for both SCOTUS nominations and legislation.

The legislative skids will be greased in 2017. Congress becomes more relevant than ever. The extent to which Trump actualizes his agenda will rest on Congress’s shoulders. However, the more likely scenario is Congress pushes their agenda on Trump. Trump rode a wave of populism into office. Republicans, on the other hand, lost seats in both chambers. How the public feels about conservative Republicans somewhat coopting Trump’s win, or if they’ll notice, remains to be seen. But regardless, it will be interesting.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

Will the Senate Go Nuclear Again?

Put this in the “it’s not really nuclear” category. Despite several accounts reporting that Senator Mike Lee (R-UT) plans to go nuclear, don’t believe the headlines. That said this is likely the most interesting thing that will happen in the Senate this year, at least from a procedural standpoint. After cloture is invoked Senator Lee will attempt to revote an Obamacare repeal amendment to the highway bill that is also carrying the Export-Import Bank authorization, which is the bill the Senator really wants to kill.

Unlike regular debate, nongermane amendments are not in order after cloture has been invoked. In other words, you cannot attach the Obamacare repeal after cloture has been invoked on the highway funding bill with Ex-Im attached to it. Major reforms to the healthcare industry are simply not that relevant to fixing bridges or giving out loans. Therefore, the Senator’s motion will be ruled out of order. The Senator will then appeal the ruling of the chair, which is decided by the Senate by a majority vote without debate.

The fact that this motion will be decided by majority vote without debate is the major commonality. Forcing a majority vote in the Senate is no small feat. However, the effect of this change would not be as significant as Reid’s nuclear option, reducing cloture to a majority on executive and judicial nominees (excluding the Supreme Court).

If Senator Lee attempts this motion, it would change germaneness rules while under cloture. The effect would simply open the door to more extraneous amendments while under cloture. Put differently, this would make the Senate under cloture more like the Senate when not under cloture. In regular debate (though not on appropriations) Senators can offer completely random amendments to bills. It’s arguably the second most important feature of the Senate outside the filibuster. For example, the lack of a germaneness rule is how we arrived at this scenario in the first place. Majority Leader McConnell is amending the “Hire More Heroes Act of 2015” (H.R. 22) and replacing it with the highway funding bill and adding the Export-Import Bank, neither of which are germane to hiring heroes. This would be impossible in the House (except under a rule from the Rules Committee).

It’s unlikely but we could see a major change to Senate operation. There are a variety of ways that the leaders or others in the chamber could thwart Senator Lee’s plans. Even if there was a change, it’s not on the same level as the nuclear option. Rather, it would make cloture debate more like regular debate. It would be significant but I wouldn’t call it nuclear.

The real underlying story is the method. Since the Senate went nuclear in November of 2013, senators have learned you can change nearly any Senate process if you can find a nondebatable motion. We’ll see that method employed again as conservatives try to kill the highway/Ex-Im bill.

(For process geeks: there is an excellent paper by Tony Madonna and Richard Beth on nondebatable motions and the nuclear option that was presented at the 2014 APSA Annual Conference.)

Quick process hit: Senate will vote on a clean DHS bill. Why that looked likely last Monday.

Today Senate Republicans are moving forward on the inevitable. They will vote on a clean DHS funding bill with no immigration riders attached. With time running out they struck a deal with Democrats, which Minority Leader Harry Reid agreed to a couple hours ago. The key point here is that DHS will come up for a clean vote. There will be no immigration vote or amendment included in the deal. Future responses to the President's immigration action will come up for a vote through the cloture process later this week.

A clean DHS funding bill was a virtual certainty after the Senate recessed on February 12th. Failing to invoke cloture before the recess put Senate Republicans in an unwinnable situation. With time running out there was only one procedural avenue available to them to avoid a DHS shutdown: unanimous consent. That requires the consent of all 46 Democrats to proceed. If McConnell's statement was any indication, Democratic consent was contingent on a clean DHS bill with no immigration votes.

It's unclear if Republicans were put in this position through a botched strategy or conference politics. Democrats refused to proceed to the bill. Presumably, they would have continued to filibuster until the immigration riders were stripped. It's possible - but certainly not clear - that if Republicans compromised earlier in the process they could have found a package that would have attracted six Democrats to invoke cloture. That's purely speculative and we will know for sure in the coming days as McConnell moves forward on the separate bill responding to Obama's executive action. Regardless, their current position gives them no negotiating leverage. As soon as the Senate gaveled-in Monday Republicans' hands were tied. The next step was to either let DHS funding lapse or forego attempts to respond to Obama through DHS appropriations.

Many on the right may accuse McConnell of caving to Democrats before the shutdown. However, by blinking first he's biting the bullet and moving the Congress closer to funding DHS. Whether the House follows suit remains to be seen.

Democrats gained even more power in the DHS/immigration debate, and it happened last week

It’s well known that any Republican attempt to reverse Obama’s executive action would be an uphill battle. Because any congressional response required a legislative fix, Republicans face a likely insurmountable veto, even if they managed to overcome a filibuster in the Senate. All the checks of government disadvantage Republicans’, and today we see that they have been unable to overcome either obstacle. However, Republicans are in an even worse position today than they were a week ago when they were in recess. Funding for the Department for Homeland Security expires Friday. Without action 30,000 DHS employees will be furloughed and roughly 200,000 DHS agents will work without pay. DHS funding needs a quick fix. The problem is Senate process doesn’t provide one.

The best possible solution has already been attempted four different times and failed. In reality, Republicans needed to invoke cloture on the motion to proceed – the motion on which they’ve failed four times – by February 9th (if they still planned to recess last week). The process of creating a cloture petition, letting it ripen, voting on the cloture petition, and letting all post-cloture debate expire takes a week’s time. On any given bill, there are two filibusterable motions. That means Republicans needed to first invoke cloture two weeks ago in order to set up another successful cloture vote yesterday. None of the steps necessary to cut off debate have been successful.

So where does that leave Republicans? They’re in a very bad negotiating position. Basically, there is not a normal process that Republicans can use to pass a clean DHS funding bill, a short-term CR, or any other DHS bill before the shutdown on Friday. The only way left to avoid a shutdown is through what’s called unanimous consent. If all senators agree on a motion or purpose moving forward, Republicans can avoid a shutdown. However, getting every Democrat (and Republican) to agree to move forward will come with strings attached.

In other words, about a week ago Republicans lost the little leverage they had in the debate to response to Obama’s executive action. Democrats have gained more leverage in the debate because all processes Republicans could have used are now gone. Their inability to craft an agreement that could get six Democratic votes has cost them the bargaining leverage they had a week ago. In sum, this week Democrats have even more negotiating power than they had the last week the Senate was in session. Now Republicans need agreement from all Democrats, not just six, on the terms moving forward.

This gives Democrats an interesting choice. Either they compromise with Republicans and find an agreement to fund DHS or they can let it expire and hang a partial government shutdown that threatens domestic security on Republicans.

Many people believed Harry Reid was an overly strong majority leader, stifling debate and preventing amendments. This week we’ll see if Harry Reid is as ruthless in the minority as he was in the majority.

Flaws in shutdown logic: It is different this time.

Republicans’ flirtation with a shutdown of the Department of Homeland Security intensified over the weekend. Boehner appears entrenched and suggested Sunday that a shutdown is possible. On President’s Day the dynamic changed… possibly. A federal judge in Texas recently halted the President’s executive action on immigration. Several reports suggest that this could pave the way for DHS funding bill to sail through. However, it is not clear the judge’s decision greased the wheels on either side of the aisle. Republicans are likely wary that the court decision could be reversed in the coming days. Meanwhile, Senate Democrats have no incentive to back down. They’re gaining support from a large and growing portion of their base by fighting Republicans’ attempt to defund Obama’s immigration action. It is unlikely that the court’s injunction has any effect on the political dynamics embroiling this debate.

Matt Yglesias has a very good piece detailing Republicans’ perseverance despite potentially damaging outcomes from the shutdown. Essentially, Republicans felt little to no repercussions from the last government shutdown. The shutdown polled very badly for Republicans in October of 2013 but in November of 2014 they rode a wave to complete congressional control. Put simply, if the 2013 shutdown did not result in catastrophic losses, why would a 2015 shutdown of a single department be different?

Actually, there are lots of reasons to believe this time is different. The one factor in Republicans’ favor is that this strategy would only shutdown DHS instead of the entire government. After that, all advantages break toward the other party.

First, with healthy majorities in both chambers this is Republicans’ boat to crash. In 2013 Republicans shouldered most of the blame but Democrats were also hurt in the polls just not to the same extent. This time there is no Democratic majority to blame. With complete control of Congress, Republicans have been unable to pass a funding bill. Had the President vetoed the legislation, Democrats may take a hit. But at the moment, Democratic involvement in Republicans' inability to pass legislation is obscure at best.

Yet, Democrats are at the heart of Republicans’ predicament. Their filibuster is preventing Republicans from taking a stand against the President. The problem Republicans face is that blaming Democratic obstruction is not terribly effective. Filibusters obscure accountability. If you want proof of that, just look at how effectively now Majority Leader Mitch McConnell used filibusters to retake the Senate. By increasing obstruction Republicans retook control of Congress. Most voters are unaware of the filibuster and its processes. Put differently, most people are unaware that Democrats are involved at all. Therefore, Republican attempts to blame the shutdown on Democrats will fall on mostly deaf ears. In a worst case scenario it may actually help Democrats by raising awareness and boosting their support among Latinos. This kind of blame game does not fall in Republicans’ favor.

And lastly, the 2013 government shutdown was shortened by intervening factors. The government was reopened only after an 11th hour gambit to prevent a debt ceiling catastrophe. If there was no debt ceiling threat looming on October 17th, it’s unlikely the shutdown would have ended on October 16th. In many ways the debt ceiling prevented further damage from the shutdown. Once the government was reopened, Republicans enjoyed several months of botched ACA rollout coverage. Within a few months, Republican approval ratings had rebounded.

This time there is no negative Democratic press cycle to fall back on or divert attention. There is no confusion over which chamber (or party) of Congress is causing the shutdown. The context of this potential shutdown is drastically different.

Whatever the logic is shutdown politics remain an awful strategy, particularly for a majority party. While some may view the 2014 election as an affirmation of prior shutdowns, expecting the same soft-landing in 2015 is likely a costly mistake.

Have Republicans Gone M.A.D. (Mutual Assured Destruction) on the Filibuster?

Frustrated House Republicans lashed out against their Senate colleagues Thursday. Without a clear path forward on the DHS funding bill, Rep. Raul Labrador (R-ID) and others blamed Majority Leader McConnell for failing to save what is a bad legislative strategy. Roll Call’s Matt Fuller reports:

“Mitch McConnell can change the rules of the Senate,” Rep. Raúl R. Labrador said Thursday at a panel discussion with conservative lawmakers. “And this is important enough for Mitch McConnell to change the rules of the Senate.”

This is a catchy talking point that would have more bite if it wasn’t also certainly wrong. McConnell can’t go nuclear on the filibuster alone. He needs the support of his conference. Unless some dramatic, earth shattering shift has occurred behind closed doors, McConnell likely does not have the votes to eliminate the filibuster.

The reality is that going nuclear on the legislative filibuster is not very popular on either side of the aisle. All senators gain influence from the filibuster. Today, the filibuster is commonly perceived as the minority’s tool to obstruct business. That’s true but unlimited debate also bolsters the rank-and-file in both parties. Threatening to filibuster a bill gives all senators enormous leverage in the negotiating process. For this reason most majority senators, even insurgents like Sen. Ted Cruz, are unwilling to eliminate the legislative filibuster.

In the process of promising victories they cannot deliver, Labrador and his colleagues are also feeding a couple of underlying problems in the Republican Party. Statements like these set up unrealistic expectations. Many constituents likely believe McConnell is standing between conservatives and their immigration battle with the President. That is not the case.

Further, failing to understand (or acknowledge) leaderships’ limitations makes McConnell’s and Boehner’s jobs harder. Congressional leaders are only effective if others are willing to follow. Framing Republican leaders as weak, not conservative enough, or cowardly deters colleagues and constituents from following leaders’ cues. After all, why would a true conservative follow a weak, liberal Republican? Put simply, comments like these throw their party leaders, and the majority’s capacity to enact laws, under the bus.

Whether it’s principle, stubbornness, or an inability to grasp legislative process, House conservatives have gotten into a bad habit of shooting themselves in the foot and then blaming their leaders when they can’t walk. For whatever reason leadership-bashing has come into vogue in the Republican Party. These tactics undermine credibility and the policymaking process. The only real winners in this scenario are fundraisers and those that do not want the Republican Party to exist in its current form. Because at this rate, it is hard to imagine this majority enacting much of anything resembling a conservative vision for the country.

Obama wants filibuster reform. Would it help polarization?

Obama had some interesting things to say about polarization and the filibuster in his interview with Vox. When the question of if government can work in the midst of polarization was posed, Obama mentioned the filibuster: “Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate… The filibuster in this modern age probably just torques it too far in the direction of a majority party not being able to govern effectively and move forward its platform.”

It’s important to note that this is an answer about governing, not reducing polarization. If you watch the video from the interview, you might assume that Obama’s answer on the filibuster is a response on how to solve or ameliorate polarization. It’s not. This is an important point because reforming the filibuster and reducing polarization are at odds with one another.

For all its faults the filibuster is an inclusive political instrument. It forces majorities to listen and compromise with the minority. However, a new breed of stubborn politics has crippled the honest pursuit of bipartisan compromise. Filibusters are currently used at rate that essentially prevents Congress from addressing problems. While stalling a bill’s progress is hardly new to Congress, the frequency with which they are used today has undermined the filibuster as a means for compromise and transformed it into a means of complete obstruction.

This doesn’t have to be the case. The filibuster could be a process that incorporates minority policy opinions without serving as an insurmountable roadblock. Done properly, filibuster reform could create a system that reduces dysfunction while also assuaging polarization. For example, placing a greater burden on minority senators to sustain a filibuster would make it more politically costly to wage one. This would preserve minority rights while also greasing the wheels of policy productivity.

Unfortunately, those options are not on the table. Presently the most likely reform to the filibuster would be its effective termination. This change would make it easier for a majority to govern in a polarized situation but it would also make the Senate a much more partisan institution. It would eliminate minority debate rights, almost certainly prohibit minority amendments, and undermine the political inclusiveness that has characterized the Senate for most of its history.

Filibuster reform is not likely to occur in the near future. However, the way the politics of filibuster reform shake out, it is a near certainty that changes to the filibuster will not reduce polarization. It will worsen it.

Governing in polarized times is a problem that needs to be addressed. But we should weigh if change is worth the cost of further distancing already outlying political parties.

Why three failed votes is not necessarily a failure

Majority Leader Mitch McConnell received a fair amount of flak this week for his attempts to move forward on the DHS funding bill that expires at the end of the month. Republicans failed to invoke cloture on the DHS funding bill for the third time in three days, raising speculation about a potential shutdown of US security agencies. Sarah Binder has a great piece at the Monkey Cage explaining the strategy. She argues McConnell’s attempts are not unprecedented or even a failure. Multiple attempts to stop debate on a bill has, at times, put pressure on the filibustering minority to compromise. In this sense McConnell’s is attempting to win a message battle by framing Democrats as obstructionists.

The messaging battle is an important one. However, it’s also a situation where neither party will likely emerge as the victor. In fact both parties win on this particular issue. Republicans are presumably gaining support for their attempt to battle the President on immigration. Meanwhile, Democrats are gaining support among their base by obstructing attempts to roll back what has been a very popular executive action among their base. In other words, it is certainly a messaging battle but it is one that both sides will win. McConnell isn’t winning at the expense of Democrats. Rather, he’s likely bolstering both sides while shouldering accusations that Republicans cannot govern.

The irony is that by failing to stop a filibuster, McConnell is moving closer to governing. As Binder points out, provoking multiple votes on DHS and the immigration rider demonstrates that moving forward on this bill through the normal process cannot work. Democrats are resolute and they have no incentive to back down. Republicans already knew this, signaling weeks ago that they did not have the votes to advance a DHS bill with the immigration rider.

So why use three votes? In addition to demonstrating that this is not a viable strategy, it gives McConnell leeway on his right. Had McConnell taken the obvious action needed to pass DHS from the start – stripping the immigration rider and passing a clean funding bill – he would have been attacked for appeasing Democrats. By demonstrating that their opposition is not avoidable, he eases some of that right-flank pressure.

And lastly, three votes buys McConnell time to strike an agreement to avoid a shutdown. The Senate is an institution of negotiation and unanimous consent. Behind closed doors McConnell is likely searching for an agreement between his conference and Democrats that strips the rider from the bill, offers conservatives the opportunity to make their stand on the issue with a non-passable amendment (60-vote threshold), and a time agreement that ensure the Senate passes DHS well before the funding deadline.

The headlines are not pretty now. But in an odd way, by failing to invoke cloture on Democrats’ filibuster McConnell is likely doing more to move forward than the media are giving him credit for.

That said, this latest episode continues a growing trend for Republicans. They continue to show a penchant for putting themselves in unwinnable political situations. Unless they become more strategically savvy, self-inflicted wounds may become this majority’s calling card. How they manage the upcoming cliffs on the debt ceiling, the Highway Trust Fund, and the Export-Import Bank reauthorization will be telling as we continue to inch toward 2016.

It’s not all Gridlock: What Republicans can accomplish in the 114th Congress

Can decades of dysfunction reverse course in a single Congress? No. But despite the general pessimism surrounding Congress there are several reason to expect the 114th to be more productive than its recent predecessors, which were historically bad on several fronts. Now that divided congressional control is over a sense of mild optimism should overcome you. Plenty of ink will be spilled describing the impending dysfunction of a Republican Congress and a Democratic President. Divided government does depress legislative output, though probably not as much as most expect. However, research has shown that divided congressional control can actually be more debilitating. In her study on congressional stalemate, Sarah Binder found that the ideological distance between the chambers created more gridlock than divided government between the executive and Congress. While that sinks in, consider the 113th Congress was among the most polarized in US history. In other words, Congress was controlled by two different parties at a time when those parties are arguably the furthest apart than they have been since 1879. In that context it’s easy to understand why gridlock gripped the Capitol for the past four years. Now that Republicans control the Senate, we’re likely to see more robust negotiations between Congress and President Obama. The question is over what agenda items they will negotiate.

Republicans have two major roadblocks to legislating in the 114th Congress: the filibuster and the veto. Both checks require a supermajority to overcome (60 for the filibuster and two-thirds in both chambers for the veto). These thresholds are difficult, but Republicans can and will be able to overcome them in some form or another. However, these barriers do constrain the universe of policies that Republicans can target.

Budget Reconciliation

With only 54 votes in the Senate, Republicans will either need to moderate their policies to attract six Democratic votes – a strategy that will hugely frustrate their House colleagues – or use the reconciliation process to circumvent filibusters. This leads us to our first prediction: Congress will pass budgets. Reconciliation is built into the annual budget process. Congress has not passed a budget resolution since 2010. That will change in the 114th. If Republicans want to follow through on their campaign promises, they need to pass a budget in order to use reconciliation.

There is a catch. Reconciliation can only be used on policies affecting direct spending, revenue, and the debt ceiling. Republicans are unlikely to touch entitlements and leaders will likely pass a debt limit hike through indirect means, such as reinstating the Gephardt Rule (where the debt ceiling is raised or suspended upon adoption of a budget resolution). That leaves revenue measures as the most likely policies to be used under reconciliation.

Revenue bills just happen to coincide with several Republican priorities. Republicans can pass bills that repeal the individual mandate, eliminate the medical device tax, alter fees funding immigration deportation processing, corporate and/or individual tax reform, as well as several other policies. In other words, the bills Republicans want to pass to score political points will most likely come through the reconciliation process. And Republicans may very well want Obama to veto many of these bills. For example, a presidential veto killing a repeal of the individual mandate is something the Republican campaign committees are likely drooling over.

It’s also possible that bipartisan compromises emerge through the reconciliation process. However, it will depend on Republican politics and how far the president is willing to compromise on these issues.

Veto-“proof” legislation

There is also reason to expect a large number of bipartisan legislative efforts to emerge. Despite headlines suggesting bipartisan compromises are a thing of the past, a large number of bills passed the 113th House with over two-thirds support. In fact, several issues reached broad consensus on a regular basis. Homeland security legislation, reducing the number of government reports and studies, bills expanding government transparency, veterans’ legislation, among others, all passed under suspension of the rules (requiring two-thirds support).

Keep in mind that just because a bill receives bipartisan support does not mean it is uncontroversial. Several bills reported from the Financial Services and Energy and Commerce committees frustrated the Democratic base, but still managed to pass the two-thirds threshold. In fact, several bills stripping Dodd-Frank regulations were passed with large, bipartisan majorities. The swap push-out provision vilified in the cromnibus package is a great example. Despite liberals ardent objections the bill passed with 292 votes (H.R.992).

Bipartisan bills range from the widely agreed upon to those that divide the Democratic base. It will be very difficult for the President use his political capital to veto legislation if there is a good chance it can be overridden. And in the 113th, there were several policies, controversial and uncontroversial, that will put the president in a difficult position. In the 114th, he can make a stand or accept policy losses. But there is room for Republicans to slowly chip away at the President’s legacy by passing widely-supported policies.

The 114th is likely to be more productive than the 113th. That said, with a presidential campaign season looming, partisan politics could also overcome any modicum of bipartisan agreement.

Can Republicans roll back Obama’s executive order? It's hard but not impossible.

Republicans have rallied behind the idea of defunding Obama’s executive order on immigration either through the omnibus or a rescission – a bill passed after an appropriations bill. However, this plan ran into some speed bumps. As Jennifer Hing, House Appropriations Committee spokesperson, points out, Citizen and Immigration Services (CIS), the agency that processes immigration petitions and deportations, is funded through application fees. That means its funding is not subject to annual appropriations bills. And as a result, there is nothing Congress can do to defund the executive order. However, this talking point misleads many into thinking that Congress is helpless, which is categorically wrong. Republicans could pursue several different avenues. They could attach legislative language onto an omnibus or other appropriations bill. This is a routine process that occurs basically every time an appropriations bill is passed (see here under “Legislating on Appropriations”). Even though Congress has a rule prohibiting legislative language in appropriations bills, they nonetheless ignore it all the time.

There are other ways to respond as well. The Budget Committee could grease the wheels and push the bill through the reconciliation process. Legislatively, some piece of this bill would have to do with revenue (fees), though not all necessary provisions would likely be able to pass under reconciliation. Finally, the most obvious solution is to pass a bill. Congress could simply prevent CIS from executing the order.

There is a catch, however. Any process the House could use would be subject to a 60-vote threshold in the Senate. Either the Senate would have to agree to waive the rule against legislating on appropriations, waive the Senate Byrd rule, or overcome a filibuster. That is a difficult but not impossible task. Republicans are hesitant to take this path because in order to get 60 votes they would have to pull back on reversing the executive order.

There is a deeper, underlying point that uncovers Republicans’ strategic motivations. This is not a case of inability. This is a case of inaction. There is nothing procedurally hindering Republicans from pursuing a response to Obama’s executive order. They are not held back by process. They are held back by strategy.

The real reason most Republicans do not like these options is there is no guarantee the bill they want to offer the President could get to his desk. There would be no grand showdown forcing Obama into the awkward situation of choosing between his executive order or funding the government.

In other words, without non-filibusterable, must-pass legislation, Republicans cannot force the president into accepting their terms by presenting him with a catastrophic consequences if he doesn’t. And as a result, we see a lot of hyperbolic rhetoric without much motivation to back it up with legislative effort.

Can the midterm outcome “solve” Washington’s problems? No. But it can make things worse.

An old adage is that lawmakers win reelection by “running against Washington.”  According to a recent Gallup poll, just 14% of Americans approve of Congress’s job performance. So while there’s something absurd about incumbents and major party candidates running against themselves, it’s a winning strategy for sure. In some ways Congress’s remarkably low approval is undeserved.  We know, for example, that congressional approval fluctuates along with macroeconomic conditions.  We also have an arrangement where both parties are sharing power, so everyone has a reason to hate at least half of Congress.  Research even shows that the passage of legislation has a negative effect on approval (you know, when Congress actually does its job).

Nonetheless, in running against Washington, lawmakers regularly promise to “fix Congress,” work “collaboratively” with the other side, and “break the logjam” of legislation.  Unfortunately, research suggests that none of these problems will be solved based on tonight’s midterm outcome.  In fact, there are good reasons why some problems will get worse, not better.

Polarization

Let’s start with polarization, which is part and parcel to Congress’s dysfunction.  For starters, polarization is a process whereby lawmakers in both parties move to the ideological extremes (leftward for Democrats, rightward for Republicans).  And as a theoretical matter, that process can happen in two ways: either (1) new members enter Congress to the left or right of the lawmaker they replaced or (2) continuing members drift to the left or right over the course of their career.

Based on numerous studies, #1 is the larger cause of polarization.  In other words, it’s the replacement of old members with new members that has caused Congress’s movement to the extremes.

In an old post (see here), I wrote about why the logic of “throwing the bums” out is wrong.  If you read that article, the exact same logic applies here: If polarization is the “problem,” electing a large volume of “new lawmakers” will make things worse, not better.

Gridlock

Gridlock is defined as the inability of Congress to pass legislation.  We can tackle the question of whether today’s midterm results can alleviate gridlock from multiple angles.  I’m assuming that the House will remain in Republican hands (and extremely safe assumption), so the real question is what happens in the Senate (where current projections give anywhere from a 98% chance to a 70% chance).

For starters, it’s often assumed that “new members” will “break the logjam” and usher in a new era of collaboration and compromise.  Unfortunately, the lessons of polarization apply here too: At best the volume of new members is Untitledunrelated to the passage of legislation and, at worst, new lawmakers make passing legislation harder.  For those details, see here.  But see the chart to the left (click for larger image) comparing the percentage of new lawmakers elected (x-axis) and the number of landmark laws passed (y-axis):

Second, the fact that the House and Senate are controlled by rival parties is often cited as a reason for the current Congress’s gridlock.  It is certainly logical that if Republicans win the Senate tonight, gridlock should go down.  However this, too, is wrong.

Control of the Senate is what’s known as a “necessary but not sufficient” condition for breaking gridlock.  While Republicans will indeed be better able to coordinate the passage of legislation across chambers, Democrats will retain two very powerful weapons that promote gridlock.

First, baring an upset of epic proportions, Democrats will maintain the ability to filibuster Republican proposals.  Second, remember that President Obama has the power to veto any laws that survive a Democratic filibuster.  I know that’s painfully obvious, but Republicans could circumvent the filibuster in two important ways: (1) by using a procedure known as “reconciliation” or (2) by eliminating the filibuster altogether.  Both are very real possibilities, making Obama’s veto power that much more consequential.  And according to these data, there have been 2564 vetoes dating back to George Washington’s presidency.  Among these, only 110 have been overridden by Congress, a success rate of just 4%.

But also, there is empirical research exploring these very questions.  In a paper published in the American Political Science Review, Sarah Binder tests the effect of “quasi-divided government” (defined as when the parties share control of Congress) on the occurrence of gridlock.  She finds that periods of quasi-divided government have absolutely no effect on the volume of important legislation Congress passes.  In sum, Binder’s research suggests that tonight’s outcome in the battle for control of the Senate won’t have much of an effect on the passage of legislation in the next Congress.  What does matter, according to Binder’s results?  “Pure divided government” (when the president opposes Congress, so see above), polarization (also see above), and the ideological distance between the House and Senate.  While the final one could be alleviated by tonight’s outcome, the result of a race or two won’t move the location of the median senator enough to make a sizable difference on the occurrence of gridlock.

Conclusions

Politicians are not “bad” for running against Congress and for over promising to “fix” Washington’s dysfunction.  And the public isn't “stupid” for buying into these promises.  But we tend to have unrealistic expectations in even numbered years, focusing myopically on the idea that a single election is the antidote legislative paralysis and hyper partisanship.  Washington wasn't broken over night, and it won’t be fixed this evening.

Yes, Elections are Cultivating Polarization. But...

Competition for power, gerrymandering, disappearing marginal districts define Congress’s electoral landscape. Today, the American electorate is both closely divided and increasingly uncompetitive. In other words, partisan majorities are narrower today than at any time since the Civil War but congressional districts are also safer – there are fewer competitive seats. It has been argued that this has a significant effect on polarization. Several political scientists argue that this is a somewhat dubious claim. However, Francis Lee and Sarah Binder wrote maybe the best case for why competitive elections undermine bipartisanship. They argue competitive elections effectively reduce leaders’ incentives to reach across the aisle. Because the parties are more competitive today, they have little incentive to give the other team a win.

This also explains the nasty procedural tactics of recent decades. Filibusters, shutting out minority amendments and dilatory motions are strategies tied to this stiff electoral competition in recent decades. The parties do everything in their power to win on their terms. As a result, bipartisan agreements only emerge after calamity hits (shutdown), or just before (debt ceiling).

My qualm is that these accounts largely ignore the institutional contexts. What often goes unsaid is that the current legislative processes also facilitate partisan competition. Particularly in the House, partisan competition feeds off of the legislative process. For example, a major reason bipartisanship flourished in the mid-20th Century is because Republicans had allies on the Rules Committee. They did not hold the majority (except a few instances), but they could count on conservative Democrats on the Rules Committee to bring bills to the floor that served their interests. Therefore, there was an expectation that bipartisan agreements could be met.

This occurred even in years where electoral competition was tight. For example, in 1952 Congress passed the Immigration and Nationality Act. Despite a narrow Democratic seat advantage of 235 (with only 225 seats occupied at the time) the bill passed the House, and later overrode Truman’s veto, with more minority than majority votes – 107 Democratic votes and 170 Republican votes. In 1953 a Republican House passed a rule with a Democratic majority to consider a tax exemption bill – 120 Democrats and 71 Republicans.  And in 1955, with a Democratic majority of 232 to 200, the House passed a bill that exempted natural gas producers from utilities regulation by a margin of 209-203. The vote was won with 123 Republican votes and 86 Democratic votes. The ability of minority members to attain floor votes was one reason polarization dipped throughout the mid-20th Century.

Conversely, today partisanship thrives because the institution is designed for it to thrive. Examples like those listed above are unfathomable given the current legislative process. The power of party leaders and their incentive to protect their party brand outweigh incentives to advance bipartisan agreements. In other words, elections and the institution together undermine bipartisan negotiations. Tight electoral competition feeds legislative strategies that are enabled by the legislative process.

Without the current process, the partisan tactics we see today are not as viable. For example, if the Rules Committee were a more independent panel, it would be more difficult for the Speaker to block bills with a chamber majority. Put more directly, the Senate’s immigration package or the clean CR, which was never voted on during the shutdown, would have a better shot of passing the House.

Congressional tactics are the result of an interactive relationship between the institution itself and electoral competition. Lee and Binder give an implicit nod to procedural factors in their APSA chapter. However, throughout political science research this is an underlying factor that is not often brought to the forefront. Deals negotiated in Congress are just as heavily influenced by the process as they are by elections.  In a different institutional context, party leaders would be increasingly unable to protect their party’s brand to the extent they do today.

Rules Changes through Precedent: History and Consequences

Don Wolfensberger wrote a nice piece on the parallels between Majority Leader Reid’s nuclear option  and Speaker Reed’s ruling in 1890 that eliminated dilatory motions in the House. Both are good examples of rules changes through precedent. The two were so similar it was the first example that came to mind as Majority Leader Reid went nuclear and changed the Senate. I mentioned it on twitter but I don’t believe I blogged it. So in addition to Wolfensberger’s post there are some important, though wonky, differences between the two tactics. Unfortunately, the trajectory we’re on has consequences for our system of government. Speaker Reed and 1890

In the 51st Congress the House was in a similar situation as today’s 60-vote Senate. Republicans held a slim majority in the House. The history books will show that Republicans held 179 to Democrats 152. However, at the beginning of every Congress it was not unusual for contested elections cases to continue well past the first day of Congress. That meant that several members who sat in the 51st Congress did not join the House until well after Congress’s March opening date.

Compounding those absent members were the troubles of 19th Century travel and medicine. Many members were absent due to illness, a sick spouse or child, and difficulty traveling to the nation's Capitol. In 1889 the travel experience from California to Washington D.C. was neither particularly fast nor carefree.

For House Republicans in the 51st Congress these difficulties contributed to a voting majority much narrower than their official seat advantage. At the very outset of the Congress, the Republicans voting majority was actually just short of the chamber majority required in the Constitution. While they had more seats than Democrats, they often had less than a majority of the House. That meant if Republicans wanted a constitutional majority required to legislate, they had to rely on Democrats to vote. They didn’t need Democratic votes to win the votes. But they did need them to vote “nay,” so that their vote would count toward a chamber majority necessary to pass bills.

As you can imagine, House minorities were not all that keen to let majorities legislate. When a request for the yeas and nays was ordered and the clerks called the roll, minority members would sit silent in the chamber. By not responding, they were considered absent. When the final tally was counted, the House lacked a quorum and could not pass bills. This was how the disappearing quorum - which was also called a filibuster in its day - worked.

In years when the majority had a narrow seat advantage this became the norm. Reed, as the incoming Speaker of the House, knew this was something Democrats planned to use in the 51st Congress. He also knew Republicans would barely, if ever, be able to marshal a chamber majority.

So prior to convening the Congress Reed and his lieutenants devised a plan. First, Republicans did not adopt any rules for the 51st House. This is normally the first order of business in the House. However, adopting new rules reported from the Rules Committee would require a majority vote that Republicans did not have. So instead, they decided to operate under general parliamentary law. Put differently, they operated under Jefferson’s Manual and House precedents. This gave Reed the ability to rule the House based on whatever he assumes to be parliamentary, so long as a majority of voting members sustained his ruling.

This set the stage for Reed to dismantle the disappearing quorum. In January of 1890 Reed called up an elections case from West Virginia. After the vote, Minority Leader, and former Speaker, Crisp (D-GA) made a point of no quorum. Reed then ordered the clerks to count the members that are present but not voting and to add them to the roll call.

Unfortunately for us, the fireworks of the Reid’s nuclear option paled in comparison to the violent response from the Democratic minority in 1890. According to Speaker Reed’s parliamentarian, “pandemonium reigned in the House for several hours.” Members charged the front of the chamber crying foul. Speaker Reed, however, remained cool. At one point, a member charged the Speaker yelling, “I deny you the right to count me as present!” Reed, known for his cool wit, responded, “The Chair is making a statement of fact that the member from Kentucky is here. Does he deny it?” (Alexander 1916, 168).

Later that Congress, Republicans adopted new rules, by majority vote, that included quorum counting among other changes that pinched down on minority rights in the House. From that day forward the House was a different institution.

Differences and Implications

Given this context, there are a couple differences between Speaker Reed’s quorum counting and Majority Leader Reid’s nuclear option. First, the House intentionally refused to adopt rules in order to change precedent. The Senate does not have this luxury. It is a continuing body. Meaning, it does not adopt new rules at the beginning of a new Congress. A new Senate is bound by the rules of the previous Senate. Because there is never a lapse in rules, Reid had to interpret the rules through precedent. This is the inverse of Speaker Reed’s tactic of establishing a precedent and then using that precedent to enact new rules of the House. It also creates a more precarious tension between chamber rules and chamber precedents.

Second, there is a significant trigger point that I imagine will come into play as the Senate continues to debate the filibuster. Senate rules require a two-thirds majority to change chamber rules. At what point will the Senate invoke that clause on future interpretations of the filibuster, for say legislative filibusters? Since interpretations are done through appeals of the chair, which are sustained or overturned by a majority, the voting requirements for a rules change and precedent change do not match. Here is the million dollar question: which is more constitutional? Today's partisans are obviously willing to reinterpret inconvenient rules. The next question becomes, which take prominence? Do the rules of the chamber or the adoption of a new precedent dictate Senate process?

I don't believe it will come to this in the near future. There are enough procedure stalwarts in the chamber to ward off this kind of tactic in the short-term. However, partisan guerrilla warfare has been boiling over in the Senate in the last decade. So much so that members of Congress have filed several lawsuits in court to adjudicate their own processes. I would not be surprised if a future majority reinterprets the filibuster entirely. And if that is the case, it may be the first time in congressional history that a court will have to decide which rules and precedents will govern Senate process.

This is a somewhat dangerous trajectory. If this were to happen Congress would not just be losing power to the presidency but also to the courts. Partisan procedural tactics threaten to slide America’s First Branch into third. At that point, the branches furthest from the people will also wield the most power. Anyone who can count and has looked at the articles of the Constitution should be concerned.

The Senate's Nuclear Winter… or Not

Since Democrats invoked the nuclear option, reducing cloture on judicial and executive nominations, there are serious concerns that those actions would result in fallout. Would the Republican minority, in retaliation to losing significant leverage in the nominations process, attempt to drag out every nomination and/or bill? So far, that can’t be answered definitively. Some reporters have suggested otherwise. For example, last night Republicans would not yield back their debate time on the nominations put forward by Reid on Monday. This dragged out the process somewhat. Reid is anxious to get these nominations through before the end of the session (if they don’t, those nominees go back to the President). So Reid forced the Senate to stay in session all night in order to use that debate time and confirm the nominees. This looks like evidence of fallout.

However, there are other instances that do not fit the fallout narrative. Take the Millett and Pillard nominations to the DC Circuit Court. In both cases, the Senate used a unanimous consent agreement to expedite debate (hat tip to @mansfield2016). What could have taken 30 hours actually took a very limited amount of floor time. These are two big instances where Republicans could have objected but didn’t. These cases are particularly significant because they would have taken the longest to confirm. The absences of serious obstruction on these nominations are giant counter examples to the broad narrative currently forming.

That said, the real fallout will most likely occur at the beginning of next Congress. There is a high probability debate time on all nominations will be extended in the 114th Congress. Currently, the filibuster deal brokered at the beginning of the Congress (S.Res.15) limits debate to 8-hours on most non-major nominations and 2-hours on district court judges. Because this is not a standing rule, it will have to be passed again at the outset of next Congress to extend those debate times. However, in the wake of the nuclear option, this probably will not happen. Now that the majority can cut off debate on almost all nominations, there is little incentive for the minority to support the resolution. They will want every opportunity to extend debate and gum up the works in the 114th Congress. This will likely be the most significant fallout from the nuclear option. No matter who is in the minority, there is no reason to bargain on limiting nominee debate time. So expect debate on judicial and executive nominations to return to 30 hours a year from January.

Party Competition and the Supression of Minority Rights

Operation_Upshot-Knothole_-_Badger_001This blog post has been in the back of my mind for some time, but is especially relevant given today's events in the Senate.  I don't have some profound point to make, rather this is an attempt to correct a misconception about why and when lawmakers decide to suppress minority rights.  It's a topic political scientists have written about and I think some of the lessons are prescient in light of today's triggering of the so-called "nuclear option." In 1997 Sarah Binder published an excellent book on this very topic entitled "Minority Rights, Majority Rule."  For this book Binder provides comprehensive examination of the creation and elimination of minority rights from 1789-1994, identifying and coding every formal House and Senate rules change affecting the minority over this period.  As she puts it,  her work seeks to "explain when and why each chamber took the distinctive path it did (p. xi)."

note: As Josh points out in his excellent post below, this wasn't a formal rules change, but a change in Senate precedent.  Thus, this post is making a generalization that Binder does not make in her book.

A number of folks have wondered why Democrats would move to limit the minority's right to filibuster the president's nominees when they stand a good chance of becoming the minority on the future (when, presumably, they'd want the ability to block a Republican president's nominees).  For example, Mitch McConnell noted earlier today: "Some of us have been around here long enough to know that the shoe is sometimes on the other foot...You may regret this a lot sooner than you think.”

Binder's work gives us some answers to this question.  What she finds in her data is that changes in the rules are indeed partisan in nature.  However, the majority's short-term partisan interests (and overall capacity) explain rules changes.  That is, rules changes come about when the majority is blocked from pursuing key political outcomes and they are ideologically homogeneous.  In my mind, that sounds like the modern Democratic party.  But perhaps most importantly, what she labels "party competition" (the likelihood the majority will be in the minority) has no effect.  That is, the subsequent changes in party control has no effect on the likelihood of minority rights suppression.

Binder concludes that these findings have the power to explain "future changes as well" (p. 3).  I'd say today's events suggest validate her central points.

But why, exactly, is the majority unwilling to take into consideration their electoral prospects when making important rules changes?  I'd speculate Democrats assumed Republicans would "go nuclear" as soon as they regained control of the Senate.  As in a real nuclear confrontation, you want to shoot first.

The Senate Went Nuclear. Is the Filibuster on the Endangered List?

Enormous change to the Senate occurred today. By majority vote, the Senate moved to proceed on judicial and executive nominations, with the exception of Supreme Court nominations. What you need to know:

The parliamentary tactic used in the Senate was not a rules change. It was a change in precedent on the motion to proceed. Floor process is a combination of rules – adopted and reformed by two-thirds of the chamber – and precedents – accumulated through the history of floor procedures, rulings of the chair, and motions sustained or overturned, etc. It is not uncommon for rules and precedents to compliment and, at times, conflict with one another.

Senate Rule XXII states: “And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.” (Rule XXII, clause 2).

It is more important to notice what is not mentioned in this rule. Rule XXII does not mention nominations, judicial or executive. This is important because it distinguishes the lines between a rule and precedent. Rules make declarative statements. Precedents interpret the boundaries to which those rules apply.

Reid used the lack of specificity in the rule to alter precedents dictating cloture motions. The objection to the chairs ruling (that Reid's motion was not in order) reinterpreted the precedents regarding motions to proceed on judicial and executive nominees. Because Rule XXII is vague on distinguishing the motion to proceed on bills and nominations, Democrats effectively argued that the rule was open to interpretation (the “arguments” are more often won when you have a majority). In effect, Reid used procedural ambiguity in the rules to reinterpret how cloture is invoked on nominees. Key point, this is a precedent change, not a rules change.

The Implications:

That leads to another extremely important question: can the Senate now change the rules by majority vote? In a strict sense, my guess is no. Changing the interpretation of a rule on a particular subject is far different than redefining the entire rule. In other words, my guess, as of now, is that the Senate cannot disregard the filibuster entirely without two-thirds of the chamber voting for it.

That said this is a very wonky and extremely important question: How much change would be required to trigger the two-thirds vote to change the rules? It does not take logical acrobatics to assume that Democrats or Republicans would reinterpret cloture in the same way if a Supreme Court nominee faced intense opposition. However, does the same logic apply to a motion to proceed on legislation? That is a deeper question. It’s not entirely clear where the trigger lies. You would think changing the entire rule would trigger a two-thirds vote under the rules. However, Senators themselves are responsible for upholding the rules of the chamber. Rulings of the chair are subject to appeal by the chamber. And as long as the majority rules, we cannot rule out an instance in which a newly reinterpreted precedent trumps a standing rule.

It appears the Senate’s procedural guardians are a dying breed. In a polarized Senate, the chamber may be closer to majority rule than many believe.

Simulating the Syria Resolution Vote in the Full Senate

Yesterday, the Senate Foreign Relations Committee voted 10-7 to approve President Obama’s request to conduct military strikes against Syria (one member of the committee--Ed Markey--courageously voted "present"). With the Syrian resolution clearing the committee stage, it now heads to the full Senate. But the question is: Will the full Senate pass the resolution?  We will get an answer next week.  But in the mean time, I took a stab at this question by simulating the full chamber vote (spoiler alert, the estimated vote is 56 for - 44 against).

Now, there are some strong caveats that accompany this post.  Namely, this is a difficult question to answer with any certainty.  First, the committee vote didn't fall along clearly identifiable lines.  For starters, the vote (somewhat) split the parties.  Two Democrats voted against the resolution (Tom Udall and Chris Murphy) while three Republicans supported it (Bob Corker, Jeff Flake, and John McCain).  Relatedly, the vote crossed ideological lines as well (but as with party, only "somewhat").  What seemed to matter most are state demographics, reelection, and tenure.  For example, if we eyeball the data, the state normal vote--capturing how Obama performed in 2012--seems to have had a meaningful effect.  Perhaps most notably, Tom Udall is up for reelection and represents a state Obama narrowly won.  I'm positing that both factors are key to explaining yesterday's vote.  Finally, the length of service in the Senate appears relevant.  Looking at the data, the average number of terms served by those opposed to the resolution is 1.3 while the average terms served by those in favor of the resolution is 4.5.

Nonetheless, the patterns are difficult to eyeball, hence a multivariate analysis is needed (see also Ed O'Keefe's post at the Washington Post) .  Details on the methods are at the bottom.  Logit results in the table the below (1=vote for the resolution, 0=vote against).

Untitled

While it's a little surprising to see most coefficients turn up statistically significant given the limited sample size, each one is in an intuitive direction.  (note: thanks to Brendan Nyhan for pointing out the issues with two clusters.  As he notes, however, this has no effect on the predicted probabilities).

The most substantively important factor is the interaction between the state normal vote and reelection.  The model predicts that a handful of vulnerable Democrats will oppose the resolution in the full Senate.  Indeed, and as Joshua Tucker argues, while national public opinion is unlikely to affect the decision to attack Syria, public sentiment may matter at the state- or district-level.  As an aside, this dynamic may explain whether (when?) the resolution fails in the House.  While the ideological and partisan dynamics of the vote are somewhat tenuous, House Republicans in conservative districts can be expected to vote no--in part--because they're all running for reelection (unlike in the Senate, what with its staggered terms an all).  Fancy modeling aside, there appears to be tenuous support for the resolution--at best--among Republicans in the lower chamber.

But second, the number of terms served in the Senate seems to have had a substantively meaningful effect on the vote as well.  This could represent a number of things (most likely seems to be an establishment vs. outsider effect).  Thirdly, party mattered somewhat, with Democrats more likely to vote for the resolution than Republicans (once we control for other factors).  This is unsurprising.

Finally, and perhaps most importantly, I used the above model to simulate the vote in the full chamber.  Based on a senator's predicted probability (table below, right column), I estimate that the resolution would pass 56-44.  While this is a simple majority, it is not a filibuster proof supermajority.  It's unclear whether conservatives will filibuster the resolution.  However, Rand Paul walked back this possibility during yesterday's markup.

Interestingly, the predicted probabilities show a number of Republicans joining Democrats and vice versa.  For example, the model predicts that Democrats Mark Pryor and and Mark Begich will vote "no" in the full chamber while Republicans Chuck Grassley and Orrin Hatch will vote "yes."  Indeed, both Pryor and Begich are up for reelection in "red states." In sum, the model predicts that 17 Republicans and 39 Democrats will vote for the resolution while 29 Republicans will join 15 Democrats in opposition.

Here's the predicted probabilities.  The data are sorted based on a senator's estimated probability of voting for the resolution in the full chamber (lowest at the top).

Senator State Party Pr(Vote Yea)
Jim Risch Idaho R 0.00
Ron Johnson Wisconsin R 0.00
Rand Paul Kentucky R 0.00
Marco Rubio Florida R 0.00
John Barrasso Wyoming R 0.00
Tom Udall New Mexico D 0.00
Chris Murphy Connecticut D 0.00
Mike Enzi Wyoming R 0.00
Jim Inhofe Oklahoma R 0.00
Mike Johanns Nebraska R 0.00
Tim Johnson South Dakota D 0.00
Lamar Alexander Tennessee R 0.00
Pat Roberts Kansas R 0.01
Jeff Sessions Alabama R 0.01
Mark Pryor Arkansas D 0.01
Mitch McConnell Kentucky R 0.01
John Cornyn Texas R 0.01
Mark Begich Alaska D 0.01
Jay Rockefeller West Virginia D 0.02
Lindsey Graham South Carolina R 0.03
Saxby Chambliss Georgia R 0.05
Mary Landrieu Louisiana D 0.06
Thad Cochran Mississippi R 0.12
Deb Fischer Nebraska R 0.13
Mark Udall Colorado D 0.14
Ted Cruz Texas R 0.15
Tim Scott South Carolina R 0.16
Kay Hagan North Carolina D 0.20
Mike Lee Utah R 0.20
Max Baucus Montana D 0.21
Angus King Maine D 0.24
John Boozman Arkansas R 0.29
Jerry Moran Kansas R 0.30
John Hoeven North Dakota R 0.31
Carl Levin Michigan D 0.31
Jeffrey Chiesa New Jersey R 0.33
Roy Blunt Missouri R 0.36
Heidi Heitkamp North Dakota D 0.41
Rob Portman Ohio R 0.42
Mark Warner Virginia D 0.42
Pat Toomey Pennsylvania R 0.43
Kelly Ayotte New Hampshire R 0.43
Dean Heller Nevada R 0.43
Joe Donnelly Indiana D 0.46
Tammy Baldwin Wisconsin D 0.55
Martin Heinrich New Mexico D 0.55
Al Franken Minnesota D 0.56
Tom Coburn Oklahoma R 0.58
Roger Wicker Mississippi R 0.60
Elizabeth Warren Massachusetts D 0.63
Mark Kirk Illinois R 0.63
John Thune South Dakota R 0.64
David Vitter Louisiana R 0.65
Johnny Isakson Georgia R 0.69
Jeff Merkley Oregon D 0.70
Lisa Murkowski Alaska R 0.71
Mazie Hirono Hawaii D 0.72
Brian Schatz Hawaii D 0.72
Richard Burr North Carolina R 0.72
Mike Crapo Idaho R 0.73
Joe Manchin West Virginia D 0.76
Dan Coats Indiana R 0.78
Richard Blumenthal Connecticut D 0.81
Richard Shelby Alabama R 0.83
Ed Markey Massachusetts D 0.85
Sherrod Brown Ohio D 0.85
Michael Bennet Colorado D 0.86
Susan Collins Maine R 0.86
Jon Tester Montana D 0.86
Claire McCaskill Missouri D 0.87
Orrin Hatch Utah R 0.88
Bob Casey, Jr. Pennsylvania D 0.90
Amy Klobuchar Minnesota D 0.91
Kirsten Gillibrand New York D 0.91
Tom Harkin Iowa D 0.92
Sheldon Whitehouse Rhode Island D 0.93
Bernie Sanders Vermont D 0.94
Chuck Grassley Iowa R 0.95
Bill Nelson Florida D 0.95
Debbie Stabenow Michigan D 0.96
Maria Cantwell Washington D 0.96
Tom Carper Delaware D 0.97
Ron Wyden Oregon D 0.98
Chuck Schumer New York D 0.98
Patty Murray Washington D 0.98
Dianne Feinstein California D 0.98
Harry Reid Nevada D 0.98
Barbara Mikulski Maryland D 0.99
Patrick Leahy Vermont D 0.99
Jack Reed Rhode Island D 1.00
Jeff Flake Arizona R 1.00
Jeanne Shaheen New Hampshire D 1.00
Tim Kaine Virginia D 1.00
Bob Corker Tennessee R 1.00
John McCain Arizona R 1.00
Chris Coons Delaware D 1.00
Ben Cardin Maryland D 1.00
Bob Menendez New Jersey D 1.00
Dick Durbin Illinois D 1.00
Barbara Boxer California D 1.00

Methods:

The response is coded 1/0 (1 for, 0 against).  Normal Vote is the two-party vote for Obama in 2012 minus his national average.  Democrat is coded 1 for Democrats, 0 for Republicans.  Terms is a count of how long a senator has served in the Senate (logged).  The standard errors were clustered by party.  If a senator has a predicted probability of greater than 50%, they are estimated to vote "for" the resolution.  Any senator who voted for the resolution is the committee is assigned a probability of 1.0 while any senator who voted against the resolution in committee is assigned a probability of 0.0.

The Filibuster: An "Accident of History"? On the Common Cause Lawsuit.

A few months back, we at the blog had a semi-regular series: “things institutionalists know that you should” (see for example see Josh on timing, Nate on Plott’s fundamental equation, and myself on the status quo bias of institutions).  This small series was inspired by similar lists on the fundamentals of political behavior (see for example, here).  Our list, by comparison, offers the neo-institutional fundamentals. Yesterday a federal court in Washington heard arguments that center on a thing “institutionalists know.”  In Common Cause et.al v Joseph Biden et.al., Common Cause and a group of private citizens are suing Vice President Biden (as president of the Senate) arguing that the filibuster is an “accident of history” and unconstitutional on the grounds it violates the principle of majority rule.  The lawsuit arose over repeated filibusters of the DREAM Act, which the petitioners argue would have passed were it not for the filibuster.  The goal of the suit is to have Senate Rule XXII, for which this blog is named, declared unconstitutional.

This highlights something institutionalists know well: that institutions—in this case parliamentary rules—have unintended consequences.  The filibuster is, indeed, a classic example (see Sarah Binder here).  Simply put, the filibuster arose out of a procedural lapse.  When the first Senate convened in 1789 it adopted a procedure known as the previous question. The previous question motion is a common parliamentary device used to close debate on a pending matter.  If you watched the movie Lincoln, you no doubt saw the previous question in action.  But in 1806 the Senate removed the previous burrquestion from its rule book (on the advice of Vice President Aaron Burr).  The House, by contrast, maintained the previous question which, today, gives a simple majority in the lower chamber the ability to quickly end debate (though as Sarah Binder points out, the previous question at the time wasn’t used in the manner it is today).  The obvious question is: Why would the Senate remove such an important procedural device from its rule book?  The simple answer: the previous question wasn’t used very often and was viewed at the time as superfluous (it was only used once prior to 1806).  As Binder argues, the reason for removing the previous question was simply to “clean up” the messy Senate rule book.  Removing the previous question motion wasn’t as problematic as its absence today for the obvious reason that extended debate was less obstructive in the early 1800s.  It wasn’t until 1837 that the first actual filibuster occurred.  First, the Senate was about 1/3rds its current size.  Second, the Senate’s overall workload was much lower.  And third, minority parties in this formative era were much smaller and thus less able to stymie the legislative process (from 1803 to 1823 the Federalists, the perennial minority, had an average of only 8 seats in the Senate).  Over time the lack of a previous question was compounded by the fact that the Senate, unlike the House, is a “continuing body.”  That is, the Senate’s rules carry forward from on Congress to the next and are therefore difficult to change.  In sum, a short-sighted change in the Senate’s rules back in 1806  morphed, over a long time span, in a manner that has major implications for the modern legislative process.  This was by no means a “rational” or “functional” outcome.

Which brings us to the Common Cause lawsuit.  While the petitioners may be right that the filibuster is an “accident of history,” for the reasons outlined above, that doesn’t make it unconstitutional.  Quite the contrary, in fact.  Article 1, Section 5 of the Constitution outlines the procedures governing the House and Senate.  And like many things in the Constitution, it lacks detail and nuance.  Well, expect for one important detail: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.”  Yes, Clause 2 of Section 5 gives both chambers the power to determine their own rules.  This makes the filibuster, and all other rules of the Senate for that matter, explicitly constitutional.  Courts have rejected similar legal challenges in the past, so unfortunately for Senate reformers, Common Cause’s lawsuit is not the answer.

Two additional examples of how institutions can have unintended consequences include the development of the American welfare state and the 435 member cap in the House.  In “Protecting Soldiers and Mothers,” Theda Skocpol shows us that the modern welfare state developed out of Civil War soldiers’ disability pensions (which covered the widows of decreased soldiers, hence the title of Skocpol’s book).  The long-term consequence of this policy was that, by the early 1900s, significant portions of the population were dependent on the pension.  The policy extending pension payments to soldiers’ wives evolved into a uniquely American “materialistic” welfare state (unlike the welfare systems of Europe).  A similar unintended consequences narrative applies to the 435 member cap in the House.  From the first census in 1790 to 1910, the size of the House increased along with population growth.  In 1920 House negotiators were unable to reach agreement on the reapportionment bill.   So in 1929 the Permanent Apportionment Act formally set the size of the House at its current 435.  Thus, the size of the House is not part of some rational design or larger constitutional principle, but the result of a critical event in political time and the path dependent nature of politics.

Reforming Polarization and Gridlock: Series on Congressional Reform

For someone who studies congressional development, the past couple years have been frustrating. Many people with noble intentions proposed reforms to remedy our dysfunctional Congress. However, these discussions have almost universally missed the causes of gridlock and polarization. They offer remedies rather than cures. So, in this series – that will continue until I run out of ideas – I’m going to offer reforms that, in my opinion, are more crucial and fundamental to congressional operation, polarization, and the like. But before I do that, I need to debunk the worst proposal of them all… The filibuster. If I had a dime for every time somebody proposed filibuster reform… Now, before I lament why this reform is misguided, let me be clear: the filibuster needs reform. Its practice grossly misrepresents its intent (but not the Framers’ intent) and is generally a giant obstacle to majority government. But, that being said, it is not even close to the worst procedural device within the existing legislative process. Sure, it’s an easy target. I too often hear among colleagues, reporters, and friends alike, “if we could only reform the filibuster…” But more often than it is assumed filibuster reform is the silver-bullet for gridlock. We fix that, we fix gridlock and the problems it creates (i.e. the debt ceiling debate).

It’s not and here’s why: when polarization is the main problem, reforming Congress to make it more majoritarian will only exacerbate the existing problem. It will push the parties further apart, and effectively make the problem we have now much much worse over time. The already bad gap between the parties would become a chasm. Think about looking across the Grand Canyon. Now compare that to draining the Pacific Ocean to try and see Japan. That would be the size of the problem we would face and frankly, we can’t afford to make the already bad gap worse.

Here's an interesting hypothetical. Let’s assume for a second that the filibuster, cloture, and the 60-vote Senate does not exist. Let’s assume, as Matt Glassman described so well, that we effectively have two Houses of Representatives. What happens in a situation like today, where the chambers have split control between the parties? Nothing. Absolutely nothing. But it would be worse than that: negative-nothing (is this a thing?). With the current ideological division between the parties and two majoritarian chambers, neither party has an incentive to compromise with the other because 1) party leaders control the legislative process and have even less incentive to compromise with members of the opposite party within their chambers 2) the two parties don’t agree on much to begin with, and 3) each chamber holds a veto over the other. Legislation created in each chamber would be more ideologically extreme (because each chamber is effectively controlled by each party’s leader), and there would be even less overlap on bills passed in each chamber. I’d be amazed if that hypothetical Congress is more efficient than the current one.

Adding to the difficulty is divided government. I’m not going to fully delve into divided government (president and Congress split control), but this much should be said. Pending one party had control of both chambers, presidents' legislative power would diminish when competing against a truly majoritarian Congress (not necessarily a bad thing), and he/she would be forced to resort to more frequent vetoes (because legislation is passed more rapidly and because it is more ideologically extreme) to demand compromise… which probably wouldn’t happen to any significant extent. If the U.S. didn't have an independent executive, this wouldn't be as big a problem (like many parliamentary systems). But in the American system, it has just as much potential to deadlock the system as split chamber control.

Nothing about these scenarios suggest more “effective” government save one specific circumstance: unified government. Which, it turns out, resembles majority totalitarianism more than American democracy, something the Founders specifically sought to avoid.

So it’s not that filibuster reform is itself bad. It just leads Congress down a dangerous path: more extreme polarization in a system of shared power and checks and balances. That is, creating a majoritarian Senate is not inherently good when the results exacerbate an already bad problem, threaten just as much if not more inefficiency, and introduces the potential for tyranny of the majority (I mean this in a non-dramatic sense. I'm not suggesting 1984. But I am suggesting radical changes in policy from Congress to Congress). The Constitution is not a majoritarian document. In fact, it is decidedly non-majoritarian. It’s designed to prevent action/legislation, not spur it along. In a very real way removing the filibuster would strain the U.S.'s non-majoritarian Constitution... sort of like putting a jet engine in a pinto: lots of horse-power, not much control.

There are better reforms that could temper polarization and promote compromise, but the filibuster is not the first or even most effective change to acheive these ends. So, my main objective is to identify the institutional sources of polarization. My second, and much less definitive, objective is to offer some solutions that could help.

Next up: The Rules Committee.