Read Stuff, You Should

Happy Birthday to Bob Ojeda, 56. Mainly because he always reminds me of Blue Sox hero Steve Olin, who would have been 48 now. Sad. Also, because in the 30+ years I've known her, my wife really cared about baseball for about a two week stretch: Mets vs. Astros, Mets vs. Red Sox.

The good stuff:

Jon Krasno and Gregory Robinson make the case for shifting the filibuster burden from the majority (needing 60) to the minority (needing 41). I'm okay with this, but I've never really believed that it would make much difference. Nor do I think it's a likely compromise position and more. So not much hope for it, but it does make sense.

Greg Sargent with two of his smart focuses: that the way to judge how Healthcare.gov is doing is by watching the insurance companies; and that Republicans are utterly convinced that the ACA has already failed, past tense.

And I haven't read it yet, but very much looking forward to Jon Ralston on Harry Reid.

Read Stuff, You Should

Happy Birthday to Steven Bochco, 70.

I'm traveling and in meetings early this week, so posting may be sporadic, but that's no excuse for skipping the good stuff:

1. I mostly blame the mainstream conservatives who make up the bulk of the GOP conference for the shutdown; here's a perspective that puts Speaker Boehner at fault. I disagree, but plausible!

2. Josh Huder on the future of the filibuster.

3. And Dan Drezner: Yankees, or North Korea?

Read Stuff, You Should

Happy Birthday to Tom Verlaine, 64.

Good stuff:

1. More good points on ACA implementation from Ross Douthat.

2. Josh Huder on the long-term fallout in the Senate. Fair enough -- but I'd emphasize that what happens in 2015 depends on the 2014 election results.

3. And Jared Bernstein on the Volcker rule -- but really about policymaking and personnel.

Dogs, Not Barking

Right to it:

1. Ross Douthat mentioned this one today: as far as we know, it turns out that employers are not dumping their employees on the exchanges. At least so far. I do think it's likely that over time the ACA will wind up pushing people out of employment-linked insurance, but it appears that a fast, destabilizing dump isn't happening. Good Douthat piece, by the way, especially in that he's absolutely right that the best way to think about the ACA now is in terms of potential outcomes and the future policy questions they will raise, not "success" or "failure."

2. I talked about this yesterday...this one is less a dog not barking than a dog barking in the wrong direction, or something like that. Republican Senators are apparently doing a "filibuster" stunt today to protest the nuclear option (or maybe it's more of a "what have you got?" protest)...but they're really not shutting down the Senate. @Mansfield2016 nailed this one (and really, follow if you're interested in judicial nominations at all, including Senate procedure and reform issues): Republicans haven't objected to overnight time counting towards post-cloture time, something they could do. The same was true yesterday for the recess for party meetings. In addition, Republicans haven't objected to having committees meet. And as other have noted, the budget wars have semi-thawed, with Senate nukes apparently having no effect at all. Yes, they have forced a few votes which weren't necessary, and by not yielding back post-cloture time (so far!) they're definitely delaying and obstructing. But remember that GOP obstruction of nominees has been the norm for years now. This very much appears to be ordinary delay, not nuclear fallout. I'm increasingly confident that I was right on this one.

3. Afghanistan casualties continues to be, in my view, a very big and very undercovered story -- especially when troop deaths aren't happening. The last coalition troop death was back on November 17, and there were only four in November (3 US deaths). For the year, the coalition total is 148 (118 US), down from 402 (310) last year. This year will be the fewer coalition troop deaths in Afghanistan since 2005 (US since 2007); it will be fewest combined (Afghanistan plus Iraq) troop deaths since before the Iraq war began. I don't think we've really spent enough time thinking about how being at war for over a decade matters, or how it will matter when the Afghanistan adventure ends, or at least mostly ends, in just a few more months.

4. And the real reason I did this one today: the Fairness Doctrine is back! Well, not the Fairness Doctrine itself, of course, but conservative paranoia that it's coming back any second now. Via friend-of-blog John Anderson.

Nuclear Fallout Update

While waiting for the budget deal, Senate Democrats are attempting to get through a bunch of nominations before the end of the session.

Republicans this morning are forcing extra votes, with Mitch McConnell just now forcing a re-vote on the nuclear option -- that is, the new precedent that cloture on nominations only takes a simple majority.

The tell that it's all for show? Republicans did agree to the standard motion to allow committees to meet. If they really were going all-out to "shut down the Senate," that's one they could have objected to.

We'll see. Democrats have filed cloture petitions on ten new nominations -- that's in addition to Mel Watt (cloture to be voted on this morning) and the three DC Circuit nominees, the first of whom was confirmed this morning. Reid wants to run through all 14 of these, plus other less important exec branch nominations which typically would go by unanimous consent late in the session. If Republicans maximize stalling maneuvers, Reid can hold the Senate in later, threatening to take them to Christmas.

My strong guess is that Republicans will back off pretty quickly. Sure, they'll put up a little show of obstruction, but in this case resistance really is futile.

Reid has ordered his cloture petitions with the Homeland Security Secretary last, presumably because it's a more believable claim that he won't leave town until he gets to that one. Of course, he could be bluffing; if Republicans really do drag things out, he can always drop some of the intervening nominations. I doubt it, but I guess we'll see.

Going Nuclear Was About Republicans, Not Democrats

I'll join those who are impressed that Chris Cillizza went back to assess why he was wrong when he asserted during the summer that the Senate would never go nuclear. Acknowledging past errors is absolutely admirable.*

So I hope I'm not being too crass by saying that, alas, Cillizza still doesn't really get it right. The problem is that he sets it all up as a story about the Democrats and about Harry Reid in particular. Back in July, he argued that Senate Majority Leaders by their nature were always going to seek to preserve, not blow up, the institution; now, he thinks that the key thing he missed then were all the new Democratic Senators who never served in the minority and therefore were less committed to preserving Senate traditional protections.

I don't think he gets Reid wrong (although he might have put more weight on the side of Reid that's all about being a tough partisan fighter), and he's right that there was a clear pattern of more senior Democrats being the most reluctant to pull the trigger.

I should get to the point: what Cillizza gets wrong, both in July and now, is that the key players here weren't Reid and the Democrats; this was all about the Republicans. As I've said many times, there's always going to be a tension between what's best for Senators as individual Senators, and what's best for them as party members. The more the minority obstructs, the more that party incentive kicks in. As obstruction ratcheted up in the 1990s, 2000s, and then the Obama era, it's not clear exactly where the line is where the party incentive clearly takes over, but it's certain that "nullification" obstruction was solidly over that line.

It took a while for nullification obstruction of executive branch positions produced an ultimatum and a showdown, but that's what this summer's confrontation was about. Since Republicans backed down, Democrats didn't have to follow through. When Republicans then extended nullification obstruction to judges, Democrats predictably reacted with a new ultimatum, and had little choice but to follow through when Republicans this time did not retreat.

Indeed: what happened during the original nuclear confrontation, over appellate judges during the George W. Bush presidency, is that Democrats mostly backed down. In other words, one could argue that in that case, too, the key was the minority party -- first in ratcheting up obstruction, and then in backing down when it resulted in a nuclear threat.

Sure, the majority isn't totally passive, and isn't purely just reacting. It's certainly possible that a more senior group of Democratic Senators might have been more patient at the end. But any analysis that doesn't mainly focus on the unprecedented obstruction of the Obama era is really just missing the biggest part of the story.




*And, again very much to his credit, it's something he does all the time. I thought that I had written something about Cillizza's claim back in July and went hunting for all the things I've written about him here, and while I found a lot of pretty harsh crankiness (he seems to have been one of the first inspirations for Cranky Blogging), I also found several times he was featured in "Read Stuff" for good pieces -- and, in particular, good pieces in which he looked at criticism of things he had written and decided the critics had a point. So being open about his mistakes is nothing new for Cillizza. It's an absolutely great but fairly rare quality for any pundit or reporter, or for that matter anyone, I suppose.

Still Hoping to Save the Filibuster

Yes, this is most certainly futile: Republicans aren't going to do it, and most people who care don't want it to happen anyway. But I'd like to see the filibuster saved and I think it's not only possible but actually in the interest of all Senators, so I'll push on with it.

Basically, as I argued a while ago, I think that the filibuster (and the good things about the Senate) has a better chance of surviving long-term if the current post-nuclear situation is replaced by a negotiated settlement on nominations. The key is to get both sides to agree to something which would be better for the minority party than the post-nuclear status quo, but better for the majority party than where things were before Harry Reid acted.

In particular, I think simple majority cloture on judges is suboptimal. As long as we're talking lifetime appointments, I have no real problem with imposing some sort of supermajority requirement. When I've written about this in the past, I've always said that I had no particular attachment to 60, but I've never really had any particular notion of why any particular number should be set as the standard. So, futile as it is, I'm going to return to it with a new argument: the number required for cloture should be pegged to the size of the Senate majority party.

Or, actually, because as long as they're (hypothetically) revisiting the rule, they should set it to the size of the Senate minority.

The most obvious option for the number needed to sustain a filibuster would be equal to the size of the minority party. So, with 45 Republicans right now, continuing a filibuster would require 45 "yea" votes. What does that do? It means that if the opposition party is unified in rejecting a judicial nominee, then Senators from the president's party may have a tough vote. If the nominee is relatively popular, no problem. If not, then, well, that's as good a sign as any that the nominee is in some way unfit or out of the mainstream.

After all, normally we could assume that any party which wins the White House and also wins the Senate -- the conditions under which any of this matters -- will be able to produce judicial nominees who are at least avoid being dramatically unpopular. In fact, all else equal, there's no reason to expect that they'll be unpopular at all. But given the loose connection between opinion on public policy and elections, it's certainly possible, especially if the president actively attempts to fill the bench with ideologues.

Some other variations: one could set it at minority plus two. With a 45 member Republican conference, they would need 47 votes to sustain a filibuster. That makes cloture quite a bit easier; only a truly unpopular nominee would likely lose. Or set it at minority minus two. That way, the majority would have to win at least two minority party votes for cloture (assuming everyone was present and the majority party was united). As we've seen, however, that option may be good for the minority party as a whole, but can force tough choices for Senators who don't want to obstruct but also don't want to be seen as squishes.

In other words, in some ways keeping the number exactly equal to the size of the minority party takes the pressure off them, and puts the pressure on marginal Senators from the majority party. In exchange, of course, at least as opposed to 60, the majority party would normally be able to confirm.

Whatever the exact number, presumably it would be capped at 60 (so a 65 Senators majority party would be able to easily get cloture). I suppose it would have to be drafted carefully to prevent gaming the system (the minority party couldn't change the number by having a half-dozen Senators declare themselves Independents); that seems doable.

Yes, some majorities would find it a lot easier to stick together than others. If the president's party has a couple of Senators who normally vote with the out-party on judicial issues, it's going to be harder to get cloture. But that was true under the old rules, too. Remember, it's been rare even in the last two Congresses for Republicans to unanimously oppose cloture on judicial nominees; that may change some with only a simple majority needed for cloture and could change under any set of rules, but if things break down the majority still could threatened a new round of majority-imposed reform.

Again: I don't expect to see this happen, mainly because I don't think Republicans are willing to compromise; I think they would rather get rolled than cut a deal. Democrats might not take it either. But I still think it's a deal that works for both sides, and for the Senate.

Happy Thanksgiving!

And Happy Hannukah, too, for those celebrating the holiday.

Meanwhile, I have one up over at TAP about electoral effects of the Syria deal.

And then I had one over at PP about blue slips.

I'll be over at Greg's place on Friday. Maybe something here before the weekend, maybe not.

Enjoy the holiday(s)!

Read Stuff, You Should

Happy Birthday to Randy Milligan, 52. Would presumably have had much more of a career today than back then. The "free so-and-so" campaigns of the 2010s just aren't what they used to be. Not a superstar talent, but a guy who could get on base 40% of the time really should have found a job somewhere.

The good stuff:

1. Amy Lerman over at the Monkey Cage on public opinion, Medicare, and the ACA.

2. I really like Norm Ornstein's contribution to post-nuclear analysis; he's especially good on what happens now to holds, but the whole think is excellent.

3. And Josh Marshall looks for examples of Obamacare McCarthyism.

Read Stuff, You Should

Happy Birthday to Mark Margolis, 74.

A little good stuff:

1. Sometimes, PolitiFact does a good job. 

2. I'm really not a big fan of the DW-Nominate assessment of presidents, but kudos anyway to Chris Cillizza for taking the best evidence around, whatever its limitations.

3. Seth Masket on House/Senate. As I said yesterday: guilty, but with an explanation.

4. Sarah Kliff reviews the ACA points you might need for Thanksgiving arguments.

5. Speaking of stuff I don't really agree with...I need to link to this one, from Alan Jacobs and Scott Matthews, although it would tend to undercut the arguments I've been making about the long-term public opinion effect of ACA success or failure. I'm not convinced, but if you're interested in the discussion, be sure to read what they have.

6. And Julia Ioffe explains what happened to Heritage.

Majorities

Ezra Klein writes last week (my emphasis):

So the question here isn't so much about the change in power now as it is in the change in power over time. That change doesn't clearly favor Democrats or Republicans. Rather, it favors majorities over minorities. And a corrective on that front has been overdue for decades. The only thing worse than a Senate where the majority has the power to govern is one where it doesn't.

I'm going to keep banging this one in, because it's terribly important. Removing the filibuster doesn't favor "majorities." It favors one particular majority. Not a policy majority. The party majority.

Remember, nominations that the majority party in the Senate opposes won't necessarily make it to the Senate floor in the first place, even if they would actually win if they came to a vote. Indeed, one can imagine a House-like Senate refusing to bring nominees up for a vote unless a majority of the majority party favors it.

"Majorities"? There's a majority right now for ENDA in the House, most observers believe. There's almost certainly a majority for a Senate-like immigration bill. I suppose it's even possible that there's a majority in the House for some very mild gun legislation. But in a body in which the majority party runs things, those other majorities aren't getting votes.

The thing is that there are multiple majorities on multiple issues at any one time in any legislative chamber. What parties do is structure things so that certain majorities are allowed to express themselves -- and others are suppressed (meaning that in those cases, the minority wins). That's fine; in fact, it's better than fine, since legislatures probably couldn't function very well without that kind of structure. But there's no reason to assume that the party majority is the only majority that matters, or that it's always inherently better (and more democratic) to allow the party to determine which majorities count.

And that's without getting into the more complex question of whether majorities should always win in a democracy. I'm strongly convinced they shouldn't (a classic example is when an indifferent majority is opposed by an intense minority). But put that aside. Again: reforms which favor party leadership simply do not favor chamber majorities in all cases, at any rate. They favor the majority party.

Strict majority party rule is, to be sure, better than strict minority party rule. Or, even worse, the incredibly bizarre situation in which a minority of the minority party intimidates the bulk of that party into doing whatever they say, and then abuses chamber rules to dictate to the majority party some policy which in fact only a slim majority support. So, yes, given the situation, Harry Reid and the Democrats had no choice but to act, and the result is in fact better than what they were faced with. To say that it necessarily empowers majorities, however, is another question altogether.

Read Stuff, You Should

Happy Birthday to Tim Armstrong, 47.

Plenty of good stuff for a holiday week:

1. Four pieces -- Greg Koger, Barbara Sinclair, Aaron Belkin, and Richard Arenberg -- on the post-nuclear Senate.

2. Another one, from David Mayhew.

3. And another from Sarah Binder. I suppose she's right that the Senate will never quite "become the House" -- something I'm guilty of saying. However, I do think the risk (or, if you like it, the promise) of it coming close enough is sufficient that it's only a misdemeanor, not a felony, to use it as a shorthand.

4. Mark Goldberg on the Iran deal.

5. Fred Kaplan on the Iran deal.

6. Why is JFK so popular? I don't disagree with the three numbered reasons Matthew Dickinson gives us, but as I've said before I suspect the unnumbered one following those -- the active efforts by the Kennedy family and allies to produce that popularity -- is really the key (as it is with Reagan).

7. Kevin Drum makes the key point that the entire health care industry, basically, is already committed to ACA (because they had to be), which means that it ain't gonna disappear. Which matches the point that I've been making: repeal of ACA is long dead because the status quo ante no longer exists; whatever happens will be building on ACA, not starting over.

Sunday Question for Liberals

Same question, pushing  on my Saturday Salon column, in which I argued that the filibuster can still be saved. I say if Republicans offered a deal which would preserve some possibility of blocking judicial nominations, but gave up at least some of the filibuster on legislation, Democrats should go for it. If Republicans did suggest such a deal, should Democrats accept it?

Sunday Question for Conservatives

I'm going to push on my Saturday Salon column, in which I argued that the filibuster can still be saved. I say Republicans could still get a deal which would preserve some possibility of blocking judicial nominations, but give up at least some of the filibuster on legislation. If such a deal is possible, should they go for it?

What Mattered This Week?

Not the only thing that mattered, but I'll go with the obvious one: the Senate going nuclear is a very big deal.

What didn't matter? I'll stick with filibusters, and agree with Adam Ramey that if the legislative filibuster goes, it's not going to matter much...as long as there's divided government. Although even then, "less than you think" could still be a big deal, so I suppose this isn't a very good "didn't matter." Sorry; I've been so focused on the nuclear business that I hardly know what else happened this week, and all the things I can think of actually did matter.

But maybe you have more. What do you think mattered this week?

Post-Nuclear Etc.

Just a few notes to add to what I said elsewhere, including here for what the GOP was up to and here for something about power and control in the Senate.

* I think the certainty among many liberals that Republicans would rapidly go nuclear as soon as they had unified control of the Senate and the White House is at best unproven. After all, they didn't do it when they had the opportunity during the George W. Bush years. If Democrats ratcheted down to Bush-level selective filibusters...maybe yes, maybe no. It may be true that the next GOP Senate would be more radical-influenced than the last ones, but then again they would still need the votes; if they only have 51 or 52, it's not very likely.

* Conservatives who think that Bush-era filibusters were on a par with Obama-era filibusters...just stop it. It's not a serious argument. Obama has faced a true 60 vote Senate, which means that virtually everything has been filibustered (yes, even those judges who were approved by voice vote with no cloture vote only got there because they had secured 60 votes, and that's a filibuster. Or at least it was). That's new. The blockades-by-filibuster are essentially new, too. It's a little more complicated...there have been blockades before, but they're usually by a Senate majority, or at the end of a president's term, or both. Nothing like this one. The escalation is more severe on the exec branch nomination side, but it's still very large on the judicial side.

* And that's without even getting into the blue-slip situation.

* Just to be clear: yes, Democrats definitely ratcheted up judicial nomination filibusters during the George W. Bush presidency. Democrats also bear responsibility for ratcheting up opposition to executive branch nominations, with the Tower nomination a major turning point. Democrats, however, were willing to cut a deal to back down from the edge.

* Some liberals are urging Obama to now appoint very liberal judges. If he does that, it will risk defeat the old-fashioned way, by building a coalition of all Republicans and a handful of moderate Democrats. So far, Obama has stuck to mainstream judges, and that's meant he's retained just about every Senate Democrat on almost every confirmation vote (I don't actually remember any defections, but I assume there have been a few over the years). That's not to say Obama shouldn't do it. Just that there are costs and benefits that are not always easy to calculate.

OK, that's all for now, but I suspect I'll have more points later.

Read Stuff, You Should

Happy Birthday to Terry Gilliam, 73. One of those days with lots of good choices, but I'll go with the Python.

1. Greg Koger on the post-nuclear Senate.

2. Paul Krugman is right on Republicans, news cycles, and the ACA.

3. And Jennifer Lind on apologies. Interesting. What I really am looking for, however, is a good analysis of the various players on the US side in the US/Afghanistan negotiations on post-2014, and who wants what and why. My general sense of it is that Barack Obama probably should just want out, and that the (apparent) effort to stay indicates that he's getting rolled by...I don't know. But this is just wild guessing on my part, and I could just as easily imagine that Obama wants to stay, and, say, the Pentagon wants out. At any rate, I haven't seen any analysis at all, and I'd like to.

Quick Post-Nuclear Fizzle

The Senate has gone nuclear. My first notes are up, over at Plum Line.

I'm sure I'll have more on this, but one quick note. Soon after the key vote, Harry Reid asked for, and received, unanimous consent for committees to meet. That's normally a routine request. The fact that it remains a routine request, even immediately after the Democrats acted, is a quick answer to one question: no, Republicans will not "blow up" the Senate to retaliate for majority-imposed reform. I suppose it's possible that they'll regroup and change their minds, but much more likely will be some sort of  minor "blow up" demonstration, nothing more. McConnell didn't really even make a lot of threats about it, at least not today.

OK, my prediction of a GOP surrender (well, I made odds on it, so not exactly a prediction) didn't work out so well, but this is one that it looks like I was right.

I'll also say that I don't really believe that today's action is going to matter at all in terms of bipartisan bargaining in the future. We'll see; a lot of smart observers think it will, plus I'm hearing Wolf Blitzer just now talking about "poisonous atmosphere." We'll see, but I really don't think that the "atmosphere" stuff is really going to make any difference at all.

Nuke (Maybe) Day

I'm not posting anything right now because...well, because I'm watching the Senate, and there doesn't seem to be anything more to say until we know what's going on. At least, anything worth posting about.

I'm tweeting, so head over there for blow-by-blow type stuff. I'll probably have something up later over at Greg's place, and then odds are that I'll be back here for more when things wrap up.

My guess at the beginning of the day was a 60% chance of GOP surrender (with perhaps a "deal" that's really surrender with a fig leaf; 20% chance of a deal that gives Democrats most, but not all, of what they want; 10% chance that Democrats are just bluffing, and 10% chance that Reid actually pushes the button. So far, however, there's very little chatter about, well, anything. So who knows?

Anyway, feel free to use this as an open filibuster/judges thread.

Read Stuff, You Should

Happy Birthday to Alexander Siddig, 48.

What would we do without the good stuff?

1. Sarah Binder on the nuclear showdown.

2. Ezra Klein is good on Obamacare/Katrina.

3. Ed Whelan is correct: excepting Supreme Court nominations from a nuclear-induced ban on other judicial nominations is pretty much a joke. Which is one of the reasons that Democrats didn't act up to now.

4. I agree with Matt Yglesias about the doctors' cartel. I'd like to see a good post, however, comparing doctors and lawyers.

5. And Sarah Kliff loves the first chart in her post, which I agree is a big deal. But the last chart is the Wow! one to me.