Friday, September 11, 2009

More on Cloture: Yes/No votes

How likely is it that the Democrats can find 60 votes for cloture (on health care or anything else) even if they don't have 60 votes for passage? That is, what are the chances for yes/no votes: yes on cloture, no on the bill? It's a long post, so I'll give the answer up top: on slim evidence, I'd say that it is definitely possible, although not the most likely end game.

As I said earlier, there's very little evidence on this question. It's still early in this Congress, and any evidence from previous Congresses may not hold, since there's never been a sixty Senator majority during the filibuster-everything era. A lot of the question turns on the perceptions of individual Senators when faced with, basically, a new situation -- if they are afraid of the consequences of voting for a bill, but also afraid of defying their party, can they finesse it by voting for cloture and against the bill? Note that there's no "correct" answer here; the question is not whether how voters will eventually act, but how Senators now believe voters will act in the future.

What would be nice is if we had lots of pairs like the Cass Sunstein nomination, in which the cloture vote and the confirmation vote were substantively the same. Unfortunately, looking through the various cloture votes this year (and I count twenty-four so far; Yikes!), most of them don't meet that standard. In several cases, after cloture succeeds the vote on the underlying bill or amendment passes by voice vote. In others, the filibuster is on the motion to proceed (that is, to begin work on the bill); since subsequent amendments can change things, it isn't going to be clear what a yes/no vote really means (it could mean yes on the bill brought to the floor, but no on the bill as amended, instead of what we're interested in -- Senators willing to vote for cloture but not willing to support the exact same bill).

Here's what we have: in addition to the three yes/no Democrats on Sunstein, I can find only a couple of other fairly clear yes/no cases: Sanders again on the Supplemental bill in May, and perhaps Tim Johnson on the credit bill, also in May. On the other hand, there aren't all that many no/no votes, either; there are only a handful of Democratic votes against cloture all year.

It's probably worth mentioning that few cloture votes have been close. Twice this year Democrats failed to get cloture on the first try because of absent Senators; in one of those cases, a nomination apparently passed by voice vote eventually, while in the other case there must have been additional negotiations, because the second cloture vote wasn't close at all. There were four filibusters ended with 61 or 62 votes. But the really interesting one is certainly Sunstein, who might not have been confirmed without the three Democratic yes/no Senators. It's not clear; 57 Senators voted to confirm, and two "yes" Democrats missed the final vote, so that gets to 59. To beat the filibuster, Sunstein needed those 59 plus one of the four yes/no Senators: three of whom were Democrats. That's all I can get from roll call votes; I'd very much like to see some reporting on it.

The first conclusion, then, is that the Democrats are not bringing bills and nominations to the floor that draw cloture votes unless there is little or no Democratic opposition. The second conclusion is that there does appear to be at least a possibility of bills (and nominations) passing by means of yes/no voting: that is, Democrats may be able to get cloture on a bill that does not have 60 votes for passage because some Democrats may be open to voting for cloture and against the underlying bill. It's a possibility, but from what we know now it is not the most likely outcome.

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