Wednesday, July 17, 2013

Why the Senate Deal Is Worse Than They Should Do

Right now, 24 hours plus after the Senate deal that averted a nuclear rule change on executive branch nominations by a Republican surrender on several current nominees...right now, there's a filibuster going on over an executive branch nominee.

It's...oh, it's whoever is going to head the Export-Import bank.

A filibuster? Yup. There was a cloture vote this morning; forcing a cloture vote is already a form of filibuster. And then Republicans are insisting, as they did yesterday with Richard Cordray, to use at least a decent-sized chunk of post-cloture time. And certainly not because they want to debate what's-his-name (sorry...okay, fine, it's Fred Hochberg). I haven't been checking C-SPAN2 carefully, but the times that I have tuned in they're either waiting for someone to speak or talking about something else. Without any filibuster at all, Harry Reid could call up the nomination, allow anyone who wanted to speak to do so, and then move ahead with a final confirmation vote; it would probably take one or two hours at most, and maybe a lot less if no record vote was called for.

What's different, post-deal, is that Republicans have apparently agreed that these filibusters will be limited -- that they will avoid defeating cloture on executive branch nominations, and thus allow Democrats to confirm those nominees as long as they have a simple majority. They can still filibuster, however, and it's not as if it's meaningless; it does, in fact, use up Senate floor time that could be used for something else, and it's not unusual for Senate floor time to be valuable.

All of this does put Republicans in a bit of a pickle, at least assuming that mainstream conservatives (and even the two or three moderates) want to be seen as conservative. The problem is that Republicans have to supply six votes (for now, with the Senate 54-46; it'll probably go back to five votes after the New Jersey special election this fall) every time other Republicans force a cloture vote. That means either a handful of Republicans have to always vote for cloture (and thus get tagged as RINOs) or they have to rotate (risking that a whole bunch of them will not be "real" conservatives.

That's not just hypothetical. Marco Rubio is already putting pressure on to vote against cloture on Secretary of Labor nominee Thomas Perez (via Beutler).

The best solution to this? Regular readers have heard it more than once; the best solution is to change the rules to formalize the agreement: change from 60 vote cloture on executive branch nominations to simple majority cloture.

Is the pain of being on record with that vote worth it for the 15 or so Republicans who would be needed? I have no idea. It certainly is a vote they could be attacked for -- they would be permanently giving away the ability of the minority Republicans to defeat Obama executive branch picks. On the other hand, it's a harder vote to explain, perhaps, than a series of specific votes for cloture on those same selections.

Note that flipping to simple majority cloture would still preserve the limited filibusters that Republicans are engaging in now; it would also presumably safeguard individual holds, which would be endangered if the agreement breaks down and Democrats eventually go nuclear and knock out extended debate altogether.

Basically, I don't expect it to happen. But I think it should. And without it, it's hard to know how stable the current agreement really is.


  1. So, since they aren't filibustering these nominees (in the sense that their confirmations are seemingly guaranteed), what ARE they filibustering?

    Floor time is only valuable to the extent it can be used to do something else. It's pure opportunity cost. So, the question is: what would the Senate be making progress on were there just 7 votes, boom-boom-boom?

    Given the House's dysfunction possibly being even worse than the Senate's, I can't come up with a single piece of legislation. Which then suggests two answers, both of which have merit.

    1) They are filibustering governance. They're not opposed to anything; they're opposed to EVERYTHING. Doesn't matter what's on the docket, they aren't interested in making laws.

    2) They are advertising for the folks back home. There are folks back home, in primaries, who supported the notion that no quarter is to be given in strident opposition to Obama. None. Whatsoever. Ever. There are senators, some up in '14 and some in '16, who are going to the Senate floor to engage in kabuki theater.

    I don't think 1 and 2 are mutually exclusive, and I'm sure there are alternatives I haven't considered. But, these two things seem pretty suggestive to me....and both fit perfectly with the post-policy GOP.

    1. Q: "What are you rebelling against?" A: "What have you got?"

    2. Perhaps the same thing phrased a little differently, but maybe they just want to be able to tell themselves and the folks back home that they didn't cave completely in the recent deal.

  2. Why not just have all republicans vote present or decline to vote?

    1. ...because Reid and company want to retain the filibuster, particularly since St. Nathaniel's prophesy appears to indicate a looming trip to minorityhood.

    2. I'd thought that cloture required active "Yes" votes, and couldn't really pass on "presents."

      Meanwhile, we can get to Anon's non-answer in a few n-dimensional chess moves. Not really anyone wants to eliminate the Filibuster entirely, or at least they don't want it when the other side would be able to take advantage of it. Since Republicans presume that Democrats don't want to eliminate the Filibuster entirely, they feel empowered to skip out partly on their deal, have semi-filibusters of the agreed-not-to-filibuster nominees. They presume Reid doesn't want to pull the nuclear trigger after all, and they have something to gain by grandstanding against nominees which will eventually be confirmed.

      The 2014 Senate class does favor Republicans (Silver has a forecast at 4.4 seat pickups for Republicans). On the other hand, 2016 seems slightly more favorable for Democrats. There are 10 D to 24 R seats up for election, with only one or two Dems in somewhat vulnerable states (Nevada, Colorado), but more Republicans in the vulnerable to tossup states (Illinois, New Hampshire, Pennsylvania, Wisconsin, Ohio, Florida). Candidates do matter (particularly the top-of-the-ticket), but there are simply more chances for Democratic pickups than Republican.

      So long as future control of the Senate is uncertain, no one really wants to nuke the filibuster. So long as no one really wants to nuke the filibuster, folks will be free to push at the edges of the anti-nuke treaty.

    3. Except that if the filibuster is vaporized, the vulnerable lefty incumbents would be forced to VOTE on controversial legislation. Right now, the vulnerable lefties can often hide behind their R comrades' filibuster, and play both ends against each other, and triangulate themselves with the electorate. Cast votes tend to liquidate that strategy, which is why liquidating the filibuster is anathema to those vulnerable lefties, and that's who Reid and company are protecting, by protecting that filibuster.

      That gun grabbing bill didn't die because of a filibuster, I assure you. If you believe that, I have a couple dozen bridges to nowhere I want to sell you. It died because a bunch of lefty incumbents are well aware that it potentially could have ended their splendid political careers, if they'd voted the wrong way, and Reid knew many of them weren't going to vote the wrong way, so the filibuster helped him protect them, while shrieking hysterically about the evil Tea Baggers, etc. Perfect triangulation. Perfect. Not good government, but quite manipulative politics, for sure.

      That's why the global warmingism foolishness never came up previously, by the way, and why John Kerry was put in charge of that do nothing committee... because everybody knew that nonsense was dead as disco, but they wanted to play the issue with the greenies, sans any voting. Voila! Those evil R teabaggers killed Mother Gaia, but not a vote cast along the way!

      Dumping that filibuster would be a good governance move ,and it would undoubtedly hurt the vulnerable lefty incumbents, and quite badly, in the current environment.


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