Wednesday, September 29, 2010

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.


  1. I'm not in favor of filibuster reform, but the Senate rules on holds, anonymous and otherwise, seem ripe for reform. I'm all for allowing the filibuster in order to provide some avenue of protection for the minority party, but that seems sufficient power to restrain the majority party. The holds on the other hand, seem to serve no public interest either in theory or in practice.

    What is the history of these kinds of holds? Are they a relatively new development, or am I just noticing them more because of the Republican's excessive use?

    And too, they aren't law. Reid can fail to honor them. In fact, he failed to honor Dodd's hold against the FISA renewal with retroactive immunity for AT&T. Unless my memory is more faulty than I think it is.

  2. James, I agree that Senate rules and customs on holds are ripe for reform. With a little luck, we'll get some of that in January.

    The more I think about the filibuster, the more I'm in favor of reforming or eliminating it. Historically, it exists because of a rule change in the early 1800s. That rule change was so obscure that it apparently took a few decades before Senators started taking advantage of it.

    For much of the 1800s, the House was where minorities could (and did) most successfully obstruct the passage of legislation. After a huge and controversial rules fight, minority caucuses shifted their focus to the Senate.

    I agree with Jonathan that it seems Reid and the Democrats could have played their hand better in this session (despite some significant accomplishments). However, on balance, the evidence of recent Congresses, and in particular this one, leads me to a position in favor of eliminating the filibuster, or reforming it so that the opportunity cost for the minority is significantly increased.

  3. Re filibuster: Well, the minority party needs to have some avenue of restraint in the case of egregiously unqualified appointments, judicial and otherwise, and leaving restraint of the majority party to the House doesn't help in that respect. I actually (as an armchair amatuer) think the filibuster works pretty well just as it is. Yes, the Republicans are overdoing it, but taking the longer view, I think it would be a mistake to fiddle with it under the circumstances.

  4. James, it doesn't make sense to say that you are for reforming holds but against reforming the filibuster because the two are one-in-the-same. As you noted, a hold doesn't mean that Harry Reid *can't* bring up that piece of legislation. It only means that one Senator is determined to make it as difficult as possible to do so, mainly by filibustering.

    If one Senator is dead set against a piece of legislation, and ninety-nine are for it, that one Senator can force the Senate to spend 8 and a half days straight on that legislation before it's passed. They can force the majority to file for cloture on the motion to bring up the legislation, which takes three days, and then force the Senate to use all 30 hours of post-cloture debate time. And this is even before the actual contents of the bill are debated. That lone Senator can then draw out cloture on final passage for another three days + 30 hours period.

    A hold is nothing more than a threat to filibuster. And in a Senate where a week's time is very valuable, even the threat to filibuster can be a powerful tool.

  5. Kal,

    Yes, but: a single Senator isn't really going to hold the floor for 30 hours, so it's not quite that extreme (and the days while the cloture petition sits can be used for other things). A dozen Senators, yes, although even then whether they would actually do it depends on lots of things. But a lot of these "how much time a single Senator can take" calculation are maximums, and in reality it's likely to be a lot less.

  6. Yeah, that is true. There have been plenty of times when the Republicans have given up after cloture was passed and waived the 30 hours of debate in the 111th (FinReg comes to mind).

    Doesn't waiving the 30 hours of debate require a unanimous consent agreement, though? In that case, wouldn't the angry Senator have to only be on the floor to object? He wouldn't necessarily have to hold the floor. I could be mistaken, though.

    When everyone has a nuke, I suppose the seriousness of the threat only depends on how trigger-happy the Senator is. That explains why Reid just rolled over Dodd's "hold", but seems to take DeMint more seriously. I suppose the less "serious" you are, the more credence your threats are given.

  7. James, I appreciate the response, and your position. It seems to me the way to stop egregiously unqualified appointments is to use the committee investigations and hearings, and the debate time on the floor of the Senate to make clear to other Senators, as well as to the White House and the citizenry, that an appointee is, in fact, egregiously unqualified. This has worked numerous times in the past, including on Supreme Court appointments.

    Besides, in many cases recently, no Senator (let alone the entire majority) is making the argument that an appointee is unqualified---as evidenced by the votes yesterday. What we have in most cases is delay for the sake of delay.

  8. @massappeal.

    Well, again, committee hearings and investigations depend upon the majority party. I am thinking more about the rampant power-grabbing and egregiously unqualified candidates during the time the Republicans were majority (108th and 109th Congresses) and Dems were minority. Yes, the minority party recently has been using every rule to the max in order to obstruct and delay. I don't think that temporary situation merits fiddling too much with protection of the minority party.

    I am focusing more on the filibuster as such and am not viewing holds as one-man filibusters, as was noted above. I concede I am not expert on all the arcane Senate rules.

    It reminds me of the time during the ascendancy of Arnold Schwartzenegger and the popular talk was of amending the Constitution to allow foreign-born citizens to become POTUS. I personally didn't think the Constitution needed amending to allow arnie to run for president. It was setting the bar too low at a time when our Constitution was seriously under duress from Cheney's administration. Similarly, I don't see where it is a good idea to tamper with the power of the minority party at a time like this. It's short-sighted.

  9. @James

    Thanks again for the dialogue. One more response from me and then, please feel free to have the last word.

    Speaking just for myself, I increasingly see the need for Senate rules reform (specifically, eliminating or reducing the power of holds and filibusters) as valuable for the republic's long-term health. I care less about an individual session of Congress.

    It seems that the rules of the Senate have long allowed for the kind of obstruction that has become common of late. However, it's only in recent decades that filibusters and holds have proliferated, due to changing norms of Senate behavior. With each passing session (it seems), the internal cultural restraints on use of the filibuster in the Senate are weakening. As a result, we face the possibility of being unable to address major national and international issues in a timely fashion.

    I too am cautious about changing institutions too drastically. That's why I'd like the next Senate majority (of whichever party) reform Rule 22 so as to place a greater burden on the minority when filibustering.


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