Why I Think Merkely/Udall Has It Wrong

On Senate reform, suppose you're in the group -- which according to what they say publicly includes most leading Democratic Senators -- who wants to find a middle ground between the current dysfunctional Senate on the one hand and creating a House-like strict majority party rule on the other hand. Yes, I know, there are plenty of people who just want to eliminate the filibuster entirely, but let's put that argument aside; even if it's correct, which I don't believe it is, it's not going to happen anyway right now. So if you accept that a middle ground solution is what they should be looking for: what's the best way to achieve that goal?

I think Merkely/Udall goes about Senate reform the wrong way. I'm not sure it's their fault; it may be the case, as Sarah Binder suggests, that (very) incremental reform is the only way to go, and so whatever we're going to get isn't really going to make any difference. But as far as I can tell they sincerely believe that their solution is not incremental, and will really fix much of what's wrong. It's very late in the day, but I'll run through one more time why I think they're on the wrong path.

First: it's important to identify the problem, which is the outsized ability of a dedicated partisan minority to get their way in the current Senate. They can do so in two ways: when they don't have 41 votes they can drag things out so much, even on entirely unrelated matters, that they reduce the overall capacity of the Senate. And when they do have at least 41 (but no more than 49) votes, they can and will block everything. Note that the same minority party -- that is, the Republicans -- may have 41 votes for some things but not others, so both of these matter.

On the sub-41 situation, I have no major difficulties with what Merkley/Udall propose (or with the Levin response, for that matter).

But there needs to be something on the 41-49 situation.

I've seen three general approaches. Merkley/Udall, of course, try to do it through a "live" filibuster. The idea is that by increasing the cost of filibusters, it will reduce their frequency. As I've said many times, I think it's not only futile, but perverse. The problem is that if you want a middle course (again, what we're discussing here), then what you need is a set of rules which somehow lead to some "live" filibusters working and others not working, or not being worth attempting. I just don't see that as a likely outcome -- mostly because if any talking filibuster is possible, then the minority would have a powerful incentive to prove they can do it on any measure, and at the end of the day floor time is more valuable to the majority than the minority. Meanwhile, I see a lot of people defending talking filibusters for what I see as terrible reasons: that it would expose the minority to public opinion, that it would yield better reporting on who was responsible for obstruction, that it would return the Senate to what it once was. I don't think any of that is correct.

The second general approach I think is to design some sort of (other, non-"talking") complex rule to try to prevent constant filibusters, but to preserve it to some extent. In my view, it may be possible to achieve this one; it's easier than if you begin with the irrelevant condition that a solution must involve Jimmy Stewart. However, it's still very difficult. For example, Tom Harkin has a proposal that would involve a sliding scale for each filibuster, so that cloture would require 60 at first but gradually move towards a simple majority. The problem is that I still haven't seen a proposal which would almost certainly wind up either doing nothing or do away with the filibuster altogether. It's pretty hard to draft one, at least one that could withstand parliamentary maneuvers to undermine it.

All of which is why I think the third approach is the best one: instead of trying to make filibusters harder for the minority, try to make passing (some) bills easier for the majority. That's the idea behind Superbill!, or a leadership bill, or enhanced reconciliation -- leave the filibuster in place for most bills, but exempt some of them. It's also the idea behind making appropriations bills impossible to filibuster. I do believe, however, that the tradeoff for majority ability to move these bills more easily should be much better protection for minority ability to offer amendments. Plenty of amendments, not just one or two from the leadership, although with protections against filibuster-by-amendment. But basically: you want majorities, you get majorities, and not just party-defined majorities.

Granted, Superbill! doesn't do anything for nominations reform. As I've said, I'd support simple majority cloture on executive branch nominations and perhaps district court selections. On SCOTUS and Circuit choices, I think it's a lot harder to find a good solution...I sort of hope that compromise can work in cases with a large minority, but I don't know that it can.

Look: if the talking filibuster passes, I hope that it does what Merkley and Udall think it will do. I just don't see why it would. At any rate, my best guess at this point is that we get minor changes for sub-41 minorities but nothing for 41-49. Which means reformers will probably have two years to go back and try to get it right -- and to build support for it.

Catch of the Day

Here's one for Ezra Klein, who summed up the GOP extremely well by pointing to a Marco Rubio tweet. Ezra:

Today’s Republican Party thinks the key problem America faces is out-of-control entitlement spending. But cutting entitlement spending is unpopular and the GOP’s coalition relies heavily on seniors. And so they don’t want to propose entitlement cuts. If possible, they’d even like to attack President Obama for proposing entitlement cuts. But they also want to see entitlements cut and will refuse to solve the fiscal cliff or raise the debt ceiling unless there are entitlement cuts.

Yup. As I said in my Salon column over the weekend (see how I'm sneaking that in here?), everything about the fiscal cliff should be very, very, easy to resolve. We're just talking budget and tax levels here; there's nothing in the category of abortion, or war-and-peace, that doesn't really take to compromise very easily. So we're right up against the deadline (of a sort) not just for the normal reason that both sides usually press their positions up to the end, but because the GOP position is such a mess to begin with. They never have reconciled all the things that they themselves support, and that makes it awfully hard to cut a deal with anyone else.

This is also (and sorry for keeping myself in this one so much) why I flipped out so much at Paul Ryan's Republican convention speech, in which he bashed Barack Obama for not supporting the exact same Simpson-Bowles agreement that Ryan himself opposed. There's just something massively irresponsible in the kinds of blame-shifting and responsibility-ducking and, with it, dishonesty, that the current GOP has at its apparently core. Especially when it comes to budget politics.

At any rate, Ezra gets it exactly right in his post. And: nice catch!

Friday Baseball Post

Not quite Friday, but it's about time I got around to my Hall of Fame post.

Well, obviously, it's an unusual ballot this year, with so many all-time greats appearing for the first time. I mean, even without the writers who are inventing crazy distinctions to justify voting for some guys and not others...about that, I'll link to Christina Kahrl's perfectly sensible comments, and a reasonable alternative perspective from T.J. Quinn, and also to a very nice explanation of his own vote by Hank Shulman. I'll also repeat my opinion that eventually, all these guys are going in...maybe not a handful of players who were right on the edge otherwise, but all the obvious HOFers will eventually wind up enshrined.

Okay, now to the ballot.

Of the returning group, the ones who I said I would have voted for last year were McGwire, Raines, Trammell, Bagwell, Palmerio, Edgar, McGriff, and Murphy. The first four are basically easy calls for me; the latter four I've bounced back and forth on. I also looked at Bernie Williams and Larry Walker, and for me they both came up just short.

This year? Well, Barry Bonds and Roger Clemens don't need a whole lot of thought. That's two. I think both Mike Piazza and Craig Biggio are pretty easy ones, also. That makes four. Needing a bit more thought? We have Curt Schilling, Kenny Lofton, Sammy Sosa. Clearly under, for me, are David Wells, Steve Finley, and Julio Franco...I would have loved it if Franco made it, but he didn't.

Pausing...that means I have eight clear votes, four I would have supported last year, and three to think about for this year. So seven guys for two spots.

McGriff is the easiest toss-out. He's really not up to the level of the others, and was probably an overly generous call...he also has plenty of time remaining, so no reason to rush a vote on him. Dale Murphy, on the other hand, is in his last shot at it. So if I do think he should go in, there's a solid reason to include him this time.

The new guys on the bubble?

Schilling comes out as a very safe vote in baseball-reference's WAR. He has ten league top-ten finishes in ERA+ and adjusted pitching runs; never the league leader, but an astonishing 16th ever in career adjusted pitching runs. And, yes, postseason counts, and so add to that another 133 IP of 2.33 ERA, or basically half a Cy Young season against top teams. Even if you just count that the same as regular season innings, that's a big deal. The more I look, the more he's an easy yes.

Kenny Lofton also scores surprisingly high on WAR, a very deserving ~65 wins. He only has three top-10 years in WAR, however, although one of those is a league-best...but that's in a short year, 1994. This is also one where, for whatever reasons, the WAR system seems to reward him more than others; BP's WARP has him at ~56 wins (compare Rock Raines: ~66 wins by WAR, but ~70 by WARP. Lofton also doesn't help himself much with postseason: 438 PAs, 315 OBP/352 SLG, although a lot of that comes well past his prime, and nothing wrong with 34/6 SB/CS ratio. I do think that Hall tends to underrate CFs, for whatever that's worth. Basically, he's on the bubble for me. This year, that means voting against...although if I did have a vote, I might be tempted to support him just to keep him on the ballot, at least if I really thought he deserved it.

Sammy Sosa? About 55 WAR, a bit better in WARP. Sosa was washed up really early, basically contributing nothing after his age 35 season; Lofton was still a helpful player at 40. On the other hand, Sosa's lifetime cumulative stats are helped, but his averages are hurt, because he had four mediocre seasons in the majors before he figured it out at age 24 (with his late peak starting not until age 29). I'm thinking he's a bubble guy, too.

So: add Schilling to my easy group above, which gets me to 9: Bonds, Clemens, Schilling, Biggio, McGwire, Raines, Trammell, Bagwell, Piazza. Instead of ranking the others, I think a bit of strategic voting would be in order if I had a real ballot. Of those in my larger list, I have Palmiero as a somewhat clear HOFer who only got 12.6% of the vote last time; Murphy in his last year; and Lofton, at risk of joining the Lou Whitaker one-and-out club. So it should be one of those three, which drops Edgar Martinez off and punts a decision on Sosa to a year with more spots on the ballot. Hmmm...I think this is where I could get three different answer if I wrote this on three different days. Today, I think I'm going to say that if I had a ballot, I'd put Rafael Palmiero in that 10th spot.

I should say one more thing before I quit for the year...Jack Morris is probably going to go into the HOF on this ballot. Just an amazing travesty. Here's how bad it is. Not only would it be a bad joke to support Morris and leave Schilling off your ballot, but there's not even any reasonable argument for Morris over David Wells. Morris, lifetime, has 15 more "Wins" than Wells but with a worse W/L%. Morris had about an extra season plus of IP and a lower ERA, but he pitched in a much more favorable era, so his ERA+ is worse. But you know where the real difference is? Morris was a much worse postseason pitcher -- 7-4 W/L record, with a 3.80 ERA, while Wells turned in a 10-5 W/L and a 3.17 ERA (note: yeah, I'm not really paying any attention to the W/L stuff at all, but the Morris supporters are).

At any rate, that's my group. Alas, things are only going to get worse next year, assuming that the writers haven't come to their sense in time to avoid the real train wreck then. I do think that everyone is going to eventually get in, but unless the writers sober up real soon, it's going to take some really ugly Vet Committee stuff to make it work.

Sunday Question for Liberals

What's your big (and preferably at least somewhat realistic) hope for the New Year?

Sunday Question for Conservatives

What's your big (and preferably at least somewhat realistic) hope for the New Year?

What Mattered This Week?

Senate reform matters, so I'll say that the bipartisan group put out a proposal that wasn't a complete joke probably counts. If you don't like that: Hawaii's new Senator may well be there for 25 years or more, so that matters, too.

Can I use that it doesn't matter whether a fiscal cliff deal is reached this week or next? Because I don't think that it does. Matter, that is. Starts mattered after that, though...

Well, that's what I have. What do you think mattered this week?

The Bipartisan Senate Reform Counteroffer

Eight Senators, four from each party, have now floated a Senate reform plan of their own. I blogged about this earlier today before we had seen the substance, but now that I have, here's an update of what I guess is going to be called the McCain-Levin proposal.

I think we need to break it down for two sets of situations. One is for majorities of 60 and up; the other is for any simple majority which doesn't reach 60 votes.

For the latter, the reform basically does nothing. Really: nothing. So as Congressional scholar Steven Smith tweeted, the "60-Vote Senate will remain alive and well." However: in my view, the talking filibuster proposed by Merkley and Udall would also leave the 60 vote Senate intact, so I don't consider losing it a big deal at all.

For the former, however, the bipartisan group is offering something that should make the Senate run smoother -- easier to go to conference, easier to get a bill to the floor, and on nominations, easier confirmation. Again, however, that's for 60+ vote majorities. In particular, for executive branch nominations other than cabinet posts, a handful of Senators could only delay things for a few hours, instead of the current possibility that they can make one non-controversial nominee last for a week.

Indeed, if those reforms work as they would seem to, that would help majority parties in general, because it would free up Senate floor time overall. Remember, Senate time is limited; it's possible that something with plenty of votes might not reach the floor because other items, higher priority items, eat up lots of time.

The proposal also guarantees the minority party at least two amendments on any bill which is brought to the floor under a new procedure that would avoid a filibuster on a motion to proceed.

Other points:

* Ian Millhiser at Think Progress makes the point that this proposal works better for party leaders than for back benchers. That's especially true if those leaders would actually carry out suggested procedural (non-rules) changes, which would force Senators to park themselves on the Senate floor to make their own objections. I'm very skeptical that last part would happen, but I suppose it's true.

* Another part of the proposed reform is to move more executive branch nominations straight to the Senate calendar, rather than having them go through committee. I'm ambivalent about this one...I really like the idea of Senate committees working through nominations, but only if they can do it efficiently and with a minimum of paperwork. I fear that doing it this way reduces the influence of the Senate; the problem is that they can't seem to find a way to do it responsibly, so this might be better than nothing.

* Ezra Klein considers the possibility that the reform group could pass through regular order by winning 2/3 of the vote to be a problem. I disagree! But then again, I want reform that would retain individual Senators influence and a fair amount of influence for minority parties; I don't want to see a Senate run the way the House is run. I don't think it matters a lot, but for the those goals I think it's better to see a compromise made after the majority threatens to impose reform.

Again, the most important caveat: I've read through the proposal a couple of times, and I've read what Steve Smith and Sarah Binder have tweeted, but I'm very much open to the possibility that I'm misunderstanding the effects of one or more of the provisions (frankly, I've never quite mastered the whole amendments tree thing; the basic idea, sure, but well enough to understand how proposed changes would affect things? Maybe). Of course, it's also very possible that we outsiders could understand the likely effects of change better than the insiders who propose them. Rules are funny like that.

Overall: in my view, if looked at as a first offer open to further negotiations, this is a constructive proposal. I especially like that it deals separately with bills, executive branch nominations, and judicial nominations, something I've said is a requirement for any truly serious reform effort. Steven Smith thinks it's too favorable to the Republican minority, but I do think it would significantly reduce obstruction just for the sake of obstruction, and that helps the majority.

On the other hand, it clearly would do nothing for majorities which fall short of 60...technically, I suppose, it would allow debate on bills which now can't even get to the floor, but as I've said before I don't actually consider that a big deal. But again, since in my view Merkley-Udall doesn't do anything for majorities short of 60 either, it's a wash on that point.

All of which is to say that I'm really not thrilled with the direction all of this is going. What's breaking the Senate, and what needs to be revoked in order to end the pressure for reform, is the across-the-board 60 vote Senate. Simple majorities for executive branch nominations; some sort of expanded, more rational version of reconciliation to allow at least some top priorities of the majority to get through. Without that, I really don't think much will change, and that means the pressure for radical reforms won't go away.

Brian Schatz

The most important thing about the transition from Daniel Inouye to Brian Schatz is that it matches the general transition from the 112th to 113th Senates: the outgoing Democrats had hardly any liberal energy remaining, while the incoming Democrats appear to have quite a bit. There is one exception, finally, with John Kerry leaving, but other than that, the outgoing Democrats either had little apparent initiative remaining of any kind (Kohl, Bingaman) or the bulk of their energy was spent on conservative or centrist priorities (Holy Joe, Conrad).

So much for substantive analysis; what about demographics?

Obviously, the big one here is age. Schatz is 40; the switch knocks an extremely impressive 48 years off of the total age of the Senate. That's right, this one transition alone lowers the average age of the Senate by about half a year. Recall that DeMint -> Scott was another 14 years, so the postelection developments have really made a difference, at least pending the Kerry replacement.

What else? Schatz is Jewish, meaning that the new Senate will only decrease by one Red Sea Pedestrian, instead of what was expected to be a decrease of two. The biggest hit, instead, will be Methodists, with four 112th Senate Methodists gone from the 113th and only one new one. The new Senate will add three Roman Catholics, and one new Mormon, as well as the Senate's first Buddhist. On the other hand, in addition to Methodists, the Senate is losing one Eastern Orthodox and Unitarian Universalist. Again, that could still change depending on what happens in Massachusetts.

As far as education, neither of the post-election Senators went to an ivy, although we do get a non-Ivy elite liberal arts (Schatz, Pomona). So Ivies account for just 2 of 14 new Senator undergrads (plus one other Harvard Law; Ted Cruz is Princeton/Harvard Law, so a total of three have some Ivy education. Not counting Elizabeth Warren, an Ivy educator).

Elsewhere

Several items from the week...this isn't all, but again head over to Plum Line for the complete set, including plenty of links posts.

Yesterday at PP, I had one I liked about the NRA and the GOP. It's party networks stuff, so those of you bored by my interest in that might want to skip it. Earlier, I beat up on Dick Armey and FreedomWorks, which was good fun, and I bashed Tea Partiers for their incoherent position on the fiscal cliff.

At Plum Line, I took a shot at the GOP for insisting that Democrats take the blame for specific cuts, but I was far more annoyed at the Starbucks guy for his anti-politics attitude.

Cloture Votes/Filibusters Primer

I blogged again over at Plum Line today about cloture votes and filibusters (they're not the same thing!) and received a request in comments to explain. So here's a primer that goes into a bit more detail than the last couple of times I've written about it.

A filibuster generally has been an effort to defeat something by using available parliamentary maneuvers; most famously that's been talking endlessly, but any maneuver qualifies. Or, to put it another way, what we're really interested in here is any kind of obstruction by the minority -- any minority, partisan or otherwise. We can use "filibuster" and "obstruction" interchangeably; it's best to think of them that way, rather than to try to figure out which set of minority obstruction should count as "filibusters" and which should not.

Obstruction in the Senate can be stopped by cutting a deal; by waiting it out; or by overcoming it using cloture, which since the 1970s has required 3/5 of all sitting Senators, or 60 votes. It used to be that waiting it out was a viable strategy, but for a variety of very good reasons it really hasn't been for some time, at least since the 1960s. Why? Because as the Senate's workload increased, floor time because far too valuable for the majority.

So cloture votes would seem like a good measure of filibusters, right? Well, no. After all, legislative majorities rarely like to bring something to a vote if they know they'll likely lose, except rarely for the spin value. Therefore, we might expect lots of successful filibusters -- those that anywhere from 41 through 49 Senators support -- to rarely draw cloture votes at all. The majority will likely just drop the measure, or perhaps enter into negotiations to modify it.

But that's not all! Single-Senator or small group filibusters might not draw a cloture vote, either. Sometimes, the majority won't want to spend even the time that a "successfully" overcome filibuster will take, and so they'll drop the measure before it hits the floor. Other times, they'll cut a deal, preferring to compromise rather than spending valuable floor time forcing something through.

Given Senate rules, which allow for multiple opportunities within consideration of a single bill for obstruction that can be stopped by cloture, it's also possible for cloture votes to overstate the number of filibusters. It's also possible that the majority can schedule and then actually go through with a cloture vote even though no obstruction is intended. After all, normal debate might last for a while without any intent at all of obstruction, but the majority might believe that obstruction is intended (or just fear it) and move to cloture anyway.

To put it all together: cloture is only one means of ending a filibuster. Counting cloture votes counts only one of the ways of fighting a filibuster, ignoring the other ways -- and ignoring filibusters that win without being contested.

Again: when minority obstruction was relatively rare, cloture votes weren't the worst way to track changes over time, and had the advantage of being relatively easy to come by. No one thought, or should have thought at least, that they measured exactly how many filibusters there actually were, but at least one could argue that they gave a fairly useful apples-to-apples comparison across time. But given the true 60 vote Senate, we know that by definition the minority is insisting on supermajorities for everything, which means everything is being obstructed, and so there's no need to use anything other than 100%.

Predictions

Dave Weigel has a post up detailing the predictions he got wrong this year. It's admirable...not so much because he's taking responsibility, but because of the effort required. Re-reading my own stuff? No thanks.

Now, I do try to keep track of what I've predicted and write about it here if I get it wrong (Tommy Thompson losing his primary? Oops). Fortunately, I think I escaped the election season with relatively few embarrassing ones. Mostly, that's because I try to steer clear of predictions! Not because I'm afraid to (in fact, predictions are pretty popular, and I'm pretty sure that any ratio of correct calls better than, say, Dick Morris levels would be a net plus on that level), but because I just don't really see that as what this blog is about. I mean, I do it sometimes, but I'm not looking to. Really, what matters is whether my analysis is correct and helps readers understand what's going on, not whether I can express any of that in terms of specific predictions.

On the other hand, I had a really nice run in the primaries when the Post included me in their primary-day predictions roundup. Granted, it was basically just reading polls and beyond that total luck, but it was fun! Also, I think I've mentioned this one already, but on a rare one in which I totally stuck my neck out this year -- Todd Akin -- I got it right. But I'm afraid that what WaPo came calling and asked me to participate in their predictions for 2013, I pretty much bailed, and went with a trite political scientist smart-ass reply (although worded politely, I hope). Advantage: it will be correct! Disadvantage: pointing out obvious stuff that always happens really shouldn't count as a prediction, really.

At any rate: if anyone noticed a prediction I made this year that I got wrong and haven't written about, let me know and I'll highlight it.

Which Cans To Kick?

Matt Yglesias has a good item this morning about the possibility of pushing back the fiscal cliff deadline. Good topic, and I'm surprised there hasn't been more talk about it. Congress certainly could extend deadlines on everything for two weeks, four weeks, whatever, to allow time for negotiations to get done.

Of course, there's no reason that all the deadlines would have to be pushed back. Looking at the two big pieces of it:

The issue with taxes is that not only do liberals believe that the expiration of Bush-era tax rates gives them a bargaining advantage, but many Republicans may well prefer that outcome as well. I think if there was any information generated by the Plan B fiasco, it might have been just that: some Republicans really would prefer an eventual outcome that involves relatively higher tax rates as long as they don't have to make an affirmative vote for it. If that's true, then we have to go over the cliff to make a deal; expiration of the tax rates is basically a necessary condition for the votes that are going to be needed.

On the other hand, one would think that there may well be a coalition available to kick the spending can down the road. Most mainstream Democrats simply don't want the spending cuts that the sequester would make, certainly on the domestic side; they may like the level of Pentagon cuts, but even there many Democrats don't, and even more don't want Pentagon cuts carried out this way. On the Republican side, pro-military Members of Congress might be willing to suspend the sequester while a deal is in the works. The resistance to kicking the spending can down the road should come from those who really do want to slash government spending; they might fear, with good reason, that Democrats would lose the incentive to bargain if they believed they could just make the sequester go away. Still, hawks might argue that a one-time, short-term delay would be worth it because it would avoid disruptions in military procurement, and that Republicans could always pull the plug if Democrats responded by stalling and requesting more delays.

I'm not going to go into more of it, but don't forget that Bush-era tax cuts and the spending sequester are only two of the pieces of the "fiscal cliff." Yet another issue in any can-kicking is negotiating whether other things would be part of it, and the more complicated kicking-the-can negotiations get, the more it probably seems to everyone involved that they might as well just stick to the main negotiations.

At any rate: if there's to be any delay, it could come together very, very, quickly, as long as everyone agrees -- or it could take a week or more to pass, if a handful of Senators decide to grind things to a halt. I think the logic is there for a sequestration pause, but it's a pretty close call, depending mainly on the balance within the GOP between Pentagon hawks versus spending cut true believers. But don't expect anything on taxes; that part of the cliff is only going to be avoided if Republicans just decide to surrender in the next few days, and that seems very unlikely.

Mildly Cranky Monday Blogging

The basic, underlying fact of the fiscal cliff negotiations is, well, what you learn in high school civics: the eventual solution will need to pass the House, the Senate, and be signed by the president. Given a Republican House and a Democratic president, that means (1) that the Senate is mostly irrelevant (hey, someone tell Jonathan Weisman at the New York Times), and (2) that it really doesn't matter whether a GOP-only or conservative-only bill can get through the House (hey, someone tell Nate Silver at the New York Times). 

And going back a bit: the other underlying fact is that there will, eventually, be a bill or bills that passes. It's not quite 100% certain, the way it is with government shutdown or debt limit showdowns, but it's awful close to certain. The bill or bills may come before January 1 (very unlikely now), in early January, in late January, in February, even in March...but the odds are overwhelming that sooner or later something passes that will undo the bulk of the fiscal cliff tax increases, take care of the Doc Fix and the AMT fix, and do something about the sequester, among other things. 

Moreover, everyone involved knows it. Well, maybe not Michele Bachmann and Louie Gohmert, but just about everyone. 

So why am I not really cranky? Well, it is possible that a deal will be struck in the Senate that could work; the eventual deal needs the support of Barack Obama and John Boehner, but they don't have to be the ones making the deal (quick reminder: there is a possibility on the table that Republicans in the House could vote present and force Democrats to supply all the votes; that still means Boehner supports a deal, even if the way the support is expressed is by not voting against it). So I'm not ready to completely write off Weisman's article. And I suppose Silver's post is okay as an intellectual exercise; it just doesn't tell us much about how we'll actually get through the fiscal cliff.

But, yeah, the first thing to keep in mind is that something will eventually pass, and it will be a deal that mainstream Democrats and mainstream Republicans can live with. Any analysis of the situation that doesn't accept that starting point is probably not helping us understand it.

Housekeeping and Merry Christmas

Merry Christmas to all those celebrating the holiday. And for the rest of us, a very happy Rickey Henderson's birthday tomorrow. I've always thought that Oakland Tech should be named in his honor, but I hadn't realized how many famous people went there -- not just Ron Dellums, but also (assuming wikipedia is correct) Clint Eastwood, Huey P. Newton, Ted Lange, and Frank Oz. Okay, granted, only a handful of people think Ted Lange is important, but still. Also Rod McKuen, but I'm guessing he has fewer fans than Ted Lange. I'd still name it after Henderson, but I suppose I could see arguments for others (I care because I used to live more or less across the street from it, or at least in the same general neighborhood).

Sorry, got distracted. Anyway, I'll be helping out over at Greg's place all week, including the roundups, and so I think I'll likely not do morning links posts until after New Year's Day. My apologies to all worthies with birthdays this week. And posting over here in general will be pretty light until next Wednesday, when things return to normal, although I'll have some items for sure. As usual, when I'm doing extra duty at Plum Line (and my regular stuff at PostPartisan) I'll mostly encourage you to click over there (I'll be writing there in the afternoon, with Jamelle Bouie handling the mornings), and I won't do "elsewhere" posts back here, at least not too often. Happy Holidays!

Christmastime, 1972

A couple of odds and ends that I don't have a firm date on, but that happened around now...

As you may recall, after the arrests at the Watergate, Howard Hunt went back to his office in the White House -- he still had access -- and deposited a variety of Watergate and Plumbers materials into it. The safe was then opened by John Dean, who turned over what he thought was safe to the FBI investigators -- and then put some of the materials into a sealed envelope and gave it to acting FBI Director L. Patrick Gray.

Gray took the materials to his home in Connecticut, and around this time he decided to destroy it all.

Meanwhile, Dean had held on to Hunt's incriminating notebooks, and Dean destroyed them, too, at about this time -- after Hunt's lawyers had let prosecutors know about them, at which point the prosecutors realized that they hadn't been given all the evidence. Dean told the prosecutors that national security materials had been given to Gray, who denied receiving any of it.

The other event during this general time period happens because Nixon decides to replace Richard Helms at the CIA (he became ambassador to Iran). Helms, clearing out his files, took the photo of the Plumbers break-in at Daniel Ellsberg's psychiatrist's office and gave them to the Watergate prosecutors, who had no idea what they were -- but did identify Gordon Liddy in one of them.

The cover-up, which had held so well through the election, was starting to cave in on multiple fronts. With the first criminal trial scheduled for the new year, the pressure was only increasing on everyone. And there was still no backup plan in case any part of their story collapsed.

Sunday Question for Liberals

Sticking with the theme: what's a Christmas (or other appropriate holiday) gift that you would like to give to a Democratic or liberal leader?

Sunday Question for Conservatives

Let's have some fun: what's a Christmas (or other appropriate holiday) gift that you would like to give to a Republican or conservative leader?

What Mattered This Week?

How about I'll just say that the early-week negotiations over a fiscal cliff deal mattered a lot more than the late-week Plan B fiasco, and leave it at that.

What else? What do you think mattered this week?

Elsewhere: Kerry, NRA, More

I have one up at PP arguing that the best strategy for those who want to fight gun violence is to ignore the NRA.

At Greg's place today, my post says that it's probably a reasonable risk for Barack Obama to open up John Kerry's Senate seat. It's not clear yet whether that seat has a chance of taking a large bite out of the old, old, Senate, however.

Last night after the demise of Plan B I talked about where that leaves John Boehner -- and the fiscal cliff. Seriously: one thing that about half the commenters are missing is that it's always been the case that a final deal will get the votes of about half of House Republicans, not almost all of them. And it was always going to need, and get, half or more of the Democrats. It's always been the case, and it is now the case, that both John Boehner and Barack Obama have to support the final deal (and almost certainly the case that Nancy Pelosi, Harry Reid, and Mitch McConnell would support it). It's sort of irrelevant whether there are also plans that can get through the House only to die.

And, fine, it's a fairly boring issue, but yesterday I noted the success of a new program to get presidential candidates to plan early for the transition.

Catch of the Day

Goes to David Greenberg, who makes the case that "the campaign to defeat [Robert Bork] was neither unprecedented nor illegitimate." Absolutely true. Greenberg traces the history of Supreme Court nominations, noting that three nominations had been defeated within twenty years of the Bork defeat, with each drawing plenty of harsh words from their opponents -- as did justices who were confirmed in that era, including Thurgood Marshall and William Rehnquist.

What I'd add to that is just that context matters, too. Greenberg emphasizes that the long stretch of the twentieth century during which the Senate went along with the president was historically unusual and attributes it to deference to presidents, but I suspect that a larger portion of it was that divided government was less common in that era. Bork's nomination actually came just after an extended period of unified government, at least between the White House and the Senate. Ronald Reagan basically ignored that and tried to make a highly ideological pick; it's not a surprise that it didn't work. The similarly ideological Scalia pick (and the Rehnquist elevation) might have succeeded because Bork did such a terrible job of acting "mainstream" in his hearing, but a larger part of it was that the 1986 elections intervened, with Democrats regaining control after six years.

Back to Greenberg:

The Democratic campaign against Bork in 1987, then, wasn’t anything new; it merely resumed a dynamic that had been temporarily obscured — one as old as the republic and a perfectly fair, if often cynical, deployment of the Senate’s power to advise and consent.

The use of the verb “to Bork” may seem like a dig at an important intellectual figure in conservative jurisprudence and a martyr of the political right. But it really represents an unjustified triumph of a right-wing narrative that wrongly imagines blocking judicial nominees on ideological grounds to have begun with a gang of liberal Democrats — rather than with Republicans and conservative Southern Democrats opposed to the legal revolutions of the 1960s and keen to hand Lyndon Johnson a political defeat. It has given the legitimate restraint of presidential power a bad name.

And: nice catch!

Read Stuff, You Shold

Happy Birthday to Samuel L. Jackson, 64.

Right to the good stuff:

1. Chris Frates in National Journal gets it right on Plan B and the road ahead; see also a good pre-non-vote post by Matt Yglesias.

2. And of course you want to read Sarah Binder on the debacle.

3. The presidency and gun control, from Brendan Nyhan.

4. Jennifer Duffy with fun facts from the 2012 elections.

5. Philip Klein tries to talk sense to conservatives about realistic expectations from the fiscal cliff.

No, Boehner Isn't Nuts

Speaker John Boehner is getting pretty bad reviews pretty much everywhere for his gambit of submitting a Plan B for a House vote, with Plan B made up of a set of tax policies which can't possibly become law. Democrats and some centrist types are upset with him because Plan B meant walking away from budget talks with the president just as they were apparently getting close to a deal. Conservatives, meanwhile, are against Plan B because it involves voting for what they consider a tax increase, with rates going up for a tiny group of highest-income filers (up compared with where they are now; of course, rates are scheduled to go up for lots of people if Congress does nothing by January 1). All of which leads to comments about Boehner being a very weak Speaker who can't control his own conference.

I think that's the wrong way to think about it. It's correct that Boehner can't order his conference to do whatever he wants; nor will they automatically trust what he says. But that's normal for all Speakers.

So what is Boehner up to? He knows -- knows -- that the election returns almost certainly meant that tax rates on at least some upper income filers were going to go up,* and that Republicans were either going to have to vote for a bill to set those tax rates before or after the Bush rates expired. What he might not know, however, is whether and to what extent his Members cared about the timing of the vote. How much were they willing to give up to push the bill past January 1 so that they could sell it as a tax cut (even though it would do exactly the same thing as a pre-January vote)?  The Plan B vote might generate some information about that. Anyone voting for it would presumably be willing to vote for an overall fiscal cliff deal this month, after all, and pushing it to a vote might be the best way for Boehner to get a sense of whether he can get the votes for a deal -- or if he should just wait until January, even if it risks getting him a worse deal. More than that: it also could give him a sense of whether the Senate-passed taxes-only bill could pass the House. That one is a lot easier; it would presumably get every Democrat and therefore only need a small number of Republicans, whereas an overall deal would probably require a majority of both parties in order to pass (since Democrats wouldn't support it without Republican votes).

Will it work? Hard to say. It's easy to imagine Plan B winding up with basically zero votes if it comes up short -- I can very much imagine a scenario in which the vote on the House floor stalls at 200, and then everyone flips to "no" before the gavel comes down. While that would give Boehner some information (just the ongoing whip count gives him better information than he would have had without scheduling a vote), itt wouldn't accomplish the trick of making 218 Republicans on record voting for a tiny bit higher taxes, and therefore presumably more open to voting for a tiny bit more (that is: I think conservatives who are urging a no vote for this reason are basically correct about this).

Remember, at some point, House Republicans -- at least some of them, and probably more than half -- are going to have to vote for a tax bill which sets taxes higher than a full extension of current rates would set them. It might happen sooner, it might happen later, but it's going to happen.** Boehner knows that. Every House Republican should, and probably does, know that, although they might not know which of them will have to do it. Come to think of it, Plan B might not just be a method for Boehner to generate information; it also might be a way for him to teach his conference some of the basic facts of what has to happen, and their place in it.

And meanwhile...yeah, it wastes a few days of the Boehner/Obama negotiations, but even there it's certainly possible that the number-crunchers and the legislation-drafters are hard at work turning their almost-framework into the details they'll eventually need. And meanwhile: if he learns he has the votes to pass a mega-deal now then he can move ahead with one; if he learns he doesn't, then he can let everyone go home for the year and avoid the disaster of making a deal and then having it collapse on the House floor.

Put it all together, and I'm not at all convinced that Boehner is making any sort of mistake by scheduling the Plan B vote.



*Almost certainly? Yeah; I think it's at least vaguely possible in theory that Republicans could have found some trade that Democrats would accept, but in reality they don't actually value tax cuts for rich people quite that high. For example, what if Republicans said that they would vote for a serious climate bill in exchange for full renewal of the Bush-era tax cuts? Democrats would have to go for that, wouldn't they?

**Okay, there is one other way out of this for them; the idea they were floating a while back to vote "present" on a tax bill and let the Democrats pass it. Again, part of the question here is whether GOP-aligned groups see any difference in slightly different House Republican actions which deliver the same result.

Cloture Votes Do Not Equal Filibusters

I don't really agree with filibuster abolitionist Tim Noah about the solution to the dysfunctional Senate, but I need to correct him anyway when he makes his case weaker than it is. Noah:

The New Yorker's Hendrik Hertzberg recently calculated that during the past three years Republicans achieved "very nearly one filibuster for every single goddam day the Senate is in session" [italics and impiety his, though I endorse both]. Meanwhile, I've calculated that during the current Congress the Senate's ratio of cloture votes (roughly speaking, filibusters) to bills passed doubled. 

Look: since 2009, Republicans have insisted on a 60 vote Senate. End of story. That means they are filibustering every single item.

Cloture vote counts are useful if you want to make comparisons between Congresses. They're not even close to perfect for that, but then again nothing else is either. But we don't need to count cloture votes to know what's going on here. It's every single item.

(Okay, a very slight clarification. During the current Congress, although not in the 111th Congress, Republicans backed off the absolute 60 standard on one or two nominations, which implies that they may have backed off it for a bit more than that. Maybe. Maybe not.)

Anyway, cloture votes simple do not equal filibusters. The Majority Leader may not -- does not -- bother bringing things to the floor in the first place if he knows he'll need 60 votes and doesn't have it. A filibuster may end with a deal, rather than a cloture vote, especially (but not always) because the majority doesn't have 60. For example, a filibuster to defeat a controversial provision in an otherwise uncontroversial bill could end with the provision stripped from the bill before any cloture petition is filed. It's also possible that the Majority Leader could file a cloture petition and get a vote on it even if the minority really didn't have any intention of preventing a final vote; Republicans have in fact accused Harry Reid of doing so, but given that they're demanding 60 I would still count it as a filibuster.

Once again: cloture votes do not equal filibusters. They are a poor measure of filibusters, even when they might be the best measure we have. In some cases, they can be a useful measure nonetheless. But we do not need any measurement at all for the 111th and 112th Congresses; all we need are the repeated claims by the minority party that it requires 60 votes to get anything done in the Senate, and the observation that, in fact, it does require 60 votes to get anything done in the Senate.

Absolutely everything -- every bill introduced, every amendment offered, virtually every nomination -- is filibustered in the current Senate. That's the count everyone should be using.

Read Stuff, You Should

Happy Birthday to Aubrey Huff, 36.

A  bit of good stuff:

1. A DC Statehood bill is introduced. I'm sort of thinking it won't quite pass this year...Mike DeBonis is not amused.

2. Brian Beutler on Plan B, which he sees as a Boehner misfire. Could be.

3. Dan Drezner isn't particularly upset about the Kagans.

4. And what's up with TSA, by Amy Zegart.

Planbee

Obviously, I'm assuming that after Speaker Boehner introduced Plan B to the GOP conference yesterday, the Republican Members of the House have been spending the day running around covering up for Matthew so he doesn't get fired. Right?

(Yes, I know, no one knows or cares. Sorry; I'm going to treat it as if it's a well-recognized classic that's part of our assumed common culture, so that I can make references to it without explanation.)

Hmmm...where was I....oh, yeah, Boehner and Planbee. Does she (she being Andrea Planbee -- didn't you click on the link and re?-watch the entire four-episode sequence before continuing?) have the power to unseat Dave Boehner, and put her best friend Eric Cantor into the Speaker's chair?

Well, no, not really. John Boehner has one major safety net which should keep him safe as Speaker for a while: Eric Cantor shouldn't want the job, just yet. The situation is basically the same as the one in Summer 2011. Sooner or later, there's an excellent chance that the Republican Speaker -- whoever it is -- is going to have to sign on to something. At the very least, the Republican Speaker will eventually have to support an increase in the debt limit or a mechanism for avoiding it, but before that the odds are good that the Republican Speaker will wind up supporting something to modify the sequester and to keep tax rates at their present levels for some, but not all, filers.

That is, something will eventually pass on those topics that can be signed into law, and the only way it will pass is if both the Republican Speaker and the President of the United States agree to it.

And so it's very much not in Eric Cantor's interest to be Speaker when it happens. Or, to put it another way: if it's a deal that the rank-and-file Members of the conference support, then Boehner is safe. But if it's a deal that they don't support, and in fact if any deal at all will cause a large chunk of the conference to blame the Speaker for selling out, then Cantor would very much like John Boehner to be the Speaker who does it.

Now, I have no idea what Cantor really wants at all. But if he simply wants to be Speaker and doesn't care about substance at all (again, not saying that's true, just thinking about incentives) then what he should really want is a long-term deal that removes the debt limit entirely for good, and that then barely passes the House. That should leave Boehner reasonably unpopular, but would also make the Speaker's chair far more attractive going forward, since it would reduce the opportunities for any further brinkmanship for at least some time, and therefore turn the job into a much easier one.

The general point: it's a mistake to think of John Boehner as a moderate and Eric Cantor as a hard-line conservative. The main thing going on is that a large part of the Republican conference is either crazy or catering to the crazies, while whoever is Speaker actually has to strike deals sometimes.

So no matter how much of an amateur arsonist Planbee turns out to be

Following the Fiscal Cliff Negotiations

Just a few points:

1. What gets reported from the negotiators is usually part of the negotiations. That is, reporters hear what the negotiators want them to hear. And you can't even assume which way it's slanted (if at all); one of the players may believe it's in his interest to stress how reasonable he's being, or how tough he's being. Doesn't mean it's really true.

2. That might include deliberate trial balloons -- but they usually aren't labeled trial balloons!

3. Advocates on both sides have will generally have a strong incentive to push for more -- to denounce the weakness of the politicians on their side, and emphasize both the cleverness and the outrageousness of those on the other side.

4. The exception to that is that advocates do have an incentive to temper their complaints about being sold out on less-essential items in order to be able to make a better stink if a higher priority is in danger. But even there, the incentives may be murky enough that they don't do it.

5. What's more, advocates may be misinformed or misunderstand the negotiating positions. That is, advocates may not realize that their side will eventually have to give up something of value (if that's the case) and instead of steering their representatives towards the least-objectionable area, they may be equally offended by any potential concession. This may be get even worse because advocates from once side may be entirely clueless about the structure of preferences and intensity on the other side (in other words, advocates on one side may believe that giving up X will buy the same reward as giving up Y, but that can be way off).

6. Even worse: advocates may be misinformed about the underlying substance. In negotiations such as these, there's just so much at play that even relatively well-informed observers may not realize potential trade-offs involved. And not everyone making noise is a relatively well-informed observer. Read things such as Jonathan Cohn's excellent post yesterday with that in mind.

7. Part of the job of the politicians in these things is to teach outside advocates about those things the advocates could be wrong about, but negotiating situation and underlying substance. But at the same time, the politicians could be wrong about any of it, too.

8. Oh, and one more thing: neither outside advocates nor the politicians involved in the talks are necessarily monolithic. There's no official "liberal" position on Social Security or "conservative" position on taxes -- but there are plenty of people who want their position to be the liberal or conservative position on an issue, and will act as if it is.

There's nothing wrong with any of this: politicians and advocates are doing exactly what they should be doing. Well, except for the misinformed part of it, I suppose.

It's just that anyone trying to make sense of what's going on should keep all of it in mind, and attempt to interpret what they read and hear with all of it in mind.

Read Stuff, You Should

Happy Birthday to Kristy Swanson, 43. Sure, she's not the real Slayer, and not even the real Mannequin. But so what?

The good stuff:

1. It's good to read what smart outsiders say about you -- here's Alex Massie on Newtown.

2. Stan Collender is not optimistic about a deal before January 1. Jonathan Cohn has more.

3. Michael Linden notes that John Boehner is extremely selective as to whether interest on debt counts as government "spending" or not.

4. Which president:

under our institutions there was no middle ground for the negro race between slavery and equal citizenship. There can be no permanent disfranchised peasantry in the United States. Freedom can never yield its fullness of blessings so long as the law or its administration places the smallest obstacle in the pathway of any virtuous citizen.

Answer? That's Garfield, in his inaugural address in 1881. I know very little about Garfield other than "disappointed office seeker," so I found it interesting. From Kenneth Lowande; part of a series from the Miller Center.

5. And Mary Elizabeth Williams interviews the great Julie Brown.

Elsewhere: Recess, Roslin, EC

Yesterday at PP I said that Barack Obama should be using the leverage he has to fight for exec branch nomination reform in the Senate -- he should be threatening recess appointments, and make them if needed, until the Senate goes to simple majority confirmation of those appointments.

At Greg's place, I responded to the latest article about the GOP scheme to rig the electoral college by making my argument that it probably won't really happen.

And today at PP I revived the Continuity of Government plan for presidential succession, which I pretty much do every time there's an excuse (which often, as it was today, comes when Matt Yglesias posts on how bad the current plan is). Yes, as usual, I referenced Laura Roslin and Glen Walken, and they used a Roslin picture.

Old-ish Senate Update

No, the Senate isn't suddenly getting young -- but it's certainly backing off the record levels it was at a few years ago.

The latest updates? Jim DeMint is 61; he'll be replaced by Tim Scott, who is 47.

Daniel Inouye died at 88. He wrote to Hawaii Governor Neil Abercrombie before his death asking that Colleen Hanabusa, who is finishing up her first term in the House, get the appointment to succeed him; whoever Abercrombie appoints will hold the seat through 2014. Abercrombie will be limited, however, to a list that the Hawaii Democratic Party supplies. Hanabusa is 61. Worth noting? Blue Dog Hawaii pol Ed case is 60; Hawaii's newest Member of Congress, or I suppose Member-Elect, is Tulsi Gabbard, who was born in April 1981. I don't know enough about Hawaii politics to know who the other potential candidates are.

And while it's not certain until it's certain, everyone has John Kerry replacing Hillary Clinton at State. Kerry is 69. No way at all of knowing who gets either the temporary appointment or who wins the subsequent special election (or if Massachusetts changes their succession law again, for that matter). There is talk of Ed Markey, 66, running; most of the other possibilities would be younger, but I'll save a list of candidates until we know more. Of course, a short-term appointment could well be older. But, you know, probably not a lot older.

From the perspective of Senate aging, Scott is very solid, and Hanabusa would be a real missed opportunity, especially after Mazie Hirona took the other seat -- yes, if Hanabusa is appointed, Hawaii would have two baby Senators, ages 61 and 65. And given the Aloha State's electoral history, they would probably both be there as long as they wanted and stayed alive. Massachusetts? We'll see.

Even in the most pessimistic scenario, we're still talking about shaving almost 40 years off of the total Senate age, which is not bad at all. But I'd like to see a 100 year reduction from just these three seats. That would be a real dent in the aging of the Senate. Hey, Hawaii Democrats and Governor Abercrombie! Step up for a younger Senate!

Daniel Inouye

Senator Daniel Inouye, an American hero, RIP.

I don't have much to say about Inouye as a Senator that others haven't said. Here's the WaPo obituary. Truly, a great American.

Inouye first served in the 88th Senate, which of course passed the Civil Rights Act of 1964. He served with Carl Hayden, who had represented Arizona in Congress since it became a state in 1912, and had been in the Senate since 1927; Hayden made it to 1972, so that means with Inouye gone no current Senator served with him. Hayden? He overlaps with Francis Warren, who was an original Senator from Wyoming in 1890, although he did skip two years, leaving the Senate in 1893 and returning in 1895.

Want more? It only gets us back 14 years, but Warren served with Henry Teller, an original Senator from Colorado, who also skipped two years at one point. The next one isn't quite there, but it gets close. Teller served with William Windom. Windom was in the Senate from 1870 to 1883, although there were two brief lapses, giving him plenty of overlap with Teller. Before the Senate, Windom was in the House from 1859 to 1869. He wasn't quite an original Member of the House from Minnesota, but missed it by only one year. Or, we can use Phineas Hitchcock, who was a territorial representative from Nebraska and then, after a four year gap, a Senator beginning in 1871. As near as I can tell, the chain pretty much ends there. Or course, another way to look at it is that Inouye and Hayden cover a full 100 years in their overlapping Congressional careers.

I hope you won't mind if part of my response is personal. Inouye is the last Senator who was there before I was born; he's succeeded as President Pro Tempore by Pat Leahy, who was a Watergate baby (that is, first elected in 1974). It's not just that...I worked over on the Senate side from summer 1987 through summer 1989. From the Senate when I began that job, hardly anyone will remain in the 113th Senate next month: I count 13, only 12 if Kerry is gone. Which I guess makes me...er...not young.

Eric Ostermeier produced a list of all the Senators Inouye served with; there are 412 of them. Only one president! At least, so far. But if you look through the list, you're going to find dozens who ran, and even more who sorta, kinda ran, and then an even longer list if you include those who were vice-presidential nominees or considered for it. Including, apparently, Inouye, in 1968.

Inouye was on the Senate Watergate Committee, so maybe I'll be blogging about him this summer. He'll be very much missed in the Senate, and not soon forgotten.

Read Stuff, You Should

Happy Birthday to Martha Johnson, 62. Allmusic rates Danseparc higher than Metro Music...I think that's right. An excellent band at their best.

Meanwhile, lots of good stuff:

1. Gun control: the Australian experience. Will Oremus reports.

2. Conor Friedersdorf argues that Barack Obama should be more intent on rewarding original opponents of the Iraq War -- in order to establish a better incentive structure the next time around.

3. Dan Drezner: against bubbles.

4. People get stuff wrong. Especially when there's a lot going on. It's a thing. People should know about it. From Colbert King.

5. Speaking of which...a really smart post about the fiscal cliff  negotiations, or at least the reported negotiations, from Matt Yglesias.

6. And here comes the ACA. Sarah Kliff has details.

I Like It...

...when people I don't like adopt positions that I don't like. Less cognitive dissonance!

So I was very glad to see Holy Joe Lieberman, on his way out the door, endorse term limits (via Political Wire).

Holy Joe says that if we only had term limits, we would have more new blood...but there's of course plenty of new blood in both Chambers of Congress (I haven't double checked this one, but someone said on twitter last week that once we hit January half of the Senate will be in their first terms). But that's not all! He also claims that  term limits will reduce partisan polarization. How? He didn't exactly explain that part. But he doesn't like polarization, and he's decided that he likes term limits, so why not?

In fact, there's no reason at all to believe that term limits would have any effect at all on polarization. But it certainly would be bad for Congress, and bad for democracy, as I noted in my column over at TAP last week.

Okay, I'll give Holy Joe credit for another thing: he gave me an excuse to push my term limits column. That, plus reducing my cognitive dissonance? And, as regular readers know, I think that hypocrisy is overrated, so I can't be upset with him for just coming to support term limits now that he's retiring after 24 years in the Senate; it's no worse, in my book, than if he had supported it from day one and retired on cue after 12 years or whatever. So for today at least, I'm quite happy with Holy Joe Lieberman. Nice job!

Guns and Strategy

I strongly recommend Jonathan Chait's largely pessimistic view (from the point of view of those who want legislation) of the chances of getting anything restricting guns in any way whatsoever through the House. And if that's correct -- if conservative Republicans remain dead set against anything at all -- then there's almost nothing Barack Obama can do about it (see, too, David Frum's view, which points out the possibility that presidential public leadership could easily polarize the debate and therefore backfire).

That said: I wouldn't completely rule out the possibility that legislation of some sort could be passed, and the president does in fact have a role to play in that. Obama should certainly be actively sounding out Republican leaders to see if there's a deal that could be done, either at the beginning of the next Congress or even during the lame duck session. Is it likely that Republicans would be willing to pass something? No. Is it impossible? No, it isn't, and if they're willing, Democratic leaders in Congress and the president should aggressively seek out any areas of agreement that might exist and try to get it done.

If there really is a deal out there, I'd guess that it would have to be done as far from the cameras as possible -- or, at least, it would be done as far from the cameras as Republicans think would help them. Yup, that's right: if something is going to pass, Republicans get an enormous amount of leverage over what it is, how it's written, and how it's presented publicly. Because without them, you have nothing. Obviously, the president and Democrats won't sign on to anything they believe is counterproductive, but among the wide range of items that gun control advocates think might do some good, it's pretty much up to Republicans -- House Republicans, really -- to pick which ones they can accept. Not only that, but if Republicans demand some (believed by gun control advocates to be) counterproductive items as part of an overall bill, they'll almost certainly get them as long as the bill, overall, is better than the status quo.

The president could give every eloquent speech in the book, but it won't make any difference in the short term. There will be a bill if and only if Republicans want one, and if that's the case they'll pretty much have all the leverage as to what's in it. The only things Obama and the Democrats can do is to make it as easy as possible for Republicans to sign on, and to use their legislative and substantive expertise to make sure the bill does everything Republicans would allow it to do. Those are important things!

Of course, the answer might well be that there is no give here; there may be no possible legislation that can pass the House that Barack Obama would sign. If that's the case, then federal legislation for at least the next two years, and most likely at least the next four years, is impossible, and those who want action need to think about what a long-term campaign should look like. Indeed: even if something can pass, the next step would have to require a long-term plan. Would the best strategy focus on the states? The courts? The Democratic Party -- and if so, the presidential campaign, or downballot primaries? General elections? Popular opinion, saving any active legislative campaign the future? Other options? That's a tough question. And even if something can pass now, it's not going to be much, and that means that the "what next?" question will still need to be asked.

As always, two contradictory things about the American political system dictate all this: on the one hand, veto points are real and often simply cannot be overcome, but on the other hand, the political system really is open to democratic political action, as difficult as that may be. The trick is to accept the reality of the limitations of the system without just giving up, since the opportunities for relatively small groups to influence things is real, too.

Read Stuff, You Should

Happy Birthday to Curtis Pride, 44.

A little good stuff:

1. The easiest way to get a Plain Blog link these days? Write a pro-reform Senate piece that opposes the current talking filibuster proposal. Here's the Economist's M.S. Is it impossible for the talking filibuster to work? That's the wrong question; the right question is whether there's any advantage in trying to do reform via the live filibuster, and the answer to that is almost certainly no.

2. I'm not going to link to individual posts, but the Monkey Cage has been running several pieces about guns, gun control, and other related issues. Highly recommend, of course.

3. Two more reviews of "Zero Dark Thirty" from two people you should listen to on torture: Andrew Sullivan has a relatively positive response, but Jane Mayer thinks the filmmakers fell short.

4. And as someone who isn't a comparativist and who doesn't spend much time caring about big laws (other than, say, the one about how mayor of New York City is a dead-end job), I was happy to read Jay Ulfelder on "it depends."

Sunday Question for Liberals

In your view, what's the biggest obstacle to gun control? Is it the power of the NRA; the Republican Party; Democratic Party politicians who are overly scared of the NRA; the preferences of the American people; the political system in general; or some other obstacle?

Sunday Question for Conservatives

What should the conservative position on guns be?

What Mattered This Week?

Putting aside the horrible shooting in Connecticut...

I'll say that the new actions by the Fed mattered -- not just in terms of the economy, but politically as well.

And for something that I suspect didn't matter, I'll go with the North Korea launch.

What else? What do you think mattered this week?

Elsewhere: Politics and Tragedy, and Others

I'm not posting much today, but I did write something about tragedies and politics over at PP.

I also have a new column up over at TAP arguing against Bobby Jindal's call last week for term limits.

And yesterday I posted my first reactions to the Susan Rice news over at Greg's place, and talked filibuster potential deals at PP.

I do plan, more or less, to be back later for a baseball post, but I think that's it for now.

"Change in Behavior, Not a Change in Rules"

That's what Lamar Alexander said that the Senate needs.

Truth is, he's right! The best possible solution to the currently dysfunctional Senate would be for the minority party to return to how things were before 1993 -- a Senate in which majorities regularly passed bills, and in which nominations were usually confirmed without a whole lot of trouble and almost always by majority vote.

The problem?

That's not going to happen. And Lamar Alexander isn't going to try to make it happen, as far as I can tell. Republicans, beginning in 1993 under Bob Dole and then in 2009 under Mitch McConnell, decided to exploit the rules to turn the Senate into a body in which everything needed 60 votes. It never had been that before. Is Alexander willing to commit to voting for cloture on all but a handful of top priorities, even if he opposes the underlying bill or nomination? Is he willing to find a half-dozen Republicans to join him? I don't think so.

Now, Alexander says he's open to rules changes but is fully opposed to majority-imposed rules changes; he believes that once that's done, it's only a matter of time before the majority goes the rest of the way and eliminates the filibuster completely. I think that may be correct.

So if that's what he really believes, Alexander shouldn't just be open to rules change; he should be actively pushing changes that would retain what he sees as the Senate's strengths, and rounding up Republicans to get those changes passed.

Indeed: in my view, the real threat of "the Senate becomes just like the House" isn't from one use of majority-imposed rules reform; it's from the status quo. The bottom line, as I've said many times, is that majority party Senators probably don't want a House-like Senate, but they'll prefer it to a Senate that can't get anything done at all. Want to save the Senate, Lamar Alexander? Reform it.

Read Stuff, You Should

Happy Birthday to Jeff Robinson, 51. And one day late: Jeff Robinson, 52. The one whose birthday is today is, to me, the other Jeff Robinson; he's the one who came up with the Tigers and pitched from 1987-1992. The one whose birthday was yesterday is the one who came up with the Giants and pitched from 1984-1992. The other Jeff Robinson, the Tigers one, is a great case study. His ERA+ over his career was 79, 128, 82, 67, 72. What happened that year? He led the league in hits per 9, with a rate over 2 hits per 9 lower than his career rate, even though a large chunk of his career was that year. The Giants Jeff Robinson was actually a pretty good relief pitcher, although nothing special, and was cashed in to get Rick Reuschel, so that worked out nicely. My dad has long maintained that ballplayers should be like racehorses and actors and have to go by unique names. As far as I know, neither of these guys even had a nickname.

At any rate, the good stuff:

1. Gotta link to Kevin Drum on the talking filibuster; he gets it right.

2. Liberal priorities on spending and taxes, from Matt Yglesias.

3. Health care prices are the problem, Sarah Kliff writes.

4. Andrew Sullivan, more fed up with the Republicans than usual.

5. The future of marriage equality -- as E.J. Graff sees it, it no longer depends on Justice Kennedy.

6. And football and Nixon, from Andrew Rudelevige.

Against Merkley's Talking Filibuster Proposal

Jeff Merkley yesterday put out a long memo to his colleagues describing his talking filibuster proposal. Note that this is not the entire Merkley/Udall proposal, and there are other reform proposals circulating among Democrats, too. But just looked at in isolation, and assuming that there are no additional details beyond what he's explaining, I would conclude two things.

It probably won't do what he wants it to do.

In the unlikely event it does do what he wants, it's still on balance a bad idea.

Merkley's plan kicks in only in certain cases: when a cloture vote has been held, and cloture fails -- but cloture achieves 51 votes (that is, there's a majority, but not a big enough supermajority to beat a filibuster by vote). If that situation occurs, then what Merkley does is, as far as I can tell, change the rules for debate in order to relieve the majority of the burden of remaining on the Senate floor during extended debate. In normal debate, there are a variety of maneuvers a Senator can use to put the Senate on hold, generally requiring the majority to show up (for a quorum call, for example) to force debate to continue. Merkley would change that, so that during any extended debate the minority would actually have to keep talking.

That's it.

Okay, to back up: Merkley's stated goal, and one that I agree with, is to preserve the possibility of successful minority filibusters for cases in which a large, intense majority opposes something -- but to eliminate the standard filibusters on everything which have created a 60 vote Senate.

Would this reform achieve that goal?

Remember that the Majority Leader right now can force a talking filibuster, either with or without a cloture vote, but they haven't done so as a regular procedure for decades.

So what would change after reform (and again, we're only talking about one reform plan out of several) would be that talking filibusters would force the minority Senator on the floor to be talking instead of waiting to talk and filing motions...while the burden for the majority would be considerably reduced, from currently having to keep enough Senators close to the floor for votes and quorum calls to only having to keep two Senators on the floor -- one to preside, and one to be ready to take advantage of a lapse by the minority.

The additional burden on the minority is, in my view, very slight. Sure, talking is harder than just sitting there...but it's really not much of a burden for politicians (supported by large staffs, and beyond that by conservative bloggers and talk show hosts and the rest) to find something to say. Remember, they would be -- as they would be now -- free to tag team; they just have to schedule one person to be on the floor, ready or at least willing to talk, at all times.

The reform does, however, make a big difference in its demands on the majority; keeping two people available is a whole lot easier than keeping practically the entire caucus available.

So the question becomes whether it was that burden on the majority which makes talking filibusters a bad idea for the majority under current rules. I'm confident that it isn't. The need to hold the Senate floor indefinitely just doesn't seem very difficult to me, and the biggest drawback for the majority -- that talking filibusters chew up valuable floor time -- is unchanged. Put it this way: if all it really took for majorities was to stick around until a filibuster was beaten, then wouldn't they have done so, at least occasionally, in the last several decades? There must have been at least a few times that an intense majority opposed a large but relatively indifferent minority; wouldn't they have at least tried? And yet they haven't. Which is, in my view, extremely strong evidence  that the burden on the majority to stay near the floor is irrelevant to the reasons the majority has not forced talking filibusters.

Merkley talks a fair amount about how increasing the burden on the minority by actually forcing them to do a talking filibuster instead of the current passive procedure would be a strong disincentive for filibusters when the minority is not intense. However, what I think he's missing is the repeating nature of the filibuster game. Republicans might not have a strong incentive to mount a talking filibuster in a one-shot opposition to, say, a single executive branch nominee (remembering that none of this matters except when the minority has 41 votes opposing that nominee to begin with in order to trigger Merkley's rule). However, they would have a strong incentive to prove early on that they can back up any 41+ cloture vote with floor action if needed. Thus all members of the minority would have an extremely strong incentive to treat the very first talking filibuster not as a battle against a specific bill or nominee, but as a test of their conference's strength. A test that they can fairly easily pass.

It's not going to work.

I also said at the top that it's a bad idea even if it was able to work. That's because if it works, it does so by lowering the burden on the majority. And yet that seems backwards to me. One can make a pretty strong case that an indifferent majority should lose to an intense minority. This proposal would work, if it did, primarily by empowering indifferent majorities, those not willing to outlast a filibuster by staying on the Senate floor.

Now, there is I suppose an answer to that, which is that under current practice minorities don't actually have to hold the floor at all, even if it technically could happen; under the talking filibuster they would be forced to, and would therefore only filibuster if they were intense enough to do so. But still...if talking filibusters were simply a matter of intensity, then both majority and minority intensity should count.

The bottom line here remains that the supposed virtues of the talking filibuster solution seem to rest on the things I didn't talk about here but Merkley does in his memo -- the romantic but false notion that what actually happens on the Senate floor will, Mr. Smith like, produce a landslide of publicity for or against whatever is being debated. I just don't think that the Senate works like that at all. Sure, outside pressure can affect Senators' votes. But it just seems extremely unlikely that the additional pressure -- if any -- generated by the talking filibuster would do that. More likely, the additional pressure generated from that sort of thing would be partisan in nature, and therefore tend to keep the minority going.

As I've said before: if the goal is to find some rule or set of rules which make filibustering possible but difficult, then requiring a talking filibuster as part of it just makes it harder, not easier -- both because the actual operation of a talking filibuster hurts the majority (by using valuable floor time), and because it's just an additional obstacle to what is in any case a very difficult rule-drafting problem. Perhaps it's possible anyway, but Merkley's current proposal doesn't appear to do it.

War on Budgeting Shows Up Again

Jonathan Chait has a nice one today in which he looks at GOP attempts to understand why Barack Obama is pushing tax increases on the rich. The gist of it is that it apparently doesn't occur to Republicans that Democrats might support higher taxes because it would reduce the deficit (or, to put it another way, because it would fund programs Democrats support).

This, of course, is recognizable as the GOP war on budgeting. Under war on budgeting thinking, each tax and each expenditure is evaluated in isolation as good or bad; there's no sense that one needs to compare one expenditure to the other, or to revenues, in order to get the whole thing to balance. At best, there's a sense of "is this worth the money?" kind of question...you'll hear conservatives say that some program would be nice, but isn't worth taxpayer's money. But there's no sense at all that one needs to consider any expenditure in the context of all expenditures. Of course, advocates in general try to talk that way about programs they like -- but war-on-budgeting conservatives do it in the context of deficits and budgets.

As far as how deeply Republicans "really" believe it...the best way to deal with that is just to realize that the war on budgeting frame helps explain what they say and do really well, and that's good enough.

As it is in this case: the idea that Democratic support for higher taxes as part of a solution to a deficit that's too large -- that Republicans loudly insist is too large -- is something difficult to explain is, really, pretty weird. It doesn't need a complicated political explanation! Of course, given a choice between raising taxes on rich people and, say, cutting Medicare, one would predict that Democrats would choose raising taxes on rich people. It only needs an explanation is it doesn't occur to you that choices of that kind are necessary when budgeting.

Of course, we could always conclude that Karl Rove and the others who Chait quotes are just making up a phony attack just because partisans do that. But the nature of it, I think, shows that the really do find this to be something rather puzzling on policy grounds and therefore in need of some other explanation.

Read Stuff, You Should

Happy Birthday to Wendie Malick, 62.

Plus some good stuff:

1. Dan Larison argues that presidential candidates should actually know something about the world. Which, believe it or not, is sort of necessary pushback against the prevailing views among many Republicans.

2. Robert Kuttner on Obama and judges.

3. Ryan Cooper thinks I'm nuts about political rhetoric.

4. Sarah Binder on Congress and the "Evans Rule."

5. And David Frum on "doomsday conservatives."

What's With Virginia Republicans?

Yesterday I said that it's highly unlikely that states will actually adopt the "Pennsylvania plan" in which Republicans take advantage of GOP unified government in states which vote for Democrats in presidential elections to change the electoral vote allocation in those states, either to a district scheme (like the Maine/Nebraska system) or a proportional plan.

So as soon as I posted that, Dave Weigel reports that a Republican state senator from Virginia is pushing a district-based allocation there (and apparently it's spread to Ohio, too).

Well, we'll see.

As Steve Benen points out, Virginia has only gone to the Democratic presidential candidate three times in the last 60 years. It's even worse than that, however: in both 2008 and 2012, Virginia was still more Republican than the national tipping point. Basically, if the nation had moved five points toward Romney (with current rules and uniform swing), Virginia would have gone Republican, with Obama winning 272-266. As it happens this time around, either Pennsylvania or Colorado was next up, with either of them giving Romney a win. But wait! If it was neither PA or CO but next in line New Hampshire that flipped, Romney wins 270-268...and if Virginia had adopted the district allocation scheme, Obama gets four or five of their 13 electoral votes and wins the election.

The same thing, by the way, with Ohio, which is usually slightly more Republican than the nation as a whole. In the election we actually had, a district or proportional plan in Ohio would have given a few meaningless votes to Romney, but in a closer election Obama would be the one benefiting from the split.

If Republicans could force a district plan across the whole country, they would benefit. But doing it in selected states is extremely risky.

So what's happening in Virginia?

One possibility, the one that Benen draws out, is that Republicans are just very pessimistic there; they believe that soon it will be a solid Democratic state, and so they want to lock in rules that will work for them in those circumstances before they get a chance.

A second possibility is that Virginia Republicans, or at least some Virginia Republicans, are very stupid and do not realize that their partisan hardball is very likely to backfire.

And a third possibility is that Virginia Republicans have no intention of doing this, but that one state senator figured he could get some mileage out of proposing it.

My bet is on door #3. But who knows? I guess we'll see what happens, but I'll stick with what I said yesterday: I strongly suspect nothing will happen anywhere on this one.

The Senate and Accidents of HIstory

Excellent post today from Jordan Ragusa on the origins of the filibuster and more. I especially agree with his conclusion about the controlling importance of the "determine the rules" clause, which makes Senate Rule 22 clearly Constitutional.

Ragusa makes the point that legislative rules can be the result of historical accident or contingency, combined with path dependence. In other words, the whole "previous question" thing happens to Senate rules for no particular reason at all, sits there quietly for a long time, and eventually becomes the basis for filibustering -- and then stays that way because once something is in place it can be hard to change. What I'd add to that, however, is that general institutional incentives can tend to reinforce or undermine the path an institution has set on. For example, the House did wipe out filibusters, while the Senate did not. That presumably fits with the idea that Members of a chamber that is (1) smaller and for whom (2) constituencies are larger and less homogeneous will have greater incentives to retain individual Member influence. That is, they'll be less likely to trade off (relatively small) individual influence on a very wide range of issues for (relatively larger) influence over a narrow range of issues and practically no influence on the rest.

I'm definitely not saying that the Senate had to end up this way. Obviously, since the Senate has only been "this way" for the last few years, and there have been lots of "this ways" even in the last fifty years, let alone the whole history of the Republic. Indeed: one of the points that I've been making is that defenders of the influence of individual Senators should be first in line to support Senate reform right now, because the possibility of some sort of reform in the near future is large and so those who want to retain some form of filibuster should act to do so.

In other words: yes, reform can have unintended consequences and those are important -- but reform can also have intended consequences, and those are important too.

At any rate, read Ragusa's whole post, which is very good.