Archive | Senate procedure

Take a little, give a little: There’s no free lunch when the Senate reforms its rules

Today could have been the day when Senate Democrats went nuclear – reining in minority party abuse of the filibuster with a simple majority vote.  That would have been my Super Bowl.  Instead, the Senate is poised to adopt a bipartisan set of modest (many say, meager) changes to the Senate’s cloture rule.   More like the Famous Idaho Potato Bowl, I say.

As many have noted (for starters, Ezra Klein here and Jonathan Bernstein here), the proposed changes to the Senate’s Rule 22 fall far short of what reformers had hoped for.  Much blame has been heaped on Harry Reid, the Democratic leader, and on a few senior Democrats, highlighting their resistance to abandoning the Senate’s sixty-vote threshold for bringing the chamber to a vote.  The reforms are modest, largely finding ways of speeding up the Senate once both parties have agreed on the matter at hand (for instance on the way to advancing a measure to the floor or after cutting off debate on a nomination).  Even if the changes may seem to many like small potatoes, I think there’s more to be gleaned from the Senate’s brush with reform.

First, take a little, give a little.  Today’s rule changes remind us that there is no free lunch when it comes to Senate reform.  That hurdle is built into Rule 22, given its requirement that 67 senators consent to a vote on efforts to reform Rule 22.  In the absence of majority willing to bear the costs of asserting the majority’s right to change its rules, Senate reform is necessarily bipartisan and incremental.  Reforms must secure the consent of the minority, or be packaged with changes judged equally important to the opposition.  (Recall that even when reformers reduced cloture to 60 votes in 1975, they paid a price: 67 votes would still be required to end debate on changing Rule 22.)  Today’s reforms allow a majority to circumvent filibusters of motions to proceed to legislative measures.  In return, the majority pays a price each time: The minority is guaranteed votes on two amendments, whereas previously recent leaders might have precluded all amendments by immediately “filling the tree.”  To be sure, this potentially dilutes the value of the rule change for the majority.   But concessions are dictated by the Senate’s inherited rules.  (And, of course, nothing is that simple when it comes to Senate rules; the majority may yet fill the tree, at least after the disposition of the minority’s amendments.)

Second, I suspect we might be underestimating the importance of a non-debatable motion to proceed for the majority party in a period of partisan polarization.  Judging from the increase in filibusters on the motions to proceed in recent years, minority parties have fought hard to keep bills off the floor that they oppose on policy or political grounds.   So long as the motion to proceed could be filibustered, majority and minority parties shared agenda-setting powers.  Today’s change grants the majority a slightly stronger hand in choosing the chamber agenda.  To be sure, the minority can still filibuster the bill and amendments beyond those newly guaranteed, but the reform undermines the minority’s ability to throw the majority off course.  Take immigration policy, for example.  Filibusters of the motion to proceed have kept the DREAM Act off the Senate floor in recent years.  Minority influence over the Senate’s agenda is diminished with today’s reform.

Third, these are leader-driven reforms, shaped by the unique burdens carried by the majority and (sometimes) minority leaders.  For example, the reforms speed up post-cloture debate on some judicial and executive branch nominations, and allow the chamber to hurry onto cloture votes on motions to proceed to legislative business when the minority offers a modicum of support.  No surprise that these housekeeping changes elicit little enthusiasm.   These changes don’t make it any easier for a majority to break sizable minority opposition.  And they potentially make it harder for rank and file senators to exploit the rules in pursuit of their own policy goals.  But from leaders’ perspectives, the reforms rein in the excesses of rank and file dissent when a bipartisan group is ready to move ahead.  As one Senate Democrat aide confided, “that’s all Reid ever really wanted.”

Finally, this episode highlights the limitation of the Constitutional option and other “reform-by-ruling” strategies.  There appears to have been a majority or near-majority support for securing only very limited reform of Rule 22.  Senators seem unwilling to use the tactic for a major overhaul of the Senate’s cloture rule—in part because of the fear of minority retaliation, in part because the filibuster rule likely serves as the foundation of senators’ power.   To be sure, Harry Reid aggressively used reform-by-ruling in the fall of 2011 to secure smaller changes to Rule 22 (as did Robert Byrd in the 1980s).  But we have to reach back nearly forty years to the 1975 reforms to find a Senate majority willing to go nuclear to impose major changes to Rule 22.  (Even then, reformers proceeded without the support of the majority leader, Mike Mansfield.)  Perhaps senators see the consequences of weakening Rule 22 in a different light when the parties polarize over policy problems and solutions, with senators nervous about curtailing extended debate when the tables turn on their majority.  Regardless, so long as majorities will only form to impose  minor reform by majority vote, those majorities will be forced to live under supermajority rules that daily frustrate their policy and political agendas.

And in the Senate’s world, those frustrating days can last for weeks!

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Reforming the Senate at a Snail’s Pace

As the clock runs out on the dysfunctional 112th Congress, few have been impressed by its paltry record and balky performance.  But pardon my glee: December has been a great month for students of Congress.  First, the House leadership was handed a blistering defeat on its “Plan B” to resolve the fiscal cliff.  Next, while their leaders were meeting to negotiate an 11th hour of the 12th month fiscal cliff deal, eight senators unveiled a bipartisan proposal to head off a Democratic threat to change the rules by majority vote.  When it rains, it pours!

The reform package—addressing “talking filibusters” and filibusters on procedural motions – deserves a bit more attention.  And it deserves an appropriate historical illustration:  To the right, a 1928 Chicago Tribune cartoon that features not the talking filibuster…but a sleeping one.   Seems that talking filibusters might have been few and far between even back then.

Ezra Klein and Jon Bernstein have detailed the proposed changes and weighed in here and here, as has Steve Smith by tweet here and here.  Since then, a coalition of nearly fifty liberal groups has rejected the proposal out of hand as watered down reform.  To these several perspectives on the McCain-Levin plan, I would add the following thoughts:

First, these are at best incremental reforms.  The majority leader would essentially gain the right to set the Senate’s agenda by majority vote, as a four-hour debate limit would be imposed on the motion to proceed.  But the majority leader would pay a price for that new power: He would lose his power to block amendments (by “filling the tree”) and the minority bill manager and leader would be newly guaranteed an amendment each upon consideration of a legislative measure.  (The majority leader, it seems, might still be able to fill the tree after the guaranteed amendments are dispensed with.)  This change leaves untouched the sixty-vote threshold for invoking cloture on the measure or other amendments, similar to the plans of Democratic reformers.  In short, the change tries to address the grievances of both the majority (by circumventing filibusters of the motion to proceed) and the minority (by creating and guaranteeing amendment opportunities).

Second, the incremental nature of the reforms is not accidental. Ezra has a point when he argues that this is “filibuster reform for people who don’t want to reform the filibuster.”  Still, the incremental nature of the proposal strikes me as the price of negotiating procedural change in a legislative body whose rules already advantage the minority party: The majority gets a little only by giving a little.  The barrier to reform is entrenched in the Senate’s cloture rule, given the supermajority required for ending filibusters of proposals that curtail minority rights.  A Senate majority could circumvent that barrier by going nuclear with 51 votes, but that strategy is not cost-free.  To be sure, reformers claim to have 51 votes for a reform-by-ruling move.  But it’s not clear to me yet that the majority would be willing to pay the accompanying costs of weathering the minority’s response to going nuclear.

Third, the rules address leaders’ interests more so than those of the rank and file.  Some of the proposed changes are aimed at time management. For example, with the consent of the majority and minority leaders and a bipartisan handful of senators , the cloture process is sped up markedly.  Similarly, the three debatable steps required to get to conference are condensed to a single motion (albeit one still subject to sixty votes if the minority objects).  Other proposed changes alleviate the minority leader from objecting on his colleagues’ behalf, undermining individual senators’ ability to threaten to filibuster without actually showing up.  Then again, there’s no enforcement mechanism in the proposal: Senators would be counting on the minority leader to play by the new rules and to abandon his practice of lodging objections on behalf of his absent colleagues.  It’s fair to be skeptical that such informal reforms would ever stick.

Fourth, I think there’s promise in the proposal’s directive to the presiding officer to put questions to a (majority) vote when opponents no longer seek to debate a bill.  I share skeptics’ views that majorities might rarely want to hold the minority’s feet to the fire to wear down the opposition and that minorities might at times relish the spotlight while holding the floor.  But the proposal strikes me as a potentially valuable chance to see if the change would make a difference.  If approved, the McCain-Levin proposal would be adopted as a standing order of the Senate for just the upcoming Congress, providing a testing ground for this version of the talking filibuster.  (Standing orders are typically approved opening day by unanimous consent; would there be such consent for McCain-Levin or another negotiated proposal?)

Finally, it may be that incremental procedural change is all that a polarized Senate can agree on—especially if some Democrats are skittish about changing the rules by majority vote.   Granted, majority senators won’t agree to the plan if it’s perceived as empowering the minority, not the majority, as Senator Harkin has suggested.  Nor should they.  In that case, an incremental package may be more than a polarized Senate can agree on—leaving the nuclear option as the only avenue for Democrats seeking to rein in the excesses of the Senate minority’s parliamentary rights.

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Turning Down the Chair

David Hawkings makes an interesting point in today’s CQ/Roll Call Daily Briefing. He notes the historic nature of Sen. Barbara Mikulski’s ascension to the chair of the Senate Appropriations Committee – but also that this only happened because two more senior Democrats on the panel chose not to take the job. This is linked to the de facto death of the Congressional Budget Act (in the reform graveyard with the Federal Election Campaign Act, the War Powers Resolution, and other greatest hits of the ‘70s “resurgence regime”).

As Hawkings writes (emphasis added):

Mikulski is getting the center chair because two more senior Democrats on Appropriations did not want it, which has not happened in modern times. Until now, it would have been unthinkable for a senator to turn down the opportunity to chair the panel that carries out the national legislature’s power over the purse. Back in 1986, Robert Byrd actually stepped down as majority leader so he could take the Appropriations chair. But such a move is implausible in this era, when serving on the spending panel has become more than anything an exercise in frustration. It has been 18 years since the dozen or so individual spending bills have been enacted by the start of the fiscal year. Governance by continuing resolution has become the new normal. The Senate has not had a floor debate on a single spending bill this year, and Reid never even tried to make that happen. Discretionary spending is in decline, and appropriators will be haggling in a less-than-zero-sum game for the foreseeable future. And they will be doing so, at least for the next two years, without any ability to earmark almost whatever money they wanted for their favorite parochial pet projects.

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Motions to proceed: The good, the bad, and the ugly

 

I thought I would add a few observations to Jon Bernstein’s thoughtful discussions here and here about potential reforms of the Senate’s Rule 22.  Jon and others wonder whether the proposal to ban the filibuster on the motion to proceed to a bill would matter all that much:

Eliminating the need to get 60 to get to the floor doesn’t change at all the (de facto) requirement that a bill needs 60 to pass. And so the majority isn’t going to bring a bill to the floor unless it has that 60, regardless of whether the motion to proceed is a hurdle or not.

Moreover,
What I should have added is that the fight over the motion to proceed therefore has some positive value; it produces useful information for the Majority Leader and the bill managers.

I think these are reasonable points.  Still, I wonder whether banning motions to proceed filibusters might be worth more than it seems to the majority.  Putting aside the possibility that Reid and the reformers might not be able to muster a majority for a tougher set of changes to Rule 22, I think it’s worth putting into perspective the use of cloture on these procedural motions and the value of such cloture motions to the minority.

First, as majority leaders back to George Mitchell in the late 1980s have noticed, Senate minorities have become increasingly aggressive in their willingness to block consent on motions to proceed.  Although there is a good amount of variation in the number of times majority leaders filed for cloture on motions to proceed, the trend line has clearly risen over recent decades.

 


Once we control (below) for the overall number of cloture motions filed each Congress, the upward trend is less pronounced but still evident.  Moreover, some forty percent of cloture motions in recent Congresses have been targeted on motions to proceed.  Given the amount of time consumed by the cloture process, eliminating these cloture votes might actually improve the majority leader’s ability to press forward with the majority’s agenda.


 


It’s also worth noting that in recent years, majority leaders have had a mixed record in getting sixty votes on these motions. Cloture of late is invoked roughly fifty percent of the time, generally in line with cloture success on other Senate business.  (Keep in mind that the denominator in each congress is the number of votes on cloture, not the number of cloture motions filed.)   The sixty vote threshold is at least as tough and time consuming a barrier for putting bills on the floor as it is for getting to votes on measures and nominations.  And for both, there is arguably value to the majority in trying to blame the minority for blocking action regardless of the procedural target of the cloture motion.



Second, I think it’s worth stepping back to consider the value of the motion to proceed filibuster for the minority. Republicans argue that requiring sixty votes for the motion to proceed is a key source of leverage for pushing the majority to agree to its demands for amendments when a bill gets to the floor.  In other words, the price of cloture for the majority is often guaranteeing the minority the right to offer amendments or even to secure changes to a bill before it comes to the floor.  Think about Dodd-Frank in 2010.  Most Senate Republicans had no intention of voting for the bill. But they exploited Reid’s need for sixty votes on the motion to proceed to force Democrats to water down several provisions of the bill before granting the majority the sixty votes needed for cloture to proceed.  Eliminating cloture on the motion to proceed potentially undermines a helpful source of leverage for the minority—even if the minority can still make life miserable later for the majority leader during floor consideration of a bill.


To be sure, it’s not always easy to anticipate the consequences of Senate rule changes.  And as Steve Smith’s Senate Syndrome argument suggests, if the majority succeeds in shutting off motion to proceed filibusters, we would expect the minority to find other ways to continue to frustrate the majority.  Reid for sure anticipates those reactions, but he may think that the benefits outweigh the costs at this juncture.

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Are the effects of Senate rule changes predictable?

Greg Koger offers important insights here about potential reforms of Senate rules that seek to encourage “talking filibusters.”  Although as Greg notes, we lack details about the mechanics of the proposed rule change, the gist of the potential reform is two-fold. First, senators seeking to delay or derail measures and amendments would be forced to go and stay public with their objections on the chamber floor.  Second, in the absence of overt floor activity by the opposition, a simple majority of senators could vote to invoke cloture, thus (in theory) ending the filibuster (or, presumably, to thirty hours of post-cloture debate).  Under current rules, sixty senators typically must vote to invoke cloture to end debate and to bring the chamber to a vote on the underlying proposal.  In short, reformers seek to both encourage full-fledged filibusters and to end them more easily.

I generally share Greg’s degree of skepticism about the potential effectiveness of the talking filibuster reform.  As he explains, one source of uncertainty about the impact of the reform is that we don’t have sufficient details about the precise mechanics of the rule change to fully evaluate its effectiveness.  The devil is always in the details, no less in the Senate than in other institutionalized settings.

I would also add another source of uncertainty more unique to the Senate:  It’s very hard to predict the consequences of changes to Senate rules.  Why? Because most of the time, senators do not fully exploit the chamber’s formal rules.  They don’t have to.  Instead, senators use their leverage under the rules to force Senate leaders to accommodate their demands when leaders negotiate unanimous consent agreements.  By addressing senators’ demands (say by delaying consideration of a bill or guaranteeing that they can offer an amendment), leaders set aside the formal rules and make the chamber (barely, perhaps) functional.  Sometimes, senators’ demands cannot be met.  On those occasions, the Senate typically crawls to a halt—till the majority moves on to other business.  But on a daily basis, leaders often succeed in stemming their colleagues’ incentives to fully exploit their formal rights under the rules.  It may look like the Senate is often tied in knots, but it could be a lot worse (more cloture votes, more delay, etc.).

Why is this relevant for anticipating the effects of changing Senate rules?  It’s tough to turn on a new rule and  calculate the effects that are likely to follow because it’s hard to know how senators will react.  A new rules regime—particularly one curtailing the right of extended debate under Rule 22—could encourage senators to aggressively avail themselves of every procedural avenue in the Senate rule book for obstructing the Senate.  For instance, the minority could become less likely to agree to invoke cloture on the motion to proceed, preventing the majority from calling up bills high on its agenda.  Or senators could become more aggressive in the demands they make on a leader as a condition for signing onto consent agreements.   Both scenarios suggest that filibuster reforms could bring  unintended consequences.
Such uncertainty about the effects of Senate reform complicates life for reformers.  No surprise then that the last major reform of the Senate cloture rule occurred over thirty years ago.  Even senators in the majority—who might have the most to gain from curtailing extended debate—are often reluctant to discover firsthand the uncertain consequences of reforming Senate rules.

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Will Merkley & Warren’s “talking filibuster” proposal work?

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

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

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

[…]

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


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

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

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

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

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

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

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

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

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

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

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

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

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Reforming the Senate without a vote? My (double) take

I am looking forward to reading Richard Arenberg and Robert Dove’s new book, Defending the Filibuster, which comes out tomorrow.  Niels Lesniewski’s preview in Roll Call provides a glimpse of some of the authors’ arguments.   First, they oppose what many call “reform-by-ruling,” or altering Senate rules by majority vote at the start of a Congress.  (Some also refer to this approach to reform as the “Constitutional option.”)  Second, Lesniewski notes that the authors support a range of changes to the Senate’s Rule 22, so long as regular order is followed in changing the rules.  Regular order would require a two-thirds vote to cut off debate on the motion to proceed to the resolution changing the rules, and then would require just a simple majority to adopt the resolution.  Arenberg’s and Dove’s proposals include limiting debate on the motion to proceed and reducing the number of debatable motions to get to conference—proposals that others have endorsed over the years.

What caught my eye in Lesniewski’s preview was Dove and Arenberg’s suggestion that majority leaders avail themselves more often of a non-debatable motion to proceed that already exists in Senate rules.  During the Senate’s “morning hour” (a two hour period that follows a Senate adjournment), a motion to call up a measure from the Senate’s calendar can be made without debate.  (Only in the Senate would a “morning hour” last two hours.  And only in the Senate would a morning hour sometimes start in the afternoon.)  Outside of the morning hour, motions to proceed can be filibustered, unless the Senate musters unanimous consent or sixty votes to invoke cloture to proceed.)  In other words, the Senate majority leader could exploit a narrow procedural window during the morning hour to move to consider a measure by majority vote.  The measure would still be subject to filibuster once the Senate has proceeded to its consideration, but the move would circumvent an initial filibuster of the motion to proceed.  That is why Suzy Khimm in the Washington Post dubbed it a way to “reform the filibuster without taking a vote.”

Dove and Arenberg appropriately note that this non-debatable motion during the morning hour has fallen out of favor with Senate leaders.  Indeed, it appears that the last leader to exploit the move was the late Senator Robert Byrd, who used it in 1987 to circumvent a GOP filibuster of a motion to proceed to the annual defense authorization bill.  So why don’t leaders avail themselves of this seemingly easy way to circumvent the initial filibuster of a bill?  There may be more reasons than I offer below.  But here are a few thoughts on why leaders don’t seem keen to exploit the morning hour provision:

First, keep in mind that the non-debatable motion to proceed can only be made either after completion of the Senate’s morning business or during the second half of the morning hour.   The last time Byrd attempted a motion to proceed during the morning hour, Republicans gummed up the works as they apparently tried to run out the clock on the morning hour.  Ironically, Byrd and the Democrats then moved by majority vote to create several new precedents that barred such behavior as dilatory. In other words, it took a mini Constitutional option to make the morning hour motion an effective tactic.  One could imagine that if Harry Reid moved to proceed to a measure during the morning hour by majority vote, he would be greeted by a similarly inventive GOP intent on complicating his move.   Anticipating difficulties, majority leaders might avoid escalating parliamentary war with the minority.

Second, if the Senate did proceed to a measure during the morning hour, that measure would be displaced at the end of the morning hour by the Senate’s unfinished business pending from the previous legislative day.  In other words, calling up a bill during the morning hour might not be a very effective tactic for a major, time consuming measure.   (Then again, if there were no unfinished business, consideration of the bill could last past the end of the morning hour.)

Third, proceeding to a bill during the morning hour does not of course preclude obstruction of the underlying measure.  Senate rules, for example, preclude debate on motions to go into executive session to call up nominations.  And yet, nomination filibusters are now old hat in today’s Senate.  Leaders’ reluctance to exploit the morning hour might reflect a calculation that upsetting the minority over the motion to proceed might not be worth the added cost.  An aggrieved minority has ample ways to make the majority leader’s life miserable—blocking cloture or refusing consent on a time agreement for the underlying measure.

It’s not clear to me whether the majority (or the minority) party would be better or worse off with more frequent use of the morning hour tactic.  My hunch is that such uncertainty underlies the parties’ routine daily agreement that no non-debatable motion to proceed will be offered during the following morning hour.  Exploiting the morning hour might indeed jump start reform of the filibuster without a Senate vote, but neither party seems eager to give it a try.

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Hail to the Chief (Roberts, that is): Some thoughts on the legislative implications of today’s ruling

Chief Justice John Roberts put it best this morning.

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

And so the battle over the future of health care reform goes back to Capitol Hill (as if it ever left).  I thought I’d offer a few more thoughts after Eric Patashnik’s on the legislative implications of today’s decisions.

1.  Today’s decision takes the wind out of the sails of conservatives’ constitutional mantra against the Affordable Care Act.  Of course, some conservatives will keep leveling this charge against the ACA.  As Sen. Rand Paul said this morning, “Just because a couple [of] people on the Supreme Court declare something to be ‘constitutional’ does not make it so.”  (Dred Scott would concur.)  But in some ways, the Republicans’ precise arguments against the ACA are immaterial: Their legislative efforts to repeal and/or replace the Act will go forward with or without the constitutional window-dressing.

2. Expect to see continued GOP efforts to defund the law’s benefits and programs.  Republican efforts to defund health care reform, however, are not quite as straightforward as they may seem.  First, much of the funding for implementing the Act was actually appropriated in the Act itself (or provided for via transfers from other programs).  CRS helpfully spells out the roughly $100 billion in spending included within the Act here.   Only some of the portions of the Act were to be funded through future “discretionary” appropriations, as detailed here.   So GOP efforts have to be tailored to the narrow range of authorized—but not yet funded—ACA programs.  The alternative route—  which the House GOP has been following for the fiscal year 2013 spending bills now in play—is to aim cuts at the operating budgets of the bureaucracies that will implement the law (namely, HHS and the IRS).   By preventing bureaucrats from hiring or paying employees (and maintaining their computers and buying them pencils), Republicans could in essence do an end run around the ACA’s already appropriated funds.  (What happens to those appropriated funds if HHS can’t hire employees to spend them?  Good question.)

3.  Expect Senate Democrats to keep blocking House GOP efforts to defund health care.  That of course is already happening, as the Senate Appropriations Committee has batted back Senate Republican efforts to defund the ACA through the IRS and HHS budgets.  The Hill details some recent squabbles here.

4.  To state the obvious, the outcome of these legislative battles will be affected by the outcome of the November elections.  Indeed, if spending for fiscal year 2013 (which begins October 1, 2012) drags out past the election and past the lame duck session, it’s hard to predict how successful the current defunding efforts will be.  Certainly a Democratic Senate and a re-elected Obama would continue to resist efforts to defund the law.

5.  More generally, to do real damage to the future of health care reform, Republicans need to hold the House, and win the White House and (presumably) with it, the Senate.  Even then, however, they will find it hard to repeal and replace, assuming that Senate Democrats exploit an effective filibuster against any such effort to deny the GOP the sixty votes they would need to succeed via the regular legislative process.  My hunch is that today’s decision will be critical in bolstering Senate Democrats’ back bone to defend the law, even if they were to find themselves in the minority.   Because most of the law’s popular insurance coverage protections kick in only in 2014, the window of opportunity for the GOP will be widest in 2013.  After 2013, the GOP’s road to repeal would get even steeper.

6.  Finally, reconciliation. I think the bottom line is that repeal and replace through reconciliation will be harder than Romney and the GOP let on, but not impossible.  The devil is of course in the details.  If a Republican Congress can pass a budget resolution that includes reconciliation instructions to committees, then reconciliation under a GOP president provides a potential majority-vote path to overturning portions of the health care law.  The path is “potential” because the bill’s provisions would have to avoid or survive “Byrd Rule” challenges in the Senate.  In short, the Byrd Rule prevents provisions that are “extraneous” to budget targets from being included in reconciliation—unless proponents can muster sixty votes to waive a Byrd Rule challenge or to reject a point of order under the rule.  “Extraneous” generally refers to provisions that do not produce a change in spending or revenues, but there are actually six definitions of “extraneous” in the Budget Act—including one that prevents inclusion of measures that would increase the deficit for a fiscal year beyond those covered by the reconciliation bill.  (For an overview of the limitations of reconciliation’s majoritarian features, I would read Bill Heniff’s excellent piece.)  Assuming that a Republican Senate would have far fewer than sixty votes, whether or not particular elements of a GOP reconciliation bill would be able to survive Byrd Rule challenges would depend ultimately on the parliamentarian’s interpretations of the rule and the potentially offending provisions.  We know that CBO scored the entire ACA as saving over $200 billion, but how particular provisions of a GOP bill would be scored remains of course to be seen.  And not all of the ACA provisions of course have fiscal effects.  That’s why—as always—the devil is in the details.

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Never too late to reform the Senate filibuster


Wonkblog reports that Olympia Snowe (R-Maine) has been researching potential fixes for the Senate filibuster:
“I’m doing some research on how cloture has been used” since it was put into effect in 1917, she explains. In classic Snowe form, her hope is to try to find a procedural fix that would also be a compromise between the minority and the majority — “so that neither gets the upper hand,” she explains.

To aid her efforts, I offer a link to the Senate Rules Committee’s publication of its 2010 series of hearings on reforming the filibuster.  These hearings formed the basis of several Democratic senators’ failed efforts to push the Senate to alter its Rule 22 at the start of the 112th Congress (January 2011).
The print edition of the 2010 series of six hearings, “Examining the Filibuster,” has been published by the Government Printing Office on behalf of the Senate Committee on Rules and Administration. The volume contains full transcripts of each hearing, expert testimony from 23 witnesses, and submitted material from scholars, non-profit organizations and others.

The ranks of reformers are thin these days.  So generating new interest in finding solutions to the Senate’s procedural morass is always a good development, even if Senator Snowe now has one foot out the door on her way home to Maine.  (Given the weather in D.C. this morning, I might go with her.)  To state the obvious though, it’s unfortunate that Senator Snowe is only now turning her attention to reform of the filibuster.  Her vote when reform-minded Democrats pushed the Senate to debate and vote on reform of the cloture rule last year would have been important (here, for example).   To be sure, her support from across the aisle wouldn’t have been sufficient to secure change in the Senate’s filibuster rule, but historically such support has always been necessary.

 

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‘Tis the Season for the Thurmond Rule

Senate Republicans made headlines this morning for invoking the so-called “Thurmond Rule,” a practice in which the Senate opposition party within six months of a presidential election often refuses to allow votes on nominations to vacancies on the Courts of Appeals.  In more basic terms, opposition party senators in the run up to a presidential election filibuster all appellate (and sometimes district) court nominees.  Observers of judicial selection have noted (here and here) that there is no such formal “rule.”  But that hasn’t stopped senators from either party from talking about the practice as a rule or often even as a doctrine.  Because both parties have, over time, valued their ability to block the president’s judicial nominees, keeping alive the Thurmond Rule has proved convenient for both parties at different times.

Not surprisingly then, the debate in presidential election years tends to focus on whether the Thurmond Rule has been invoked “too early,” rather than on whether or not it should be invoked at all.   Critics today, for example, noted that a Democratic majority confirmed a Bush nominee in 2008 in late June and that a Democratic minority allowed a vote on a Bush nominee in late June 2004.  That would be in contrast to Republicans shutting down confirmation votes this year in mid-June.  (For the record, the winner for the earliest invocation of the Thurmond Rule is actually the Senate GOP, which in 1996 confirmed its last Clinton nominee on January 2nd.)

I’m not sure there’s much to be gained by judging which Senate party has abused the rule more in recent years.  More interesting to me are why Republicans chose today to shut down appellate confirmations and what broader implications the Thurmond Rule has for our understanding of the state of the Senate.

First, I suspect that Republicans were less interested in the date on which they invoked the rule and more interested in the consequences of invoking it.  If we assume that no more Courts of Appeals nominees will be confirmed in 2012, yesterday’s confirmation of Ninth Circuit nominee Andrew Hurwitz brings Obama’s confirmation rate for the 112th Congress to 52 percent.  By surpassing the 50 percent mark, Obama’s record is in line with recent presidents’ success rates (measured each Congress) over the past decade.  Invoking the Thurmond Doctrine before allowing Hurwitz to be confirmed would have allowed Democrats to call out Republicans for confirming less than half of Obama’s nominees; allowing more nominees to be confirmed after Hurwitz would have put Obama’s win rate significantly above the win rate of recent presidents.  Indeed, Senator Grassley (R-Iowa) suggested as much today, noting that “By this time, nobody can say it’s not fair to this president based on the number of nominations we’ve put up.”  The date of June 14th is less important, Grassley suggests, than its implications.

Second, it’s important not to lose sight of the broader strategy that underlies reliance on the Thurmond Rule.   If we compare confirmation rates over presidential election and non-presidential election years over the past sixty-some years, the difference is stark.  Assuming no further appellate confirmations this year, on average 87 percent of nominations pending in non-presidential election years are confirmed; on average just 48 percent of nominations pending during a presidential election year are confirmed.   That nearly forty point difference of course is time dependent.  The difference in the two rates before 1980 is six percent; from 1980 to 2012, the difference is 43 percent.  This isn’t surprising, but it is also emblematic of a broader opposition party strategy that has been in place for decades: Don’t let the other party confirm its nominees if there’s a chance (any chance, really) that your party’s nominee may win the keys to the White House.  The prospects of controlling the White House—and with it the power to select nominees—has driven opposition parties to slow walk nominations in presidential election years for decades.

Finally, the persistence of the idea of a Thurmond rule or doctrine that compels and justifies opposition party tactics is a telling element of the modern Senate.  As Steve Smith put it last night, the Thurmond Rule is “another example of senators turning obstructionism into a norm to justify dysfunctional behavior.”  Senators from both parties perpetuate the chamber’s byzantine practices by engaging in these quadrennial debates about whether the other party has invoked the rule too early.  They should instead focus on calling out the egregious behavior of blanket filibusters of the opposition’s candidates for the bench.

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