Wednesday, November 13, 2013

What Are Republicans Thinking on Filibusters?

At this point in the current filibuster showdown, most of the focus is on what the Democrats will do, with Republicans blockading three seats on the DC Circuit Court. It seems to me that Democrats will have little choice but to threaten majority-imposed rules change and, if necessary, carry out that threat. But what are Republicans thinking? I have no idea, but there seem to be several possibilities.

1. They don't believe Democrats will really go through with majority-imposed reform.

2. They're bluffing. They intend to fold at the last minute, just as they did over executive branch nominations during the last confrontation.

3. They're not bluffing, and they don't think the Democrats are bluffing -- they want to get rid of the filibuster, and want the Democrats to be the ones who do it.

4. Collectively, they want to back down. However, the tag-team method they've been using to lose on cloture votes by relatively narrow margins have broken down; they can't find five Republicans to take the potential re-nomination hit of voting for cloture.

Or perhaps it's a mistake to suggest that "the Republicans" are thinking anything as a group. After all, these are 45 individual, autonomous politicians; there may be all sorts of mixed combinations of what's going on here. For example, it could be that 20 or so Republican Senators are in column #3 and want to get rid of the filibuster, and then another 20 or so are just afraid to vote against those first twenty...and then a few more are really just bluffing. Or are really reading the Democrats as bluffing.

As I said: I have no idea what's going on here, and therefore what the likely end game might be. Perhaps we'll learn more as we move towards the third cloture vote. I have to say: I'm not predicting anything, but I'm not as optimistic as I was last time that they're going to strike a deal.

23 comments:

  1. Combination of 1 and 3 seems most likely to me. GOP figures there's a good chance that they'll get back the Senate in 2014 or everything back in 2016. And that either one of those happening has more chance than the Dems winning back the House.

    If Dems are bluffing, the GOP wins immediately, and if the Dems aren't bluffing, the GOP probably wins eventually.

    I don't see any reason that the GOP should cave.

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    1. I don't understand the downside for either party to get rid of the rules as they stand. Sure, it makes it harder to block nominations, but the way things stand this is an atrocity for either party. I don't think the Dems should cave. I don't the GOP should cave. Let's make this a non-story.

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  2. What does control of the House have to do with it? This is about judicial nominations. I think (2) seems most likely. In practice GOP presidents have been much less constrained by filibuster of judicial nominees than Democratic presidents have been (in terms of appointing ideologically extreme judges), plus the Senate currently leans to the Democrats, so the GOP has much more to lose from majority vote on judges. I think where this ends up is at the last minute they agree to give votes to Millett and Wilkins, in exchange for withdrawal of Pillard and maybe an agreement to debate/vote on the GOP bills to shrink the DC Circuit/split the Ninth Circuit.

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    1. It's hard for me to imagine filibusters for everything else sticking around if filibusters for judicial nominations fall. That's what the House has to do with it--if the GOP didn't have or feared losing the House, avoiding majority imposed reform would be much more important for them.

      I guess its possible the GOP can extract just enough that it's worth it to them to keep the filibuster around--there's no reason they can't get rid of it later if they feel like it. But they won't be satisfied with a symbolic win--Obama withdrawing a nominee to put forward a slightly less liberal nominee. The difference between an unfilled position and a moderate appointee means more to them than the difference between a moderate and a liberal. Either Democrats give up something substantial, or they get rid of judicial filibusters. And Dems might well give up everything--they might try to impose reform and fail to get a majority and then the GOP gets whatever it wants as far as nominations go.

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  3. I think it's a combo of 1 and 3. GOP sees this as win-win. Either dems fold (win, makes Dems look weak) or dems change the rules and this opens the door to whatever majority changes McConnel wants to make when GOP finally regains the chamber. The "both sides do it" media gave up on nuance here a long time ago so once the dems open the door a bit there's nothing stopping McConnel from making the Senate a lot more like the House.

    True, Dems have held the Senate through some tough cycles, but the Senate is a disproportional, undemocratic institution that favors the white, rural states dominated by the GOP. I'm confident the GOP can relatively easily take back the Senate when it deems it a prize worth having. And it will be worth having when the filibuster rules are on their way out.

    The way out for the dems is to change the rules but in a way that highlights the unprecedent obstruction of the GOP so the mainstream media can't miss what's really going on. My understanding is that the DC circuit vacancies have been vacant for years. So the answer there is to change the cloture requirements to 50 votes if a judicial vacancy has been vacant for more than 2 years. If the dem caucus balks at even that, change it to 4 years, which I think still picks up at least one of the vacancies, and would certainly cover the other one through the end of Obama's term. No need to go nuclear here.

    JB I know you understand what's at stake with control of the DC circuit, but I think there' s another layer here. Lots of folks in DC are scratching their heads at why the GOP won't moderate and adapt to changing demographics to survive; elections have consequences they say and GOP is learning tough lessons. And I think that analysis misses the mark. The GOP is proving that elections don't have consequences assuming they can use extraordinary obstruction methods in the Senate. Losing control of the DC circuit would be painful for the GOP and that pain may be enough to force them to start moderating and reforming. But as long as electoral losses don't cost them control of powerful institutions like the DC circuit, it's perfectly rational for them to maintain the status quo. So while this looks like it's just a fight about judges, it's really tied into the larger discussions of why the GOP hasn't reformed one bit after losing the 2012 elections.

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    1. This comment has been removed by the author.

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    2. " the Senate is a disproportional, undemocratic institution that favors the white, rural states dominated by the GOP." Uh, Obama won 26 states in 2012. That makes states considerably more representative of the American electorate's party division than House districts. Associating small states with GOP domination ignores that Rhode Island, Hawaii, Vermont, Delaware, New Mexico, Maine, New Hampshire, Iowa, Oregon, Connecticut, and Nevada all voted for Obama by greater than his national margin of victory. All of these states have proportionately greater representation in the Senate than in the House (none has more than five House members).

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    3. True, but even amongst those states you listed, the GOP can compete for a number of Senate seats. They have 1 senate seat in each of Iowa, Maine and Nevada. And they squandered opportunities in NH and DE. Best way to think of this is, what's more likely, a GOP Senate win in these states (where as you point out Obama won by greater than his national margin of victory) or a Dem win in states where Obama lost to Romeny?

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    4. The Democrats have won plenty of Senate seats in states carried by Romney--Alaska, Arkansas, Indiana, Louisiana, Missouri, Montana, North Carolina, North Dakota, South Dakota, West Virginia. Now, sure, some of them won against weak opponents, and some of them could be defeated in 2014 or 2016 or 2018. But (1) it is not as though the phenomenon of Republicans selecting candidates too right-wing to win even in red states is an aberration unlikely ever to recur; (2) if the GOP has had bad luck with some of its candidates, so have the Democrats (very weak candidates in IL in 2010 and NV in 2012); and (3) if the Democrats have some vulnerable seats especially in 2014, so do the Republicans, especially in 2016 and maybe even in 2014 (polls have shown Kentucky and Georgia potentially close). I am not saying the Republicans will never control the Senate (they might even do so in 2014 though if they do my guess is that the Democrats will win it back in 2016), only that they will probably not do so unless they in fact win majorities of the vote in the country. In short, I don't think there is any particular Republican structural advantage in the Senate, certainly nothing like what they have in the House.

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  4. Maybe the GOP has realized that keeping the filibuster isn't really worthwhile if they aren't allowed to use it.

    It makes sense to call the Dems bluff. If it turns out they are bluffing then they get the filibuster back and block everything. If the Dems aren't bluffing then force them to "go nuclear" and then the GOP gets to yell and scream and not block the candidates they weren't going to be able to block anyhow.

    It seems like once the "nuclear option" was on the table, the bluff was going to get called at some point.

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    1. Saying that the GOP isn't "allowed to use" the filibuster is a rather odd way of looking at it. They're allowed to use it kill practically any particular candidate to the lower courts that Obama puts forward; they just aren't aren't allowed to use it to block all nominees to an important court. I would think that the former power is actually one worth retaining for a minority, which is why I'm surprised that the GOP seems so eager to throw it away.

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    2. Yea, I'm confused by Swain's comment as well. The GOP never not uses the filibuster. For the DC circuit they've already torpedoes multiple nominees.

      And to respond to your comment about GOP minority status giving them pause, I think it's useful to imagine whether the GOP would really squander all those chances to take back the senate if it was majority rule. Looking at states won by Obama vs states won by Romney, the GOP starts with a considerable advantage. If the incentives were different, I think the outcomes would be different as well.

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    3. Once you accept that the majority has the power to approve nominations or advance legislation, then it's game over.

      As soon as at matters, the majority can (and should!) reassert that it has power to do the things they want to do.

      I'm surprised it took them this long.

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    4. I disagree that recognising the majority having power is game-over. Besides the fact that the majority has power over nominations is how the Constitution spells it out, the old status quo, with a sometimes-used filibuster was pretty game-on, specifically because it allowed the majority to get it's way most of the time. What's game-over now is that the filibuster is being used on everything, even the thoroughly unobjectionable (98-0 final passage, etc). When the minority filibusters everything, they've given up on gamesmanship, which encourages the majority to do so as well.

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    5. @BitterFig

      I agree. In 2009 the GOP took the fairly-functional filibuster-sometimes norm and turned it into a filibuster-everything norm.

      This pretty much broke the Senate as a functional legislative (or even appointment confirming) body. But it wasn't clear that the GOP was breaking the "rules" and it wasn't clear that there was anything the majority could do anything about it.

      There was lots of to-and-fro about whether 2/3rds of the body was required to do a rules change. Or maybe you can only change the rules at the start of the session... etc...

      Now majority has (maybe) decided that they have the power kill the filibuster if and when they want to. Given how broken the Senate is, sooner or later they are going to want to make that change.

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    6. Once you realize the ruby slippers can take you home, eventually you're going to click those heels.

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  5. I think that the reflexive opposition has a lot to do with this as well. My belief is that the Republican party views both the President and Democrats at large as illegitimate. This view permeates all of their actions - if they engage Democrats on any topic, then they acknowledge them as equals and as having a legitimate claim to power. And for whatever reason, they flat out refuse to do that.

    Because they are certain that they are right, they "know" that they will prevail, and re-take the Senate in 2014 or 2016. So having the Democrats negate these pesky minority rights is fine with them.

    I think it's pretty darn scary to have people in power with such an attitude.

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    1. In other words, it boils down to Republicans are Crazy. Beyond any sane person's doubt, Obama and the Democrats were honestly elected by the process we have, and what makes them "illegitimate" is that they aren't Republicans. The sheer fact of their existence as non-conservatives. Unless it's a problem with the concept of democracy (which I won't rule out), that the process however honest is illegitimate. Yeah, I'm completely terrified of these people.

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  6. Is pursuing the "nuclear option" a smart decision for both parties? The positives for the Majority are obvious. But to me the positives for the minority are far more powerful. They lose a lever of power, but they gain the freedom to avoid any "distasteful governing." Short-term the nuclear option is probably desirable for both parties, but long-term the removal of any required compromise may further isolate the Senate. As we've seen the current "post-policy" minority party would much rather grandstand than pursue any meaningful governing.

    While I don't mind using the "Nuclear Option" as a means to bring some movement to nominations, I do wonder whether or not employing it will have a pretty damaging effect on the Senate as a governing body. Currently, someone in the minority is forced to either be "obstructionist" or to be forced to say, I think the President's pick should get a vote, which is a small, but potentially costly admission when re-election is around the corner.

    Now if that distasteful governing is removed, what is there to leverage recalcitrant Senators to do any distasteful governing? Nothing.

    As we've seen with the Sequestration, the current minority party is absolutely willing to hold the line on negotiations even if it strongly affects their constituencies, but the nuclear option is one of a few things that actually pushes Senators to action (albeit basic housekeeping action). Once it is removed, they might as well all leave Washington… and settle in at the NYC studios of cable news to blast the majority parties choices.

    I think both sides "win" regardless of the outcome of 2014, but I think, beyond that, the Senate will lose.

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  7. I'm going to repeat a proposal I've made here in the past: Reform the filibuster by simply limiting the number of times it is used in each Congress. It still exists to block important things, but cannot be used to completely obstruct everything.

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    1. But a filibuster isn't like a timeout and there's no referee to decide what is and is not an effective filibuster and deduct from the total allowed.

      My understanding is that a soft version of this *was* the norm for many years before the GOP's normless nihilism destroyed it.

      Without a referee how do you decide that a team has called a timeout (rather than just strolling leisurely back to the line of scrimmage)?

      And this is putting aside the problem that the referee (who doesn't exist) can't just penalize one party yards when Senator Cletus Cornpone (R-Bumblefuck) decides to share his momma's moonshine recipe on the Senate floor.

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