Archive | Senate procedure

Seeking Supermajorities in the Senate

There’s been no shortage of excellent coverage of yesterday’s defeat of the Manchin-Toomey amendment on background checks for gun purchases.  These pieces include Ezra Klein’s note about the impact of Senate malapportionment, Jon Bernstein’s piece on the impact of Senate rules, Dan Balz’s column on the limits of public opinion, Jennifer Steinhauer’s NYT piece on the impact of the gun lobby, and Ryan Lizza’s post on the effects of institutional and partisan forces.

I wanted to add just a short note to the discussions on the 60-vote thresholds imposed for adoption of each of the amendments (and a concluding observation about the lessons of the defeat of Manchin-Toomey’s amendment).   Sean Sullivan posted a very good piece explaining why Sen. Majority Leader Harry Reid negotiated 60-vote thresholds for adoption of Manchin-Toomey, given that amendments typically require only a simple majority to pass.  Sullivan notes that requiring sixty votes via a consent agreement is simply less time consuming than getting to a vote via the Senate’s cloture rule (which would of course still require sixty votes).  Sullivan also suggests that Reid didn’t seek 51-vote thresholds for all of the amendments since that would have made it easier for GOP opponents of gun control to secure passage of weakening amendments.

Two minor amendments are in order, so to say, in explaining the logic of the 60-vote unanimous consent agreements (UCAs).

First, the decision to negotiate a 60-vote UCA certainly reflects the cumbersome nature of the cloture process, particularly given that there were (at least) seven amendments for which opponents would likely have demanded cloture before proceeding to up or down votes on the amendments.  UCAs with 60-vote thresholds allow the Senate to proceed more expeditiously without asking opponents to give up their procedural rights to delay or block the Senate from moving forward.   UCAs with 60-vote thresholds are attractive for other reasons as well: Such UCAs guarantee votes on substance rather than procedure, which may be attractive to senators.   Given intense median and public scrutiny of the Senate’s action on Manchin-Toomey yesterday, both parties might have preferred voting on the substance of expanding background checks rather than casting a procedural vote on whether a vote should be taken.

Second, Reid and proponents of a tougher package of gun control certainly stood to benefit from 60-vote thresholds that foreclosed adoption of weakening amendments.  Still, it’s important to keep in mind that the shape of the UCA was equally shaped by the demands of the minority leader, Mitch McConnell, and opponents of Manchin-Toomey.  Why didn’t Reid try to negotiate a UCA to set all amendments at 51-vote thresholds?  McConnell would not have consented to such an agreement.  This is a minor point of emphasis, for sure.  But it reminds us of the tough constraints faced by a majority leader in devising such agreements.  We can point to the side-benefits of Reid asking for 60-vote thresholds.  But the power in these negotiations lies equally with the minority whose consent is required for the majority to take votes that advance its policy agenda.  Reid didn’t ask for simple majority thresholds on the majority’s amendments because he couldn’t get them.

Ultimately, regardless of the mechanics of yesterday’s Manchin-Toomey vote, the outcome was a reminder of the weakness of a common defense of the filibuster—what Steve Smith and I once called the “little harm thesis”: Few measures supported by a majority have ever been killed by a filibuster.  Defenders of the filibuster claim that supermajority requirements moderate legislative measures, as they ensure that public policy better reflects the preferences of a popular majority.  After all, as Sen. Manchin’s predecessor, Robert Byrd, often argued, a majority in the Senate might not reflect a popular majority outside the chamber.  Given the breadth of public support for expanding background checks, the little harm thesis seems to ring a little hollow with the defeat of Manchin-Toomey’s compromise amendment.

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Political Science, NSF Funding, and the National Interest

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

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

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

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

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


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

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

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

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

I. Nothing


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


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


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

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

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

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

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

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


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


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


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

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

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


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


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


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

II. Everything


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

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


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

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

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

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Making time fly (backwards) in the Senate

It seems the Senate has resolved its impasse over the CR, a disagreement that originally arose last week over which senators would be afforded votes on their proposed amendments.

The majority leader overcame last night’s speed bump by sticking to his guns (so to say): Reid began to run out the 30-hour post-cloture clock and refused to give in to even the most persistent senators seeking to amend the Senate CR.  Without an agreement on amendments, objecting senators finally gave  up their fight.  The Senate went home tonight after agreeing to cast three votes late tomorrow morning:  A defense-related amendment by Sen. Toomey, the Mikulski-Shelby amendment to the House CR, and a final cloture vote on the CR.  If cloture is invoked, the agreement precludes any post-cloture amendments to the CR.  (The Senate then potentially faces another 30 hours of post-cloture debate before a final passage vote on the CR itself.)

What’s interesting here?   Some thoughts:

First, the political science program at NSF appears to have dodged Sen. Coburn’s effort to zero out its funding (at least on the CR).   His GOP colleagues’ obstruction of a bipartisan plan on amendments led the majority party to further restrict amendment rights.  This is a perfect example of what Steve Smith has called the Senate’s obstruct and restrict syndrome:

Leaders are expected to fully exploit the rules in the interests of their parties. The minority is quick to obstruct and the majority is quick to restrict. Senators of both parties are frustrated by what has become of their institution.

Senators profess an interest in getting back to “regular order,” but the chamber has a long way to go.  In the meantime, that Senate stickiness has helped to preserve federal support for political science.

Second, as Niels Lesniewski nicely reminds us this evening, the filibuster deal this winter included an informal handshake intended to speed up post-cloture debate: If senators refused to curtail post-cloture hours, leaders would force live quorum calls to compel senators to the floor.  In this case (and in many others), it’s not clear that forcing senators to the floor to debate would increase pressure on them to consent to winding down the  clock.  Given the spotlight, Senators Jerry Moran and Kelly Ayotte (who both refused to consent to Reid’s requests) might have happily continued to make a public case (and to pester the majority leader) to allow votes on their amendments.  And if the onus to produce a quorum fell on the majority, Reid would be inconveniencing his own rank and file.   So long as Senate rules require unanimity or sixty votes to act, partial reforms will likely have limited effect.

Finally, driving home the power of unanimous consent in the Senate, tonight’s agreement includes a nice sleight of hand:

If cloture on the underlying bill is invoked, the clock (30 hours) will begin counting as if cloture had been invoked at 1am on Wednesday, March 20.

I suppose if the Senate can conduct Morning Hour debate at 2 pm, they can also set their clocks back eleven hours. The Senate might struggle to legislate, but it sure knows how to make time fly (albeit, backwards).

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Live feed from the Senate floor CR debate: “What’s happening? Do you know?”

Political scientists have been nervous about a move by Senator Tom Coburn (R-OK) to defund the political science program at NSF.  This evening’s events on the Senate floor drive home (yet again) how hard it is to get anything done in the Senate.  Coburn could only offer his amendment to the Continuing Resolution (which includes funding for NSF) if Majority Leader Harry Reid could secure the consent of all of his colleagues for an agreement to limit the number of amendments on the CR.  (There were 146 pending amendments; Reid was not about to allow debates and recorded votes on all of them…)  Reid proposed an agreement, which allowed for nine votes on pending amendments. Four of Coburn’s amendments were included in the agreement, including a “modified” version of his amendment to kill NSF funding of political science research.    (Note: Each of the amendments would have required sixty votes to pass, if I heard Reid correctly.)

Things were looking up for Coburn (and down for political science funding) until Senator Kelly Ayotte (R-NH) came to the floor to object that her particular defense amendment had not been included in the agreement.  And then, not to be outdone, Senator Jerry Moran (R-KS) rose to note that if Ayotte had not beat him to the punch, he would have objected to the agreement since it failed to allow for a vote on his own amendment that would have protected funding for air traffic control towers from sequestration.  (“Victory” has a thousand fathers/mothers?)

What then?  Reid had previously filed cloture on the bipartisan Mikulski-Shelby alternative CR to the House CR.  With cloture just invoked, the Senate will now presumably proceed to vote—after thirty hours potentially—  on the Senate appropriators’ compromise, which would (roughly) afford some domestic departments and agencies flexibility under sequestration (in contrast to the House CR which protected only defense programs).  And then thirty hours more if cloture is needed on the amended House CR …before a final passage vote….

Always risky to live blog the Senate floor. But suffice it to say, the past hour’s events on the Senate floor drive home:
—The near impossible task Harry Reid faces in herding cats, particularly the Republican ones.
—The dysfunction of the Senate appropriations process.  Individual senators’ unwillingness to consent to a bipartisan agreement leaves all senators’ with less opportunity to influence the course of federal spending.  (We can’t blame this one on a recalcitrant House.)
—Political science funding may yet live for another day (or least for the remaining six months of the current fiscal year).

I might be jumping the gun on concluding that there will not be a vote to defund political science.  But the difficulties individual senators face in securing floor votes on their agendas—coupled with the difficulties the majority leader faces in trying to make the Senate function—drive home how tortuous daily life in the Senate continues to be.

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Richard Arenberg defends the filibuster

Discussing the recent Rand Paul filibuster, Sarah Binder approvingly quotes Ezra Klein who argues, “When Senate institutionalists wax rhapsodic about the upper chamber, they talk about the filibuster’s cherished role in slowing down the majority and permitting passionate minorities to be heard. That is a valuable endeavor!”

I am one of those “Senate institutionalists.” I certainly wax rhapsodic. I love the Senate where I worked for more than 30 years for three U.S. Senators.


More here, from long-time Senate senior staffer, Richard Arenberg.  Rich is co-author, with retired Senate parliamentarian Bob Dove, of Defending the Filibuster: The Soul of the Senate.

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Some footnotes to the Rand Paul filibuster

In a week in which civility broke out all over Washington (from the dining room of the Jefferson Hotel to the floor of the U.S. Senate), Ezra Klein offers some additional, persuasive thoughts about the Rand Paul filibuster.  His comments are important:  Ezra highlights what was so unique about Rand Paul’s half-day filibuster, and he makes a good case for why we should value such demonstrations of conviction and voice in the contemporary Senate.

When Senate institutionalists wax rhapsodic about the upper chamber, they talk about the filibuster’s cherished role in slowing down the majority and permitting passionate minorities to be heard. That is a valuable endeavor!

I completely agree, which is why I was glued to C-Span2 for much of the day and night and why my webpage features this painting of Henry Clay speaking passionately in defense of his Compromise of 1850.  Granted, the Henry Clay-Rand Paul comparison probably starts and ends with Kentucky.  But Paul’s filibuster certainly rekindled notions about the golden age of Senate debate (the Jane Fonda reference withstanding)—when “regular order” meant extended debate and amendment (and eventually a vote) on the Senate floor. After all, as Greg Koger nicely put it this week, “It was a genuine display of intensity on a national policy issue… Filibustering allows for these displays of intensity in a way that roll call votes cannot.”

So is caution still warranted in dwelling on the upside of Paul’s filibuster?  In addition to Koger’s caveats, a few additional footnotes before we put the Rand Paul filibuster to bed.

First, I would wager that the history of the Senate filibuster is not so golden.  To be sure, it’s tough empirically to separate the passionate let-me-be-heard filibusters from the passionate I-will-block-you or hold-your-agenda-hostage filibusters.  But there’s ample evidence that the golden age of Senate deliberation and debate might have been limited to the  antebellum period.  As Steve Smith and I argued in Politics or Principle?, already by the 1850s Henry Clay and other Senate leaders had advocated debate limits to rein in their colleagues; such limits, they argued, would vastly improve the Senate’s legislative capacity.  This sounds familiar!  To be sure, we should applaud the value and importance of filibusters like Rand Paul’s even in light of the past history of the filibuster. But I think it’s important to keep in mind the reality of that history.

Second, it might be difficult to design a set of procedural reforms that encourage “intensity” filibusters but provide the means of reining in other types of filibusters.  The challenge remains to find the right balance between the protection of extended debate and the promise of eventual Senate action.  Reformers themselves (and political scientists)  disagree about whether and where to draw that line.  Of course, senators at times have written laws that immunize particular policy areas (the budget, trade pacts, war powers act debates, and so on) from filibusters.  Of course, as the fizzling of the nuclear option this winter suggests, even if a majority of the Senate were to agree on how to balance debate and action, they might still disagree on how to achieve it.

Finally, one might ask whether the contemporary Senate can handle many more of the Rand Paul type filibusters.  What’s the majority’s tolerance for giving over a day’s debate to other passionate senators?  Or more accurately, what’s the majority leader’s tolerance for such debates?

And with those unanswered questions, I’m going back to designing Rand Paul a pair of filibuster-proof shoes.

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Droning on: Thoughts on the Rand Paul “talking filibuster”

Sen. Rand Paul has just completed his nearly thirteen hour filibuster against John Brennan’s nomination to head the CIA.   Breaking off his filibuster (because, he inferred, he had to pee), Rand was heralded for bringing back the “talking filibuster.”  There was much written (and tweeted) about his filibuster, which began with Paul’s dramatic:

“I will speak until I can no longer speak…I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”

I thought I would add a few late-night thoughts in honor of this day spent with C-Span 2 humming in my ear.

First, I think Jon Bernstein’s reaction to the filibuster was right on the mark.  There’s been a lot of enthusiasm for the talking filibuster today, from Ezra Klein’s “If more filibusters went like this, there’d be no reason to demand reform,” to Josh Marshall’s, “This is a good example of why we should have the talking filibuster and just the talking filibuster.”  But Bernstein raises a critical point: “Today’s live filibuster shows again just how easy it is to hold the Senate floor for an extended period.”  The motivation of recent reformers has been to reduce filibustering by raising the costs of obstruction for the minority.   In theory, making the filibuster more burdensome to the minority—while putting their views under the spotlight—should make filibusters more costly and more rare. (Paul did note in coming off the Senate floor tonight that his feet hurt…)  But as Bernstein points out, Paul believes in his cause, and it plays well with his constituencies.  On the physical front, the tag-team of GOP senators rallying to Paul’s cause also lessened the burden on Paul (as would have a pair of filibuster-proof shoes).  That said, today’s filibuster was a little unusual.  The majority seemed unfazed by giving up the day to Paul’s filibuster, perhaps because the rest of Washington was shutdown for a pseudo-snow storm.  Moreover, the Brennan nomination had bipartisan support, with Reid believing there were 60 senators ready to invoke cloture.  In short, today’s episode might not be a great test case for observing the potential consequences of reform.

Second, keep in mind that this was a double-filibuster day.  The nomination of Caitlin Halligan for the DC Court of Appeals was blocked, failing for the second time to secure cloture.  With 41 Republican senators voting to block an up or down confirmation vote on Halligan, an often-noted alternative reform (which would require 41 senators to block cloture instead of 60 senators to invoke it) would have made no difference to the outcome.  And what if the minority had been required to launch a talking filibuster to block Halligan’s nomination?  Reid might have been willing to forfeit the floor time to Paul today.  But Reid would unlikely have wanted to give up another day to Halligan’s opponents.  As Steve Smith has argued, the burden of talking filibusters also falls on the majority, which typically wants to move on to other business.  “Negotiating around the filibuster,” Smith has argued, “would still be common.”  On a day with two successful minority filibusters (at least in consuming floor time and deterring the majority from its agenda), we can see why the majority might be reticent to make senators talk.

Third, let’s not lose sight of the target of Rand’s filibuster: The head of the CIA.  Although the chief spook is not technically in the president’s cabinet, the position certainly falls within the ranks of nominations that have typically been protected from filibusters.  Granted, that norm was trampled with the Hagel filibuster for Secretary of Defense.  But rather than seeing the potential upside of today’s talking filibuster, I can’t help but see the downside:  In an age of intense policy and political differences between the parties, no corner of Senate business is immune to filibusters.

All that said, what’s not to like about a mini demonstration of a real live filibuster?!  Perhaps Paul’s late day Snickers break was cheating.  But it was a good C-Span type of day overall, for filibuster newbies to Franklin Burdette devotees.  Even Dick Durbin well after midnight seemed to be enjoying the fray.  Perhaps there’s a silver lining for talking filibusters after all.

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Senate Puzzler for your Sunday morning

Three cheers to Wonkblog for starting our Sunday morning with a little Senate parliamentary puzzle.  Dylan Matthews gets us going by noting Majority Leader Harry Reid’s procedural move this past Thursday.  After seeing that the cloture vote would fail to cut off debate on the motion to confirm Chuck Hagel to head the Defense Department, Reid switched his vote to oppose cloture.  As Dylan notes, voting on the “winning” side (here, the successful effort to block cloture) allowed the majority leader to enter a motion to reconsider the vote at a later time.  As Wonkblog importantly notes, the maneuver provides a “clever workaround” for a majority leader who seeks to try again on cloture.

So what’s the puzzle?  Check out the graph below of the number of times majority leaders have entered motions to reconsider after failing to secure cloture.  (But note, the majority leader did not always later return the Senate to the motion to reconsider.)  The data come from a 2009 must-read APSA conference paper by the Senate procedural experts at the Congressional Research Service.


These data show instances that Beth et. al. tag as strategic use of the reconsider motion by the majority leader after failed cloture votes.  The first such strategic use occurs in 1999, with subsequent leaders relying increasingly on the move after failed efforts to invoke cloture.

The puzzle? Why does this start in the late 1990s and why does it climb?  After all, in each of these instances—including last Thursday’s—the majority leader could have easily offered a second cloture motion, waited two days for the motion to ripen, and then moved the Senate to vote again on cloture immediately thereafter.  Importantly though, the reconsider maneuver grants the majority leader far more flexibility over when the Senate moves again to attempt cloture—without being constrained by the Senate’s cumbersome cloture rule.   As Beth et. al. note (see also Steve Smith’s treatment here), this procedural move allows the leader to take “a contested measure off the floor while maintaining the possibility of returning to it if at some point its strategic situation improves.”  In a chamber that struggles to secure sixty votes (even when attempting to confirm members of the president’s “Inner Cabinet”), the strategic flexibility conferred by the reconsider motion can be instrumental to leaders’ efforts to herding the Senate’s cats.

Finally, Reid’s maneuver in effect offers the leader a potentially more efficient tactic than pursuing a “talking filibuster.”  Granted, the talking filibuster reform wasn’t adopted in the latest round of Senate rule changes.  But one could imagine the Hagel situation as an instance in which the leader might have taken up the tactic after the cloture effort fell shy of sixty votes. But rather than attempting to hold Republicans’ feet to the fire (on the eve of a ten-day recess), Reid’s maneuver allows him to preserve his right to attempt cloture when he thinks the moment is right after senators are back in town.  For sure, this makes senators’ lives easier, but it potentially makes confirmation in this case more likely.  Hard to know, of course. But one can see why leaders might prefer to keep the reconsider move in their hip pocket, while allowing the Senate to move on to other pressing business (even if that business this time around was going home).

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If it looks like a duck, swims like a duck, and quacks like a duck….Thoughts on the Hagel filibuster

I’m late to the conversation about whether Republican efforts to insist on sixty votes for cloture on Chuck Hagel’s nomination as Secretary of Defense constitute a filibuster.  Bernstein’s earlier piece (“This is what a filibuster looks like“) and Fallows’ recent contribution provide good, nuanced accounts of why Republican tactics amount to a filibuster, even if some GOP senators insist otherwise.   In short, the duck test applies:  If it looks like a duck, swims like a duck and quacks like a duck, then …. it’s a filibuster!

Still, I think there’s more to be said about the politics and implications of the Hagel nomination.  A few brief thoughts:

First, let’s put to rest the debate about whether insisting on sixty votes to cut off debate on a nomination is a filibuster or, at a minimum, a threatened filibuster.  It is.  Even if both parties have moved over the past decade(s) to more regularly insist on sixty votes to secure passage of major (and often minor) legislative measures and confirmation of Courts of Appeals nominees, we shouldn’t be fooled by the institutionalization—and the apparent normalization—of the 60-vote Senate.  Refusing to consent to a majority’s effort to take a vote means (by definition) that a minority of the Senate has flexed its parliamentary muscles to block Senate action.  I think it’s fair to characterize such behavior as evidence of at least a threatened filibuster—even if senators insist that they are holding up a nomination only until their informational demands are met.

Second, there’s been a bit of confusion in the reporting about whether filibusters of Cabinet appointees are unprecedented.  There appears to have been no successful filibusters of Cabinet appointees, even if there have been at least two unsuccessful filibusters against such nominees.  (On two occasions, Cabinet appointees faced cloture votes when minority party senators placed holds on their nominations—William Verity in 1987 and Kempthorne in 2006.  An EPA appointee has also faced cloture, but EPA is not technically cabinet-level, even if it is now Cabinet-status).  Of course, there have been other Cabinet nominees who have withdrawn; presumably they withdrew, though, because they lacked even majority support for confirmation.  Hagel’s situation will be unprecedented only if the filibuster succeeds in keeping him from securing a confirmation vote.

Third, using cloture votes as an indicator of a filibuster underestimates the Senate’s seeping super-majoritarianism.  (Seeping super-majoritarianism?! Egads.)  At least two other recent Cabinet nominations have been subjected to 60-vote requirements: Kathleen Sebelius in 2009 (HHS) and John Bryson (Commerce) in 2011.  Both nominees faced threatened filibusters by Republican senators, preventing majority leader  Reid from securing the chamber’s consent to schedule a confirmation vote—until Reid agreed to require sixty votes for confirmation.  The Bryson unanimous consent agreement (UCA) appears on the right, an agreement that circumvented the need for cloture.   Embedding a 60-vote requirement in a UCA counts as evidence of an attempted filibuster, albeit an unsuccessful one.  After all, other Obama nominees (such as Tim Geithner) were confirmed after Reid negotiated UCAs that required only 51 votes for confirmation, an agreement secured because no Republicans were threatening to filibuster.

Finally, what are the implications for the Hagel nomination?  If Republicans were insisting on sixty votes on Senator Cornyn’s grounds that “There is a 60-vote threshold for every nomination,” then I bet Reid would have been able to negotiate a UCA similar to Sebelius’s and Bryson’s.  But Hagel’s opponents see the time delay imposed by cloture as instrumental to their efforts to sow colleagues’ doubts about whether Hagel can be confirmed (or at a minimum to turn Friday’s this afternoon’s cloture vote into a party stand to make their point about Benghazi).  Of course, it’s possible that the time delay will work to Democrats’ benefit if they can make headlines that GOP obstruction puts national security at risk.  (Maybe Leon Panetta should jet out have jetted to his walnut farm to make the point before the cloture vote.)  Whatever the outcome, the Hagel case reminds us that little of the Senate’s business is protected from the intense ideological and partisan polarization that permeates the chamber and is amplified by the chamber’s lax rules of debate and senators’ lack of restraint.  Filibustering of controversial Cabinet nominees seems to be on the road to normalization—even if Hagel is ultimately confirmed.

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Will the Senate start going to conference again?

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

Josh’s post follows:

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

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

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

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

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

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

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

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

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

References

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

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