Archive | Senate procedure

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 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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The Senate that Senators Want

This is a guest post from political scientists Eric Schickler and Greg Wawro.  They are the authors of Filibuster: Obstruction and Lawmaking in the U.S. Senate.


Events in the Senate over the past few weeks offer two clear lessons.  First, a simple majority in the Senate has the power – and indeed has long had the power – to change how the institution operates.  The strategy proposed by Harry Reid – which essentially duplicated the strategy proposed by Republican leader Bill Frist (R-TN) in 2005, which in turn echoed a strategy promoted by liberals in the 1950s-70s and by Republican leader Nelson Aldrich as far back as January 1891 – has been available to a determined Senate majority at least since the nineteenth century – as we discuss in our book on the filibuster.  The fact that the Republican minority relented in the nominations fight indicates that the threat of “reform by resolution” is real and that the Senate is not locked into its rules by virtue of its past institutional history.  Second, the filibuster persists because a majority of senators has consistently preferred a system in which the minority can block action to one in which a simple majority decides every issue.  Senators do not want their Chamber to become the House.

In this case, once Harry Reid showed that he had the votes and the determination to impose majority rule on executive branch appointments, Republicans surrendered on the core issue of approving Obama’s nominations.   We likened the filibuster to a war of attrition in our book; in such a contest, when the majority shows that it is committed to standing firm – even to the point of showing its willingness to carry out a rules change – the leverage shifts from the obstructive minority to the side with more votes.

At the same time, however, it is important to recognize exactly how difficult it is to persuade 51 senators that they should support going nuclear.  In this case, it took years of mounting frustration for Democrats, as their inability to confirm executive nominations undermined the routine functioning of government.  The necessary 51 votes only could be amassed following a series of compromise deals between Reid and McConnell, each of which promised to limit the scope of obstruction, but each of which failed.

The hesitance to go nuclear over executive nominations was rooted in senators’ shared understanding that once majority rule is imposed by force in one decision-making area, the impetus for a future majority to impose majority rule in other areas would be strong.  The pressure on a future GOP majority to go nuclear to assure the nomination of a conservative Supreme Court justice or to help pass legislation to repeal the Affordable Care Act would likely prove irresistible.  While longtime advocates of filibuster reform hope for just that outcome – a march towards majority rule across the board – most senators evidently prefer to retain some power for the minority to obstruct.

The problem for those who hope to maintain the Senate’s existing rules and understandings without change is that in this era of intense partisan polarization and warfare, this year’s showdown between Reid and McConnell will be repeated endlessly.  Brinksmanship followed by furious efforts to secure last minute deals is how Congress has attempted to govern recently.  If such brinksmanship becomes a routine aspect of filibuster politics, eventually both sides will miscalculate and the nuclear option will be exercised, even though most senators prefer an equilibrium in which the minority can, at least under certain circumstances, obstruct.

A potential solution is for the Senate to take advantage of the deep uncertainty about who will be in control of the Senate and the White House in January 2017.  At any given moment, it is clear who will be the short-term beneficiaries of a specific reform – such as allowing only temporary obstruction of judicial nominations but providing an eventual majority vote.  But no one has any idea which party would benefit from such a reform in January 2017, creating the potential for a positive-sum solution with respect to the prevailing attitude among senators.  That is, rather than simply breathe a sigh of relief and go back to business as usual, senators should take the recent showdown as an indication that the dysfunction permeating the Senate requires a more permanent fix.  Unrestrained minority obstruction across all domains is not sustainable.  At the same time, simple majority rule is not something that most senators want.  An alternative would be to attempt to forge an agreement setting out different decision-making rules for different types of decisions (e.g. executive nominations, judicial appointments, ordinary legislation) and specifying that these rules would take effect in January 2017.

Some might argue that today’s Senate cannot bind a future Senate in this manner; if that is a concern, senators could sign a detailed pledge laying out exactly what the new rules will look like and promise to vote for those rules on the first day of the January 2017 session.  As long as more than two-thirds of the Senate agrees to such a commitment, these new rules could be adopted through the normal Senate rule-making process.  The fact that senators generally accept the Senate as a continuing body can be used to ensure that the rules change is honored.

We are not the first to propose this potential solution, though in the past advocates have seen it as a way to implement simple majority rule.  Instead, we emphasize the flexibility offered by this approach: it would allow today’s Senate to think seriously about what rights the minority should have in the future and what capacity the majority should have to make policy, separate from today’s immediate battles.

This most recent fight over the nuclear option ought to encourage senators to consider specific reforms to balance majority rule and minority rights.  Such a path would make it less likely that a future majority party will be sufficiently frustrated to go nuclear and, as a result, push the Senate further along the path towards pure and simple majority rule.

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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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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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The state of advice and consent … in charts

The Senate Judiciary Committee is preparing for hearings on the president’s three nominees for vacancies on the D.C. Circuit Court of Appeals.  Brewing GOP opposition to filling the vacancies comes on the heels of partisan disputes over Republican tactics to block Obama’s judicial nominations. Democrats argue that GOP tactics are unprecedented: Republicans have delayed confirmation votes even for nominees with bipartisan support, they have insisted on sixty votes for nearly every appellate court nominee before allowing confirmation votes, and they have heightened scrutiny of trial court nominees.  In contrast, Senate minority leader Mitch McConnell argues that “the president’s been treated very fairly on judicial [nominees].”

Can both parties’ claims be true?  Steve Benen argues that McConnell’s claims “have no basis in fact,” but I don’t think that’s entirely correct.  Because there is no single way to slice and dice judicial nominations data, the parties duel with rival statistics: number of confirmed judges, confirmation rates by president or by two-year Congress, bench vacancy rates, time from nomination to Senate action, and so on.  Absent a single metric, it’s tough to nail down whether Republicans have overstepped the bounds of acceptable behavior—relative to Democrats’ behavior in the past.  (To be clear, the GOP claim that Obama is creating a “culture of intimidation” by sending three nominees to the Hill to fill authorized seats on the most important of the appellate courts is ludicrous, given the president’s constitutional authority to nominate candidates for the federal bench.)

My preferred measure for tapping the state of advice and consent focuses on confirmation rates and duration of the confirmation process over each two-year Congress. (Senators and others often prefer to compare confirmation rates across presidents, but differences in party size and party control within a presidency confound interpretation of presidency-level statistics.)  Confirmation rates between 1947 and 2012 (80th-112th Congress) appear here:


Viewing rates by Congress, we see the basis of McConnell’s claim that the GOP has played fair on Obama’s nominees: Appellate court confirmation rates were slightly higher in the 111th (2009-10) and 112th Congresses (2011-2) than they were over the course of George W. Bush Congresses (under both unified and divided party control).  And in the last Congress, GOP treatment of Obama’s district court nominees measurably improved (albeit after Senate Democrats felt compelled to file 17 cloture motions on district court nominees balled up by the GOP).  That said, GOP treatment of Clinton nominees in 1999-2000 and Democrats’ treatment of Bush nominees in 2001-2 produced the lowest confirmation rates over the postwar period.

We can also use data on how long it takes to confirm nominees (ignoring failed nominations) to compare the parties’ records.  As shown below, GOP foot dragging on Obama nominees for both appellate and district court vacancies has far outstripped Democrats’ slowdown of Bush nominees between 2003 and 2008 (under both unified and divided party control).  But these records are beat by GOP delay at the close of the Clinton administration and Democratic opposition at the start of Bush’s first term in 2001-2.

Screen shot 2013-06-13 at 12.50.46 PMGranted, such comparisons assume that all else is equal about the nominees and the process.  That’s debatable.  Each party typically claims that they only block nominees who are ideologically out of step, but we lack a common metric for comparing nominees ideologically.  Nor do these data capture changes in the threshold for confirmation, as the GOP has insisted on sixty votes for confirming almost every appellate and some district court nominees.  Remarkably, the GOP pushed Reid to file 17 cloture motions on district court nominees in 2012, even after Senator McCain had admonished his colleagues in 2011 not to filibuster trial court nominees: “Quite often we establish precedents and you find out when you get back in the majority it wasn’t that good of an idea.”

What does this portend for the fate of the D.C. Circuit appellate nominees?  Keep in mind that in addition to the unusual policy impact of the D.C. Circuit, this court of appeals is “balanced” with equal numbers of Democratic and GOP appointed active judges.  Since the early 1990s, confirmation rates have been at least ten percent lower for nominations to balanced circuits than to circuits with a party skew.  But I suspect that many GOP senators have not yet made up their minds on these nominees, and thus there’s currently no party strategy to block them.  In the meantime, the GOP will likely look for opportunities to confirm nominees they deem acceptable (witness today’s move to confirm two district court nominees and recent votes to confirm several appellate court nominees previously blocked by the GOP in the run up to the 2012 elections).  Such cooperation allows the GOP to insist that they’ve treated the president fairly—all the while dragging out the D.C. Circuit nominees.  Given continued uncertainty over whether Democrats would be able to muster 51 votes to go nuclear this summer, I doubt the conflict comes to a resolution anytime soon.

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Richard Arenberg comments on Wednesday’s Senate floor theatrics

Comments from Rich Arenberg interpreting yesterday’s Senate floor dust-up between Reid and McConnell over changing Senate rules:

Maybe the confusing label “nuclear option” which has been given to potential procedural maneuvers in the Senate which could lead to a majority-only rewriting on the Senate rules is more apropos than we thought.

During the Cold War, U.S. and Soviet intelligence each analyzed even the most subtle moves of the other side. If Soviet subs moved a few miles closer to the U.S. shores, the Air Force might move its long-range bombers outside their normal hangers and park them on the tarmac. The subs would move farther away and then the planes would roll back into their hangars. Signals had been exchanged. Most of this was invisible to most people and at best, confusing.

Watching the Senate’s leaders execute the delicate dance which is so often a part of the Senate’s approach to difficult confrontations is similarly difficult to interpret.

Yesterday, Senate Republican leader Mitch McConnell and Majority Leader Harry Reid exchanged their own signals on the Senate floor. Understandably observers were confused and interpretations varied widely.

For example, Sahil Kapur writing in TPM declared, Reid “rebuffed” McConnell’s “warning not to follow through with his threats to weaken the filibuster for nominations via the nuclear option.” The headline of Greg Sargent’s analysis in Washington Post’s Plum Line declared, “Harry Reid escalates ‘nuclear’ threat.’”

These interpretations were based on a Reid statement off the Senate floor. The majority leader said, “Despite the agreement we reached in January, Republican obstruction on nominees continues unabated. I want to make the Senate work again – that is my commitment.”

Others, like Tom Curry in NBC News First Read read the signals entirely differently. His piece appeared under the headline, “Reid appears to back away from ‘nuclear option’ on filibusters.”

That analysis, which I also heard from other sophisticated insiders in Washington, was based on Reid’s statement on the Senate floor: I am not saying we are going to change the rules, but I am saying we have to do a better job than what is going on around here. This is no threat.”

Clear right?


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How bad would the nuclear option fallout be?

Following up my early morning nuclear option post …

I appreciate Jon Bernstein’s nuanced and thoughtful response on the credibility of minority party threats to go nuclear were the majority to employ the nuclear option.  He asks the critical question:  “After majority-imposed reform is imposed, does it makes sense to carry out that threat?”  Jon’s skepticism here is well-taken.  Still, it’s remarkable how few majorities have been willing to consider taking the gamble.  Frist and many of his fellow partisans in 2005 seemed ready, but they are nearly an historical anomaly.  I think it’s helpful to keep in mind that the GOP would not actually have to blow up every bridge to impose a steep cost on the majority party’s agenda.  With apologies for quoting at length, this is how we put it it back in 2007:

Why would the threat of minority obstruction out weigh the majority party’s threat to reform-by-ruling? The minority is not helpless. If the ruling is limited to judicial nominations, as former Majority Leader Frist insisted in 2005 that it would be, the minority could filibuster any other debatable measure in anticipation of a Republican move to bring up a controversial judicial nomination. They could object to routine unanimous consent requests, which would require the majority instead to adopt a routine motion or even force the majority to secure sixty votes to impose cloture. If used widely, such moves could radically slow Senate action on all matters, a majority leader’s worst nightmare. The minority’s leverage under existing Senate rules and practices seems to counter the majority’s technical ability to go nuclear by reinterpreting existing chamber rules via new precedents.

Hard to know for sure how much to discount a counter-threat from the GOP.

Also, Richard Arenberg—co-author, with retired Senate parliamentarian Bob Dove, of Defending the Filibuster: The Soul of the Senate—weighs in on the nuclear option here with some interesting detail and perspective.  I think his third point is worth highlighting in particular, as it reinforces questions about the precise set of parliamentary moves needed to go nuclear.  The CRS report that I mentioned in my previous post goes into nuanced detail on this matter.

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Is nuclear winter coming to the Senate this summer?


It seems the Senate could have a really hot summer.  Majority leader Harry Reid (D-NV) has reportedly threatened to “go nuclear” this July—meaning that Senate Democrats would move by majority vote to ban filibusters of executive and judicial branch nominees.  According to these reports, if Senate Republicans block three key nominations (Richard Cordray to head the Consumer Financial Protection Bureau, Thomas Perez at Labor, and Gina McCarthy at EPA), Reid will call on the Democrats to invoke the nuclear option as a means of eliminating filibusters over nominees.

Jon Bernstein offered a thoughtful reaction to Reid’s gambit, noting that Reid’s challenge is to “find a way to ratchet up the threat of reform in order to push Republicans as far away from that line as possible.”  Jon’s emphasis on Reid’s threat is important (and is worth reading in full).  Still, I think it’s helpful to dig a little deeper on the role of both majority and minority party threats that arise over the nuclear option.

Before getting to Reid’s threat, two brief detours.  First, a parliamentary detour to make plain two reasons why Reid’s procedural gambit is  deemed “nuclear.”  First, Democrats envision using a set of parliamentary moves that would allow the Senate to cut off debate on nominations by majority vote (rather than by sixty votes).  Republicans (at least when they are in the minority) call this “changing the rules by breaking the rules,” because Senate rules formally require a 2/3rds vote to break a filibuster of a measure to change Senate rules.  The nuclear option would avoid the formal process of securing a 2/3rds vote to cut off debate; instead, the Senate would set a new precedent by simple majority vote to exempt nominations from the reach of Rule 22.  If Democrats circumvent formal rules, Republicans would deem the move nuclear.  Second, Reid’s potential gambit would be considered nuclear because of the anticipated GOP reaction: As Sen. Schumer argued in 2005 when the GOP tried to go nuclear over judges, minority party senators would “blow up every bridge in sight.”  The nuclear option is so-called on account of the minority’s anticipated parliamentary reaction (which would ramp up obstruction on everything else).

A second detour notes simply that the exact procedural steps that would have to be taken to set a new precedent to exempt nominations from Rule 22 have not yet been precisely spelled out.  Over the years, several scenarios have been floated that give us a general outline of how the Senate could reform its cloture rule by majority vote. But a CRS report written in the heat of the failed GOP effort to go nuclear in 2005 points to the complications and uncertainties entailed in using a reform-by-ruling strategy to empower simple majorities to cut off debate on nominations.  My sense is that using a nuclear option to restrict the reach of Rule 22 might not be as straight forward as many assume.

That gets us to the place of threats in reform-by-ruling strategies.  The coverage of Reid’s intentions last week emphasized the importance of Reid’s threat to Republicans: Dare to cross the line by filibustering three particular executive branch nominees, and Democrats will go nuclear.  But for Reid’s threat to be effective in convincing GOP senators to back down on these nominees, Republicans have to deem Reid’s threat credible.  Republicans know that Reid refused by go nuclear last winter (and previously in January 2009), not least because a set of longer-serving Democrats opposed the strategy earlier this year.  It would be reasonable for the GOP today to question whether Reid has 51 Democrats willing to ban judicial and executive branch nomination filibusters.  If Republicans doubt Reid’s ability to detonate a nuclear device, then the threat won’t be much help in getting the GOP to back down.  Of course, if Republicans don’t block all three nominees, observers will likely interpret the GOP’s behavior as a rational response to Reid’s threat.  Eric Schickler and Greg Wawro in Filibuster suggest that the absence of reform on such occasions demonstrates that the nuclear option can “tame the minority.”  Reid’s threat would have done the trick.

As a potentially nuclear Senate summer approaches, I would keep handy an alternative interpretation.  Reid isn’t the only actor with a threat: given Republicans’ aggressive use of Rule 22, Republicans can credibly threaten to retaliate procedurally if the Democrats go nuclear.  And that might be a far more credible threat than Reid’s.  We know from the report on Reid’s nuclear thinking that “senior Democratic Senators have privately expressed worry to the Majority Leader that revisiting the rules could imperil the immigration push, and have asked him to delay it until after immigration reform is done (or is killed).”  That tidbit suggests that Democrats consider the GOP threat to retaliate as a near certainty.   In other words, if Republicans decide not to block all three nominees and Democrats don’t go nuclear, we might reasonably conclude that the minority’s threat to retaliate was pivotal to the outcome.  As Steve Smith, Tony Madonna and I argued some time ago, the nuclear option might be technically feasible but not necessarily politically feasible.

To be sure, it’s hard to arbitrate between these two competing mechanisms that might underlie Senate politics this summer.  In either scenario—the majority tames the minority or the minority scares the bejeezus out of the majority—the same outcome ensues: Nothing.  Still, I think it’s important to keep these alternative interpretations at hand as Democrats call up these and other nominations this spring.  The Senate is a tough nut to crack, not least when challenges to supermajority rule are in play.

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Grading the Senate

In a thoughtful post, Jon Bernstein hands out a tentative report card on Senate reform, suggesting that the Senate deserves a passing grade based on its performance so far this year.  Jon suggests that the intent of the reforms—to streamline some of the delays endemic in the 60-vote Senate—might be taking root.  But I’m not yet convinced.  I think senators need more time to finish the test.

Jon’s key piece of evidence are the swift confirmations of four appellate court nominees to the federal bench (five if we count the nomination to the limited jurisdiction Federal Circuit), progress on a range of executive branch nominees, and handling of the gun control measure (securing cloture to debate the bill and consideration of both parties’ amendments).  I agree that partisan fires have cooled a bit in the Senate, but I’m not so sure we should attribute these changes to the adoption of reforms this past winter.  Those reforms allowed for expedited motions to proceed, a streamlined process for getting to conference, and expedited votes after cloture on nominations to the federal district courts.

So why am I skeptical?

clinton_tguideFirst, reform left untouched confirmation procedures for appellate court nominees.  The only reforms applied to judicial nominations were reserved for confirmation votes on district court nominees.  I suspect that swift action on these four appellate nominees more likely stemmed from the passing of the presidential election, making moot the GOP’s reliance on the so-called Thurmond Rule (a practice that GOP senators had used last summer to justify the blocking of Court of Appeals nominees in the run up to the presidential election).  Moreover, three of the four nominees came with strong support from their Republican home state senators.  By lifting the Thurmond Rule, GOP senators were deferring to the preferences of their own GOP colleagues—not necessarily to concerns about abiding with the spirit of reforms to speed up the Senate’s practice of advice and consent. At one point last year, it was Sen. Coburn (R-Oklahoma) who had called out his GOP colleagues for their obstruction of the 10th Circuit nominee.  The Senate, Coburn charged (without a hint of irony), was a kindergarten playground.  And keep in mind that just weeks before, Reid threatened to go nuclear “if the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done.” Idle threat? Perhaps, but suggestive that this winter’s reforms might not be responsible for instilling more cooperative behavior in the GOP conference.

Second, Majority leader Reid this week stopped short of taking full advantage of the new procedure for getting to conference.  In attempting to go to conference with the House over the budget resolution, Reid availed himself of the new Senate’s new mega motion to get the Senate to conference—eliminating the need to go through three separate motions that had previously been required to get to conference.  But Reid did so by seeking—unsuccessfully—  unanimous consent to pass the super-sized conference motion.  Reid might have gone a step farther to seek cloture on the mega motion, given that the new rule brings the Senate to a cloture vote after just two hours and eliminates post-cloture debate on the motion.  But Reid had little need to attempt cloture: He couldn’t count on 60 votes and he had already made his point—blaming the GOP for inaction on finalizing a budget.  This doesn’t mean that the Senate fails the test of reform; I just don’t think they’ve finished taking the test.

[UPDATE:  A Senate procedural gnome offers the following correction.  Reid had to secure consent to advance to conference and could not have exploited the new compound motion for getting into conference; the House and Senate used different legislative vehicles (a House concurrent resolution and a Senate concurrent resolution), rather than amending the other chamber’s concurrent resolution.  The mega motion applies to situations where the two chambers have legislated on the same vehicle.  But the broader point stands. It’s too early to grade the Senate!]

Surely, the Senate deserves some credit for the cooling of partisan fires—as evidenced as well by the chamber’s completion of a fully amended and debated budget resolution (though don’t forget the Senate needed cloture to debate the CR!).  But whether the reforms have helped to instill better behavior probably remains to be seen.

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