Monday, December 31, 2012

Why I Think Merkely/Udall Has It Wrong

On Senate reform, suppose you're in the group -- which according to what they say publicly includes most leading Democratic Senators -- who wants to find a middle ground between the current dysfunctional Senate on the one hand and creating a House-like strict majority party rule on the other hand. Yes, I know, there are plenty of people who just want to eliminate the filibuster entirely, but let's put that argument aside; even if it's correct, which I don't believe it is, it's not going to happen anyway right now. So if you accept that a middle ground solution is what they should be looking for: what's the best way to achieve that goal?

I think Merkely/Udall goes about Senate reform the wrong way. I'm not sure it's their fault; it may be the case, as Sarah Binder suggests, that (very) incremental reform is the only way to go, and so whatever we're going to get isn't really going to make any difference. But as far as I can tell they sincerely believe that their solution is not incremental, and will really fix much of what's wrong. It's very late in the day, but I'll run through one more time why I think they're on the wrong path.

First: it's important to identify the problem, which is the outsized ability of a dedicated partisan minority to get their way in the current Senate. They can do so in two ways: when they don't have 41 votes they can drag things out so much, even on entirely unrelated matters, that they reduce the overall capacity of the Senate. And when they do have at least 41 (but no more than 49) votes, they can and will block everything. Note that the same minority party -- that is, the Republicans -- may have 41 votes for some things but not others, so both of these matter.

On the sub-41 situation, I have no major difficulties with what Merkley/Udall propose (or with the Levin response, for that matter).

But there needs to be something on the 41-49 situation.

I've seen three general approaches. Merkley/Udall, of course, try to do it through a "live" filibuster. The idea is that by increasing the cost of filibusters, it will reduce their frequency. As I've said many times, I think it's not only futile, but perverse. The problem is that if you want a middle course (again, what we're discussing here), then what you need is a set of rules which somehow lead to some "live" filibusters working and others not working, or not being worth attempting. I just don't see that as a likely outcome -- mostly because if any talking filibuster is possible, then the minority would have a powerful incentive to prove they can do it on any measure, and at the end of the day floor time is more valuable to the majority than the minority. Meanwhile, I see a lot of people defending talking filibusters for what I see as terrible reasons: that it would expose the minority to public opinion, that it would yield better reporting on who was responsible for obstruction, that it would return the Senate to what it once was. I don't think any of that is correct.

The second general approach I think is to design some sort of (other, non-"talking") complex rule to try to prevent constant filibusters, but to preserve it to some extent. In my view, it may be possible to achieve this one; it's easier than if you begin with the irrelevant condition that a solution must involve Jimmy Stewart. However, it's still very difficult. For example, Tom Harkin has a proposal that would involve a sliding scale for each filibuster, so that cloture would require 60 at first but gradually move towards a simple majority. The problem is that I still haven't seen a proposal which would almost certainly wind up either doing nothing or do away with the filibuster altogether. It's pretty hard to draft one, at least one that could withstand parliamentary maneuvers to undermine it.

All of which is why I think the third approach is the best one: instead of trying to make filibusters harder for the minority, try to make passing (some) bills easier for the majority. That's the idea behind Superbill!, or a leadership bill, or enhanced reconciliation -- leave the filibuster in place for most bills, but exempt some of them. It's also the idea behind making appropriations bills impossible to filibuster. I do believe, however, that the tradeoff for majority ability to move these bills more easily should be much better protection for minority ability to offer amendments. Plenty of amendments, not just one or two from the leadership, although with protections against filibuster-by-amendment. But basically: you want majorities, you get majorities, and not just party-defined majorities.

Granted, Superbill! doesn't do anything for nominations reform. As I've said, I'd support simple majority cloture on executive branch nominations and perhaps district court selections. On SCOTUS and Circuit choices, I think it's a lot harder to find a good solution...I sort of hope that compromise can work in cases with a large minority, but I don't know that it can.

Look: if the talking filibuster passes, I hope that it does what Merkley and Udall think it will do. I just don't see why it would. At any rate, my best guess at this point is that we get minor changes for sub-41 minorities but nothing for 41-49. Which means reformers will probably have two years to go back and try to get it right -- and to build support for it.


  1. "Which means reformers will probably have two years to go back and try to get it right -- and to build support for it."

    Which... may be fine, as we have divided control right now anyway. Most Senate legislation passed in the next two years either by avoiding or breaking a filibuster is not going to even hit the floor of the House. It'll be important for Dems for two reasons: to reintroduce the principle of majority vote, and to put their agenda more firmly and officially on the record, which allows them to craft a more potent narrative of GOP obstruction. (It would seriously undercut elements of McConnell’s attack rhetoric, comments like this from Dec. 2010: “Let’s face it: Most Americans aren’t particularly interested in the things Democrat leaders have put at the top of their to-do list,” he said.)

    Actually there’s one more reason: to see if they can begin to shake loose some GOP Senators to seek buy-in at the outset of the legislative process on some issues, so the Senate can bring more bills with true bipartisan roots to the floor. I swear there are more than a handful of not just Centrist but Liberal Dems who would truly want this. (And not that I think it would be a terrible development.) This would likely bear no fruit in the next two years, but the door would be open, and the overtures would continue, in the event that at least a few Republican Senators begin to seriously chafe at their leadership’s shackles, or when Dems retake full control, whichever comes first.

    I still think that Reid is not going to push the live filibuster if he’s not 100% committed to breaking the first five attempts.

    And if he doesn’t go for it, I still think that Merkley/Udall’s versions of the other reforms are the ones Dems should insist on, not the McCain/Levin proposal.

    As for Superbill!, the way you describe the approach here really makes it sound much more organic and feasible than I considered it before.

    But I wonder about the effects here too. For all the GOP obstruction, the 111th Congress was of course an extraordinarily productive session. So on the one hand, if we had had a version of Superbill!, and used it for say, ARRA, ACA, Dodd-Frank, DREAM, EFCA, and DLDT Repeal, those first three laws would be much stronger, and we’d be much better off now for having passed them all.

    But on the other hand, what effect would that have had on the chances for all the other bills that passed in 09-10, like Lilly Ledbetter, SCHIP, Credit Card Act, Hate Crimes Prevention Act, and many others.

    Could Superbill!, in other words, wind up severely limiting the majority’s passable agenda to just its most important priorities? And is that a worthwhile trade-off?

    1. But the 111th was that productive because of the numbers. I don't see any reason to think that a 50-vote alternative path means the others can't pass.

      What I hope would happen is that the minority, realizing that the other path exists, dials way back on filibusters to everything else. But I do agree it's hard to know for sure how it plays out -- and that's a fair argument against it.

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  3. Jonathan, I read your blog pretty regularly, and one of your arguments against live filibusters runs along the lines of 'Senators like to bloviate they won't mind talking endlessly, and meanwhile the majority leader needs to move things along to get anything done.'

    Argument taken, but have you substantively addressed the better reporting argument? Currently filibusters are invisible, talking filibusters make them unmistakeable, people won't stand for it once they understand what is happening, etc.

    Have you directly addressed this argument? I know you have written a lot about the filibuster in a lot of venues, so maybe I have missed it.

    1. Jonathan has commented in the past that given highly partisan media coverage, filibustering Senators could readily be portrayed as heroes.

      I have argued before that because all Congressional floor action is publicly recorded, if one of these guys strays off script and says something really offensive or stupid, it will become the day's story, if not excellent opposition material. So I think that a talking filibuster is much more of a risk for the participating members than Jonathan does.

    2. Tom -- what anon says. I simply don't believe that "exposes what's going on" would be a significant deterrent, for lots of reasons.

      Anon -- I should reply to this, shouldn't I? I guess I just don't think it's a big deal. These folks talk in public a *lot*, and these days they have to assume that everything they say, House floor or not, is fair game. I'm not saying something couldn't happen, but I do think the risk of it happening won't be a significant deterrent to talking filibusters.

    3. I agree in principle. However, people often say things under certain circumstances that they have trouble justifying in others. Most of us have had the experience of writing a flaming response to an email that we would never say to someone's face. I think that on the Senate floor, there might be a sense of "well, we're all members of the club here" that is missing on the campaign trail.

      Can you imagine what video of the rants that the Senators who filibustered the Civil Rights Act would be like? Who knows what issue, in twenty years, will suddenly flip in the public eye?

      Besides, a talking filibuster uses up a Senator's time in a way that the current kind doesn't. I think that that's important too.

  4. I think that we should describe our proposes solutions as simple as possible. For example, I think there's general, if not overwhelming, agreement on limiting the effect of filibusters when the majority could invoke cloture. I'd argue that for 41-49, we effectively have a 60 vote Senate. The easiest change to explain would be to lower the votes needed for cloture once again. Would a 56-58 vote Senate be appropriate? I don't know whether it would be right, but I can explain what changes would be made.

    "I do believe, however, that the tradeoff for majority ability to move these bills more easily should be much better protection for minority ability to offer amendments. Plenty of amendments, not just one or two from the leadership, although with protections against filibuster-by-amendment."

    I would describe this change as follows: the majority gets X filibuster-free bills, which are allowed no more than Y filibuster-free amendments. (Maybe every member of the appropriate committee, minority and majority, gets an amendment in front of the Senate?) We still need to decide what X and Y are, as well as whether 60 is the proper number for cloture. (NOTE: The Democrats had a 62 vote Senate at the time the number 60 was set, so it's as arbitrary as any number over 50.)

    1. I think once it's more than one bill per year, it's just like making every bill filibuster-free; the majority would just pack everything into those bills. That could happen with Superbill!, too, but the fact that it's only one shot is at least potentially a significant restraint.

      I fully agree that 60 is arbitrary, and there's something to the idea of just making a new number the reform goal. Biggest problem is that it's hard to get through the actual Senate.

  5. What if the thing that matters most is _any_ rule change with less than 60 votes? Right now there's a common misperception that the rules can't be easily changed. Once you break that, maybe it becomes crystal clear that the filibuster can be squashed at any time by a simple majority.

    1. Well, really, that's true today. Like recess appointments, the filibuster exists because the majority tolerates it.

  6. Anon gets it right. The majority can reform the filibuster anytime it likes.

    Nuclear option use to apply to using a majority vote to change the rules mid-session. I don't remember the details but it somehow involved lying.

    Now it is applied to changing the rules by majority rule when a new Senate convenes. That is not nuclear; it is required by common sense.

    The old norms of the filibuster have been thrown out, but the norms against majority rule are as strong as ever. As long as this is the case the filibusterers win.

    I propose a suspension of the filibuster to be revisited in two months, with a stipulation that further consideration of the filibuster requires only a majority vote (remember, the Senate can set its own rules).

    Then the filibusters will be shocked into behaving. The filibuster would live tenuously. The minority would be scared straight. In time the old norm will be re-established. Filibusters would be reserved for bills the minority really cares about.


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