Author Archive | Sarah Binder

Getting to a clean CR: A tour of the Senate’s parliamentary weeds

weedsThe House has passed a “CR” that temporarily funds the government, but “defunds” implementation of ObamaCare.  Even Republican Senator Ted Cruz of Texas (whose badgering of the “Surrender Caucus” helped to fuel today’s House action) recognizes that the Democratic-led Senate will reject the House GOP ploy. Niels Lesniewski was first out the gate here and here explaining how Senate Democrats would strip the CR clean.  Still, I’ve seen some confusion about how the Democrats will pull this off.  So, what better way to finish up a Friday afternoon than to take a tour of Senate parliamentary weeds.  (I don’t know why I call them weeds; I quite like them.  And so apparently does the woman on the left, who came to the Capitol dressed like a weed for National Invasive Weeds Awareness Week.)

Two caveats before the tour begins.  First, I don’t know for sure of course which procedural path Senate Democrats will take. But this particular route seems likely.  Second, Senator Cruz termed Reid’s plan a “gimmick” and others have called the procedures “obscure.” But this is as close to “regular order” in the Senate as it gets—if such a thing as “regular order” were to exist.   So, let’s go!

We start with the challenge faced by Majority Leader Harry Reid: getting the CR+defund bill onto the Senate floor.  This is the Senate, so this could take a couple of days.  Reid must first offer a motion to proceed.  Under Senate rules, this motion is “debatable,” Senate lingo for “subject to a filibuster.”  Reid will likely first try to secure “unanimous consent” to proceed to a vote on the motion to proceed.  But Cruz and other ObamaCare opponents are likely to object, insisting on their right to debate the motion to proceed.  Thus, Reid will have to file cloture on the motion to proceed, requiring Democrats to attract 60 votes to stop debate on the pending motion to proceed.  Would Cruz and other Republicans (Mitch McConnell, call your office) be able to muster 41 votes at that stage to block cloture? I doubt it.  In effect, Republicans would be filibustering a CR that defunds ObamaCare, risking  blame for shutting down the government.  Given GOP disagreement about the House GOP’s strategy, I suspect Democrats can attract enough GOP votes to secure cloture.  With 60 votes for cloture, the Senate would then vote on the underlying motion to proceed, which requires only a simple majority to pass. (See, easy!)  And, now, if you haven’t already peeled off the tour to hit the Capitol Hill cafeterias, we can move onto the bill.

Democrats have to take a few steps to set up a vote to strip the ObamaCare defunding provision from the bill.  Reid/Democrats will probably offer an amendment, in the form of a “motion to strike” the defunding language.  Counter to claims that this move exploits an obscure procedure, Senate floor amendments come in three different flavors (i.e. forms)—including motions to strike. Reid might also “fill the amendment tree,” meaning that he would  fill up all of the remaining amendment slots with inconsequential amendments to block GOP senators from attempting to amend the CR themselves.

With the motion to strike defunding pending, Reid would file cloture on the BILL. Keep in mind that the BILL is still the House bill (CR+defund).  Any GOP effort to block cloture again puts the GOP on the wrong side: Republicans would be blocking a CR that defunds ObamaCare.  Assuming Reid again gets 60 vote for cloture, that brings the Senate to its customary 30 hours of “post-cloture” consideration time (including time spent on debate, voting, and so on.)

This is the most important part, because this is when the Senate would vote on the motion to strike.  The 30-hour time cap post-cloture means that by definition there cannot be a filibuster of any of the votes that are attempted during the 30-hour period.  In other words, there would be no need for Reid to file cloture on the amendment: Any effort to talk the amendment to death would have to end when the 30 hours were exhausted.  Under Senate rules, amendments only require a simple majority to pass, allowing Democrats alone to strike the defunding language from the bill.   So, the motion to strike would be brought up for a vote, it would pass by simple majority, and then after 30 hours are over (or earlier if Cruz and others tire of the fight), the Senate would move to the final up-ordown, simple majority vote on the now-amended bill (stripped clean of the defunding provision). Ball then is in Boehner’s court.

That’s the long version.  The short version: Senate rules—combined with the strategic context and GOP disagreement—give Democrats the upper hand.  Of course, as Mayhew told us long ago, lawmakers are rewarded for the positions they take, more so than for the outcomes that result. So, from the House GOP’s perspective, there’s a silver lining (a flower amongst the weeds if you will) to this certain defeat—even if many of them concede to voting for the clean CR when it returns from the Senate.  Of course, there’s a debt limit to be raised as well.  But this tour’s over!


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The Fed’s QE3 lives on

qe3hatAnd so does my hat!

Much has already been written about the economic implications of yesterday’s pedal to the metal decision by the Fed: The Fed’s open market committee will continue to pump money into the economy, contrary to expectations that an improving economy would lead the Fed to slow the pace of its bond purchases.  Leaving the economics to others, I offer just a few quick thoughts on the political implications of the surprising (for many) decision.

First, I was struck (though hardly surprised) by Chairman Ben Bernanke’s response to a reporter’s question about the potential impact on the Fed of the political contest over Bernanke’s successor.

CHAIRMAN BERNANKE: “I think the Federal Reserve has strong institutional credibility, and it is a strong institution, highly competent institution, and it’s independent, it’s nonpartisan, and I am not particularly concerned about the political environment for the Federal Reserve. I think the Fed will be—continue to be an important institution in the United States and that it will maintain its independence going forward.”

Bernanke often emphasizes the Fed’s non-partisanship, as he should given the widely held norm of central bank independence. But yesterday’s news drives home a different way of thinking about the impact of political context of the Fed’s decision-making.  Far from its claims of immunity to politics, the Fed is acutely aware that partisan congressional politics shapes the Fed’s conduct of monetary policy.  That was precisely Bernanke’s point in detailing one of the reasons why the Fed would put off tapering its asset purchases:  “If these actions [threats to shutdown the government and to default on the nation’s debt] led the economy to slow, then we would have to take that into account,” Mr Bernanke said.  The Fed yesterday opted to duck out of the partisan winds and let them pass over while the Fed takes stock of the economic impact of events on Capitol Hill.

Second, the Fed’s decision to keep QE3 in place potentially grants more leeway to Bernanke’s successor  (presumably Janet Yellen). This assumes that the Fed will continue to hold off trimming its bond purchases until after the Senate confirms Bernanke’s successor.  The sooner the Fed begins its exit, the less the discretion of the incoming chair.  Hard to know of course whether the Fed intentionally held off in anticipation of the change in leadership or whether this is just an unintended consequence of keeping the Fed’s punch bowl filled to the rim.   Either way, the timing of the taper will no doubt take center stage when the Senate Banking panel begins confirmation hearings for Bernanke’s successor.

Finally, I am reminded of something Bernanke said a year ago at his September 2012 press conference when the Fed formally launched a third round of quantitative easing.  Bernanke noted that the consensus on the committee was so broad that “even as personnel changes going forward, this will be seen as the appropriate approach and we will have created a reserve of credibility we can use in subsequent episodes.”   The difficulty the Fed has had in communicating its policy intentions since last spring complicates the Fed’s ability to build a “reserve of credibility.”  And as hard as the Fed seems to be trying to get monetary policy right, partisan politics in Washington (particularly within the House GOP conference) continues to confound the Fed’s progress.  The Fed will likely continue to face both of these challenges—communications and fiscal headwinds—for some time.  Hope I don’t lose the hat in the wind.

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Summers’ Fall

Larry Summers to President Obama (2013):

Screen Shot 2013-09-15 at 11.08.41 PMThomas Jones to President Wilson (1914):

Screen Shot 2013-09-15 at 11.18.18 PMWe have to reach back nearly a century to find a case roughly analogous to the failed candidacy of Larry Summer to lead the Federal Reserve.  Then, Progressives turned on several of Woodrow Wilson’s picks to serve on the newly created Federal Reserve Board, including Thomas Jones (who as president of International Harvester drew Progressive ire for his company’s allegedly corrupt practices).   After the requisite exchange of letters between Wilson and Jones, Wilson promptly nominated a more acceptable business executive (Frederic Delano), who the Senate easily confirmed.

There’s been ample written already on Summer’s withdrawal, including Binyamin Appelbaum’s NYT piece and Neil Irwin’s Wonkblog coverage.  Some additional thoughts to put the Summers pseudo-nomination in perspective:

First, nearly three months have elapsed since the president suggested to Charlie Rose that he would not reappoint Ben Bernanke.  The extended flight of the Summers trial balloon lasted too long.  Some argue that the intervening Syria debacle emboldened the left and helped to throw a roadblock in Summer’s path to confirmation.  My hunch is that the Syria diversion mattered because it sucked all the wind out of White House efforts to recruit Senate support for Summers. More importantly, by never actually nominating Summers, the White House left his opponents in control of the confirmation contest.  Opposition groups on the left (and supportive, list-prone economists) organized their troops for battle against Summers and in defense of Janet Yellen.  The White House couldn’t publicly counter-lobby because they had no nominee to defend.   A new Catch-22: The White House refused to nominate until confirmation seemed plausible, but failure to nominate helped to put confirmation out of reach.

Second, Summers’ withdrawal helps us arbitrate between competing accounts of advice and consent. High rates of presidential success in securing confirmation of their executive branch appointees might suggest that senators (and the president’s partisans in particular) defer to presidential choices.  Alternatively, presidents might see their preferred candidates confirmed so regularly because they factor in the likelihood of confirmation before making their choices known.  (By leaking his preference for Summers so early in the game, Obama has saved future scholars trips to his archives to ferret out the short list.)  The Summers’ case obviously marshals against any semblance of senatorial deference to the president.

Third, the last blow to Summers came from Senator Jon Tester, a centrist red state Democrat from Montana, who sits on the Senate Banking Committee.  Two elements of Tester’s Friday afternoon statement opposing Summers are worth noting.  First, the opposition to Summers went beyond coastal liberals who disagreed with his past stance on deregulation; Tester’s opposition reminds us of historical tension between the Main Street and Wall Street wings of the Democratic Party.  Second, the close party ratio on the Banking panel places enormous leverage in the hands of its far left Democrats, including Senators Jeff Merkley, Elizabeth Warren, and Sherrod Brown.  I suspect we’ll continue to hear from the liberal wing of the party, which remains committed to greater restraints on the financial sector.

Fourth, once the Fed has a newly confirmed chair, it’s an open question whether we’ll see such conflict every time a vacancy occurs.  Given Congress’s counter-cyclical attention to the Fed—rising as the economy sours, falling as it improves—the intensity over the fight about the Fed reflects in part a still recovering economy.  A robust economy in the future might return Congressional debate about the Fed to a much lower pitch.

What happens next?  Consider the aftermath of three failed (albeit each very different) confirmation battles: Reagan’s loss of Robert Bork for the Supreme Court in 1987, George W. Bush’s inability to get Harriet Miers confirmed in 2005, and Wilson’s failed Thomas Jones nomination in 1914.  In each case, the president turned next to a safe (i.e. easily confirmable) nominee, seemingly eager to cut his losses and regain lost ground.  For Obama, we might conclude that he will nominate Yellen (ending the yellin’ about the Fed and returning Washington’s focus to fiscal policy fights with the GOP).  Still, it’s possible that the calculations that led Obama to float Summers in the first place might still guide the president’s thinking.  Ultimately, whoever the president chooses will be compared not only to Summers but also to Yellen.  If he doesn’t break the glass ceiling by choosing Yellen, the president will still be asked the question: “Why not?”

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Congress and the use of force in Syria

Screen Shot 2013-09-02 at 2.04.05 AM The president’s decision to ask Congress’s permission to use force against Syria reminds us how fast the agenda can change in Washington.  For the next two weeks, the president’s battle to prevail on House and Senate votes will dominate coverage of Washington.  The central question will be whether Obama is able to muster majorities in both chambers or whether the votes will devolve into familiar partisan lines (producing a narrow win in the Senate but failing in the House): Will members of Congress treat a military attack differently?  (A secondary question will be whether presidents regularly stand with one foot on the Oval Office desk while dialing up the Speaker of the House.  But I digress.)

Here, I draw from recent studies of Congress and war to offer a little perspective on how to think about these upcoming votes.  (This isn’t an exhaustive review of the literature,  but instead just a small sampling of some recent and relevant work.)

First, few scholars still believe the adage that “partisan politics stops at water’s edge.”   As Howell and Pevehouse argue in their 2007 book (While Dangers Gather) and summarize in recent work,

The partisan composition of Congress has historically been the decisive factor in determining whether lawmakers will oppose or acquiesce in presidential calls for war. From Harry Truman to Bill Clinton, nearly every U.S. president has learned that members of Congress, and members of the opposition party in particular, are fully capable of interjecting their opinions about proposed and ongoing military ventures. When the opposition party holds a large number of seats or controls one or both chambers of Congress, members routinely challenge the president and step up oversight of foreign conflicts; when the legislative branch is dominated by the president’s party, it generally goes along with the White House.

Howell and Pevehouse’s focus on the partisan shape of congressional responses to presidential force requests helps to explain the partisan imbalance on House and Senate authorization votes in 1991 and 2002.  Even given the different contexts of the votes, Republicans nearly unanimously supported both authorizations, while a majority of Democrats opposed both (with the exception of Senate Democrats in 2002 who broke narrowly in favor).   The authors suggest that parties may define the national interest differently, and “issues of trust and access to information further fuel these partisan fires.”  Political parties will likely only unite in acute cases, such as the bipartisan rally in the wake of September 11th, 2001.  Especially in a polarized era, we might expect then that Obama will prevail in the Democratic Senate but face a much rockier road in the GOP House.  War politics in Congress might closely resemble domestic legislative battles.

Second, it’s worth pondering reports that these will be “votes of conscience,” with party leaders refusing to lobby their fellow partisans.  As Rep. Xavier Becerra, the chair of the Democratic Caucus argued yesterday, “Anytime you talk about the use of military force, I don’t believe that any member can be whipped into doing one thing or the other. It’s a vote of conscience and I think this is the supreme vote any member of Congress can take.”  If party leaders do not whip the votes, it will partially reflect calculation that their party’s brand name is not at stake.  Still, given past partisan patterns on authorization votes and the high stakes for President Obama, I suspect some Democratic party leaders will try to  smooth the way for rank and file to support the president—by amending the resolution to limit its scope, providing political cover with their own strong support and so on.  Politics and policy are always tightly intertwined when lawmakers decide their votes, leaving little room for votes of conscience.

Third, the impact of public opinion is worth pondering, as lawmakers start pointing to the unpopularity of punitive strikes against Syria to justify their opposition. Two findings from Adam Berinsky’s work (both in his book, In Time of War, and in a recent article) are relevant on this score.  First, as Berinsky shows, public opinion about war tends to be shaped by the same attitudes that mold views about domestic politics. Second, Berinsky shows the impact of elite views on the mass public’s views about war: “When political elites disagree as to the wisdom of intervention, the public divides as well. But when elites come to a common interpretation of a political reality, the public gives them great latitude to wage war.”  Two implications for  votes on Syria follow.  The battle of opinion in Washington will outweigh the importance of public opinion at large, but that battle will likely be infused with partisan overtones.   It would be reasonable to conclude from Berinsky’s work that lawmakers are unlikely to treat the issue of a military attack differently than other issues, reinforcing the difficulty Obama faces in securing House passage of a resolution.

The parallel between domestic and war politics is no doubt important.  But keep in mind that congressional divisions over intervention abroad today are not necessarily wholly partisan.  As Norm Ornstein notes, an ends against the middle coalition could emerge, with liberal anti-war Democrat making odd bedfellows with conservative, isolationist GOP.  Moreover, divisions within both parties are possible.  House majority leader Eric Cantor (R-VA), for example, voiced strong support last June for intervening in the Syrian conflict; given the implications for Iran’s power in the region, other supporters of Israel might follow Cantor’s lead.  Voting on a punitive strike against Syria might ultimately reflect party calculations, but other motivations may yet be in play.

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Beyond the Horse Race to Lead the Fed

fedboardMaybe I spend too much time in the Library of Congress Prints and Photographs Catalog.  But this is a nice one.  In an undated photograph taken before 1945, we get a good glimpse of the nation’s central bankers, presumably hard at work in Washington.

Now that’s a lot of gravitas.

As the horse race for Fed chair continues, I thought I’d take a second stab at trying to put the campaign for the Fed into perspective.  I offered a few thoughts the other day; here are a few more observations.

First, keep in mind that advice and consent for the chair of the Fed is a relatively new phenomenon.  The now familiar four-year term for the chair of the Federal Reserve Board of Governors dates to reform of the Federal Reserve Act in 1935.  But requiring Senate confirmation of the president’s nominee for service as chair is a product of Democratic-led reforms of the Fed in 1977, which included the imposition of the Fed’s dual mandate (directing the Fed to maximize both employment and price stability).  Requiring confirmation of the chair provided an avenue for the Senate to try to indirectly influence the course of monetary policy.   But given the newness of the requirement and given multiple terms for recent Fed chairs, there are relatively few chair “contests” against which to judge this open contest: there have been just four chairs since the reform in 1977.  And of course, even if there were more cases, it would be tough to compare the selections over time given the expansion and change in the Fed’s responsibilities over the past three plus decades—let alone the rise in political conflict over the Fed’s unconventional policies.  (As I suggested the other day, though, the public nature of the “campaign” is unprecedented.)

Second, although we have just a limited number of previous confirmation cases, I think it’s important to put the appointments into the broader context of presidential track records in securing confirmation for non-judicial appointments.  The long-term story here is that the president typically gets his man.  (Woman? Susan Rice would beg to differ.)   It’s hard to know though whether the Senate ultimately confirms most nominees because senators tend to defer to the president or because presidents anticipate potential objections and select their nominees to avoid a Senate contest.  It’s hard to distinguish between these accounts of course because they are observationally equivalent: High confirmation rates either way.  This does suggest that despite the strong support for Janet Yellen’s nomination in the Democratic Caucus, Larry Summers might readily secure sixty votes on the road to confirmation (barring a GOP insurrection challenge). That at least is what Senate majority leader Harry Reid suggested this week after the president’s visit with Senate Democrats: “Whoever the president selects, this caucus will be for that person, no matter who it is.”

Third, the remarkable change in the Fed’s responsibilities since the financial crisis (stemming from Dodd-Frank, the Fed’s pursuit of unconventional monetary policies, and Congress’s stalemate over fiscal policy) should encourage us to think about the Fed chair appointment in a new light.  Ezra Klein, for example, makes the important point that “There just isn’t a perfect candidate to be both the nation’s top central banker and the top financial regulator.”  Some additional implications worth considering:

—The expansion in the Fed’s formal and informal roles might increase the president’s leverage in the confirmation process: The Fed’s broader role allows the president to define the position in a way that justifies his preferred nominee.  By reportedly seeking someone who has the “ability to manage complexity and crisis,” Obama sets the stage for nominating a Summers over a Yellen (and thus to rationalize missing the opportunity to break the glass ceiling in Fed leadership).   We’re talking about an N of 1 here.  Still, I think the power of the president to frame how we think about the responsibilities of the post D0dd-Frank Fed probably increases his leverage in securing his nominee’s confirmation.

—The debate over who would be best suited to lead the Fed presages a potentially more complicated relationship between Congress and the Fed, whoever the president nominates.  In theory, Congress is far more likely to grant the Fed autonomy in conducting monetary policy than in carrying out its regulatory responsibilities.  But my hunch is that it will be increasingly difficult to divorce the two realms (looking out for both the stability of prices and the stability of financial markets) as Dodd-Frank is implemented and as the Fed grows into its twin roles. As Bernanke noted last month in reviewing the first century of the Fed, “The complementarities among regulatory and supervisory policies…lender-of-last resort policy, and standard monetary policy are increasingly evident.”  The more intertwined the Fed’s roles, the harder it will likely be for the Fed to protect its autonomy in setting monetary policy.

Finally, the political challenges the Fed faces in unwinding its unconventional monetary policies will be tough, regardless of who Obama taps as chair.  Those challenges will play out both within the Fed’s open market committee, in the Fed’s communications with the markets, and on Capitol Hill when the Fed encounters congressional push back on the pace of its exit strategy (undoubtedly too slow for the GOP, too fast for the Democrats).   That’s not to say that the president pick doesn’t matter. But the start to the Fed’s second century will be interesting regardless who takes Bernanke’s chair.

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Off to the Races: The Contest to Lead the Fed

fedconstructAfter Congress revamped the Federal Reserve Act in 1935, construction began on a new home for the Fed—liberating the Fed from sharing quarters with Treasury.  This 1937 photo of the Eccles Buiding under construction reminds us that the original 1914 Fed was not set in stone and that it continued to evolve over its history.  (Squint, and you’ll see the crane dropping the Fed’s glass ceiling into place.)

This summer’s contest over the future leadership of the Fed signals the continuing development of the Fed.  As defenders of Larry Summers and Janet Yellen wage public and private campaigns for their candidates, it’s worth stepping back to consider the broader import of this battle over the leadership of the Fed.

First, let’s be clear: previous presidents have deliberated over short lists of potential Fed chairs.  Reagan (ironically) felt that Paul Volcker the Democrat was too hawkish, so he needed to appoint the Republican Greenspan.  George W. Bush selected Ben Bernanke over two competitors who had stronger political ties to the president.  But the public contest between advocates of Summers and Yellen is unprecedented.  The Atlantic’s Matt O’Brien captures it best:Screen Shot 2013-07-29 at 10.57.50 PMStill, we shouldn’t be surprised about the politicized selection of a new Fed chair.  Congress’s attention to the Fed tends to be counter-cyclical, rising and falling with the state of the economy.  When the Senate first confirmed Bernanke as chair in 2006—with inflation and unemployment hovering at four percent—the vote was unanimous and unrecorded.  Four years later, the Fed’s unconventional boldness in monetary policy and its forays into credit allocation generated a record level of Senate opposition to confirming Bernanke for a second term.  Today, with both inflation and employment below the Fed’s targets but with pressures mounting for the Fed to unwind its unconventional policies, it matters who gets the nod as chair. Given the centrality of the Fed to the state of the economy (and the fiscal headwinds caused by recurring Congressional stalemate), the Fed has never been more politically central (and thus less independent) than it is today. No wonder the Summers camp is trying to make his nomination a fait accompli; no surprise the Yellen camp has reacted by demonstrating that her macroeconomic chops and central bank experience are second to none.

Second, the division of opinion between Summers and Yellen appears to rest largely within the Democratic party.  Republicans are generally watching from the sidelines.  Interestingly, only six Republican senators remain from the Senate that in 1994 confirmed Yellen by a vote of 94-6 to a term on the Fed’s Board of Governors.  Five GOP, including Mitch McConnell and John McCain, voted to confirm—as did Richard Shelby, then still a Democrat.  The remaining Republican, Chuck Grassley, voted against confirming Yellen.

In many ways, the debate between Yellen and Summers captures an historic Democratic divide between its Wall Street and more liberal, Main Street wings.  Summers’ defenders emphasize his personal relationship with Obama (including tennis and golf) and his economic brilliance, but also his experience in the world of finance (implying an inner hawk).  The Yellen camp points to her distinguished career as a central banker and her leadership within the Fed.  Senate liberals also clearly prefer Yellen for her dovish macroeconomic stance in a period they believe still demands a dovish central bank.  (Breaking the Fed’s glass ceiling? Icing on the cake for Yellen’s boosters.)  The divide between the Wall Street and Main Street wings of the Democratic party is an old one for the party, recurring most recently in contests over Dodd-Frank and in reactions to Bernanke’s leadership of the Fed.  (Senators on the far left were clearly more suspicious than their Democratic colleagues of the Fed’s largesse in bailing out failing financial institutions at the height of the financial crisis.) It is tempting to portray the horse race as a contest of personalities (which, of course, it is), but the contest also taps an enduring Democratic divide unlikely to be patched over the course of a campaign to lead the Fed.

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The Nuclear Senate, Defused

TheGreatTriumvirateAll three senators of the Great Triumverate of Senate history at one point in their careers endorsed stronger limits on Senate debate. So I have no doubt that their ghosts had a great week: Eavesdropping on the senators in their chamber Monday night and reading all the good stuff that was written about how and why the Senate defused its nuclear bomb.  I think we can count this episode, as Greg Wawro and Eric Schickler suggested on the Monkey Cage, as a case in which the majority offered a credible threat to impose majority rule on executive branch nominations, and the minority folded.  Wawro and Schickler conclude a clear lesson from the week’s events: “A simple majority in the Senate has the power – and indeed has long had the power – to change how the institution operates.”  Similarly, Ezra Klein noted that “The majority took out a nuke, put it on the table, and made clear they can detonate it whenever they feel like.”

Before we seal the history books on this week’s events, I think there’s still some nuance about the nuclear option that’s worth considering.   No doubt, the reform-by-ruling strategy that Majority leader Harry Reid brushed off has (almost) always been technically feasible.  But I think we’ve learned a bit more this week about the conditions under which the nuclear option will be politically feasible.

Think first about the 2005 episode in which Majority leader Bill Frist threatened to go nuclear over Democrats’ filibusters of judicial nominations.  Most reporting afterwards noted that the minority came out ahead of the majority: Republicans secured confirmation of three contested nominees, Democrats killed seven others, and the nuclear option was taken off the table for the duration of the Congress.   Why the majority loss? (Or at best an even draw?)  Reporting suggested that Frist’s threat was never credible because a divided GOP majority undermined its leader: The seven GOP senators, including John McCain, who signed the Gang of 14 agreement, deprived Frist of the votes to go nuclear.  Absent a politically credible threat, the minority gave up relatively little in the Gang of 14 deal.

In contrast, Harry Reid this week had clearly locked up 51 (if not 53) votes.  Had Republicans not deemed Democrats’ determination to go forward credible, I doubt we would have seen the minority cave (securing only the arguably face-saving gesture of a new pair of labor-favored NLRB nominees for an old pair of labor-favored nominees). Why the different outcomes?  Reid’s strategy tells us a bit about the conditionality of the nuclear option:

First, the more narrowly targeted the nuclear gambit, the more credible it seems to be. Reid’s limited targeting of executive branch nominees made the reform by ruling strategy more palatable to Democrats.  Narrowly tailoring the reach of the proposal seems to have secured wavering Democrats’ votes.  Indeed, as best as I can tell, Reid secured the unified support of his caucus by explicitly excluding judicial nominations from the reach of his nuclear gambit.  (Excluding judges also no doubt helped Democrats politically to justify their own nuclear rush given their opposition to Republican efforts to go nuclear in 2005.)

Second, the political feasibility of the nuclear option seems conditioned on the behavior of the minority.  Strident overreaching by the Republicans—opposing nominees not on the basis of qualifications or policy views but as leverage to renegotiate (CFPB) or undermine (NLRB) an agency—helped Democrats to paint the GOP as going a step too far in a Senate parliamentary arms race.  (On GOP overreach, see Jon Bernstein’s piece here.) Exhibit A for GOP overreach starts and ends with Lindsey Graham’s “we were wrong” admission.   Such GOP behavior deflected accusations that Democrats were “power-hungry” aggressors in the nuclear fight.  The ability to shift blame to the GOP likely increased the political feasibility of Reid’s nuclear gambit.

Third, keep in mind that the CFPB, NLRB, EPA and Labor department are critical institutions for pursuing core Democratic policy interests—protecting the environment and the interests of workers and consumers. Of course, that’s precisely why Republicans targeted these nominees in the first place.  But I doubt Democrats would have gone to the mat to secure confirmation of a favored head of the IRS or USDA.  Democrats would have had a hard time mustering a politically credible threat on behalf of such nominees.

I think these dimensions of the Senate’s brush with going nuclear this past week are useful reminders of the conditionality of the majority’s nuclear weapon.  I’m not so sure that the nuke remains on the table to be detonated anytime the Democrats would like—except for similarly constrained targets.  In fact, I wonder if Reid’s narrow targeting of executive branch nominees might have made judicial filibusters even more likely and harder to rein in.  By drawing a clear line this past week between confirming “the president’s team” and confirming lifetime appointments to the courts, Democrats might have made it easier for Republicans to justify obstruction of appellate court nominees.  In other words, Reid’s robust success might prove to be a double-edged sword.

Having said that, GOP arguments against Obama’s three recent nominees for the D.C. Court of Appeals have a ring of overreach in them:  It’s not the nominees they object to, but the size of the court on which they would serve.  We’ll see if such an argument is more successful when lodged against judicial nominees soon enough.

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Speak softly … and carry a nuclear stick

62599_1The Teddy Roosevelt-Harry Reid analogy ain’t great, I know.  But the Senate majority leader sure does speak softly, and he’s armed (we think) with a pretty potent stick as the parties go to battle in the Senate over GOP filibusters of President Obama’s executive branch nominees.

There’s been ample excellent commentary and reporting on the coming week’s potential nuclear battle in the Senate.  I thought I’d add a few considerations to the mix.

First, I think it’s important to keep in mind that this week’s drama could take a while to play out.  If the parties do not resolve their differences while secluded in the Old Senate Chamber (where Rep. Prescott Brooks caned Sen. Charles Sumner in 1856), the Senate on Tuesday could begin a series of seven votes to invoke cloture on pending nominees, starting with the three nominees most at risk of falling short of the requisite sixty votes to break a GOP filibuster. One report suggests that Republicans may be trying to make a deal over the NLRB nominees, but without an agreement to confirm Richard Cordray to the Consumer Financial Protection Bureau, Democrats seem unlikely to fold.  Majority Leader Reid also seems unlikely to launch his version of the nuclear option before securing confirmation of the other pending nominees (in particular, those for Labor and EPA).  Moreover, if Reid’s procedural route includes a resolution to change Senate rules to reduce the cloture threshold to a majority vote for executive branch nominees, such motions are required to lay over on the calendar for a day.  That suggests any parliamentary fireworks might be delayed until later in the week.

Second, some close observers of the Senate argue that Democrats are making an unprecedented claim that only a simple majority is required to end debate and change Senate rules.  But versions of the claim have previously been made: Both Democratic (Hubert Humphrey) and Republican (Richard Nixon and Nelson Rockefeller) vice presidents offered roughly similar rulings in the 1950s, 60s, and 70s, albeit applying the argument to the start of a new Congress.  Moreover, a Senate majority in 1975 endorsed the view that a simple majority was sufficient to bring the Senate to a vote on a change in its rules at the start of a new Congress.  (That view stems from the rule making power granted to the House and Senate in Article 1, Section 5, of the Constitution, which is why some call the tactic the Constitutional option.)  True, the Senate later reversed itself as part of the deal that lowered the cloture threshold in 1975 for legislative measures to sixty senators, thereby reaffirming that the Senate’s formal rules should be applied in future efforts to change Senate rules (and that rule today requires a two-thirds vote to cut off debate on a rule change).  But depending on how Reid were to structure a nuclear motion, his parliamentary gambit could force the Senate to revisit its 1975 decision that endorsed the right of a Senate majority to bring the Senate to a vote on a rule change.  Some will likely argue that Reid is stretching the Constitutional option by applying it midstream, rather than at the outset of a new Congress.  I’ve never been convinced that the Constitutional option is limited to the opening of a new Congress.  The Constitution empowers the House and Senate to write their own rules; it does not limit that power to the opening of a Congresss.

Third, Reid’s claim last week that the Senate appears to have changed its procedures by majority vote 18 times since 1977 deserves a bit more scrutiny.  It is true that the Senate has moved by majority vote to change its procedures numerous times over the past several decades (and much earlier in its history as well).  Wawro and Schickler term these episodes reform-by-ruling—instances in which the Senate (either through a ruling from the chair or from a Senate vote to appeal a ruling) sets a new precedent that interprets existing Senate rules in a new way.  Most recently in 2011, Senate Democrats overturned a ruling of the chair, thereby establishing a new precedent that motions to suspend the rules to consider non-germane amendments post-cloture were dilatory and not allowed post-cloture.   In some ways, one set of motions that Reid might use in a nuclear gambit would be just another instance in which a Senate majority created a new precedent that applies existing rules in a new way.  In this case, a majority would vote to establish the precedent that a simple majority can cut off debate on a resolution to change the rules.  But in other ways, Reid’s threatened nuclear option is cut from a different cloth: None of the other successful examples of reform by ruling targeted the number of senators required to invoke cloture under the Senate’s cloture rule.  So, yes, the underlying principle in past episodes and in this week’s potential fracas is essentially the same. But if successful, Reid’s plan would secure a change in the required number of votes for cloture—something the Senate does not appear to have accomplished through precedent setting in the past.  (That said, as Steve Smith and I argued some time ago, the 1975 precedent set by the Senate to allow majority cloture was instrumental in getting the parties to the table to negotiate changes to the Senate’s Rule 22—even if that initial precedent was later reversed.)

Fourth, I think it’s important that Reid appears to be narrowly tailoring a rule change to apply only to executive branch nominees (and perhaps only after a nomination has been pending on the executive calendar for a set length of time).   When asked by CQ’s intrepid Senate reporter, Niels Lesniewski, about what Reid would do when contested judicial nominations came to the floor in a couple of weeks, Reid refused to expand the scope of conflict to judges: “This is focused very concisely…This is not about judges…This is about presidential executive nominees.” Why was Reid so adamant about limiting the reach of a rule change to executive branch nominees?  A narrowly tailored change might make his nuclear gambit look more like previous episodes of reform by ruling.  It might also make it easier to secure the support of 51 Democrats.

Finally, keep in mind that there’s an awful lot of uncertainty about what might (or might not) happen.  We don’t know precisely how Reid might decide to structure his parliamentary gambit.  (If you look up “Nuclear Option” in the Senate rulebook, you won’t find it!)  And, as Richard Beth importantly spells out in this essential CRS report, “It is not clear that any such form of proceeding can be proposed that would not require violations of existing rules in the process of changing them.”  That sentence always gives me pause.  And as Greg Koger points out, “punitive filibustering” by the minority in response to a majority going nuclear could be costly to the minority as well as the majority.  The Gang of 14 agreement in 2005 that defused the GOP’s nuclear threat, Koger reminds us, “spared both parties from trying to follow through on threats that would have been very costly to redeem and embarrassing to recant.”  As much as the “nuclear option” is bandied about in the press in recent years, the path to majority cloture for reforming Senate rules remains rocky.  But a determined and extremely frustrated majority might just do it.

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Reading Congressional tea leaves from the 2006 renewal of the Voting Rights Act

There’s been ample excellent coverage of the Supreme Court’s 5-4 decision in Shelby County vs. Holder, which declared a key section of the Voting Rights Act unconstitutional.  By rejecting the VRA’s formula for determining which states and jurisdictions are subject to pre-clearance of changes to their voting laws, the Court effectively derailed the Act’s pre-clearance regime for preventing discriminatory voting practices.  (See for example Rick Hasen’s analysis thoughtful here.)  Much of the coverage notes the overwhelming bipartisan coalition that supported the VRA’s last renewal in 2006.  Reauthorization of the VRA took place ahead of schedule, passed by a House vote of 390-33 and a Senate vote of 98-0, with George W. Bush signing the bill into law days after making his first address as president to the NAACP.

I think the notion of bipartisan support for the VRA in 2006 deserves a bit more scrutiny. First, it seems anomalous, given the rise in partisan polarization over the course of the Bush administration. Second,  bipartisanship in 2006 contrasts sharply with the prevailing view in the wake of Shelby that today’s polarization will likely prevent Congress from responding to the Court’s invitation to revamp the Section 4 formula.  How can we have such strong bipartisanship on a polarized matter in 2006 and yet no path forward for reform less than a decade later?

A few (admittedly) preliminary considerations:

First, reports of strong bipartisan support in Congress in 2006  belie an intense conservative Republican opposition to the basic tenets of the VRA.  The bill was brought to the floor only after conservative GOP had derailed the first rule for the bill in June of 2006 on the grounds that the process precluded controversial floor amendments that would have scaled back the provisions of the VRA. (James Tucker details the rebellion here.) Majority Leader John Boehner brought the bill back after acceding to rank and file demands for votes on amendments deemed important to a majority of the GOP majority.  Three of the four weakening amendments (which Democrats argued would gut the VRA) secured the support of a majority of the GOP conference, but none of the four amendments passed.  The fourth amendment would have re-written the formula to use more recent voting statistics.  The figure below shows the percentage of GOP from covered and non-covered jurisdictions voting in favor of the amendments and final passage.

vra votesfix

 Not surprisingly, amendments’ supporters were largely GOP from districts covered by the Section 4 formula. GOP not representing covered districts were less enthusiastic about undermining the VRA, particularly when voting on an alternative formula.  In some ways, the VRA’s bipartisanship was made possible by the structure of the VRA pre-clearance regime: Only one-third of the GOP were immediately affected by the VRA.  And GOP from districts not covered by the VRA often benefited from the practice of drawing majority-minority districts that left their own districts with more white voters than they would have had absent the VRA.  Coupled with Republicans’ electoral incentives in the mid-2000s to reach out to minority voters, the degree of bipartisanship sustaining the VRA was in large part strategic.  That strategic element is also visible in the votes of GOP lawmakers on final passage: After failing to amend the VRA to their liking, over seventy percent of the members from covered districts still voted in favor of final passage.

Why do these 2006 patterns matter? First, we should be wary of overestimating GOP enthusiasm for the VRA in 2006. True, Justice Scalia contended during oral argument that no sane politician would want to be on the wrong side of a bill that references  “voting rights.”  But deep pockets of more conservative GOP weren’t shy about going on record in favor of a sharply different VRA.   Second, the 2006 patterns have implications for the likelihood that the current Congress can restore the VRA.  Consider the following:

  • Most observers are skeptical that Congress will agree to a new formula.  That skepticism might seem at odds with the notion that few lawmakers as recently as 2006 wanted to be on the wrong side of protecting minority voting rights.  But partisanship on the House floor in 2006 suggests the opposite: The seeds of partisan polarization over the future of the VRA were already evident seven years ago.
  • The seeds of Senate GOP opposition were also evident in 2006.  The day before the president signed the bill into law, Judiciary Committee Republicans filed a revised committee report, a statement Democrats claimed spelled out a path for the Court to challenge the constitutionality of the VRA.   (Nathaniel Persily offers a very careful review of the 2006 events and their implications here.) Moreover, my hunch is that Senate Republicans in 2006 (led by moderate Republican Arlen Specter) faced more pressure as the Senate majority to carry the president’s water in reauthorizing the VRA than they would today as the Senate minority to support VRA renewal.   The majority party is more likely to be blamed for failure to govern than a minority party would be blamed for filibustering the VRA.
  • The Court’s hollowing out of the VRA this week has essentially legitimized Republicans’ long-brewing opposition to the VRA’s pre-clearance regime (even if the 5-4 decision cleanly divided Republican and Democratic appointed justices).   Even though the number of GOP House members representing previously covered districts remains a small percentage of the House GOP conference, my hunch is that the Court’s decision makes it electorally safer for Republicans not affected by the VRA to break from the bipartisan consensus on the Act.  The Court’s decision might in fact unleash conservative groups on the right to more aggressively seek to block GOP lawmakers from returning to the bipartisan fold on the VRA.

To be sure, not all Republicans oppose redressing the gaping hole in the VRA.  No less than Majority leader Eric Cantor noted this week that “I’m hopeful Congress will put politics aside, as we did on that trip [to Selma with Democrat John Lewis of Georgia], and find a reasonable path forward that ensures that the sacred obligation of voting in this country remains protected.”  Of course, it’s one thing to declare a principled position and quite another thing to corral a recalcitrant GOP conference into bipartisan agreement. But Cantor’s sentiment suggests that at least some Republicans might retain—for strategic or principled reasons—a commitment to exploring ways of recovering the core of the nation’s voting rights regime.

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If You Give a State A Federal Reserve Bank (or two…)

missouriWhat are the chances that both bank presidents—one as hawk, the other as d0ve—will dissent from the Federal Open Market Committee’s policy statement?  Today’s double dissent from the St. Louis and Kansas City Federal Reserve Bank (FRB) presidents highlights some curiosities about the Fed’s governance and FOMC voting rules.  Why are two of the twelve FRB’s located in Missouri? And why do the two bank presidents rotate on and off the voting roster of the FOMC together?   (And why does the Kansas City Fed’s regional conference take place in Jackson Hole?  Never mind.)

So the Missouri curiosity isn’t the most pressing takeaway from today’s Fed statement and press conference.  (I’d give that prize to Ben Bernanke’s communications challenge in conveying the FOMC’s monetary policy choices.)   But the Missouri matter does beg questions about the politics that underlie the structure and governance of the Fed. And to the extent that a diversity of policy views on the FOMC complicates the Fed’s exit from unconventional asset purchases, then the design of the Fed and its monetary policy committee is worth pondering.

So, first, how did Missouri scam two banks from the committee (comprised of three Democratic political appointees) that Congress charged with organizing the Federal Reserve System in 1914?  Mark Spindel and I explore the politics here, showing that patterns of economic development and the preferences of banking communities influenced where the committee located the twelve FRBS in the new Federal Reserve System.  Although some believed at the time that Missouri received two banks because the Democratic Speaker of the House, Champ Clark, hailed from Missouri and because one committee member had served as president of Washington University in St. Louis, we argue that partisan connections at best smoothed the way for selecting two Missouri cities. More likely, the choice reflected the Midwest’s political economy (with Kansas City looking westward and St. Louis to the east) and the desire to curry support of the most active banking communities (which, when surveyed in 1914, favored locating a reserve bank in Kansas City, rather than in any of the regional contenders such as Lincoln, Omaha, Denver).  As one Dallas banker said when he lobbied the committee to give Dallas a reserve bank:

“The matter of locating regional banks is not primarily, nor even principally, a political question. Every governmental faculty, however, has a political element and every governmental agency a political phase. No system of banking will long succeed that does violence to a great fraction of the wishes of the people of this country. Such political considerations as affect this feature of the problem are therefore of an entirely proper character for consideration by this committee.”

Those 1914 choices proved sticky.  Despite a century of economic, demographic, and technological change that has altered the nation’s political economy, Congress has not relocated the FRBs.  In other words, century-old politics made possible today’s conflicting dissents from the two Missouri reserve banks (suggesting the limits of a region’s  economic conditions in shaping central bankers’ votes).

Second, why do Kansas City and St. Louis rotate on and off the FOMC voting roster together?  When Congress revamped the FOMC in 1935, reserve bank directors were empowered to select the five reserve bank presidents who would vote on the FOMC; the 12 FRBs were paired in different groups, with Kansas City and St. Louis placed in different pairings.  Moving in 1942 to increase the Fed’s role in financing the war, Congress rewrote the FOMC voting rules—giving New York a permanent seat, moving the remaining eleven FRBs into four regional groups, and creating a new voting rotation across the groups.  In revamping the voting rules, Congress did nothing to prevent the Kansas City and St. Louis bank presidents from voting at the same time.  Why not?  No clue!  Perhaps at the dawn of an era in which interest rates would be pegged—leaving little discretion for the FOMC—voting rights beyond New York’s mattered little to lawmakers.  Whatever the reason, we’re left with today’s historical curiosity of conflicting signals from Missouri’s central bankers.  In a period of market volatility (in part stemming from confusion over the Fed’s intentions), those conflicting dissents might be more than mere curiosities.

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