Author Archive | Gregory Koger

Crowd-Filibustering in the Texas Senate

Yesterday, the Texas Senate was paralyzed on the last day of a special session by a 12 1/2 hour filibuster against a bill banning late-term abortions and setting strict standards for abortion facilities. (See the Texas Tribune’s liveblog for a detailed timeline). The primary obstructionist was Sen. Wendy Davis (D-Ft. Worth), but after she was cut off her fellow Democrats continued the filibuster, followed by an uproar from the public watching the Senate which was so thunderous that it halted proceedings. Eventually the bill failed and the session ended.

With the exception of the ending, this filibuster illustrates several themes that should be familiar to Monkey Cage readers, but may be worth repeating and highlighting. But the last point is the real novelty: in the end, this was a citizen filibuster.

1) Yes, Virginia, Texas has filibusters

Filibustering is not unique to the U.S. Senate. The Texas legislature, in particular, has a long tradition of obstruction. In fact, the Texas Legislative Reference Library has counted more than 100 filibusters from 1939 to 2011. Texas also boasts the longest recorded filibuster in American history: 43 hours vs. Strom Thurmond’s measly 24 hours in 1957. Many readers will remember the 2003 filibusters in the Texas House and Senate in which legislators fled the state to deny the majority party a quorum.

The general point is that filibustering is not a freakish anomaly of U.S. Senate history; it is a general phenomenon which occurs in legislative settings where actors exploit their existing rules and prerogatives to block measures and gain bargaining leverage.  (See also: Rhode Island)

Note that Texas legislators utilize multiple forms of filibustering: quorum-breaking, dilatory motions (votes on procedural motions to kill time), and prolonged speaking. Also, the TX Senate has a previous question motion to limit debate, but that does not mean that filibustering is impossible. As in the U.S. Congress, the previous question motion does not override all rights and can itself be filibustered.

2) And “Chubbing” Too!

Before this abortion bill came up on the TX Senate floor yesterday, its passage in the TX House was delayed for hours by “chubbing,” in which members of the TX House, whose speeches are limited to 10 minutes, exploit all the time available to them for speaking, and throw in procedural motions as well. As this “Texplainer” notes, TX House MCs often  begin their chubbing on the bills preceding their target measure to delay its arrival on the House floor. In my book on filibustering (pg. 114), I explain this tactic of blocking buffer bills to compensate for the difficulty of blocking the target measure once it is on the floor.

Keep this in mind as the Senate discusses reform measures like the Harkin proposal to lower the cloture threshold over multiple votes on the same issue. It sounds like it would allow a majority to govern the Senate, but in practice it would create an incentive for the minority to “chub” a variety of buffer bills (via multiple cloture votes) to maintain their bargaining leverage.

3) Real Filibustering Is Hard

Unlike the U.S. Senate, filibustering in the Texas Senate requires actual effort, as explained by the Texas Tribune:

During a filibuster, a senator is limited to topics relevant to the bill being discussed and cannot eat, drink or use the restroom during the speech. The rules also prohibit sitting or leaning on a desk or chair under any circumstances when the senator has the floor and is speaking on the bill or resolution.

Filibusters end either when the senator voluntarily yields the floor or after three violations of the rules for decorum and debate. After the third violation, the Senate can vote on a point of order, which if sustained would force the senator to yield the floor, according to the Legislative Reference Library of Texas website.


Davis had some experience filibustering, exercises regularly, and (unlike Rand Paul) planned ahead by wearing comfortable shoes. Still, after eight hours, she resorted to a back brace to maintain the effort of filibustering.

In the end, Davis was removed from the floor by the “three strikes” rule. This is a classic technique for clamping down on individual legislators (see Filibustering, pg. 22).

Note that the fine points of how one filibusters adds or subtracts from the difficult of an active filibuster. It would be easier to filibuster while sitting, or making repeated quorum calls, or sending documents to the chamber clerk to be read aloud. Standing and speaking is a grueling activity. A legislature that allows filibustering can nonetheless limit the power of obstruction by interpreting its rules to make filibustering as difficult as possible, and to make it as easy as possible to call members to order.

4) Germaneness is Hard…and Subject to Interpretation

One of Davis’s three strikes was due to the fact that another legislator helped her put on her back brace. The other two were “violations” of the germaneness requirement for discussing a) Planned Parenthood’s budget and b) a 2011 Texas law requiring sonograms before abortions. “Wait,” you might say, “both those topics have everything to do with abortion and access to abortion in Texas.” That is correct, but the proponents of the bill were looking for any opportunity to object that Davis’s speech was not specifically about the proposed bill.

The custom and precedents of the U.S. Senate, on the other hand, generally do not require senators to speak about the measure on the Senate floor. One exception is the “Pastore Rule,” adopted in 1964, which requires senators to speak about the bill on the floor for the first three hours of legislative discussion at the beginning of a new legislative day. During the mid-20th century, Southern senators blocking civil rights bills made a tactical choice to be “germane” when discussing these bills, but not by Texas standards. Their speeches were often vaguely related to civil rights bills, e.g. discussions of the history of the Constitution & states’ rights, the history of the filibuster, etc. If the U.S. Senate of that era had enforced a germaneness rule it would have been easier to defeat a filibuster.

5) the “official” record is…not so official

As the debate drew close to the midnight deadline, a crucial question was whether or not the votes to pass the bill occurred before midnight or after. As recounted in detail on the Texas Tribune liveblog, the official records first indicated that these votes were finalized on June 26—after midnight. Subsequently, someone edited the records to indicate that the votes occurred on June 25, and therefore were legitimate. After a prolonged caucus meeting, the majority party returned to the Senate floor and conceded.

But what if they didn’t? Actually, the U.S. Supreme Court has weighed in on the presumed validity of legislative journals in U.S. v. Ballin (1892):

[I]f reference may be had to such journal, it must be assumed to speak the truth. It cannot be that we can refer to the journal for the purpose of impeaching a statute properly authenticated and approved, and then supplement and strengthen that impeachment by parol evidence that the facts stated on the journal are not true, or that other facts existed which, if stated on the journal, would give force to the impeachment.

In short, the official record is official. If it has been doctored, well, who are we to judge?

6) Filibustering = Fame

Two days ago, I had not heard of Wendy Davis. Now I have. In the space of twelve hours, her name became a national phenomenon courtesy of social media. CNN notes that there were at least 730,000 tweets about Davis, including this gem:


This morning, Davis woke to find Texas columnists speculating about her gubernatorial prospects, and Republican consultants noting that her fundraising potential is now “unlimited.”

This is not unusual. Rand Paul gained attention during his March 2013 filibuster. While I cannot claim that this action was the only cause, it likely contributed to his subsequent victory in a straw poll of conservative activists and an early poll of New Hampshire Republicans. Earlier in Senate history, Strom Thurmond’s 1957 filibuster was done entirely for publicity (to the chagrin of his Southern colleagues), and Huey Long made an all-too-brief career out of spectacular filibusters. Robert La Follette’s 1908 filibuster against banking legislation was a cornerstone of his public reputation and was often mentioned as his most prominent action.

If the current U.S. Senate revises its rules to require more “talking” filibusters, it is noteworthy that this will have a profound effect on individual senators and the chamber they serve. There will be a greater opportunity for senators to forge a national reputation by making a carefully selected stand on some issue or another, and we should expect many senators to take this opportunity—often to the detriment of the majority party.

7) The Whole World Is Watching…And Filibustering

The real surprise of this filibuster is that, in the end, it was won by the crowd.

A classic argument for allowing filibusters is that they give legislators time to rally public opinion and get a sense of what their constituents really want. In the 1939 film Mr. Smith Goes to Washington, this is one of Smith’s goals: to give the masses a chance to voice support for their cause. Except, in the 1930s, this is not a realistic expectation:

Mr. Smith hears from “the people”


Smith’s access to public opinion is mediated by a hostile media, and in the end he gets Astoturfed by fake telegrams. In 2013, however, obstructionists have direct and immediate contact with the world. Let’s take another look at the Twitter trending for Wendy Davis:


But the crowd was not just virtual. During the day activists on both sides crowded into the Texas capitol and into the Senate galleries.  (blue = pro-bill; orange = anti-bill)

crowd in texas capitol 1

Davis’s filibuster ended around 10 pm when the presiding officer called her third “strike”. Other Democrats stretched out the debate with an appeal of the third strike and a series of time-killing parliamentary inquiries. Nonetheless,  the majority managed to finish votes to end debate, reject points of order, and (it appears) begin voting on final approval of the bill (concurring with the amendments of the House) before midnight.

Here we should note that there are lots of ways for legislators to vote. Thomas Edison developed an electronic voting machine for legislatures in 1869, but the U.S. House did not adopt electronic voting until the 1970s. U.S. Senators still vote by responding verbally when their name is called. In the Texas legislature, the clerk calls out a name and senators hold up one finger (aye) or two fingers (nay).

But what if senators cannot hear their names called? What if the galleries are filled with shouting, screaming, stomping, citizens trying to drown out the voting process? As it turns out, this is not a hypothetical.

As the votes unfolded, the onlookers became part of the filibuster.

tx senate gallery 1

 

You can hear the audio here starting about the 12:34 mark. The noise was part of the strategy, as the Texas Tribune’s liveblog notes:

The noise continued for nearly ten minutes unabated. At 11:55, a man on the second floor balcony removed a black “Rick Perry Sucks” T-shirt and began waving it as a banner. The crowd somehow began screaming and yelling louder. As every minute passed, activists put up fingers in the air to signify how many minutes were left until midnight.


The senators couldn’t hear, so they couldn’t vote.

While Davis and the other senators helped extend the debate into the final hour, in the end it was the crowd that killed the bill. And that makes it a unique filibuster.

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Political Science, NSF Funding, and the National Interest

As most readers of this blog know by now, on Wednesday Senator Mikulski (D-MD), the floor manager to H.R. 933, a bill to fund federal agencies for the remainder of the fiscal year, accepted an amendment (#65) offered by Tom Coburn (R-OK) to increase scrutiny of National Science Foundation grants in political science. According to the Library of Congress website, Coburn’s amendment was cosponsored by John McCain (R-AZ) and Mark Begich (D-AK). As adopted, the amendment states:

On page 193, between lines 11 and 12, insert the following:

Sec. __. (a) None of the funds made available by this Act may be used to carry out the functions of the Political Science Program in the Division of Social and Economic Sciences of the Directorate for Social, Behavioral, and Economic Sciences of the National Science Foundation, except for research projects that the Director of the National Science Foundation certifies as promoting national security or the economic interests of the United States. (emphasis added)

(b) The Director of the National Science Foundation shall publish a statement of the reason for each certification made pursuant to subsection (a) on the public website of the National Science Foundation.

(c) Any unobligated balances for the Political Science Program described in subsection (a) may be provided for other scientific research and studies that do not duplicate those being funded by other Federal agencies.


This version of the amendment was apparently the result of a compromise between Mikulski and Coburn. The initial version eliminated all NSF funding for political science (~$10 million), of which $7 million would be transferred to the National Cancer Institute. When the revised (and final) version of the amendment came up, Mikulski stated:

Mr. President, we have some good news. The good news is that the Senator and I have reached an agreement. There is an acceptable modification. I didn’t know if the Senator wanted to speak on this amendment. May I continue. This amendment ensures that the NSF funding for political science research is widely used focusing on national security and economic interests. I, therefore, believe we can agree to this amendment with a voice vote.

On Thursday the House of Representatives approved the Senate bill without modification, 318-109, and it goes to President Obama for his approval.

Reactions

In my view, this amendment means nothing. And it means everything.

I. Nothing


First, the [almost] nothing. I believe, as Mikulski apparently believes, that the national security and/or economic interest exceptions provided by the amendment are big enough to leave all, or almost all, grant-worthy research untouched. This is a common legislative tactic: a draconian rule paired with an executive branch waiver that everyone expects to be used. In doing so, Congress seems to take a bold stand while leaving the status quo virtually unchanged.


For example, the Cuban Liberty and Democratic Solidarity Act of 1996 (a.k.a. Helms-Burton) included a very controversial provision allowing Americans to sue foreign individuals and companies in U.S. courts for using the property they left behind in Cuba. This provision—which sparked protests and counter-laws in other countries—has been used exactly zero times, because section 306 of the law allows the President to suspend the lawsuit provision for six-month intervals. The real effect of the law is to force the President to sign a piece of paper every six months, which President Obama did most recently in January 2013.


Judging by the reactions I have seen and heard so far, it seems that many of my colleagues expect that the waiver will be interpreted narrowly—only proposals directly promoting national security or the U.S. economy have any chance of success. They probably plan to entitle their proposals “A Study to Increase National Security by Increasing the Economic Prosperity of the United States of America.”

First, I should briefly note that almost any NSF-funded project that involves spending money contributes to the U.S. economy.  While we don’t like to think of ourselves and our work as pork projects, it is undeniable that the NSF political science is $10 million of hard-working stimulus.

More seriously, I anticipate a broader reading of the waiver to apply to any study that directly or indirectly increases national security or prosperity. That is, a study can lead to something, which leads to something else, … which leads to national security & prosperity. It is easier to understand this form of reasoning if you participated in high school debate or have spent a lot of time reading books like “If You Give A Mouse A Cookie.”

Let me illustrate with what I consider to be a particularly easy case: polling public reactions to Senate filibusters. Coburn mentioned this study in his brief floor statement on the amendment, then came back to bash it again a minute later. I assume that this is simple modesty on his part: Coburn must think that nothing he or his colleagues does has any effect on American prosperity or security. Surely it is not the case that Coburn is trying to suppress scientific research into Republican obstruction.

So let’s start the justification. Assume at each point that appropriate sources are cited.

Step1: the U.S. economy is severely hindered by the refusal of our elected officials to resolve the nation’s long term fiscal problems with a stable compromise. This also includes Congress’s refusal to enact appropriations bills in a timely fashion—remember, we are talking about a bill to fund government agencies for the fiscal year starting October 1, 2012—or reauthorize major legislation affecting the domestic economy, e.g. highway spending, agriculture, and education. The uncertainty, delay, and confusion caused by this legislative dysfunction reduces economic growth and increases unemployment.


Step 2: the Senate filibuster is a major contributing factor to this dysfunction. [note: so is partisan polarization, so any study that helps explain why our politics are so polarized would be helpful here as well].


Step 3: the Senate filibuster cannot be fully understood without studying its public dimension. a) a classic justification for the filibuster is that, by delaying a measure, senators can “expand the game” by rallying public opinion…but we don’t know if this actually happens. b) recent research theorizes that legislators may filibuster to obtain political advantage rather than actually affect legislative outcomes, e.g. Strom Thurmond’s historic filibuster against the 1957 Civil Rights Act, but does not systematically test this claim with public opinion data.


Therefore, NSF funding of this project will help explain the incentives for senators to systematically degrade the national and international economy.

Or, we can justify this project on the basis of national security.

Step 1: in recent weeks, senators have filibustered nominees for the Secretary of Defense and CIA Director. And, in recent years, senators have placed blanket holds on all military promotions. In each case, senators have not opposed the nominees per se, but rather used them as hostages to gain leverage on some other issue.


Step 2: these filibusters have a negative impact on national security by disrupting the chain of command and reducing troop morale.


Step 3: we do not know whether citizens are aware of, and approve of, these filibusters. Nor do we know what kind of hostage-taking, if any, the general public accepts as a legitimate basis for jeopardizing national security. Only by polling before, during, and after such episodes can we understand public attitudes toward obstruction and why these filibusters occur.


While I think this particular project is well-justified, the irony of this form of justification is that in order to receive support for careful scientific testing of causal claims one might have to make unsubstantiated claims about how one’s research is linked to U.S. economic or security interests.

II. Everything


Even if the short-term effects are limited, I find this episode depressing. Of all the scientific endeavors, political science has been singled out for scorn and special scrutiny. Some media responses attribute this attack not to the notion that our research is “useless” but rather too important:

Singling out political science for a cut seems absurd, until you consider that political scientists conduct research about elected officials and also that this research (usually) doesn’t rely on access or parlor games. Unlike reporters, who must establish relationships to gain access and information—and risk getting shut out when they write something controversial—political scientists have been free to critique and explain our political process, warts and all, and have never had to fear political repercussions. Until now, it seems.


Even if the national security/economic interests waiver is liberally interpreted, it mandates a public record of each project’s justification along these lines which can itself be scrutinized and heckled by zealous legislators. The restrictions will expire at the end of this fiscal year, but there is no guarantee that Congress will actually pass new spending bills rather than continue the spending and restrictions of H.R. 933 into the future.

The larger point bears repeating: the Coburn amendment represents an assault on the scientific peer review process. Going forward, there is some risk that Coburn et al will be not-so-blind reviewers on every grant the NSF reviews, judging proposals not on their scientific merit or social value but their political implications.

It is also troublesome that the “compromise” version of the amendment focuses on national security and economic interests as the goal of legitimate research. The original mandate of the NSF was ”to promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense…” A great deal of high-value political science research advances the national welfare by evaluating how well our democratic system is functioning. Such research may not kill any terrorists or help any corporations make money, but it is extraordinarily valuable as a guide to a well-governed polity. By constricting the basis for acceptable research to national security and economic interests, the compromise suggests a troubling constriction of the mandate of the NSF which could, over time, expand to other disciplines as well. Going forward, a coordinated lobbying effort is needed not only to roll back the restrictions on political science but to defend the NSF’s core mission as a promoter of scientific research in the public good, broadly defined.

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Will the Senate start going to conference again?

Greg: Last week, the Senate adopted reforms to simplify its agenda-setting, handling of nominations, and sending bills to conference committees. Sarah Binder reviewed these reforms here and I surveyed them on Mischief of Faction. As a follow-up, I asked Josh Ryan, who researches conference committees and bicameral bargaining, to put the conference committee reforms in context and discuss their impact.

Josh’s post follows:

Conference committees are now rarely used in Congress, but observers hope the Senate rules changes made last week to limit the filibuster will result in an increase in conferencing. Disappointingly to proponents of reform, no changes were made to the 60 vote requirement, but Senate Resolution 16 is designed to reduce the number of motions necessary to convene a conference committee, thus reducing the opportunities for minority obstruction. It seems likely however, that the effects of these changes in the current Congress will be minimal.

It is accepted wisdom that the most significant and controversial bills go to conference, an ad hoc committee created solely for the purpose of resolving legislative differences between the House and Senate on a particular bill. Conferences have long been recognized as an important part of the legislative process. The committee is an opportunity for the House and Senate to reach a compromise by splitting their differences on a bill or by moderating one chamber’s version of the legislation. Conferences also allow the bill’s most interested and knowledgeable members to hammer out the details, and because members of the conference committee are usually strong proponents of the bill, there are powerful incentives to reach a compromise. Once members of the conference agree, the revised version of the legislation is sent back to both chambers for a final vote and cannot be amended.

Counts vary, but in the 1970s, between 15% and 30% of bills were reconciled using a conference, while in the 2000s less than 10% of bills went to conference. The most notable recent example of a bill bypassing the conference process is the 2010 health care reform bill, but other significant legislation has also been resolved using the alternative to conferencing, a process known as amendment trading or “ping-ponging,” where the chambers amend and pass a bill back and forth until they agree on the same wording.

Amendment trading is seen as less deliberative than a conference—it involves all members of Congress, there are limitations on how many changes can be made to the bill (the rules allow a bill to be passed between the chambers a maximum of three times though this limitation is often waived), and the process tends to occur more quickly. Though the rates of success for amendment trading and conferencing are about the same, amendment trading produces different legislative outcomes. Because exchanging amendments resembles the normal passage process, it may involve vote-trading, the inclusion of extraneous amendments, and increased leadership influence. In contrast, conferees have wide discretion to modify the legislation free from the influence of both the leadership and other members, and because the modified legislation is subject to an all or nothing vote in both chambers, it can be passed without much of the within-chamber bargaining necessary to successfully amend the bill on the floor.

Prior to the adoption of last week’s reforms, the process for going to conference in the Senate was convoluted, to say the least. It required three separate motions: a motion to disagree with the House amendments, a motion to request a conference with the House, and a motion to appoint conferees. Not surprisingly, increased polarization gets much of the blame for the decline in conference committees. Amazingly, each of the three motions was subject to debate and a potential filibuster. Senate norms and comity previously meant these motions were pro forma, but no longer. Oleszek (2007) recounts how Republican Senators filibustered each of the three motions on a 1993 campaign finance bill and quotes then Senate Majority leader George Mitchell as saying, “In the 210 years in the history of the United States Senate, never—until last week—has there been a series of filibusters on taking a bill to conference [262].” Oleszek goes on to say, “By the early 2000s, given an environment of sharper partisan conflict, what had been precedent-shattering to Majority Leader Mitchell in 1994 became a fairly common occurrence in the Senate [262].”

As noted on this blog and in much of the political science research, a filibuster threat can be as powerful as actually carrying one out. Despite the fact that we rarely observe filibusters on the conference motions, the Senate majority is often unwilling to go through the process of attempting a conference in anticipation of a possible filibuster. The reasons why the Senate minority prefers to force the majority to use amendment trading is unclear. Amendment trading may allow the minority a greater say in the legislation, it may offer more opportunities to delay or obstruct, or it could force the majority into adopting less dramatic or comprehensive policy change. Whatever the reason, the result is the same. If the minority threatens to filibuster the conference motions, the time costs to the majority become too great and amendment trading becomes the preferred option.

The rules changes made last week combine the three conference motions into one and specifies that the cloture motion to end debate on the conference motion is itself only debatable for two hours. At that point the Senate will vote on the cloture motion, then on the conference motion (having now been combined into a single motion rather than three), effectively deciding, more or less immediately, whether or not to conference. In short, the amount of time it takes to end debate on the motion to conference will be greatly reduced, making conferencing once again a viable option for the majority.

Will this increase the number of conferences? The changes may matter when both chambers are controlled by the same party but not when they are controlled by different parties. For legislation that both the Republican-controlled House and Democratic-controlled Senate agree on, it’s unlikely Senate Republicans would prevent the bill from going to conference given that the legislation has widespread agreement among Republicans. The bill is also supported by the Senate’s Republican colleagues in the House after all. Under unified party control of the chambers however, the Senate minority has a much stronger incentive to use the threat of a filibuster to hinder legislative action. Even after Resolution 16, the motion to go to conference is still subject to debate, and it still requires 60 votes to invoke cloture, but the new rules greatly reduce the power of the minority to delay and ultimately block a conference altogether.  An increase in the number of conference committees may occur, but only during periods of unified party control of the House and Senate.

The recent changes may have been successful because in the current partisan divided, it still takes agreement from both parties to convene a conference committee. In other words, neither the majority Democrats nor the minority Republicans had much to lose. This raises the question of why the Senate even bothered to change the rules. Perhaps it’s because Senators think they have a lot to gain in the future. If their party controls both chambers in a subsequent term, it will be much easier to convene a conference committee.

References

Oleszek, Walter J. Congressional Procedures and the Policy Process. 7th Edition. Washington, D.C.: CQ Press.

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Sign the Petition: No Death Star!

Last May, this blog published my essay against building a Death Star. And, not to brag,  but at the time I thought we had saved trillions* of lives. With the help of re-posts by WonkblogGizmodo, and legions of social media warriors, the Monkey Cage squelched any thoughts of building a Death Star and saved the lives of countless planets.

Imagine my shock, then, to hear that a petition to the White House had received the 25,000 signatures it needed to force an official response from the White House. I’ve got a bad feeling about this.

This cannot be ignored. I urge every Monkey Cage reader to sign this White House petition to:

ban the development or deployment of a Death Star, or any other moon-sized space station capable of destroying a planet.

Allow me to recapitulate the case against a Death Star:

1) Compared to more discrete alternatives, the Death Star is an inefficient strategy for subduing the population and elites of the galaxy.

2) The money and materials used to build the Death Star would be put to better use upgrading the conventional weapons of the Imperial army.


In the current budgetary environment, the second point is especially important. As we all know, the 2011 debt limit agreement included mandatory reductions in defense spending—the “sequester”—starting in fiscal year 2013. The Department of Defense budget is slated to decrease by $259.4 billion. And yet the advocates for a new Death Star plan to launch it in the midst of this austerity despite its$85.2 quintillion price tag.

Perhaps you are wondering, is an anti-Death Star petition really necessary? Surely the Obama administration will treat the pro-Death Star petition like it’s some sort of joke, even if it means enduring criticism that it is “soft on Alderaan.” Perhaps. But having destroyed the argument for the Death Star once, I was surprised to find that the pro-Death Star forces had moved to in another venue, displacing the local population and threatening the galaxy. I fear they will continue to keep trying until the federal government  sets a clear no-Death Star policy.

So please, sign the petition. The planet you save may be your own.

*My best guess, pending CBO scoring.

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The Failure of Plan B

After the House Republicans punted on legislation to extend the Bush tax cuts for all non-millionaires last night, today’s news cycle has been focused on a) what the failure of “Plan B” means for the fiscal cliff negotiations and b) what the failure means for Speaker Boehner. After great posts by Ezra Klein, Sarah Binder, Matthew Green, and dozens of others, I thought my best contribution might be a close read of the legislative history. So I started by reading (summaries of…seriously, have you ever tried reading actual legislation?) the Plan B legislation to glean its lessons.

Lesson 1: Tis the season for immaculate taxception!

Plan B actually featured two pieces of legislation: first, a bill to block defense sequestration and offset this spending with domestic spending cuts (see below), and legislation to extend current tax rates for non-millionaires. The House GOP brought them up together with a single “special rule” proposed by the Rules Committee. Ordinarily, a special rule (so called because the House literally makes up new rules for each piece of legislation) makes a single bill in order. Over the last couple decades, however, the majority party has occasionally used a “MIRV rule,” which brings up multiple pieces of legislation that are formally separate but informally tied together.*

Why not two rules? Or one rule and one big bill of spending and taxes? One benefit of this MIRV rule is that the meaning of a vote for the rule is obscured; a member can say s/he was really voting bring up one bill and not the other. And by separating the bills, it is possible for the coalition supporting one bill to differ from the coalition supporting the other—or for one bill to fail while the other passes. In this case, a Republican MC could deny voting to bring “tax increase” legislation to the floor.

While the media report what the House was going to vote on, the bill actually on the floor was a bill to continue sanctions on Burma, to which the Senate attached disaster relief spending in 2011. The special rule empowered the chair of the Committee on Ways and Means to strike all the Senate’s text and introduce the GOP amendment. In other words, the House GOP was recycling an old bill rather than write a new one, thereby avoiding the scrutiny that occurs when the public can read a bill for, let’s say, three days before it comes to the House floor.

Lesson 2: Sacrifice seems to be the hardest word

While most of the attention is on the failure of the House GOP to even bring its tax legislation to a vote, the opening act was the narrow passage of a bill to stave off the defense sequestration and substitute domestic spending cuts instead. Read the Voteview analysis of the 215-209 vote here. But I also recommend reading the CRS summary of the bill. It includes items like:

  • cutting food stamps for Puerto Rico and American Samoa.

  • blocking HHS grants to help states set up health exchanges

  • “Repeals provisions that increased Medicaid payments to territories though FY2019. Decreases the federal medical assistance percentage (FMAP) for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.”

  • eliminating the Dodd-Frank plan (the Orderly Transition Fund) to help large too-big-to-fail firms in crisis (as I read it)

  •  eliminating the Federal Reserve’s funding authority for the Consumer Financial Protection Bureau (as I read it)

  • malpractice lawsuit reform

  • Repeals the program of block grants to states for social services under title XX (Block Grants to States for Social Services)

While I am not briefed on the details of Speaker Boehner’s negotiations with President Obama, I would guess that some these are not mutually agreeable, which suggests its likelihood of becoming law are extremely low.


So What Just Happened?

After reading Robert Draper’s book on the 2011 debt limit fight, I was impressed by the House GOP’s ability to get ahead of the Democrats by passing bills that embodied their negotiating position through the House and then publicly insisting that the Democrats either accept their legislation or produce their own. Plan B seems to be an instance of the same strategy. The House GOP leaders probably did not really expect they would pass the Senate and become law. But, once the House passed the Plan B bills, its members could go home and wait for the Senate to either pass their bills (which would be a huge GOP win) or to take the blame for the crisis extending into 2013—a political win for the GOP, improving their bargaining position in January.


Of course, in order to pull this off, the House GOP had to vote to allow taxes on millionaires to go up. Some might consider that a vote to increase taxes, so as individuals the House Republicans who voted for the tax bill could face opponents in the 2014 primaries accusing them of raising taxes. This is a classic collective action dilemma: even if the bill was good politics for the Republicans collectively, as individuals it was very costly for Republicans to support.


If, as seems likely to me, there will be no fiscal cliff compromise in 2012, the House GOP will have to defend its actions without the political cover provided by the Plan B bills. If the GOP ends up bearing most of the blame, Speaker Boehner’s position would arguably improve; he will be able to remind his conference that they would have been better off politically and gotten a better deal if they had followed his lead yesterday.

  • an earlier example: a 1999 special rule bringing up a juvenile justice bill and a gun show background checks bill in the wake of the Columbine shooting.
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Will Merkley & Warren’s “talking filibuster” proposal work?

Last Friday, our friends at Wonkblog posted the comments of two Monkey Cagers on Senator Merkley’s proposed-but-still-vague reform. I thought I would elaborate on whether Merkley’s proposed reforms will help make the Senate more effective…or at least less of a disaster.

First, some background on what the Senate reformers are talking about:  HuffPo says,

The critical component, though, is a mechanism that would force senators to physically take the floor and speak in order to maintain opposition to legislation. The effort to end a filibuster is called a cloture motion. Under the proposed rules, if a cloture vote failed to win a simple majority, the bill would be killed and the Senate would move to new business. But if it won a majority—though less than a supermajority of 60—the bill would remain on the floor for any senator who wished to opine on it. If at some point no senator rose to speak, after given several chances to do so, a new vote would be called—and only a simple majority would be needed to pass it.

[…]

Merkely said that the package he and his allies put together will also include more direct reforms. Reid has suggested simply eliminating the filibuster on the motion to proceed to debate, which would save the Senate many hundreds of hours of wasted time the course of a term. Merkley said such a provision was likely to make it into the final package, as well as restrictions on filibustering efforts to send a bill to conference.


There are two ways to think about this reform, or any others that may be discussed. First, how does this change the filibustering game? And, for which proposals is this most likely to make a difference?

Q1: It could make a difference on major bills for which the pro-bill (or nomination) coalition is more intense than the anti-bill coalition. If we compare four major bills from the 111th Congress, I would guess that this would have been most helpful on the stimulus and banking reform bills, since Republicans—even with more conservative constituencies—may have faced some criticism in their home states for blocking efforts to (respectively) stop the economy’s tailspin and address the cause of the Great Recession. On the other hand, Republicans probably would have lined up all day to stop health care reform and climate change/cap & trade.

But the devil is in the details. One of the key points I make in my book and follow-up commentary is that senators can’t just wave a magic wand and revert to Mr. Smith Goes to Washington-style “attrition” filibusters. There are reasons the filibustering game changed in the 1960s, and the Senate can’t go back unless it is as difficult or more difficult to conduct a filibuster as it is to fight against one. The problem with a classic  attrition filibuster is that a single obstructionist could demand the attention and disrupt the sleep of a majority of the Senate, as Smith does in the movie. That is, the costs of the two sides are asymmetrical, so it is easier to filibuster than to outlast a filibuster. A determined majority could outlast a single obstructionist, or a few senators, but an organized succession of twenty or so senators could occupy the floor one at a time, each demanding the presence of a majority of the Senate. In order to restore attrition filibusters, the Senate needs to balance the rules of the game so that only one pro-bill senator is required to stay in the chamber while an anti-bill senator filibusters.

For example, let’s say a narrow majority votes for cloture and the Senate begins a Merkley-style attrition filibuster..

(1) does post-cloture vote debate have to be germane? Let’s say the bill in question is immigration reform; can a filibustering senator give a twelve-hour speech on U.S. policy in Afghanistan? Or the Petraeus affair? If so, a Merkley filibuster simply grants the opposition a monopoly on C-SPAN to express their political message for the day.

(2) Can a filibustering senator call for a quorum? If s/he does so, does s/he lose the floor? (“Yes” is the current answer) or does a quorum call constitute the end of the debate phase altogether?

(3) What if there are votes on amendments to the bill during the debate phase—does that “end” debate? If not, what if there are hundreds of votes on amendments?

(4) can a senator raise a point of order during the debate phase and request a roll call vote? If so, what if s/he does this dozens of times?

(5) if the post-vote debate ends and there are still amendments outstanding, does the Senate immediately vote on the underlying bill? Or is there a marathon of votes on amendments until they are all disposed of? If the latter, how does the rule prevent a filibuster-by-amendment?

These are questions that can be answered, and I would expect the final draft of the proposal to address these questions. But I merely suggest that designing an effective reform can be tricky.

Q2: Which bills would benefit the most? I would guess that this reform would most benefit major bills that the minority party is willing to block covertly but not overtly. I am still stunned that the GOP did as much as it did to block Dodd-Frank, and if they had to do it in front of the cameras and take time from their fundraising schedules to actually debate the bill, it may have passed much faster. It would also benefit the middle tier of bills that are important enough to merit a cloture vote and floor time provided the opposition is not intense. This category could include legislation like appropriations bills, reauthorization of traditionally bipartisan bills (highway funding, agriculture), and possibly appellate court nominations. These bills would also benefit greatly from the elimination of filibusters against motions to proceed. Obviously, one filibuster against a bill is less than two filibusters but, more subtly, a filibuster against a bill that is on the floor of the Senate can be more politically costly than a filibuster to keep it off the floor in the first place.

The Merkley proposal (as outlined) does less to help low-priority bills and nominations that are not salient enough to merit a cloture vote. For these measures, the threat of a filibuster would still be sufficient to keep them in limbo. This is not an argument against Merkley’s proposal, but it does mean that in order for the Senate to consider these proposals more efficiently and fairly, some sort of expedited cloture process would also be helpful.

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Does Medicaid matter? If only we could arbitrarily deny coverage to some poor people…

Since health care coverage is likely to be a hot topic this week, I thought I would share a podcast highlight from my weekend:  Planet Money’s “Does Medicaid Actually Help People?” There is (apparently) a debate on whether needy people would be better off relying on emergency rooms and charity than Medicaid. One could try to test the effect of Medicaid by comparing the health & wealth of people enrolled in Medicaid with similar people who are not enrolled, but this is complicated by selection effects. Scholars could try to resolve this with an experiment, but this runs afoul of human subjects regulations and, well, basic morality:

You can’t do a big study where you take a big group of poor people, give half of them access to health care and half of them you don’t. That is not seen as ethical.*


Luckily, in 2008, Oregon offered just such an experiment. It could only afford to offer coverage to 10,000 of the 90,000 eligible applicants for its Medicaid program, and chose to allocate the slots by lottery. A team of health policy & economics scholars is tracing the effects of this natural experiment, as Dan Hopkins recently mentioned.

The first article from this project came out last year and found that Medicaid substantially increased the recipients’ economic security and self-evaluations of their health:

We found that Medicaid improves financial security. Medicaid reduces by 40% the probability that people report having to borrow money or skip payment on other bills because of medical expenses. Although it does not appear to reduce their risk of bankruptcy (at least in the first year), it decreases by 25% the probability that they will have unpaid medical bills that are sent to a collection agency. This effect benefits not only the insured but, since the vast majority of bills sent to a collection agency are never paid, also those who may ultimately help to finance this unpaid care, including health care providers and the public sector.


We also found that being covered by Medicaid improves self-reported health as compared with being uninsured. Medicaid enrollees are 25% more likely to indicate that they’re in good, very good, or excellent health (vs. fair or poor health). They are 25% less likely to screen positive for depression. They are even 30% more likely to report that they are pretty happy or very happy (vs. not too happy).


Now, unless the SCOTUS strikes down the entire health care law, the expansion of Medicaid coverage in the law will presumably stand. Nonetheless, this is good reading if one if evaluating the argument that we should have the right to go without health insurance.

*(Damn you, IRB!)

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Why the Individual Mandate might not be a “Mandate”

The Patient Protection and Affordable Care Act (PPACA) will likely be back on the front pages soon when the Supreme Court announces its decision on the law’s constitutionality. I want to mention a paper by some of my colleagues at the University of Miami that makes an interesting point about the individual mandate: it might not be a “mandate” at all. Instead, the PPACA might simply nudge the insurance market from one market equilibrium to another, so that insurance companies offer insurance at a lower price and everyone, including healthy low-risk consumers, chooses to buy insurance at the lower price.

The paper, entitled “Does the Individual Mandate Force Individuals to Buy Insurance?” posits that there are low-risk and high-risk consumers who will buy insurance if the price is equal to or below their expected health care costs. An insurance company (constrained by the threat of a new entrant) sets the price of insurance, based in part on the mix of low- and high-risk consumers. The insurer might end of setting the price so high that only high-risk consumers will pay, or so low that everyone will gladly pay.

The interesting case occurs when there is a balanced mix of consumers and the insurance company can make the same profit with a high or low price. In this case, the effect of a government “mandate” is to move the market from a high-price equilibrium to a low-price equilibrium in which insurers are not harmed and consumers are not coerced to buy insurance at a price they now find affordable.  The authors conclude:

our model shows that, under certain conditions, the mandate plays no role in each individual’s decision to purchase. In fact, our model shows that individuals would choose to buy insurance even if they were not conscious of the penalties associated with the mandate. All they need to be conscious of is the price.

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Time and Intensity: Classic Filibustering in the Senate

I was intrigued by yesterday’s TMC post on storable votes by  Alessandra Casella and Sébastien Turban. Essentially, they propose that, in lieu of the filibuster as a defense against tyranny of the majority, the Senate should allocate each senator a “budget” of votes which they can allocate across proposals as they like, so each senator can “spend” a lot of votes on proposals that s/he considers very important.

As a practical matter, the Senate already has something like this system in the form of legislators’ time. Each member of the Senate starts out with the same amount of time before the next election and similar legislative staff allocations (plus bonuses for committee chairs). Then each senator makes two allocation decisions: first, how much time will s/he spend legislating instead of fundraising, visiting the home state, or hanging out with the family? Second, how much legislative time will s/he allocate to each issue? If senators’ time & staff resources are limited and senators’ efforts influence whether a proposal succeeds or fails, then the allocation of time is an indirect form of measuring and incorporating preference intensity into the legislative process.

Two features of the Senate filibuster interfere with this informal system for accommodating preference intensity. First, as Casella and Turban note, since the modern filibuster is a de facto 60-vote supermajority requirement, there is no mechanism to ensure that the more intense side wins the vote on cloture. Second, if senators use cloture petitions to end a filibuster, there are some hoops built into the process: collecting signatures, filing the petition, waiting two days (usually this time is spent on another issue) and then actually forcing senators to leave their offices/committee hearings/fundraisers to vote. This means that any senator can cheaply impose a “minimum bid” on a proposal by threatening to filibuster it. In this sense, a “hold” (or a threat to filibuster a measure) can be a de facto filibuster if the other senators are not willing to invest enough time to overcome the threatened filibuster.

The classic filibuster-by-attrition was fundamentally different and closer to a pure comparison of intensity. In these filibusters, a team of obstructionists would invest time in blocking a measure while the other senators would invest their own time and the time of the chamber to wait them out. The team that lasted longer won. As long as senators on both sides of the fight attached equal value to their own time and the time of the chamber, this was a fair fight and the team willing to make the biggest allocation of time would win. As discussed here, this system broke down when senators realized it was harder to beat a filibuster than it was to keep a filibuster going.

Further reading (additional suggestions welcome in comments section!)

The best discussion of legislators’ allocation of time for legislative work is Richard Hall’s Participation in Congress. Hall and Richard Deardorff apply this idea to the question, how do lobbyists influence the legislative process. Jonathan Woon studies the allocation of senators’ attention across proposals. Kathleen Bawn & I developed a model of competing factions investing effort and applied it to filibusters.

 

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Thoughts on the Lawsuit Against Filibustering in the Senate

I have to confess I am very excited that Common Cause has filed a lawsuit against the Senate filibuster. Excited in a John Stuart Mill, isn’t-it-great-when-bad-arguments-get-aired-and-demolished kind of way. For decades, opponents of the filibuster have claimed that it is “unconstitutional.” Now they will get their day in court and if, as I expect, they lose, then we can return the question of if and how senators will address the systemic problems of their chamber.

I have already discussed the constitutionality in a previous post. After reading the plaintiffs’ brief, I have a few additional thoughts.

1) The Constitution does not require Congress to utilize simple majority rule.

The central argument of the brief is that the use of supermajority procedures in the U.S. Congress is inherently unconstitutional. It states, “The principle of majority was so basic to the concept of a democratically elected legislative body that it did not need to be expressly stated in the Constitution.” Of course, too-important-to-be-written looks exactly like n0t-important-enough-to-include, so affirming this claim would invite a series of lawsuits claiming other “obvious but unwritten” principles.

The brief goes on to claim that “when the framers of the Constitution intended to create exceptions to the principle of majority rule…they did so expressly by six specific provisions of the Constitution.” It is surprising to see progressives arguing for a literal and historical interpretation of the Constitution, but what happens if we take this argument at face value? Then every supermajority procedure used by Congress is prohibited and has always been wrong. In addition to the Senate’s Rule 22, an absolute ban on supermajority thresholds would also take with it:

  • the Senate rule requiring 60 votes to waive the Budget Act

  • The Senate practice (but not a rule) of requiring a 2/3 majority to waive Senate rules

  • The House rule—dating back to 1822—of requiring a 2/3 majority to waive Senate rules.

  • A variety of little-used or often-waived House supermajority thresholds—to waive Calendar Wednesday, to raise taxes, to pass bills on the “Corrections Calendar.”

The 3rd point is worth emphasis. While it is fair to say that the House is a chamber in which a majority can pass almost any legislation and this system provides great advantages to the majority party, it would also be fair to say that in practice the House does most of its legislation by supermajority vote. During the 111th Congress, the House 130 votes on final passage of bills or resolutions (excluding special rules proposed by the Rules Committee) and 695 votes on final passage of bills under suspension of the rules, which requires a 2/3 supermajority. What makes the House distinct from the Senate is not that it only uses simple majority rule, but that it has a regular process for passing legislation by simple majority rule when the majority party chooses to do so.

2) Technically, bills and nominations are passing by majority rule. The Senate’s cloture rule is used to limit debate, and the alternative to using the cloture rule is allowing senators to debate until they have all had their say. This is completely impractical in the modern Senate, but it is possible that a court will care more about the formal rules of the Senate than the practice.

3) The brief also makes the classic “standing body” argument: the permanence of Senate rules and the ability of senators to filibuster proposals to change the rules creates an unconstitutional barrier against the ability of each new group of senators to choose their rules anew. This argument faces two challenges: 1) senators could renounce this system at the beginning of a new Congress if they want to do so; 2) they have repeatedly voted against doing so. It seems unlikely that federal courts will mandate a specific, oft-rejected process for choosing Senate rules.

4) The brief—and Ezra Klein’s recent post on the suit—relies in large part on the claim that the Senate filibuster persists due to the Senate’s 1806 decision to eliminate the previous question motion from its rules. This is a complex argument that deserves its own post; suffice it to say that I think it is absolutely wrong. In the long run, rules don’t make legislatures; legislators make rules.  Until I have the time to write a full post, I repeat from August 2009:

First, the House retained its previous question motion but there was MORE filibustering in the 19th century House than in the Senate, because the previous question was ineffective against dilatory motions and quorum-breaking.


Second, as Joe Cooper proved back in 1962, the previous question motion was not originally used to limit debate (See “The Previous Question: Its Status as a Precedent for Cloture,” Senate Document No. 104, 87th Congress, 2nd Session). So the existence of this motion in the 1789 Senate rules does NOT suggest that the early Senate was committed to majority rule.


Third, and most important, the previous question is NOT the only motion that can be used limit debate. There are any number of strategies that can be used to limit obstruction: in the final analysis, senators are only constrained by their imagination and their constituents’ taste for procedural reform. If senators are determined to restrict filibustering (which I would not recommend—more on this later) I personally think the simplest mechanism would be to revise the interpretation and use of the motion to suspend the rules. Or, they can adopt the Republicans (circa 2005) doublethink approach of “60 means 50”, i.e. the “true” threshold for cloture on some issues is simple majority. Or, as one senator suggested in 1915, any senator can move the previous question and—with the support of a determined majority—defeat the inevitable point of order that the Senate doesn’t have one. The means don’t matter: what senators lack—and have always lacked—is the desire to impose majority rule.


5) What happens if Common Cause wins? While I am skeptical of the arguments made in the brief, I am sympathetic with the critique of the Senate that motivates the suit. The Senate has ceased to be a functioning organization. The Republicans generally don’t want anything to pass, and when legislation does come to the floor the Republican often demands roll call votes on “message” amendments that provide fodder for the current news cycle and the next campaign. The Democrats, whose majority is based on winning seats in red states, don’t want to vote on these amendments. And so there is a stalemate in which must-pass legislation is put off until the final moment while they wait for each other to blink and nothing else gets done.

The ability of senators to filibuster certainly exacerbates this situation, but the real problem is senators’ collective lack of interest in governing. As Senator Snowe put it on today’s Morning Joe,

We’re not grappling with the questions that could turn this economy around. That’s why you are having this sub par economic growth… [A] messaging amendment doesn’t put food on the table, doesn’t elevate your wages, doesn’t create a job or lower gasoline prices. It’s all about the next election. We’ve been all about the next election since the last election. It’s true. I mean there was no difference between campaigning and governing anymore. And yet people are out there experiencing significant financial hardship and they don’t understand how it can be so broken in Washington.


When many senators are unwilling to cooperate or compromise for fear of losing their next primary or blurring party distinctions before the next election, it is nearly impossible to get anything done. Changing the voting threshold would have the small benefit of removing an excuse for this dysfunction, but it would not solve the more fundamental problem that many legislators find it in their electoral interests to disagree.

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