Senate

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.

New Budget Drama and Procedural Inventiveness. Got to love the House.

The optimism following the 2-year budget deal struck last October is officially over. Many House majority members who were unhappy with the deal remain unhappy. Over the past month House conservatives have signaled they will not vote for a budget unless they find $30 billion in cuts. Passing a budget (or appropriations) below the discretionary numbers in the 2-year deal appears to be a nonstarter. So conservatives are attempting to find the savings in mandatory programs. They are circulating an interesting plan to reform major entitlement programs on appropriations bills through the reconciliation process. Here are the major take-aways from that last sentence: conservatives want to circumvent the House Ways & Means Committee, authorize changes to mandatory spending through the discretionary spending process, and do so using a straight majority process rarely used for appropriations.

This is a huge deal. It’s also a lot to unpack. It combines several processes into a plan akin to procedural acrobatics. It’s not impossible, though it would be unprecedented.

The first criticism of the plan is it violates House rules. Those rules state that members cannot add authorizing language (i.e. insert language changing Medicare benefits, taxes, etc.) in appropriations bills. Is this true? Yes. Does it matter? No. The reality is for the last couple decades this rule is waived (read: is not binding) any time an appropriations bill is brought to the floor. So would this rule violation really prevent the House from passing this mega-bill? If they have the votes, no.

The second criticism is that you can’t use reconciliation to pass appropriations bills. Actually, you can, though it has only happened twice. The last time reconciliation was used on appropriations was in 1981 for rescissions in previous spending bills (basically taking away previously awarded budget authority). It has never been used to circumvent a committee of jurisdiction or provide budget authority for executive agencies. In this respect, this is a huge unprecedented step for both reconciliation and the appropriations committees.

The plan has the advantage of attaching mandatory spending cuts to must pass spending legislation. This is something the President could not avoid if it made its way through Congress. There is a catch though: they can’t touch Social Security. That is expressly forbidden in the 1974 Budget and Impoundment Control Act and would subject the bill to a 60-vote point of order in the Senate, something conservatives are using this process to avoid.

Keep in mind this plan is extremely hypothetical. If they somehow navigate the minefield of very powerful people in the House (like Ways & Means Chair Kevin Brady (R-TX)), its chances in the Senate are very small at best.

Regardless, the plan gets big time kudos on style points. What it lacks in regular order it more than makes up for in procedural jujitsu-y-ness.

The Senate’s Return to Regular Order?

For the past week, Majority Leader McConnell experimented with an open amendment process in the Senate. Members offered amendments on everything from climate change, to federally protected land, to limiting the President’s ability to initiate and sign bilateral agreements with foreign countries. The broader question is can McConnell take a positive step toward a functioning Senate?

There are some positives to take away from the past week. Debate has gone smoothly for the most part. Senators have worked together on several fronts. Murkowski and Cantwell, the Chair and Ranking Member on Energy and Natural Resources Committee, have worked behind the scenes to find amendments both sides are willing to tackle. As a result the Senate has debated subjects such as climate change, potential limitations on informal and formal executive treaties, taxation of tar-sands oil, and topics such as private property versus eminent domain. Willingness to work through regular(ish) order has reinvigorated debate and deliberation over the last week. As a result the Senate has voted on more amendments in the last week than all of 2014.

However, it is not all good news. Yesterday some filibusters began to emerge. Several amendments were held to a 60-vote threshold, meaning that not all Senators would allow those votes unless there was an implicit understanding that they wouldn’t pass. As the afternoon turned into the evening, those the seemingly sparse filibusters turned into outright stalemate. The process came to a halt. In what appeared to be frustration or impatience, McConnell killed the pending amendments and filed cloture. This essentially guarantees the bill will move toward passage next week with few if any additional amendment votes. To an extent, the Senate we’ve come to know over the past few years reemerged.

Obviously the Keystone debate has been a more robust one than those in the 113th Congress. But last night highlights just how fragile the process really is. The majority opened up the process to allow the minority to participate. And as has been common among recent congressional minorities, they have wanted more time, more debate, and more amendments. In the eyes of the majority, they want to abuse their privileges. As a result the majority shuts down the process. Steven Smith, the Kate A. Gregg Distinguished Professor of Social Science at Washington University in St. Louis, refers to this erosion of cooperation as the Senate Syndrome, and it appears to have struck again in the third week of session. A week-long debate over amendments to an important bill is a positive step. But it is clear the process is fragile and trust between the parties is not high.

Lastly, Keystone is a unique case. High public visibility and bipartisan support grease the wheels of cooperation. In other words, it’s the type of bill where this kind of bipartisan process can flourish. However, not all issues enjoy broad support. And at some point, likely soon, stronger opposition will reemerge. At that point we’ll see if McConnell’s experiment with regular order is sustainable or if the Senate Syndrome will erode the good will that was built this past week.

Update: Great video of McConnell shutting down the process Thursday night.[embed]https://www.youtube.com/watch?v=yl4neFHnk84#t=147[/embed]

Senatorial Courtesy, Blue Slips Caught in the Fallout

Ian Millhiser has a very good piece on judicial nominations and blue slips over at Think Progress. It covers a lot of ground and is a wonderful read.

However, I do have some bones to pick with his take. At the core of Millhiser’s argument are blue slips and their place in Senate history. He contends that blue slips, the process by which home-state senators grant approval to president’s judicial nominees, has little rooting in Senate process and history. There are a couple problems with this.

First, blue slips are the Judiciary Committee’s extension of senatorial courtesy. While the formal practice of blue slips, with letters from the Committee to the nominee’s home state senators, extends back to at least 1917, senatorial courtesy extends to the 1st Congress (1789-1791). There is no formal rule outlining the practice but it stems from a very rich history of “advice and consent.” In this way, blue slips are not unlike many Senate practices. The Senate is heavily guided by customs and precedents. Blue slips are not an aberration to this principle. Rather, they are a modern example of that history.

Second, it is improper to compare today’s blue slip process with those in prior congresses. Given my training is in congressional development and history, this is not an argument I normally make. However, the advent of the post-nuclear Senate has fundamentally changed the importance of the blue slip process.

For most of Senate history, the blue slip process has not been absolute. Failure to approve of a nominee did not prevent floor consideration, though it often meant the demise of the nominee. Today, floor consideration for judicial nominees is fundamentally different. The minority party no longer has the ability to filibuster judicial nominees (except SCOTUS nominees). Because of this, the majority can run roughshod over minority opposition, effectively ignoring their concerns as they approve judicial nominees by majority vote.

This has shifted minority opposition from the floor to the committee room. With no other place to stop or slow the nomination process, it is not surprising that blue slips are now in the crosshairs.

Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, is the first Senator since James Eastland (D-MS) to use blue-slips as an effective veto on a nominee. As Forrest Maltzman and Sarah Binder point out, blue slips were never intended to be a veto. However, Leahy’s position as arbiter of the blue slip is much more precarious post-nuclear option. And in all likelihood it is untenable. Arguments like Millhiser’s illustrate Leahy’s predicament. Either Leahy adheres to his current blue slip practice and hopes Republicans honor it when they retake the majority (either in 2015 or later), or he can ignore it and ensure its demise under Republican majorities.

The nuclear-option has stressed the blue slip process. With no other avenues to object, the minority has turned to its few remaining tools. Unfortunately, the nuclear-option’s collateral damage includes the minority’s role in “advice and consent” on nominations, and now appears to threaten advisory practices that stem from senatorial courtesy.

In a polarized atmosphere it is easy to become frustrated with bipartisan practices, precedents, and customs. However, eroding these customs compromises the Senate’s function as the check on overambitious majorities.

Tradition v. Partisanship: Holds in a Post-Nuclear Senate

Originally posted for the Government Affairs Institute at Georgetown. Since roughly the 1950s, “holds” have been a staple of the Senate landscape. Though they can’t be found in the Senate rulebook or precedents, holds have played an important role in Senate operations. At times, holds have delayed or killed legislation, as well as executive and judicial nominations.  They also have been used to extract concessions. For example, senators use holds to bring their bills to the floor, to secure amendments, or as bargaining chips with the executive branch (particularly useful on executive branch nominees).

Ever since the Senate used the nuclear option on judicial and executive nominees, there has been a debate about whetherholds on nominations are dead and why. While they are not completely dead, the nuclear option drastically reduced their effectiveness from both a negotiating and delaying standpoint.

Why? A hold is effectively a threat to object to unanimous consent or to filibuster a nomination. Once a hold is made known, it is the majority leader’s prerogative to honor the hold or move ahead. The majority leader is the primary agenda setter in the Senate, so it is his decision. There are a lot of factors to consider, but time is the most important.  The majority leader has to weigh the importance of the nomination against the amount of time it will take to overcome the dilatory tactics that accompany trying to overcome a hold.

This means holds are effective on some nominations but not very effective on others. For example, holds on minor nominations – i.e., a district court judge or low level executive branch nominee – are particularly effective. It is unlikely the majority leader will want to spend a week of Senate floor time trying to overcome dilatory motions on a minor nomination. On the other hand, there is little chance the majority leader would honor a hold on a major nomination. Some positions are so important that the Senate must consider the nominee, regardless of the stalling tactics employed. For example, Janet Yellen, the Chairman of the Federal Reserve, would be considered, or at least voted on, regardless of the number of holds placed on her nomination.

In both senses, the nuclear option drastically reduced the effectiveness of holds. With only 51 votes required to invoke cloture, nominees can be considered and passed with only majority party votes.

What does this mean? As a tactical tool, holds are now much weaker. For one, there is no longer any need for the president or majority leader to consult with the minority leader on important nominations. In the pre-nuclear Senate, Republicans had significant negotiating power on big-time nominations like Yellen. It was significant enough that if they wanted, they could have denied cloture on Yellen and forced Obama to find another nominee. Today, the majority can effectively ignore the minority’s wishes and push ahead. Second, the Senate can now also move with ease to appoint nominees to more minor judgeships and executive branch positions. So even for nominations on which holds were considered the most effective, their utility is now drastically reduced.

This is where I depart from Jon Bernstein’s take. Yes, Republicans placed holds on almost all judicial and executive branch nominees. However, the effect of the nuclear option uniformly reduces the validity of a hold. The threat no longer carries the same weight. Not only will they not produce negotiating leverage, they also will not obstruct Senate operations to the same degree. The minority’s ability to prevent action, and therefore gain concessions if they wish, was undermined in a fundamental way. And as a result, the Senate has less reason to reach back to its tradition of bipartisanship.

The caveat is that this is temporary. Next Congress, the compromise that reduced debate time on more minor executive and judicial nominations will end. And as @Mansfield2016 points out, the minority could force 30-hours of debate on all nominations. This could have a huge effect. It is unlikely that the majority leader, whoever that may be, has 1) the followership in the respective caucuses to force all-night sessions on a routine basis or 2) the desire to use days of floor debate on lower level nominations, forcing the Senate to delay action on other bills or nominations.

In sum, the nuclear option has likely produced short-term relief for a president trying to fill the executive and judicial ranks. However, it has come at the expense of norms that encouraged the parties to interact. The next Congress will test whether the Senate is moving closer to a majoritarian type of institution.

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.

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.

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.

People know why the Senate is Weird, Quick Hit Style

We're swinging back into a semi-normal routine after vacation. If you haven't already read the BE Press Forum on the Senate, it has several very solid articles from multiple leading Senate scholars. If you have the time and interest, I recommend all of them (also, its free).

Jonathan Bernstein has a great take on who decides when congressional recesses occur. Beyond recommending his blog more generally, Bernstein always has excellent analyses on Senate confirmations or, more accurately, the lack thereof.

In a similar vein, Matt Glassman offers some perspective on recess appointments and constitutional powers more generally. It's a great read and digs a little deeper into the potential historical significance for the separation of powers.

Seth Masket over at Enik Rising challenges Kevin Drum's take on the filibuster. Is it at all similar to the pre-Civil War nullifcation crises? He thinks not. I agree though Thomas Mann doesn't.

Ok, this isn't about the Senate but over at The Monkey Cage Charles Tien and Michael Lewis-Beck offer their 2012 Election prediction based on consumers' perceptions of business conditions. I've used their analyses as a guide in a couple of my posts but reading the real thing is better. As conditions (read: perceptions) stand right now they predict a narrow victory for Obama in November. Keep in mind, this is before the President's campaign is in full swing (i.e. relatively little Obama spin on economic numbers compared to the Republicans' primary campaigns). My guess is that voters' perceptions will shift in Obama's favor as his campaign ramps up.

Happy 2012, everyone!

Belatedly Breaking Silence on Filibuster Reform

Before I move on to the point of this post, let’s raise our glasses to the lack of filibuster reform. Without the McConnell and Reed deal, we might have changed our blog’s name to some other obscure procedural reference. For now though, thank you filibuster for your resilience in the face of opposition (irony intended). Now, why didn’t the Senate reform the filibuster? There are a number of really great posts on this very subject from Gregory Koger (here and here), Steven Smith, and Jonathan Bernstein. If you haven’t read those, you should. For our part though, I made some fairly contrarian predictions (here and here). In short, we predicted why the filibuster would stick around and not be reformed.

One reason for this prediction is a different analytical frame. I used a historical/crisis perspective to analyze potential filibuster reform. I’m not going to argue that this is superior to the other perspectives listed above. Those scholars are entirely more knowledgeable than I on the filibuster and quite frankly have WAY more publications on the topic. Regardless, I thought it would be fun to recap how a historical institutionalist might interpret filibuster reform.

Generally speaking, historical institutionalists analyze how conflicting interests arise into moments of crisis. In this case, how will majority and minority competition in the Senate develop in such a way that procedural reform is necessary to solve the impending crisis? Now, measuring crisis is difficult and can be done using a variety of data. I used legislative production for simplicity. Granted, this wasn’t done systematically. I simply did so using my impression of legislative efficiency (really scientific, I know). This was a different tact to examine the filibuster; and possibly further removed from actual filibuster data. Many people observed the rise in cloture votes and invoked cloture as a sign that the filibuster was bringing Congress closer to crisis.

Rising cloture votes is certainly important to examining the filibuster but I don’t think it constitutes Senate crisis. Cloture votes are an indication of filibusters but they don’t really measure filibusters or minority obstruction for that matter. They measure how majority’s deal with filibusters. Is this important to Senate obstruction? Absolutely. Is it indicative of institutional crisis? Possibly, but it is certainly not the whole story.

We can’t discard the rise in cloture votes. It undoubtedly has a place in this discussion. However, we also need to consider how Congress, as a whole, was performing. And overall, the 111th performed well (very well by historical standards). In other words, filibuster frustration was due to inability to pass bills quickly. Not the inability to do anything at all. Here is what I mean. Filibusters mean less now than in the past. Changes in Senate rules have devalued the filibuster to an extent. The dual track system makes filibusters politically less costly (see Nate’s post). Before the dual track system filibusters stopped all legislation. Today the dual track system allows the Senate to continue in the face of filibuster threats to particular bills. So while the filibuster definitely slowed consideration for some bills, it didn’t prevent the Senate from legislating entirely. In short, while more time is spent voting on cloture, it doesn't completely halt the Senate's legislative productivity. It manages to continue passing legislation despite increased filibuster threats.

In this sense, the dual track system allows Senate to avoid complete institutional crisis. It serves as a buffer to filibuster reform. If the vast majority of the Democratic agenda was completely killed, it would have been reformed quickly. However, this wasn’t the case. The 111th Congress made monumental contributions to advancing gay rights, regulating the economy, and developing comprehensive healthcare policy, just to name a few. This production worked against institutional reform. Put simply: if it ain’t broke, don’t fix it.

Before you jump down my throat for saying the Senate isn’t broken, let me qualify that statement. Clearly, the use of the filibuster is a problem. It will probably be reformed in the relatively near future. However, what I’m suggesting is that the rise in cloture votes we see today is not an apocalyptic sign of institutional crisis but a characteristic of the modern, post dual-track, filibuster system. And while it’s important to consider this data, we need to keep in mind that it does not reflect pure obstructionism but how the majority chooses to deal with filibusters with a dual-track system. Until filibusters transform into more significant suppressive tool in the hands of the minority, we’ll continue to see the filibuster in its current form…at least according to this particular historical perspective.

Voting on the Coburn Amendment: Distributive or Horse Race Politics?

On Tuesday the Senate voted on an amendment sponsored by Tom Coburn of Oklahoma—political science’s favorite senator—that would have placed a temporary moratorium on the practice known as earmarking.  Exemplifying his disdain for the practice, Coburn in the past referred to earmarks as the “gateway drug” to Washington’s addictions.  Predictably, the amendment failed 56-39, falling short of the 50 votes needed for passage and well short of the 60 votes needed to end debate (the vote was technically a procedural one).  Of the roll-call, David Rogers of Politico noted the “impact of the 2010 elections—as well as 2012 on the horizon—was evident.”  Perhaps this is true.  But this logic, much like the remainder of Rogers’ article, focuses narrowly on horse race politics.  Is knowing the salience or proximity of the next election the only thing needed to explain Congressional action? Fortunately political scientists are not (usually) as myopic in their view.  Indeed, there are other plausible (if not better) reasons why a senator would vote for or against the earmark ban; reasons that have nothing to do with “wave elections.”  This begs the larger question which I want to address: Why would a senator vote to ban earmarking?  Was Tuesday’s roll-call just an electoral signal provided by 2010 coupled with fears of 2012, or are there other dynamics at work?

First, the bad news for 2010-as-electoral-signal-to-2012 meme: by my count only 34.5% of senators who voted for the ban are up for election in 2012 compared to 65.5% who voted against the ban.  Further, and perhaps even more damming, there are a number of vulnerable Democrats who voted “no” on Coburn’s amendment (Ben Nelson, Debbie Stabenow and Bob Casey Jr., among others).  Of course aggregate statistics can’t tell the whole story, but this fact suggests at the minimum that other factors are at work; at the maximum it suggests the electoral signal is only a minor factor.

So what other factors are there?  They are quite simple, actually.  Jon Kyl gives us one plausible alternative, stating that his support for the ban is partly “an expression of policy.”  Though earmarks account for such a small fraction of the federal budget (a fraction of 1%), deficit reduction is, after all, an ideological issue.  Thus, it may be that voting on the earmark ban is explained simply by a senator’s policy preferences.  Second, and I think most importantly, we know from empirical work in political science that senators from geographically small states wield disproportionate power in the Senate in their ability to distribute federal dollars (See Lee and Oppenheimer’s Sizing up the Senate).  Much like a seat on the Appropriations Committee (also a plausible alternative), it may be that the decision to vote against the earmark ban is a rational one, designed to safeguard a lawmakers' ability to “bring home the bacon.”  Thus, electorally vulnerable senators might safeguard their electoral future by doing to opposite of what Rogers suggests (voting against the band).  Of course this effect is complicated by another factor—senators can also distribute money to their constituents through block grants.  Unlike representatives, who must specify spending for their district if they want to claim credit, senators can distribute money directly to their state, allowing local lawmakers to determine how those funds are spent.  Still, it may be that senators from small states are less likely to abdicate a procedure that gives them a disproportion share of power in the upper chamber.

To analyze these competing perspectives I coded data for each senator’s ideology (using Poole’s common space NOMINATE scores), their state’s raw population, whether they are currently serving on Appropriations and whether they are up for reelection in 2012.  The dependent variable is their vote on the Coburn Amendment (No. 4697), coded 1 if the senator voted in favor of the earmark ban and 0 if against.  Here are those results:

What we see quietly clearly is that a senator’s ideology, their state’s population size and whether they currently serve on Appropriations are all significant determinants of how they voted on the Coburn amendment.  The results show that ideological conservatives are more likely to support the ban while senators from small states and who sit on appropriations are less likely to support the ban.  However, I find that being up for reelection in 2012 does not have a meaningful effect in this model (in fact the effect is negative).  Thus, the ability of a senator to distribute goods to her state trumps (at least in this case) the presumed “wave” or “electoral signal.”  As Lisa Murkowski put it in explaining her vote “I’m going to find the best path forward to make sure my state’s interests are represented."  Murkowski, of course, is a small-state senator who happens to sit on Appropriations.  And even further to the point, she voted against the ban on a similar amendment only months before her recent election fight from conservative Joe Miller.  If anyone were to vote for the ban, at least if it’s all about the horse race, it would have been Murkowski.

As an important aside, I tried multiple specifications of the above model with little variation in the overall results.  For example, I substituted party and ideology (they are highly collinear) and got the exact same findings.  I also added the results for each state from the 2010 midterm and calculated an interaction term between the reelection variable and the two-party vote share.  Though we can only model 66 senators in this specification, there is no evidence that senators up for reelection in republican leaning states were more likely as a group to vote for the ban.

Now it’s not that the electoral connection doesn’t matter here; it certainly does in some cases.  For example Olympia Snowe, who is facing a challenge from her right in 2012, switched her earlier vote and cast her ballot to ban earmarks.  And I don’t mean to be hard on Rogers, Politico or traditional media outlets.  Still, this fairly simple analysis took about an hour of data collection time; plus it isn't that hard to consider a range of alternative explanations.  But what I do think is that the media’s constant focus on horse race politics overlooks sometimes obvious explanations for congressional behavior.  A roll-call vote that is driven by obvious factors such as ideology and/or partisanship and a system of distributing federal dollars that confers disproportionate electoral advantage to some is suddenly framed exclusively against the backdrop of the next election.  Fortunately political science has something to offer….

Extra Point: For an excellent discussion of ways Congress can circumvent (potential) curbs on earmarks see the Capitol Confidential blog.

"Why won’t They Reform the Filibuster?"

Ezra Klein posted an article Friday about “Six things Obama has done Wrong.” His last point on the administration’s failures is their inability to change the filibuster. The filibuster has undoubtedly created problems for Democrats. As Klein mentioned, it held up just about everything since the stimulus package. However, I disagree with his reasoning for why filibuster reform has not occurred. In essence, Klein argues that American’s weren’t exposed to the argument that the administration’s shortcomings were a result of Republican obstruction. I think his take is both right and wrong. He’s right in the sense that not enough attention is directed at the filibuster. He’s wrong in the sense that it hasn’t received much attention. Let me make this a bit clearer. Filibuster reform has received a good amount of attention this Congress. In fact, the filibuster has garnered much more attention than usual. My contributors and I have spent a lot of time making sense of this frustration with congressional procedure over the past Congress (herehere, and here). It was a noticeable component of this Congress’s troubles and as such, it was mentioned several times via media outlets, Senate committee hearings, and politicians (i.e. Joe Biden, Harry Reid, Chuck Schumer, Nancy Pelosi, and recently in his interview with John Stewart, President Obama, just to name a few). Stalling tactics in Congress have been so pervasive over the past year, they have bled into public opinion. Jonathan Chait and Jon Bernstein point out that Republican opposition has had an effect on individuals’ perceptions of Democrats’ legislative productivity (Here is a recent Gallup poll. 3 out of 4 Americans believe this Congress has not done more than usual). In short, most people think this is an inefficient Congress. As Bernstein points out, liberal "opinion leaders" have undermined Democrats credibility. By continually framing Republicans as the "party of no," the media has led people to believe this past Congress was inefficient. It was repeated so often, they translated Republicans' opposition into legislative inefficiency. While this belief is off the mark, it wouldn't be possible without increased attention to opposition politics.

The reason frustration/attention hasn’t translated into reform is not because it lacks attention. As mentioned before, it's received plenty. The filibuster remains unchanged because 1) despite increased attention, it still isn’t enough; and 2) this Congress lacked a critical moment or opportunity to reform Senate rules. In other words, the filibuster is frustrating to the majority but Democrats still accomplished plenty.

Congressional reform is not a short-term process. Major reforms, such as a change to filibuster/cloture, develop over multiple Congresses, not one or two. The last reform to the filibuster was in 1975. It may have appeared to be a short burst of action that all of the sudden changed Senate debate, but it wasn’t. At the beginning of every Congress since 1953 reformers introduced a motion to reform the filibuster (I discuss the “constitutional option” here). There are instances stretching back to 1949 where politicians attempted to alter cloture. So what seems like a momentary change was really a culmination 22+ years. What made the reform seem sudden was the fact that it occurred during a time of high institutional turmoil. Several political scandals (Watergate, several congressional scandals i.e. Wilber Mills (D-AR). Julian Zelizer has a great book on this), the partisan composition of the chamber, among other things, created an opportunity for multiple congressional reforms. This is in stark contrast to the this decade. The 111th Congress is really only the second legitimate effort in ten year to change the cloture rule.

The slow-moving nature of filibuster reform is characteristic of major institutional changes more generally. To the left is part of a graph from my dissertation. It charts the number of salient efforts to reform Congress over 1948-2008 (coded from the Washington Post). The vertical lines are major reforms to Congress (from Schickler 2000, 2001). The horizontal line is the percentage of reform articles to total articles on Congress during that year (It's very low. The top of the graph represents 2% of all congressional coverage in the Post. Apologies for the missing y-axis). As the graph illustrates, major reforms in the post-war era occur during upswings in attention to reform. However, they also often occur at the tail end of increased attention to congressional reform. Major reforms are most likely to occur after a crisis (e.g. scandal) or when frustration with the process has reached a critical mass (e.g. 1995 reforms). Without getting into too many details, major congressional reforms are long-term movements. They erupt into major reform eras when reform momentum meets opportunity. The 1970s (i.e. the last time the filibuster was reformed) are a perfect example of that.

It will take longer than a year or two to gather traction. Klein’s point that more attention is needed to change Senate procedure is well taken. We also need to understand that reform doesn’t occur overnight. It’s more likely to occur over 5-10 years, maybe more. This past Congress lacked that critical moment where congressional procedure was the scapegoat of our major problems. So kudos to Klein for bringing attention to the filibuster. But reforming it will need more consistent attention over a longer time.

"The Man Who Never Was": Social-Psychology and Congressional Roll-Call Behavior

Todd Purdum, the national editor for Vanity Fair, penned an article recently titled “The Man Who Never Was.”  In his provocative article, and in numerous subsequent media appearances, Purdum describes John McCain as a “ruthless” and “vengeful” career politician.  Nothing shocking; politics is a contact sport.  But what I thought was interesting is Purdum’s suggestion that these latent qualities explain McCain’s Senate voting record.  Essentially, he argues that it is misleading to label McCain a “maverick” even though he behaved like a maverick.  The argument is similar to the argument in ideal point estimation—that deriving political preferences from roll-call votes is fraught with problems (for example in the presence of strategic voting).  Indeed, Purdum claims that McCain’s opposition to Bush and conservative Republicans on matters such as tax cuts and illegal immigration derived from his antipathy toward Bush (for why, see the 2008 South Carolina primary).  And on the flip side, McCain’s more loyal voting record in the (current) 111th Congress stems from his loathing of president Obama.  In short, as Purdum writes, McCain is “a creature of his emotions.”  Here are some interesting excerpts:

The prevailing question about John McCain this year is: What happened? What happened to that other John McCain, the refreshingly unpredictable figure who stood apart from his colleagues and seemed to promise something better than politics as usual? The question may miss the point…McCain has always lived for the fight, and he has defined himself most clearly in opposition to an enemy, whether that enemy was the rule-bound leadership of the United States Naval Academy, his North Vietnamese captors, the hometown Arizona press corps that never much liked him, his Republican congressional colleagues, the Reverend Jerry Falwell, George W. Bush, Donald Rumsfeld, Barack Obama, or J. D. Hayworth. He has always been more of an existential politician than a consequential one, in the sense that his influence has derived not from steady, unswerving pursuit of philosophical goals or legislative achievements but from the series of unpredictable—and sometimes spectacular—fights he has chosen to pick…For most of the time from his first election until his 2000 presidential campaign he was a reliable conservative Republican: pro-defense, anti-tax, anti-abortion, solid on social issues and the culture wars. But he was never a team player, never popular with his Republican colleagues, with whom he publicly quarreled on the slightest pretext, which made him seem more independent. It could just as easily be that he was more selfish.

I think Purdum raises an interesting theoretical puzzle that congressional scholars have generally failed to answer (or at least answer sufficiently): How does social-psychology affect roll-call behavior?  This theoretical question is one that I take-up in a recent paper on Senate voting.  In the paper, I note that senators elected from the House are more reliably partisan than senators elected from the Senate.  Of course, Rohde and Theriault have identified this trend as well in their excellent analysis of the “Gingrich Senators.”  But what I think distinguishes my work is the (social-psychological) theoretical explanation for this trend.  In simple terms, I argue that senators who serve in the House learn a more extreme brand of partisan behavior than senators who bypassed the House.  This learned behavior is either a kind of socialization or the learning of partisan legislative strategies. Though this may seem like a fairly simple argument, it contrasts with conventional thinking about the origins of individual-level partisanship (that partisans are rational actors seeking ideologically extreme policy or reelection).  Of course, as I note in the paper, I see the two theories as working in tandem rather than in opposition.

Overall, though I think Purdum overstates his case a bit, I think his argument—that McCain’s oscillating roll-call behavior stems from an internal psychological state rather than a rational calculus—is plausible and theoretically interesting.  Indeed it dovetails nicely with my aforementioned work.  Of course it’s too simplistic to argue that McCain’s recent trend toward the right has little to do with his challenge from J.D. Hayworth and everything to do with his dislike of Obama.  The “complete the danged fence” ad is clearly an attempt to shore up his conservative credentials.  Still, I think Purdum’s thesis has at least some explanatory power.  To assess this question empirically, we can explore McCain’s party loyalty scores over time (since this is the gist of the argument).  A party loyalty score of 1 indicates a senator or representative voted with his or her party on all contentious votes pitting at least 50% of one party against at least 50% of the other party.  Lower values indicate less loyal partisans.  Here is that data for McCain:

I include the Republican median party unity score and the associate standard deviation for comparability.  The last value “McCain Dist.” is McCain’s distance from the median member of his party.  We can see that McCain had a fairly “normal” partisan voting record by Republican standards from his first session in the Senate (102nd) until the 104th Congress.  In the 105th and 106th Congress McCain was about 7% less loyal than the median Republican.   Then, in the 107th Congress, McCain was 20% (!) less partisan than the median Republican (this is 2 standard deviations below the median).  This, of course, is the Congress immediately following Bush’s election (over McCain) in 2000.  After the 107th Congress McCain remains 1.5 to 2.0 standard deviations beneath the median in both the 108th and 109th congresses.  Then in the 110th McCain returns to the median position in order to boost his conservative credentials for the 2008 election.  Is this definitive evidence in favor of Purdum’s thesis?  Hardly.  But it shows that the empirics suggested by the theory work.  Overall, I think greater work is needed exploring how social-psychological forces affect congressional behavior.  Such explanations are currently out of “mainstream” congressional behavior.

Analyzing the Primary Elections Results

So, after the dust settled yesterday in our mid August primaries, where do we stand?  In Colorado, the Democratic establishment candidate, Michael Bennet, rode Obama's endorsement to victory as he beat Andrew Romanoff handily in the Democratic primary.    The Colorado GOP primary saw former Lt. Governor and GOP favored candidate Jane Norton lose to Ken Buck, a Tea Party darling.  If the Democratic establishment candidate emerging to face a Tea Party Republican sounds familiar to you, it should. Elsewhere, political novice Linda McMahon (yes, that Linda McMahon) launched a largely self funded campaign and will go on to challenge the Connecticut Attorney General Richard Blumenthal in the open seat election to fill Christopher Dodd's seat.

So what?  Well, the conventional wisdom is that primaries are generally seen as encouraging ideological extremism, where successful candidates are not necessarily the ones who are most likely to win in a general election.  Rather, successful primary candidates are generally more ideologically extreme than their general constituency because primary voters are generally more ideologically extreme way from a more moderate position.  The story goes that primary elections put candidates in ideologically extreme positions that are a disadvantage when trying to attract support from more moderate voters.

Is that what we saw yesterday?  Sort of, but not really.  The Democratic establishment candidates have done pretty well, generally fending off challengers from the left (excluding the PA Senate race as Arlen Specter could hardly be considered an establishment candidate).  On the other hand, the Republican party has seen its establishment candidates lose regularly to Tea Partiers - Utah, Nevada, Colorado and Kentucky - to name a few.

So what's missing?  Well, it seems that not all primary voters are as extreme as we like to think that they are.  Rather, we need to consider that primary voters, and the supporters in charge of GOTV campaigns, ebb and flow in response to the broader political climate.  Right now in the Democratic party, the GOTVers and primary voters aren't nearly as ideological as they are pragmatic.  On the other side, the Republican party is riding a wave they are having trouble controlling: the Tea Party movement is certainly bringing in a lot of enthusiasm but at the same time, seems to be pushing the GOP farther to the right than they want to be.

Oh, for the days before the Progressive Era reforms, eh Mitch McConnell?