Tuesday, April 24, 2012

Superbill! vs. Reconciliation

Ezra Klein today notes that if Mitt Romney wins, he'll almost certainly have a Republican House and he'll probably have a Republican Senate. Which means:

Right now, the GOP’s agenda is the Ryan budget, and that’s entirely fiscal: It’s a premium support plan for Medicare, and tax cuts, and deep cuts to Medicaid, food stamps and other domestic programs. All that can be passed through budget reconciliation — which is to say, all that can be made immune to the filibuster.
So if Romney wins and the Republicans take control, they could accomplish quite a lot on party-line votes, even if their majorities are slim, and Democrats are opposed.
I'm actually not all that convinced that the results would be as "transformational" as Klein believes; it's one thing to pass the Ryan budget through the House when everyone knows it's going nowhere, and another to kick off a presidency by actually slashing popular spending programs. I'm not saying it won't happen, but if I had to put my money on it I'd bet on significant tax cuts along with symbolic spending cuts and a huge amount of harumphing about entitlements.

But it certainly could happen, and through reconciliation.

The things is...that's really sort of weird. Why should things with a particular kind of budget effect be able to fit through reconciliation, while other legislation cannot? The fact that reconciliation exists and has the rules it has is basically a historical accident; no one ever sat down and decided that the Senate should function this way. And yet, accident or no, reconciliation has some real advantages. It allows Senate majorities to pass some of their high-priority items, while still allowing intense minorities to defeat other measures.

Which is why I've argued that expanding reconciliation is the best model for limiting the effects of filibusters in the Senate. My proposed Superbill! -- or with it's less fun name, Leader's Bill -- would be, basically, reconciliation without limits. The majority would get to put one bill on the Senate floor every year that would need only a simple majority to win. The majority would be able to wrap as many bills as it could manage into that omnibus legislation. The only constraints within the Senate would be, first, that the minority would also be able to add germane amendments by a simple majority vote, and, second, that the whole thing would of course actually have to pass. That second one matters quite a bit! For example, in the historic 111th Congress Democrats might have tried to pass ACA with a public option and climate legislation using Superbill!, but they would have lost different votes for the public option and for climate, perhaps meaning that the overall effort would crash even if it turned out there were different slim majorities for both a public option and cap-and-trade. Remember, too, that the bill would have to get through the House in a form that could pass the Senate, so that's part of the "passable" constraint.

However, it would at least mean that Senate rules would no longer bias policy formation in favor of bills that could be scored within the budget process (why should a regulatory climate bill need 60 votes, but a carbon tax only a simple majority?). In my view, it would allow the Senate to remain the Senate -- it wouldn't entirely eliminate the filibuster at all -- but also allow a party which wins unified control of government to pass its top priorities.

The best thing, in my view, about Superbill! in a Senate with a filibuster is that it tracks the democratic intuition that intensity should matter. Presumably, majority party Senators and the interest groups within the majority party coalition would compete to get their proposals included in that year's Superbill! (just as they compete now over scarce floor time for regular bills). That's a way of keeping intensity in the picture -- while the filibuster on ordinary bills allows intense minorities to block them. Granted, what would happen in such a Senate wouldn't map perfectly onto intensity/indifference, but it would be a step closer, and that seems like a good step to me.


  1. What would be non-germane under an omnibus bill? It sounds like the Superbill would be a Christmas tree before it got to the floor, and so it would be hard to call anything from the minority non-germane.

    I'd like to see filibusters eliminated for conference reports, but with a further rule added that no provision can appear in a conference report that wasn't in either the House or Senate version of the bill. Or maybe you can still add brand new stuff in a conference report, but then it can be filibustered.

  2. Well, it would depend on what's in the omnibus bill, wouldn't it? It's a(nother) reason to keep Superbill! from getting too large.

  3. Why not go all the way and eliminate the filibuster altogether? That would essentially make the US more like a parliamentary democracy with a president as another check on power of congress. It seems to work ok in Europe and the commonwealth countries (Australia, NZ etc). Members of congress would still be responsive to public opinion, as they would need to be re-elected every 2 or 6 years and presumably they want would want to.

    I agree with Jonathan above, that its one thing to vote on a bill that has no chance to become law, and another when it will be implemented. I'd feel safe in guessing that public opinion would be so far against the Ryan budget that it would make the ACA seem downright beloved by comparison. Anyway a superbill is a start, and hopefully one day the filibuster is eliminated entirely.

    Also, out of curiosity, does anyone know of another parliamentary body (outside the US) that has either a filibuster, or one where more than 50% +1 is needed to pass regular laws?

  4. "The fact that reconciliation exists and has the rules it has is basically a historical accident; no one ever sat down and decided that the Senate should function this way."

    Substitute the word "filibuster" for "reconciliation". That's exactly what happened. The only difference is it happened 206 years ago instead of 38 years ago. Screw tradition. Scrap cloture, reinstate the "move to the previous question" rule. Majority rules is not the issue; majority vote is. The Framers expected supermajorities for only X matters: Amendments to the Constitution; Veto overrides; Treaty ratification; Conviction upon Impeachment; Expulsion of a Member. Nothing else. In fact, the drafters of the Constitution were so certain that majority vote would prevail for regular order in the House and Senate that they never even *specified* the matter within the Constitution itself. Allowing that "Each House may determine the Rules of its Proceedings," yet still declaring which matters in each house must be settled by a supermajority is the only proof we need that what has become the filibuster was never contemplated, and should never have come into existence.

    I'm not saying it's unconstitutional. I'm saying on it's face, there's no reason not to do away with it.

    1. Yes, the filibuster is in some ways a historical accident...but in other ways it's a logical outcome given the composition of the Senate.

      To answer Yaramah: you can't really compare the Senate with parliaments around the world, because very few of them are working, "transformative" legislatures in the way that the US Congress is. Of course, we could give that up, but IMO that would be giving up some of what makes the US highly democratic.

    2. I agree, the mechanisms by which either party, a gang of senators, or any one member can bring business to a standstill, and even kill any measure, are inherent to the institution. But unlike the other veto points, which continue unchanged, this is one that worked fine... *until two decades ago.* Now, rather than being used to debate, delay, and preserve minority voice, it's being *abused* to silence, obstruct, and prevent majority vote. If that's logical, then the Senate must have been illogical for about 205 years.

      But it wasn't. Majority vote, and with it majority rule, existed for two centuries more or less by unanimous consent. That unanimous consent is now routinely withheld does not mean that majority vote should not still obtain. That's what's illogical.

      That the very members who want to delay and obstruct, who succeed in preventing legitimate governance, should feel less pressure and pain than the majority with enough votes to pass the bills, that's what's illogical.

      And yes, it is entirely of the Senate's own making, and almost entirely the Democrats' fault. Cloture yoked to the two-track system has derailed the institution.

      But they're just rules. They've got to be fixed.

    3. What's the term 'transformative legislature' here mean? The Australian senate is somewhat modeled on the US senate (12 senators per state). Surely the US senate like the house of review in parliamentary systems. What's the difference with the US senate vs parliamentary upper houses that rules out more direct comparisons?

  5. I'd make the guess that your superbill would be loaded with poison pills and killed.

  6. Having majority rule in the Senate with very rare and burdensome to perform filibusters worked fine for the country until the '70s when the cloture rules were changed. I see no reason not to either do away with filibusters completely or return the rules to how they used to be for most of our history. Superbill is an unnecessary and overly complicated change that would just make it even harder for voters to determine who was responsible for what policy and make it easier for powerful, well funded interests to corrupt the political process.

  7. Superbill "allow(s) a party which wins unified control of government to pass its top priorities."

    I'm not sure this will be the case, because of the competition among interest groups mentioned in the next paragraph. Suppose a 56-D senate (with Lieberman, Sanders and a couple persuadables like Snowe and Brown) is considering cap-and-trade legislation. In the current system, the Democratic majority could water down the "cap" enough possibly to get Snowe and Brown. If that happened, we assume that the 56 Ds would pretty easily fall in line.

    Now consider cap-and-trade crammed into Superbill. In this case, if you're a moderate D from a coal state (e.g. Joe Manchin) your decision calculus changes pretty dramatically, it seems to me. Superbill takes on a life of its own, its the marquee event of the legislative year, and so individual congresspeople are more accountable to what they push for (and fight against) in Superbill than in the current system. As such, while Manchin may relatively easily go along with a watered-down cap-and-trade in the current world, I would expect him to feel a lot of pressure to fight the same legislation in the Superbill context.

    In summary, due to its unique salience Superbill may prevent much of what its designed to accomplish.

  8. I'm still scratching my head to figure out in which alternative Universe the current Republican Party would ever support either SuperBill or elimination of the filibuster.

    Only in the alternative Universe where they felt they had already destroyed both the Democratic Party and the union movement, is my guess.

    Since we're talking impossible fantasies, I would prefer the total elimination of the filibuster. No senator could speak for more 2 hours on any bill; any attempt to give a Senator an exemption to that would have to carry by 2/3 majority. Let's have an actual democratic process for the (cough, cough) "greatest legislative body on earth."

    1. Well, for one thing, a universe with a GOP majority, which may well happen after November.

      But outside of that -- it is possible to just change the rules by majority vote.

  9. I guess once a year would be better than never. But I don't think this solves the problem. In many ways it makes it worse with the tacit acceptance that 60 votes should be required for everything else.

    Really, the super-majority requirement has to go.

    The easiest way would probably be to make everyone who threatens to filibuster actually filibuster. Do that a few times and, I suspect, that would be the end of the filibuster-everything strategy. It would chew up the calendar, but I don't think we would miss much.

    If that doesn't work then go "nuclear" and get a majority to declare that 50 votes ends debate.

    If Senators like the unlimited debate tradition they shouldn't abuse it.


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