Sunday Question for Liberals

Unless I'm missing it, I've never asked this one: what do you think of the job that Harry Reid is doing as Majority Leader?

Time for Some Nominations. A Lot of Nominations

(UPDATED)

Today's news, outside of the continuing scandal stuff, is Greg Sargent's big scoop that Harry Reid is tentatively planning for July to be nominations month -- complete with the threat of majority-imposed reform. I already wrote about it as a chess move over at PP today (I think Reid did well), and I probably should write something at some point about what the substance of the threat in terms of Senate rules and procedures. But there's one more point that's important to get to:

If Harry Reid is willing to spend serious floor time on nominations, he needs more nominees. Lots more nominees.

In particular, he really needs those three DC Circuit Court selections that the president still -- still! -- hasn't sent up. Okay, there's some excuse on one spot because he had a nominee who was defeated by filibuster. But still, that cloture vote was ten weeks ago, and she withdrew her name almost two months ago (and it's not as if the cloture vote defeat was a big surprise, either).

But that's not all! Reid needs Obama to supply a full complement of executive branch nominees. Yes, as Greg points out, the high-visibility slots are the head of EPA, Secretary of Labor, and the nullification case of CFPB. There's also a Commerce Secretary nominee to confirm, and a full set of NLRB nominees. There should be, however, far more. With Reid signaling a window of available floor time, it sure would be nice to have as full a slate as possible of subcabinet executive branch nominations for the Senate to confirm.

And, yes, as many of the other 50-plus judicial nominees as possible.

To get all of those picks through committee and ready for the Senate floor in July, they really need to be selected very soon. C'mon, Mr. President: it's time for a fully functioning administration, and that takes executive branch nominees.


UPDATE: I should note that in the last couple of weeks the White House really has been starting to roll out more judicial picks -- one circuit court selection and three district court selections yesterday, on top of a few last week. That's good! But there's a lot more to go. And plenty of executive branch vacancies as well.

Harry Reid and Senate Reform

Brian Beutler has the latest on Harry Reid's current plans, or at least his current rhetoric.

Reid’s decision to eschew significant reforms to Senate filibuster rules at the beginning of the current Congress — and his continuing reluctance to revisit those rules despite recent filibusters of cabinet nominees — angers allies both on and off of Capitol Hill.

But he continues to approach the issue cautiously.

“I’m not going to do anything now, precipitously,” he said. “But I’m looking at this very closely…. We’re going to fill that job. Cordray is there now. He’s going to get a vote.”

Reid wasn’t able to explain why he believes (or claims to believe) Cordray will ultimately be confirmed. But he alluded to the possibility that he may pursue a rules change mid-session.

Good reporting, but I'll make two points about it.

1. One of the pieces here is that Harry Reid has to educate everyone, contrary to the conventional wisdom pushed in large part by reformers over the past few years, to the reality that the rules can be changed during a session of Congress. Probably necessary if he wants to get buy-in from editorial boards and good government types. As is really demonstrating just how bad the problem is in ways they can understand -- remember that numerous reporters claimed that the Hagel nomination was the first to be filibustered during Obama's presidency, despite the plain fact that every nomination has been filibustered during Obama's presidency.

2. Don't assume that Harry Reid has a lot of autonomy here. Even Speakers of the House must be responsive to their conference, but Senate Majority Leaders really just don't wield all that much influence. They are servants of their caucus, not masters of it. Reid can't do anything at all here without 51 of the 55 Democrats, and if (again) he wants to keep the good government folks on his side, he's going to need all or almost all of those with him. And if they don't want to? He has very few ways to influence them.

Worth repeating: the bottom line here is that almost every Democrat would prefer an outcome that allows most nominations to pass by simple majority vote while leaving the basic filibuster rules intact. They probably prefer eliminating the filibuster to complete and total obstruction...but there's almost certainly some point at which partial obstruction is more acceptable for them than reform. And that's a reasonable position!

And of course, the level of obstruction, while unprecedented and thoroughly unjustified, is still not total. And it's not even clear what the level is at any particular time.

All of which makes Harry Reid's job a lot more difficult than it might seem.

Everybody is Wrong, Continued

Last week, I declared a pox on both the houses of Harry Reid, for making reckless and irresponsible charges, and Mitt Romney, for violating the norm of releasing tax returns.

Now? Politfact, too. They gave Reid a "Pants on Fire" rating, despite the uncomfortable situation that they have no evidence at all about whether Reid is telling the truth when he claims that a "source" told him Romney hasn't paid taxes.

Look, three things are true here. The first is that Harry Reid is misbehaving, and he should be called on it, and it should stain his reputation. Kevin Drum is absolutely correct on this when he tells liberals:

Take a deep breath, folks. This is contemptible stuff and it's not just business as usual. We've spent too many years berating the tea partiers for getting on bandwagons like this to get sucked into it ourselves the first time it's convenient. It's time to quit cheering on Reid and get off this particular bus.

And that's true even though Romney deserves what he gets because he hasn't released his tax returns.

But none of that makes what Politifact has done any better.

Brendan Nyhan has been defending Politifact on twitter today, but I really disagree with him on this one. If they're to be any use at all, fact checkers need, in my view, to take their mandate narrowly and literally: they need to check facts. Granted, the line between "fact" and "interpretation" can be slippery both in theory and in practice, but that's all the more reason for these folks keep things as narrow as they can.

See, even in the best of all possible versions, it's not at all clear that the fact checkers can really do much (see, in addition to Nyhan generally, the case my brother has been making). But every time they leave themselves open to obvious partisan rejoinders, they risk whatever nonpartisan authority they do have.

Reid may be simply flat-out making stuff up, or he may "only" be behaving irresponsibly by being deliberately naive about what someone tells him, and at any rate what he's doing is not how people should conduct politics. But Politifact doesn't really know how to sort that out, and it's not their job to judge political ethics. It's even worse than that, perhaps: by dredging through the accusation, odds are they're just rewarding Reid by putting  the spotlight on speculation about what Mitt Romney may be hiding. I know it's cheap and cheesy to end with it, but when it comes to Politifact and the others of their type, the real guiding idea really has to be: just the facts.

The High Ground? Lonely

Of course it's irresponsible for an elected official -- and not just any elected official, but a high ranking one, the Senate Majority Leader -- to make reckless, rumor-based allegations against a presidential candidate.

Is there any defense for Harry Reid? Only that it could be worse. I mean, he's not accusing Mitt Romney of a crime, or even necessarily something unethical -- by Romney's own standards, it would be more problematic for Romney to be paying any tax if he can legally avoid it, so by Romney standards there's nothing necessarily unethical about not paying taxes. On the other hand, while I suspect a lot of people agree with the Romney standard expressed that way, I'd also guess that most people would also assume that if Romney hasn't paid taxes he's probably cheating in some way. At any rate, this is no kind of healthy politics. The Majority Leader of the Senate is either amplifying unproven rumors or just making stuff up. Reid's free to do it, but the fair consequence is that he gets (or adds to) a reputation for being reckless and irresponsible.

And good for liberals who point that out.

On the other hand.

I disagree with one of those liberals, Steve Benen, who writes that "Romney had the high ground against a cheap shot." I mean, I see his point, but you know what? Romney had previously forfeited any claim to having any high ground on this one by violating the norm of presidential candidates releasing tax returns. I don't know that it's a particularly useful norm -- I don't really think it's likely that any presidential nominee will be undermined by anything in his or her tax returns, Romney included, and I'm really not interested in supposed conflicts of interest at that level. But that's irrelevant. It's a norm of modern presidential politics, and if you violate that, you have no high ground to begin with. Nor has Romney given any particularly convincing reason for why the norm should not apply generally or to him in particular; to the contrary, his campaign wound up justifying it was a lie about John Kerry's tax returns, a lie they repeated after it had been pointed out. So, yeah, invoke cliches about sowing and reaping, please.

That doesn't, in my view, excuse Reid. Just because someone is asking for a cheap shot doesn't make it okay to take a cheap shot! But the high ground is usually pretty vacant during presidential elections, and Romney certainly wasn't occupying it on this issue.

Blame Obama and Reid for NYT Weasel Words

James Fallows had a good catch this morning on the New York Times headline about the jobs bill, which failed to get cloture last night in the Senate. The complaint is that the Times failed (in the headline) to make it clear that the bill was blocked by a filibuster, rather than "defeated" by a simple majority.

Fair enough, but this is a case where the press is basically following the lead of the consensus from leaders of both parties to treat the 60 vote Senate as a fact of life. And for that, the blame clearly falls on the Democrats, and on Barack Obama and Harry Reid in particular. Neither reacted strongly to the unprecedented decision of the Republicans to filibuster everything in 2009. For that matter, Senate liberals didn't really put up much of a fuss for some time.

In part, that's because Reid's position -- which I believe is totally reasonable -- is a hard one to make into a soundbite; after all, he supports the traditional Senate rules, and even relatively frequent filibusters. He just doesn't support the current level. That's a lot harder to sell than "majority rule", even if it is justified.

On the other hand, I don't see what Obama's excuse was. It's possible that someone told him that highlighting the filibuster in 2009-2010 would antagonize Senate institutionalists including some Democrats (such as Robert Byrd, when he was still there), or that he drew that conclusion from his own time in the Senate. It's possible that he also supports (more limited) filibusters, putting him in the same boat as Reid. Or perhaps it was part of his "be friendly to Republicans" approach. Whichever way, I'd say it was a mistake; the institutional role of the presidency is to bash Congress for it's procedural difficulties, and Obama failed to do that.

And with Obama and Reid acting as if everything was normal, the neutral press mostly followed. Just as when Republicans acted as if reconciliation was some sort of strange procedure, the neutral press described it as controversial.

Again, I'm not for eliminating the filibuster (although I am for modifying it). But Barack Obama should have been fighting against it, whatever he really thought about it. Not because it would have affected NYT headline writers, although it would have, but because only by threatening to get rid of it by majority vote if necessary would Democrats be able to bargain for keeping filibuster frequency at much lower levels than it wound up being.

Yeah Right, Harry

Harry Reid today, reports Felicia Sonmez and Rosalind Helderman, took to the Senate floor today to bash the House...for not staying in session this weekend. I'll give that a well-deserved Ugh.

Two comments. First, I'd bet that the five minutes or whatever that Reid wasted on that one would have been more profitable had he spent them on debt limit negotiations or strategizing than, well, any 72 hours of keeping either chamber in session with nothing to vote on. It's hard to know for sure, but my guess is it's better for Members of the House to get back to their constituents, who might actually have some reality-based thoughts, then to force them to listen to each others' partisan rhetoric. At any rate, the rank-and-file Members don't have much to do until someone comes up with a deal for them to vote for or against, and I'm pretty sure the leadership knows where to find them if they need a whip count on something.

Second: maybe Mark Schmidt is right. Perhaps the Democrats really are bad at this stuff.

What The Democrats Actually Did Wrong

Nothing new here, but it's worth emphasizing again where the Democrats did go wrong:

1. Failing to pass appropriations for FY 2011 when they had large majorities in Congress;

2. Failing to pass a large debt ceiling increase when they had large majorities in Congress;

3. Failing to even consider acting on DC Statehood when they had the votes to do it in 2009 (relevant here because apparently the tradeoff for saving ACA, EPA, and Planned Parenthood was allowing screw-the-District riders to survive).

Yes, the historic 111th Congress got a lot done, and much of what Harry Reid and Nancy Pelosi did was impressive. But Democrats should have realized that the 111th was a rare opportunity to act and sacrificed district campaigning time and other competitors for (mostly) Senate floor time, and maximized the time spend passing their agenda. It was a clear, true, mistake, an unforced error, and the Democrats (and their constituency groups) are paying for it now.

Senate Reform Goes Dormant (But It's Not Dead)

Both Ezra Klein and Greg Sargent interpret today's agreement on Senate reform -- in which Harry Reid explicitly and apparently unconditionally pledged not to attempt to change the rules with a simple majority vote -- as the end of the road for reform. The reasoning? Since neither party will ever reach the 67 votes it takes to unilaterally change the rules by using the rules, the only way significant reforms will happen will be through either a majority vote, or, perhaps more likely, in response to a threat of a majority vote. So by taking that threat off the table, Reid is basically ensuring the safety of the filibuster and the 60-vote Senate forever.

I'm not convinced.

What's promised today can be revoked tomorrow. Now, comity is an important value within the Senate, and I hardly expect Reid to go back on his word without clear provocation. But clear provocation is in the eye of the beholder. Harry Reid is a very partisan Senator, and I won't be surprised at all if at some point he finds reason to at least begin threatening that he'll move off his pledge.

And that, as Klein and Sargent correctly say, is really the issue: at what point now will Reid threaten a simple majority rules change as leverage to force less obstruction? It seems to me that we already know that he's been reluctant to do so, at least publicly, so it's not news that he'll be reluctant to do it (at least publicly) in the future. But I'm not sure that this changes anything.

Meanwhile, it's very possible that the Democrats struck a fairly good bargain this time around for how the Senate will run for the next two years. The key issue at this point is whether Republicans really are going to cooperate in confirming (that is, allowing votes on) all but the most controversial nominees. If so, that's a pretty good trade for dropping much of the the largely inconsequential Udall/Merkley/Harkin reforms. For the rest...well, on legislation, filibusters matter far more in times of unified than divided government. My guess is that when those conditions reappear, whoever is Majority Leader at the time will find an excuse to more towards further reform. Notwithstanding whatever was promised today.

Wrapping It Up 2

Since it looks as if Congress is just about to finish up for the year, for the session, and for the 111th Congress, I figured I should say something about my previous position that it was important for Harry Reid to keep the Senate in as long as possible, in order to finish up its business and prevent Republicans from running out the clock.

You might think that I'm about to condemn Reid for quitting now -- but I'm not sure that I should.  The problem is that once Reid (quite properly) threatened to hold the Senate in for a post-Christmas session, he then began to get results.  A bunch of judges, for example, were confirmed this week and last.  What we don't know, at least from the reporting I've seen so far, is to what extent Republicans dropped stalling tactics that they could have employed in exchange for finishing up now.  In other words, it could be that Reid successfully bargained for whatever he could get from the lame duck session, and that part of the deal was that once everyone agreed on what would pass if they stayed in to the bitter end, then they all agreed to expedite that business. 

That said...the Democrats are, and quite properly, congratulating themselves on a very successful Congress, but there really are a couple of major setbacks for the Democrats here at the end of the session.  One is their failure to pass appropriations bills for the current fiscal year.  Ezra Klein has done some terrific blogging about that...see for example here.  The one thing I'd add to what he's been saying is that this was only an omnibus spending bill because the Democrats failed to pass individual appropriations bills, and that even in the lame duck session -- even now, in fact, if they wanted to and had the votes -- the Democrats could still pass one or two regular appropriations bills.  Perhaps this is just a case in which they never did have the votes, but I'm really not convinced that they tried very hard.

The second one, familiar to regular readers, is nominations.  Peter Diamond is still waiting to be confirmed to his seat on the Fed.  Lots of judges are still waiting to be confirmed, including, as far as I can tell, quite a few who do not appear to be controversial -- and as I've said in the past, it's very possible that even the controversial appointees have 60 votes (not to mention the simple majority needed to confirm, but that's another story, of course).  And then there are the executive branch appointments, many have been cleared, but there are still plenty of them in the Senate's Executive Calendar.  Now, again, I can't say whether more could have been done had the Senate stayed in longer, because I don't know what deals were made.  But overall, it's pretty clear that confirming nominations has never been a priority for the Obama Administration or the Senate. 

I'm sure I'll have something more to say later about the historic 111th, but it's hard to believe that they couldn't have made more progress in those two areas.

Keep 'Em In, Harry Redux

Harry Reid gets it:

We are in session, if necessary, up to January 5th. That is the clock our Republican colleagues need to run out. It's a long clock.

He can only pass things (barring a successful bluff to go nuclear, which is highly unlikely at this point) if he has 60 votes (and more for START), and he can only pass as many things as he can pack in to the space available.  But if his statement today is for real, then he's not going to leave anything on the table.

I should note that this is a strong contrast with the way Reid and the Democrats dealt with the Scott Brown election at the beginning of the year.  That time, the Dems showed no urgency at all.  Yes, it probably would have been tough to get back and finish health care reform before Brown was sworn in.  But they certainly could have used what time they had remaining with 60 votes to push through one or two of the more controversial nominations (or, perhaps, a whole bunch of less controversial nominations).  Or, they could have taken care of one or two relatively minor pieces of legislation. 

Instead, Democrats seemingly were intimidated by GOP efforts to call such things unfair. 

Or, perhaps, they just didn't get why action was urgent if they wanted to pass as much of their agenda as possible.

This time, it's completely different.  Recall that Republicans did raise a ruckus back in October about the lame duck session being somehow illegitimate.  It isn't -- but Republicans have a much better case now than they did in January, when they had all of exactly one Congressional election to point to (and, at that point, the Democrats had been winning special elections fairly frequently).  And then there were this week's complaints about Christmas and something or another.  And how did Harry Reid, Nancy Pelosi, and Barack Obama react to these complaints this time around?  They've simply ignored them, and got on with their business. 

By the way, I do wonder whether GOP over-the-top obstruction this week (that is, the threats to force full readings of bills) along with the completely ridiculous Christmas whining might have combined to help Reid convince the Democrats to stick around. 

Now, we still don't know what exactly can get through the Senate at the end of the day.  But Democrats should breath a sign of relief that Harry Reid isn't going to give up in the early afternoon; he's saying, as he should be, that he and the Democrats are going to sprint to the wire.  The truth is that Senate Majority Leaders are a lot less influential than most people seem to think; Senate rules and practices emphasize the rights of individual Senators, and so the leaders often can do little more than co-ordinate, as opposed to the way that the Speaker of the House really leads.  Even here, it's hard to say how much this is Reid's accomplishment, and how much it's just what his caucus wants.  Either way, however, he's making the correct play, this time.

Pledging To Stay

Greg Sargent has been following the manuevering over DADT closely, and he calls for a commitment from Harry Reid:

If repeal is going to have any chance, the Senate Majority Leader needs to indicate right now that the Senate will definitely vote on the stand-alone bill after the House sends it over.

He should add: the same goes for DREAM, New START, and for that matter appointments. Reid can't pass those things if they don't have the votes, but if they have the votes, he can't let the clock beat them, at lesat not while there are still minutes remaining.

One key point here is that as long as Reid leaves it all up in the air, and especially if he refers to doing any particular bill "if" there's time, then it gives Republican opponents a major incentive to stall.  That may well be what's behind Tom Coburn's plan to force a full reading of the appropriations bill.  Sure, Coburn may just be grandstanding on spending he opposes, but he also surely believes that any time wasted on that is time in which the Senate cannot be considering the various other measures that he opposes. 

The best strategy for Reid and the Democrats is to make it clear that the Senate will stay in until it's clearly specified business is finished, or until time expires.  Today's comments from him are a good start , but Sargent is right: he should list exactly what he means to finish.  Republicans might still consider it worth stalling to keep one or more agenda item from passing...but the pressure will be on them, from other Republicans who care more about enjoying the holidays than about whether (ultimately) obscure bills pass.  In other words, the way to prevent a post-Christmas session may be to make it clear to everyone that such a session is certain if necessary.

Obama's -- and Reid's -- Judicial Nominations Fiasco

Jamelle Bouie has been following judicial confirmations, and he has an excellent post up today criticizing the possible deal Harry Reid has been negotiating with the Republicans over the remaining judges.  With good reason: the deal reportedly would allow confirmation of some -- but not all -- of the nominees who sailed through the Judiciary Committee with no opposition at all, while leaving the rest of the them to rot, along with other nominees who had bipartisan (but not unanimous) support, not to mention the handful of actually controversial nominees.

Bouie notes:

Of course, if there's anyone to blame, it's Reid for his inaction and Obama for his unconcern with the judicial nomination process. At any point during the last two years, Reid could have forced a showdown with Republicans over secret holds and their obstruction of judicial confirmations. What's more, Obama could have been much more diligent about making nominations to fill the large and growing number of vacancies on the lower courts. As it stands, Obama will have to sacrifice a handful of eminently qualified nominees to get the GOP's half loaf. 

Exactly right.

It may be the case that as of right now, the deal Reid is negotiating is the best he can get -- although if he's not at least threatening to hold the Senate in up to the last moment, then he's not maximizing his leverage.

Over the course of the last two years, however, it's hard to exaggerate just how thoroughly the Democrats have botched this one.  Yes, Republican across-the-board obstruction was basically unprecedented.  But it wasn't unanimous; both Supreme Court nominees received Republican votes, and in fact it's fairly likely the Democrats had 60 votes for even the most controversial nominees throughout the 111th Congress -- including now, with only 58 Democrats.

This really needs to be broken down in more detail.  The handful of truly controversial nominees, including for example Goodwin Liu, would have in fact chewed up quite a bit of Senate floor time; it's likely that Republicans would have, for example, insisted on using post-cloture debate time.  And to be fair to the Democrats, they can argue that they did make good use of floor time over the last two years.  Still, anyone who has watched the Senate has noticed a lot of days with little or no business that presumably could have been devoted to one or more of these nominees.

The same case is even stronger for those nominees who drew some conservative opposition, but also had a fair amount of Republican support.  It's hard to say how much floor time those nominations would have used, but it might not have been much at all.

Then there are the non-controversial nominees, those who sailed through the Judiciary Committee unopposed only to be slowed by a hold.  On those, it seems highly likely that a floor confrontation would have yielded rapid confirmation with hardly any floor time consumed; no one is going to go all Bernie Sanders over some obscure District Court nominee who is about to be confirmed 99-1.  In these cases, assuming the reason for inaction was GOP holds, I continue to believe that Reid would have done little or no harm to Senate norms by insisting on wrapping up the hold rapidly and, if necessary, moving the nomination to the floor and using a quick cloture vote to get it done -- because the real violation of Senate practice here were the substance-free holds.

And, of course, there have also been quite a few judicial vacancies for which the administration never bothered to send up a nominee at all.

All in all, and excepting the two Supreme Court nominations, both the White House and the Democrats in the Senate have simply not placed any kind of priority on filling the bench.  That's encouraged Republicans to use low-cost methods to block those nominations that have been ready for final confirmation, and Republicans, no fools they, have taken full advantage. 

It's still probably not too late for some action.  A serious commitment to use every last minute available could probably get at least all -- not most, but all -- of the non-controversial nominees confirmed.  It's a little hard to tell how much else is possible at this point (a lot depends on whether floor time is needed for other priorities), but as I've said before, leaving anything that could get done on the table would, indeed, be a real betrayal of the Democrats who worked hard to get Barack Obama and the 111th Senate elected.

For more detail on judicial vacancies, by the way, see Bouie's recent longer article.

DADT

(Updated below)

I'm afraid I can't help anyone understand what's up with Harry Reid pushing a vote on the Defense Authorization bill, including DADT repeal, that he knew was going to fail, despite what appeared to be continuing good faith negotiations with moderate Republican Senators.

What Greg Sargent had been reporting is that Susan Collins was negotiating for has been more time to debate the bill, more amendments, and, as Senatus tweeted, GOP freedom to offer the amendments they wanted.  It seemed, yesterday, that they were moving towards an agreement -- and it seems on the face of it that such an agreement is possible -- but then, for unknown reasons, Reid brought the bill to the floor.  Or, to be more precise, tried unsuccessfully to bring it to the floor.  It was defeated, with Republicans who have said that they want to vote for repeal opposing Reid's motion. 

As I write this, no one seems to have an explanation for why Reid brought this to the floor today, or what his next step on the bill might be.  As I said earlier today, there's still plenty of time to do this one.  Does Reid believe that Republicans were not negotiating in good faith, so there was no point in going forward?  Is there some particular amendment that Reid is trying to prevent from being offered in order to protect Democratic Senators?  Is he planning multiple votes?  Did he think that when push came to shove they would vote with him, and it didn't work?  I'm a little baffled.

UPDATE:

OK, Greg Sargent continues his terrific reporting on this, but I'm still baffled.  Sargent:

The aide rejected the claim that Reid should have extended the session another week in order to accomodate GOP procedural demands, as Joe Lieberman and others had asked, arguing that extended debate would actually have dragged the session into January, what with other things on the Senate to-do list.

Read the whole thing.  It's good reporting, but I still don't understand Reid's thinking.  Yes, Republicans could have dragged things out until January...but so what, if ultimately it gets done before the clock runs out?  And what exactly is the downside if they try and just can't quite finish? 

Meanwhile, Mark Udall just went to the Senate floor and said he'd like to see either another bite at this, or an attempt to bring back DADT as a standalone bill.  Reid's office apparently believes that, too, could be blocked, but I'm not really sure why they believe that, if there are really 60 votes for it and, say, ten calendar days remain after the rest of their business gets done. 

Keep 'Em In, Harry

Democrats in the 111th Congress still have an unfinished agenda.  Republicans, quite sensibly, are using the clock as a weapon; at this point of the session, even a filibuster that doesn't have the votes to block cloture can still be enough to derail something.  What weapons does the majority have to fight stalling?  Well, there's one big one that Harry Reid should be at least threatening, and if necessary invoking: he can add more hours for the Senate to work its will.

He has already scheduled a Saturday session last week, and he has already said that, like last year, he'll go up to Christmas.  Not good enough!  If Democrats can make use of the weekends, and the week between Christmas and New Year's, and even the remaining hours after New Year's Day, well, Senate (and House, if needed) Democrats owe it to the people who worked hard to elect them to, well, race through the finish line. 

Regular readers know I'm no Congress-basher, and generally I will defend the schedule that Members of Congress keep.  But this isn't about a legitimate alternate use of time; there's no better use of the remaining hours of Democratic unified control of government -- an opportunity that for all they know may not show up again for decades -- than to stay in Washington and, to the extent it's possible, get things done. 

Democrats should not ask the impossible; if the votes aren't there, Harry Reid and his 58 Democrats can't do anything about it (beyond threatening to unilaterally suspend the filibuster, but that's another story).  However, where they do have the votes, they can't let the clock beat them when it's their choice, up until their term of office formally ends, whether to keep the clock running or not. 

Harry Reid is certainly a fighter, and I think he's done a lot of impressive things as Senate Majority Leader.  People undervalue how hard it must have been to keep all 60 in line for health care reform last December, and Reid, in my view, deserves quite a bit of the credit for that.  But there have also been times when he's not shown an ability to be creative and push the boundaries of typical Senate practices when those things seem necessary to combat Republican violations of Senate norms.  If the leave DADT repeal, or New Start, or even a single district judge on the table because they won't make the hours to get it done available, it'll be a serious mistake.

Nuclear

Greg Sargent has been reporting today about Jeff Merkley's new filibuster reform plan; in an update, Sargent writes about the question of how many votes it would take to change Senate rules (see here for my reaction to the substance of Merkley's proposal).   The rules themselves say two-thirds are needed, but Merkley and Tom Udall of New Mexico believe that only a simple majority is needed at the beginning of a Congress.

I think they're both wrong, and that the Republicans pushing the nuclear option a few years ago are correct: if a majority wants to change the rules at any time, even in a lame duck session of Congress, they can do it.  That's it.  No need to wait for a new Congress, no need to put together a supermajority.  If 51 Senators really want to rule by majority (party) rule, they can force it.

This is also the conclusion reached by Greg Koger in his comprehensive book, Filibustering -- and, as far as I can tell, the consensus view of academics who specialize in Congress.  Basically, if the majority changes the rules, it's not clear exactly what recourse the minority would have.  The courts are not going to intervene, and what else could force a determined majority to back down?  The reasons majorities have not gone nuclear in the past (as Sarah Binder, Anthony Madonna, and Steve Smith argued in a 2007 article) are political, not technical. 

Indeed, I think that Harry Reid should have been threatening something like that since Republicans took to filibustering almost everything last year.  And it's not too late now: in response to the GOP threat to hold up absolutely everything in the lame duck session apart from tax cuts and appropriations, there's nothing to stop Harry Reid from going to the Senate floor, blasting Republicans for obstructing the business of the nation, and threatening to go nuclear -- to eliminate the filibuster by majority vote -- unless Republicans knock it off.

That is, there's nothing if Reid has the votes.  I suspect he does, at least for the bluff.

Hey, if Chris Dodd isn't willing to actually say that he would vote to eliminate the filibuster, he might be at least willing to set, ominously, behind Reid while the Majority Leader makes his speech.  Sort of like the scene from Godfather II -- sometimes you don't need someone to actually have to say anything.

Obviously, it would be a stronger play if Reid -- and Barack Obama -- had done more to set the stage for it over the last two years.  That might change the political reaction to a nuclear threat.  But it wouldn't prevent it.  The Democrats only have a few weeks remaining to get things done, and while I do think it makes sense for them to cut deals if necessary, there's no reason at all for them to just surrender, especially on issues in which majority public opinion appears to be with them (such as, for example, DADT).

I certainly don't blame the Republicans for trying to run out the clock; that's their right, and the obvious strategy in a lame duck session after a GOP landslide.  But if Harry Reid asked my advise, I'd tell him: first, logrolling (I see Kevin Drum is thinking the same thing I'm thinking), and second, threaten to go nuclear.  And don't back down without cutting a deal to get votes on a fair number of the remaining Democratic priorities.

[Corrected: I had Udall from the wrong state.  Tom, New Mexico; Mark, Colorado.  My apologies]

Food -- And Why This Stuff Is Harder Than You Think

The food safety bill finally passed.

First of all, this adds to the already enormous accomplishments of the 111th Congress (assuming, as I expect, that the House passes the Senate version).  Democrats got clobbered in the 2010 elections, but they certainly put their victories in 2006 and 2008 to work.

Second, the bill wound up passing easily -- the final vote was 73-25.  The NYT story emphasizes how rare bipartisanship was in this Congress, but I think I'd put it a little differently.   The truth is that Democrats in the Senate did, in fact, find some Republican votes on lots of things.  Both Supreme Court nominees received GOP votes.  Indeed, while Republicans certainly did stall other nominations, those that wound up coming to the floor passed with GOP support, often in large numbers. 

As for legislation, begin with the stimulus bill, which of course received three Republican votes (including then-Republican Arlen Specter).  There's also the Small Business bill, supported by LeMieux and Voinovich.  There was a jobs bill which made it thanks to votes from Snowe and Collins.  Snowe, Collins, and Brown were needed to reach 60 on Dodd-Frank. 

The point is that as much as a lot of liberal pundits regularly take Barack Obama and Harry Reid to task for foolishly believing that bipartisanship was possible over the last two years, the truth is that there were a handful of GOP votes within reach.  Except for the brief window in the second half of 2009, at least one of those votes was needed -- and politically, each marginal Republican vote made it easier to retain marginal Democrats.  Indeed, as I've argued, just going through the motions of seeking GOP support made it more likely that Ben Nelson stayed on board.  Of course,  the last 25 or so of the 40 (or 41, or now 42) Republicans were impossible to get, but support from two, three, or even half a dozen was a realistic goal on a lot of bills.

None of which is to say that Obama or Reid always made the right choices.  Overall, however, I think any fair reading would say that they accomplished quite a lot in the 111th Congress, and any fair criticism needs to keep that in mind.

(UPDATE: awful typo fixed, reference to bill still needing to get through the House added for clarification)

Question Day Answers 2: Senate Leaders

A bunch of questions.  Voltaire writes:

I'm currently in college, and in my class on congressional strategy, my professor is adamant that Harry Reid is one of the worst majority leaders of all-time. His argument is that Harry Reid backs down from his threats, thereby losing all ground in negotiations since the other side knows it doesn't actually have to give up anything during bargaining. More specifically, he says that Reid's threats to let Republicans filibuster are empty since Reid has never forced a live filibuster. The "cost" of filibustering, in both the public eye and terms of Senate norms, has been reduced by Reid into a cheap option Republicans can afford to do all the time.

Brodie:

Historically, how in your view does Reid rate -- especially against some of the ones deemed successful, like Johnson, Mansfield or perhaps Geo Mitchell.

Kal:

As long as we're talking about Majority Leaders here, it looks like there will be a race between Chuck Schumer and Dick Durbin if Reid falls on Tuesday...Given that 1) The Democrats will be fighting the Republicans tooth and nail over the next two years, so they should create clear differences with them and 2) The Democrats are going to be playing major defense in 2012, who should the Dems go with?

Lots of issues, but really the question comes down to: what is the job of the Senator Majority Leader?  I'll tackle that here, and save the specific question about the live filibuster for a second post.

The fundamental problem here is that the Leader's constituency isn't his party at large; it's the other 50+ Senators in his party's caucus.  And we know that what they want out of their leadership is some coordination, but very little of what the Speaker of the House does: they don't want a top-down Senate, adn so their elected leadership isn't going to produce it. 

Now, of course, many majority-party Senators do want to enact something that more or less resembles a party agenda, and to the extent that group is large enough, then the party leadership will be expected to help them get that done.  But that's not going to be the only thing going on.  In the 111th Senate, Democrats from conservative states (and Joe Lieberman) didn't want a public option; moreover, they mostly wanted to be protected from having to vote on it.  Dirty energy Senators didn't want an energy/climate bill to come to the floor.  Kent Conrad and some others cared about deficits.  And quite a few Democratic Senators wanted opportunities to show their independence from their party and from Barack Obama. 

Harry Reid had to protect all those Senators from the things they didn't want, and protect the rights of each Senator to influence outcomes in areas of intense interest, and keep the Senators who wanted to pass the mainstream Democratic agenda happy.  Plus, he had to run for reelection in a state that had fallen into a deep depression. And he had to deal with an almost completely unified GOP following an unprecedented rejectionist, 60 vote strategy.  As far as I can tell, he did somewhere between an excellent and an outstanding job of handling those contradictory imperatives.

I see two big errors, both of which are only marginally Reid's responsibility.  The first is that in my opinion he should have orchestrated a White House push to ask Robert Byrd and Ted Kennedy to resign in fall 2008, so that they could be replaced at the peak of Obama's popularity.  I mostly blame Byrd and Kennedy for that, but Reid (along with Joe Biden) was probably in the best position to see that it was the correct move and to know how to appeal to them.  The second one is that I do think that Reid could have processed non-controversial nominations more quickly, but again I trace the failure there to the White House more than to the Senate. 

But the rest of it?  I think it's highly unlikely that the health care outcome is better (for liberals) with a different leader; at best, it's marginally better, but there's also a very good chance of total failure.  I can imagine a climate/energy bill passing, but that was always going to be a tough sell, and to the extent there was a failure to get enough buy-in from everyone I don't think it was really Reid's call.  Immigration?  Never had a chance.  The other stuff that didn't make it (so far) are all smaller, and while I'm sure some people would choose different priorities (DADT repeal over hate crimes?), again it's not at all clear to me that these were Reid's choices, or that he and the Dems had a lot of flexibility. 

All that, of course, basically my impression from afar, and subject to reevaluation when more information comes out.  For a theoretical article on how to evaluate Congressional leadership, see Daniel Palazzolo's piece here, and see elsewhere on that page for more on the Congressional leadership in the 110th Congress.

The rest of the question...I don't really know how to rank Majority Leaders across time; the contexts are so different, both in terms of the political context (size of majority, unified or divided government) and changes in the Senate over time.  Just as a guess, I'd say that George Mitchell was overrated, and Trent Lott underappreciated by Republicans including those in the White House.  I certainly don't think Reid ranks low among the post-LBJ group.  And I couldn't really guess about whether Durbin or Schumer would be a better choice.

The DeMint Reign

I suppose I should say something about Jim DeMint's kidnap of the Senate.  Mostly, though, I would say that this is exactly what Greg Koger predicts:: at the end of the session, minorities maximize whatever leverage a legislative chamber's rules give them to stall things.  Since the Senate gives minorities lots of chances to stall, we would expect those opportunities to be exercised when leverage is highest.  Bingo.

Could the Democrats have fought this battle better?  Throughout the 111th Congress, Harry Reid and the Democrats have placed time back home as a higher priority than Senate floor time.  We don't really know how valuable district campaign time is for re-election (as far as I know it's never been studied systematically), but clearly Members of Congress believe it's very important.  We can guess that they probably overrate its importance...but then again, spending more time in Washington and passing more legislation and confirming more nominees probably would not have helped get Democrats re-elected at all, and so it's understandable that their demands on the Senate leadership are to protect district work time above all. 

In the short term, what Harry Reid could have tried is a pure bluff, claiming that the Senate would stay in session until specific important work was done, even if he was intent on getting out of town by a date certain.  In the longer run...hard to say.  The White House could have, once they realized last February or so that Senate floor time was a big deal, commissioned a study and rigged it (if needed) to show that district time was actually completely irrelevant to re-election, but that confirming the nominations of assistant secretaries of various departments was highly important.  OK, maybe not that last thing, but perhaps numbers of bills passed or something like that.  And then they could have gone to the Democratic caucus last spring and tried to convince them to buy into it.  Would it have worked?  Maybe a little bit, if not all the way.  And after all, as it turned out shaving a couple of week off of August recess, 2009 might have been a fairly big deal if it meant that more things passed during the Democrats' short 60 Senator window.  On the other hand, perhaps five or six fewer weeks back home could have made the difference for Murray, Boxer, and Feingold.  Overall, I do think that Reid and the Democrats in general (including the White House) have done a poor job of finding aggressive, creative ways to fight back against the Republicans' aggressive, creative use of Senate rules -- that doesn't really affect the bills and nominations for which the Dems fell short of  60 votes, but it has, I think, meant that they've been less successful than they could  have been on bills and nominations for which they had 60, and in many cases far more than 60 votes.  At this point, however, Koger's arguments about leverage and the end of the session are what I'd think about, and that's going to be true even with quite a bit of Senate rule reform.

Catch of the Day (and Harry Reid and Conservative Daydreams)

It goes to Ezra Klein, for noticing:

That seems less weird when you know that Lieberman -- an independent -- votes with the Democrats 90 percent of the time (though his apostasies tend to come on such big-ticket items as health care and Iraq). Tales of the rift between him and his former party seem increasingly overstated.

Although of course Lieberman did eventually vote with the Dems on health care; his dissent was on the public option (and expanded Medicare, and other attempted public option compromises).  Even then, his vote wasn't the decisive one against some form of public option (it's pretty clear that Ben Nelson would never have been on board, and there were probably four or five others who would have let the whole thing sink rather than voting for any form of public option). On the votes that counted, though, Lieberman was there -- at one point even walking halfway across Washington through serious snow (on Shabbat) in order to cast a key vote.

Indeed, while there are plenty of places where I think Reid could have done more to break GOP obstruction, the case of Joe Lieberman is surely something for which he (and perhaps the president as well) deserve a lot of credit.  A lot of liberals outside the Senate wanted Holy Joe punished for his (extremely vocal) support of John McCain in 2008, and the Democratic leadership of the Senate took a lot of heat for ignoring it.  It's hard to say, at this point, that the liberal critics were right -- and it's not hard at all to imagine that had the Democrats stripped Lieberman of his committee chair position, he could have walked across the aisle and not only caucused with the GOP but started to vote with them regularly as well.  And without Holy Joe, there's every possibility that there's no ACA, and perhaps a smaller stimulus, no banking bill, and an even tougher road on unemployment insurance extensions.  Indeed, I would think that "Lieberman flips" is #2 on the conservative daydream list about 2009-2010, just after "Al Franken comes up short."

Granted, one can never tell about these things from outside -- and perhaps not even from inside.  But I think it's pretty clear that Harry Reid deserves a lot more credit than he's received from liberals for holding his caucus together most of the time in most cases, and Joe Lieberman is probably the prime example.