Brookings: Experts - Sarah A. Binder

GOP Opposition to Judicial Nominations: What’s the Precedent?

Sarah A. Binder — Thu, 13 Jun 2013 00:00:00 -0400

The Senate Judiciary Committee is preparing for hearings on the president’s three nominees for vacancies on the D.C. Circuit Court of Appeals. Brewing GOP opposition to filling the vacancies comes on the heels of partisan disputes over Republican tactics to block Obama’s judicial nominations. Democrats argue that GOP tactics are unprecedented: Republicans have delayed confirmation votes even for nominees with bipartisan support, they have insisted on sixty votes for nearly every appellate court nominee before allowing confirmation votes, and they have heightened scrutiny of trial court nominees. In contrast, Senate minority leader Mitch McConnell argues that “the president’s been treated very fairly on judicial [nominees].”

Can both parties’ claims be true? Steve Benen argues that McConnell’s claims “have no basis in fact,” but I don’t think that’s entirely correct. Because there is no single way to slice and dice judicial nominations data, the parties duel with rival statistics: number of confirmed judges, confirmation rates by president or by two-year Congress, bench vacancy rates, time from nomination to Senate action, and so on. Absent a single metric, it’s tough to nail down whether Republicans have overstepped the bounds of acceptable behavior—relative to Democrats’ behavior in the past. (To be clear, the GOP claim that Obama is creating a “culture of intimidation” by sending three nominees to the Hill to fill authorized seats on the most important of the appellate courts is ludicrous, given the president’s constitutional authority to nominate candidates for the federal bench.)

My preferred measure for tapping the state of advice and consent focuses on confirmation rates and duration of the confirmation process over each two-year Congress. (Senators and others often prefer to compare confirmation rates across presidents, but differences in party size and party control within a presidency confound interpretation of presidency-level statistics.) Confirmation rates between 1947 and 2012 (80th-112th Congress) appear here:

Viewing rates by Congress, we see the basis of McConnell’s claim that the GOP has played fair on Obama’s nominees: Appellate court confirmation rates were slightly higher in the 111th (2009-10) and 112th Congresses (2011-2) than they were over the course of George W. Bush Congresses (under both unified and divided party control). And in the last Congress, GOP treatment of Obama’s district court nominees measurably improved (albeit after Senate Democrats felt compelled to file 17 cloture motions on district court nominees balled up by the GOP). That said, GOP treatment of Clinton nominees in 1999-2000 and Democrats’ treatment of Bush nominees in 2001-2 produced the lowest confirmation rates over the postwar period.

We can also use data on how long it takes to confirm nominees (ignoring failed nominations) to compare the parties’ records. As shown below, GOP foot dragging on Obama nominees for both appellate and district court vacancies has far outstripped Democrats’ slowdown of Bush nominees between 2003 and 2008 (under both unified and divided party control). But these records are beat by GOP delay at the close of the Clinton administration and Democratic opposition at the start of Bush’s first term in 2001-2.

Granted, such comparisons assume that all else is equal about the nominees and the process. That’s debatable. Each party typically claims that they only block nominees who are ideologically out of step, but we lack a common metric for comparing nominees ideologically. Nor do these data capture changes in the threshold for confirmation, as the GOP has insisted on sixty votes for confirming almost every appellate and some district court nominees. Remarkably, the GOP pushed Reid to file 17 cloture motions on district court nominees in 2012, even after Senator McCain had admonished his colleagues in 2011 not to filibuster trial court nominees: “Quite often we establish precedents and you find out when you get back in the majority it wasn’t that good of an idea.”

What does this portend for the fate of the D.C. Circuit appellate nominees? Keep in mind that in addition to the unusual policy impact of the D.C. Circuit, this court of appeals is “balanced” with equal numbers of Democratic and GOP appointed active judges. Since the early 1990s, confirmation rates have been at least ten percent lower for nominations to balanced circuits than to circuits with a party skew. But I suspect that many GOP senators have not yet made up their minds on these nominees, and thus there’s currently no party strategy to block them. In the meantime, the GOP will likely look for opportunities to confirm nominees they deem acceptable (witness today’s move to confirm two district court nominees and recent votes to confirm several appellate court nominees previously blocked by the GOP in the run up to the 2012 elections). Such cooperation allows the GOP to insist that they’ve treated the president fairly—all the while dragging out the D.C. Circuit nominees. Given continued uncertainty over whether Democrats would be able to muster 51 votes to go nuclear this summer, I doubt the conflict comes to a resolution anytime soon.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Gary Cameron / Reuters

Banning Filibusters: Is Nuclear Winter Coming to the Senate this Summer?

Sarah A. Binder — Thu, 23 May 2013 12:04:00 -0400

It seems the Senate could have a really hot summer. Majority leader Harry Reid (D-NV) has reportedly threatened to “go nuclear” this July—meaning that Senate Democrats would move by majority vote to ban filibusters of executive and judicial branch nominees. According to these reports, if Senate Republicans block three key nominations (Richard Cordray to head the Consumer Financial Protection Bureau, Thomas Perez at Labor, and Gina McCarthy at EPA), Reid will call on the Democrats to invoke the nuclear option as a means of eliminating filibusters over nominees.

Jon Bernstein offered a thoughtful reaction to Reid’s gambit, noting that Reid’s challenge is to “find a way to ratchet up the threat of reform in order to push Republicans as far away from that line as possible.” Jon’s emphasis on Reid’s threat is important (and is worth reading in full). Still, I think it’s helpful to dig a little deeper on the role of both majority and minority party threats that arise over the nuclear option.

Before getting to Reid’s threat, two brief detours. First, a parliamentary detour to make plain two reasons why Reid’s procedural gambit is deemed “nuclear.” First, Democrats envision using a set of parliamentary moves that would allow the Senate to cut off debate on nominations by majority vote (rather than by sixty votes). Republicans (at least when they are in the minority) call this “changing the rules by breaking the rules,” because Senate rules formally require a 2/3rds vote to break a filibuster of a measure to change Senate rules. The nuclear option would avoid the formal process of securing a 2/3rds vote to cut off debate; instead, the Senate would set a new precedent by simple majority vote to exempt nominations from the reach of Rule 22. If Democrats circumvent formal rules, Republicans would deem the move nuclear. Second, Reid’s potential gambit would be considered nuclear because of the anticipated GOP reaction: As Sen. Schumer argued in 2005 when the GOP tried to go nuclear over judges, minority party senators would “blow up every bridge in sight.” The nuclear option is so-called on account of the minority’s anticipated parliamentary reaction (which would ramp up obstruction on everything else).

A second detour notes simply that the exact procedural steps that would have to be taken to set a new precedent to exempt nominations from Rule 22 have not yet been precisely spelled out. Over the years, several scenarios have been floated that give us a general outline of how the Senate could reform its cloture rule by majority vote. But a CRS report written in the heat of the failed GOP effort to go nuclear in 2005 points to the complications and uncertainties entailed in using a reform-by-ruling strategy to empower simple majorities to cut off debate on nominations. My sense is that using a nuclear option to restrict the reach of Rule 22 might not be as straight forward as many assume.

That gets us to the place of threats in reform-by-ruling strategies. The coverage of Reid’s intentions last week emphasized the importance of Reid’s threat to Republicans: Dare to cross the line by filibustering three particular executive branch nominees, and Democrats will go nuclear. But for Reid’s threat to be effective in convincing GOP senators to back down on these nominees, Republicans have to deem Reid’s threat credible. Republicans know that Reid refused by go nuclear last winter (and previously in January 2009), not least because a set of longer-serving Democrats opposed the strategy earlier this year. It would be reasonable for the GOP today to question whether Reid has 51 Democrats willing to ban judicial and executive branch nomination filibusters. If Republicans doubt Reid’s ability to detonate a nuclear device, then the threat won’t be much help in getting the GOP to back down. Of course, if Republicans don’t block all three nominees, observers will likely interpret the GOP’s behavior as a rational response to Reid’s threat. Eric Schickler and Greg Wawro in Filibuster suggest that the absence of reform on such occasions demonstrates that the nuclear option can “tame the minority.” Reid’s threat would have done the trick.

As a potentially nuclear Senate summer approaches, I would keep handy an alternative interpretation. Reid isn’t the only actor with a threat: given Republicans’ aggressive use of Rule 22, Republicans can credibly threaten to retaliate procedurally if the Democrats go nuclear. And that might be a far more credible threat than Reid’s. We know from the report on Reid’s nuclear thinking that “senior Democratic Senators have privately expressed worry to the Majority Leader that revisiting the rules could imperil the immigration push, and have asked him to delay it until after immigration reform is done (or is killed).” That tidbit suggests that Democrats consider the GOP threat to retaliate as a near certainty. In other words, if Republicans decide not to block all three nominees and Democrats don’t go nuclear, we might reasonably conclude that the minority’s threat to retaliate was pivotal to the outcome. As Steve Smith, Tony Madonna and I argued some time ago, the nuclear option might be technically feasible but not necessarily politically feasible.

To be sure, it’s hard to arbitrate between these two competing mechanisms that might underlie Senate politics this summer. In either scenario—the majority tames the minority or the minority scares the bejeezus out of the majority—the same outcome ensues: Nothing. Still, I think it’s important to keep these alternative interpretations at hand as Democrats call up these and other nominations this spring. The Senate is a tough nut to crack, not least when challenges to supermajority rule are in play.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Joshua Roberts / Reuters

The Do-little House of Representatives: Why so Little legislating?

Sarah A. Binder — Thu, 04 Apr 2013 16:51:00 -0400

I noticed the other day that House lawmakers have cast relatively few recorded roll calls this year—voting just 89 times before leaving town for spring break. To put those roll calls into perspective, I gathered two decades or so of House “early voting” data—the total number of votes cast each year between the start of the session in January and the last day of voting before Easter. Granted, Easter jumps around the calendar like a (Peeps) bunny. But party leaders do target their floor agendas to approaching recesses, so it’s reasonable to use the Easter break (rather than a fixed calendar date) to mark the end of each session’s “early voting” period. With that caveat in mind, some brief thoughts on recent patterns in early voting

For starters, some notable patterns appear in the data. The 113th Congress is indeed off to a slow start—showing the least amount of roll call activity since 2006. More generally, the drop in House roll call voting runs counter to a broader trend of ever expanding legislative floor voting. Regardless of whether Democrats or Republicans hold the gavel, the House has increased its workload each winter over the past quarter century. That said, bursts in legislative voting take place only after a changing of the guard to a new majority. In 1995, 2007, and 2011, roll call voting jumped precipitously: New chamber majorities appear to follow through on their electoral promises to change the agenda in Washington, whether it’s Newt Gingrich’s Contract with America or Nancy Pelosi’s Six for ‘06. Coupled with new majorities’ frequent campaign promises to broaden participation on the chamber floor, such commitments likely drive the surge in legislative activity when party control changes hands.

Before going too far here, rest assured that I recognize the limitations of such data. We can’t judge a Congress’s broader performance by its winter legislative season. Moreover, we might want to distinguish between first and second session winter voting records. (The former might be interesting; the latter, not so much.) In any case, output measures such as votes are better viewed in comparison to the array of demands faced by legislators. We want to know what Congress accomplished, relative to the big issues and problems of the day. In short, more roll calls do not necessarily mean a better legislature. Still, I think the relatively low level of House legislative activity at the start of the 113th Congress is worth pondering.

This year’s quiescent House floor likely reflects a few developments.

First, the steep drop off in early voting partially reflects Congress’s recent difficulty in making fiscal policy. The GOP’s willingness in 2011 to open up the appropriations process to nearly unlimited amendments by both Democrats and Republicans helped to drive up the number of early roll calls. This year, GOP leaders were unwilling to allow any rank and file members to take a crack at the mammoth CR: Opening up the bill to amendments would have threatened a carefully knit package of limited changes to the CR. Given bipartisan concerns about the impact of the sequester, allowing amendments could have derailed the bill before its must-pass deadline. Tentative majorities prefer limited legislative activity.

Second, welcome to the “Boehner Rule” House. By definition, the GOP leadership’s new practice of letting the Senate go first drives down early House floor activity. Boehner’s reluctance to have the House go first reflects the difficulty of cobbling a chamber majority without Democratic votes: The GOP’s thin margin and the threat of defection by rank and file GOP on measures deemed insufficiently conservative could keep House floor activity depressed for awhile. (Witness the sixteen GOP who voted against bringing the CR to the floor and the eight GOP who have voted “no” on each critical vote this year.)

Third, and related, letting the Senate go first may offer political dividends to the House leadership. The Senate might no longer be the world’s greatest deliberative body, but it’s still the most sluggish. The House leadership likely benefits from legislative delay, particularly on the big issues of the day that create electoral dilemmas for the GOP’s brand name (for starters, immigration reform and gun control). Delay offers opponents time to mobilize, allows public support to wane, and lets House Republicans blame Senate Democrats for congressional inaction. Win, win, win (at least for now) for a party leadership unable or reluctant to build a legislative majority for reform.

In short, these data are limited but potentially revealing. House leaders no doubt are using the time to devise and sell a legislative strategy going forward. Given the difficulties of squaring the party’s ideological and electoral ambitions with the demands of its rank and file, no surprise House leaders (men and women alike) have avoided leaning in.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Kevin Lamarque / Reuters

Droning on: Thoughts on the Rand Paul “Talking Filibuster”

Sarah A. Binder — Thu, 07 Mar 2013 00:00:00 -0500

Sen. Rand Paul has just completed his nearly thirteen hour filibuster against John Brennan's nomination to head the CIA. Breaking off his filibuster (because, he inferred, he had to pee), Rand was heralded for bringing back the "talking filibuster." There was much written (and tweeted) about his filibuster, which began with Paul’s dramatic:

"I will speak until I can no longer speak…I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court."

I thought I would add a few late-night thoughts in honor of this day spent with C-Span 2 humming in my ear.

First, I think Jon Bernstein’s reaction to the filibuster was right on the mark. There’s been a lot of enthusiasm for the talking filibuster today, from Ezra Klein's "If more filibusters went like this, there’d be no reason to demand reform," to Josh Marshall’s, "This is a good example of why we should have the talking filibuster and just the talking filibuster." But Bernstein raises a critical point: "Today’s live filibuster shows again just how easy it is to hold the Senate floor for an extended period." The motivation of recent reformers has been to reduce filibustering by raising the costs of obstruction for the minority. In theory, making the filibuster more burdensome to the minority—while putting their views under the spotlight—should make filibusters more costly and more rare. (Paul did note in coming off the Senate floor tonight that his feet hurt…) But as Bernstein points out, Paul believes in his cause, and it plays well with his constituencies. On the physical front, the tag-team of GOP senators rallying to Paul's cause also lessened the burden on Paul (as would have a pair of filibuster-proof shoes). That said, today's filibuster was a little unusual. The majority seemed unfazed by giving up the day to Paul’s filibuster, perhaps because the rest of Washington was shutdown for a pseudo-snow storm. Moreover, the Brennan nomination had bipartisan support, with Reid believing there were 60 senators ready to invoke cloture. In short, today's episode might not be a great test case for observing the potential consequences of reform.

Second, keep in mind that this was a double-filibuster day. The nomination of Caitlin Halligan for the DC Court of Appeals was blocked, failing for the second time to secure cloture. With 41 Republican senators voting to block an up or down confirmation vote on Halligan, an often-noted alternative reform (which would require 41 senators to block cloture instead of 60 senators to invoke it) would have made no difference to the outcome. And what if the minority had been required to launch a talking filibuster to block Halligan’s nomination? Reid might have been willing to forfeit the floor time to Paul today. But Reid would unlikely have wanted to give up another day to Halligan’s opponents. As Steve Smith has argued, the burden of talking filibusters also falls on the majority, which typically wants to move on to other business. "Negotiating around the filibuster," Smith has argued, "would still be common." On a day with two successful minority filibusters (at least in consuming floor time and deterring the majority from its agenda), we can see why the majority might be reticent to make senators talk.

Third, let's not lose sight of the target of Rand's filibuster: The head of the CIA. Although the chief spook is not technically in the president’s cabinet, the position certainly falls within the ranks of nominations that have typically been protected from filibusters. Granted, that norm was trampled with the Hagel filibuster for Secretary of Defense. But rather than seeing the potential upside of today's talking filibuster, I can't help but see the downside: In an age of intense policy and political differences between the parties, no corner of Senate business is immune to filibusters.

All that said, what's not to like about a mini demonstration of a real live filibuster?! Perhaps Paul's late day Snickers break was cheating. But it was a good C-Span type of day overall, for filibuster newbies to Franklin Burdette devotees. Even Dick Durbin well after midnight seemed to be enjoying the fray. Perhaps there’s a silver lining for talking filibusters after all.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Jonathan Ernst / Reuters

Are the Days of the Hastert Rule Numbered? Some Caution in Reading the House

Sarah A. Binder — Fri, 01 Mar 2013 00:00:00 -0500

Most Congress watchers yesterday quickly noted the remarkable House vote to pass the Violence Against Women Act (VAWA): For the third time this year, the House passed an important bill over the objections of a majority of the majority party. Another "Hastert Rule violation," many reporters correctly observed. (Is it a good sign that House procedural speak is now lingua franca of the Capitol press corps? Next thing you know, Hollywood will be making Oscar-winning films about the 19th century House….Oh wait….)

Observers noted that the leadership brought the VAWA bill to the floor (knowing the GOP majority would be rolled on final passage) as a calculated move to repair damage done to the party'sbrand name in the last election. As the Los Angeles Times reported, many GOP strategists "feared that keeping the bill in limbo could expose the party to complaints they were hostile to women."

I think the coverage of the VAWA bill has been right on the mark. Still, we should be cautious in writing the Hastert Rule's obituary. Some considerations:

First, as many reporters noted, the substance of the yesterday's bill mattered. Concern about the party's electoral reputation likely helped to encourage the GOP to bring the bill to the floor (on a nearly unanimous procedural vote). We see some evidence of that concern in the makeup of the sixty Republicans who broke ranks to vote against the conservatives' alternative bill: Roughly sixty percent of them hailed from blue states won by Obama in 2012. (Note: GOP women were more likely to stick with their conservative brethren on that substitute vote, with roughly 80 percent of the GOP women favoring the more limited bill.) Moreover, on final passage, nearly three-quarters of the Republicans who voted with the Democrats hailed from blue states. I think it's reasonable to expect that on other electorally-salient bills this Congress we might see the leadership allow party splitting measures on the floor, letting the chamber median work its will in favor of passage. As many others have noted, immigration reform could provide another such opportunity. In short, the terrain for future Hastert rule violations might be quite limited.

Second, keep in mind that all three of the Hastert Rule violations occurred on legislative measures already cleared by the Senate. Mitch McConnell and Joe Biden negotiated the fiscal cliff bill that was passed 89-8 with broad bipartisan support. Hurricane Sandy relief was first cleared by the Senate on a (narrower) bipartisan vote. And the Senate had also already endorsed the more expansive version of the VAWA bill, with a majority of Senate GOP joining every Democrat in voting for the bill. The support of Republican senators (albeit to varying degrees) for Democratic measures makes it far harder for the Speaker to stick with his conservative conference majority. Instead, he offers them a vote to establish their conservative bona fides and then allows the Democrats to win the day. Split party control seems to limit the viability of the Hastert Rule, at least on those few measures on which Senate Democrats can attract GOP support to prevent a filibuster. Ironically, the new Boehner Rule of "Make the Senate Go First" (insert saltier language for full effect) undermines the Hastert Rule. Given the difficulty Boehner faces in assembling a chamber majority without Democratic votes on bigger issues of the day, perhaps we shouldn’t be surprised to see this periodic scuttling of the majority of Boehner’s majority.

Finally, yesterday's vote helps us to better identify the far right flank of the House GOP. Here, I consider the far right of the conference those Republicans who voted against waiving the debt limit for three months, against Hurricane Sandy relief, and against the VAWA bill. That group sums to 26 GOP. Given 232 House Republicans, Boehner can't bring party-favored bills to the floor without moving exceedingly far to the right. That's helps to explain why Boehner insists on letting the Senate go first on issues that evoke tough dissent within his party. He has no choice, even if that sets him up for potential majority rolls on important roll call votes. Ultimately, the fate of the Hastert Rule depends on how the Speaker balances his support within the conference with the responsibility of tending to the party's brand name (let alone to the will of the chamber).

Authors

Sarah A. Binder

Publication: The Monkey Cage

Would Congress Care if the Federal Reserve Lost Money? A Lesson from History

Sarah A. Binder — Tue, 26 Feb 2013 00:00:00 -0500

Chairman Ben Bernanke addressed critics today before the Senate Banking Committee, as he delivered the Federal Reserve’s Semiannual Monetary Policy Report. Bernanke’s testimony comes on the heels of a prominent monetary policy conference last week, in which participants speculated about the political fallout that could ensue once the Federal Reserve begins to unwind the unconventional policies it put in place during and after the Great Recession. Because the Fed could incur losses when it eventually raises interest rates and sells off assets from its ballooned balance sheet, many expect that by the end of the decade the Fed might no longer generate sufficient earnings to return profits to the Treasury. After a decade of rising profits remitted to Treasury (topping out at nearly $89 billion last year), many wonder whether Fed losses could trigger aggressive push back from Congress.

Questions about how legislators might respond to future Fed losses are worth pondering, not least because Bernanke himself raised the prospect of potential Fed losses in his testimony today. A few thoughts on the political challenges faced by the Fed, after a brief historical detour.

Contrary to most news coverage, the Federal Reserve Act (FRA) does not require the Fed to remit profits to Treasury. Congress imposed a franchise tax on the Fed in the original FRA in 1913—requiring the Fed to remit 100 percent of its earnings after paying expenses and dividends, lowering the tax in 1919 to ninety percent. But Congress stopped taxing the Fed in 1933, swapping the franchise tax for a one-time Fed payment to help capitalize the newly-created Federal Deposit Insurance Corporation. Only after the Fed became profitable in the wake of World War 2 did Congress did consider re-instating the franchise tax. In response, the Fed pre-empted Congress in 1947 by reinterpreting an obsolete anti-inflationary provision of the FRA that had been designed to empower the Fed to charge interest on its reserve banks’ holdings of Federal Reserve currency. The Fed simply choose a rate that generated revenue equal to what would have been collected by a franchise tax and then remitted most of that revenue to Treasury. Today, an internal Fed policy still guides remittances, absent a statutory mandate.

The Fed seemed to have several motivations for moving independently of Congress in 1947 to formalize a remittance policy. First, the Fed sought to pre-empt congressional critics angling to reinstate the franchise tax. Moving first allowed the Fed to protect its independence and flexibility over the level of profits returned to Treasury. Second, beating Congress to the punch empowered the Fed in its efforts to negotiate with Treasury an increase in the fixed interest rate that the Fed paid on government debt during wartime. As FOMC meeting notes from 1946 hint, by promising to send profits to Treasury, the Fed would subsidize the increased borrowing costs faced by Treasury once the Fed raised rates. By promising remittances and avoiding a statutory mandate, the Fed’s solution preserved the Fed’s flexibility and independence over monetary policy. In fact, some years later the Fed exploited its flexibility to increase the level of profits returned to Treasury.

Why care about the history of Fed remittances? With caveats given the differences between then and now, the 1947 episode offers a glimpse of potential legislative landmines should Fed profits turn to losses.

First, the Fed still prizes its independence and would oppose any congressional efforts to reinstate the franchise tax. Even if there is no practical difference between the Fed’s internal policy and a mandated franchise tax, the Fed would no doubt oppose a statutory mandate to hand over future profits on the grounds that such a mandate would infringe on the Fed’s conduct of monetary policy. Still, historical precedent for the franchise tax might undermine the Fed’s persuasiveness.

Second, Congress likely cares about Fed profits and will question underlying policies if they generate losses—even if such losses ensue from an exit strategy designed to stem inflation. Congressional Republicans, who never liked the Fed’s asset purchases in the first place, could use potential losses to hammer the Fed’s conduct of monetary policy. Democrats, counting on the Fed to secure its statutory mandate of maximum employment, could accuse the Fed of prematurely unwinding its unconventional policies. In sum, both parties could exploit potential losses to criticize the Fed’s policy choices. If the economy had indeed strengthened, then perhaps lawmakers would give the Fed a pass: Congress tends to ignore the Fed when the economy is in good shape. More likely, Congress would pounce. Even if a franchise tax were to be off the table, Fed losses could re-fuel the audit-the-Fed movement, on the grounds that Congress needs to know more about the details of the Fed’s exit strategy. Already today, half of the Senate Republicans have signed onto Senator Rand Paul’s audit the Fed bill. (Like father, like son.) Continued polarization reduces the chances of congressional action. But imposing more transparency on the Fed might have bipartisan appeal.

Ultimately, much uncertainty pervades projections about potential Fed losses in coming years, as suggested recently by Fed economists. And overall, economic growth stemming from the Fed’s unconventional policies would presumably increase tax revenues flowing into Treasury’s coffers, offsetting losses from the Fed. Still, as one former Fed governor said at Friday’s conference, “Politicians have very short memories…They’re going to focus very much on the fact that the Fed is no longer pulling its weight in terms of producing remittances for the federal government.” If Fed profits plummet, lawmakers’ myopic eyesight reduces the chances that Congress will see the big picture.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Jason Reed / Reuters

Sequestration Stalemate: Some More Considerations

Sarah A. Binder — Tue, 26 Feb 2013 00:00:00 -0500

With sequestration's March 1st start date in sight, Adler and Wilkerson make a good point about why the two parties seem to be treating the imposition of $85 billion in across-the-board spending cuts as a fait accompli. In short, the pain just isn't bad enough: As the authors put it, it's not clear in this case that "doing something is a better outcome than doing nothing." Certainly, in the lingo of spatial models, the "reversion point" should Congress and the president fail to act before March 1st does not seem sufficiently painful to motivate both parties to the table. I think the deadlock reflects a few other important dimensions as well:

First, Democrats may in fact prefer the sequester to any alternative cooked up by Republicans. Keep in mind that the sequester protects several Democratic priorities, ranging from entitlement benefits to food stamps and Pell grants. By carving out protection for major (Social Security and Medicare) federal benefits, narrowly tailored education benefits, and low-income support programs, Democratic priorities are partially protected, even with imposition of indiscriminate cuts. Not only isn't the pain of the sequester "bad enough," Democratic legislators would surely prefer the sequester cuts to the alternative cuts passed in December by House Republicans, which Democrats uniformly voted against.

Second, Republicans seem to be in disarray over how to address the impending sequester. I've seen a raft of posts today trying to decode Republicans' strategy of rejecting any alternative that mixes spending cuts and revenue increases (even when revenue can be raised by cutting tax expenditures). As Jon Chait today asks:

…Deciphering the GOP strategy is as mysterious as gaming out the plans of a tiny band of warring clans in some mountainous region of Afghanistan. Nearly everything about them is almost completely inscrutable to outsiders. What is the party actually hoping to accomplish in the end? How do Republican leaders think they will arrive there?

I suspect the GOP strategy seems inscrutable because we are overestimating the degree of consensus within (and between) the House and Senate Republican conferences. In the House, for sure, I see no evidence that Speaker Boehner has the votes to re-pass the sequester replacement from last December, explaining why Boehner keeps claiming that the House has already acted even though the bill died at the close of the 112th Congress. On the night of the Plan B debacle last December, the sequester replacement bill (eliminating the defense cuts and undoing the low-income protections in the sequester, among other provisions) squeaked by on a vote of 215 to 209, with 21 GOP defectors. Sixteen of those 21 defectors serve in the current Congress, while over 30 supporters of the replacement bill did not return. Even if the GOP only suffered those 16 defections this time around, the vote would be 216-216. That's the best case scenario, and clearly the Speaker won’t bring up a bill with tied prospects or worse.

That's the cost of legislating in a polarized Congress in a period of slim majorities: the House majority has to come up with a chamber majority without relying on Democratic votes. To be sure, the Speaker in theory could pull a "fiscal cliff" and allow a package to the floor that would attract Democratic votes and allow a good portion of his rank and file to vote against it. But I suspect that Boehner can ill afford another bending to the Democrats, particularly on a vote for which deadlock seems an acceptable outcome.

In the Senate, Republicans are no closer to consensus on their party's way forward. Some support granting the administration discretion to apply the cuts more thoughtfully; others reject blatantly handing over Congress’s power of the purse to the president. We'll have to wait until Thursday to see what sequester alternative the Senate GOP offers to go up against the Democrats' alternative that mixes new revenues and replacement cuts. Reid hasn’t made it any easier by pushing the GOP to agree on a single party position. Regardless, it appears that Reid and McConnell are moving towards a consent agreement that would require sixty votes on competing motions to proceed to the alternative bills. The procedure, in short, bakes in failure. Moreover, negotiating sixty vote thresholds on the key procedural vote- rather than on an actual bill or amendment— potentially allows skittish senators to avoid blame for unpopular party positions. Senators will be spared up or down votes on substantive proposals.

Third, I think the parties prefer deadlock on March 1st as they think imposition of the sequester will improve their respective bargaining positions on the next fiscal encounter in late March over the CR (the must-pass spending bill for the rest of the fiscal year). Democrats are banking on highly visible and unpopular spending cuts to bolster their insistence on balancing cuts and revenues in replacing the sequester in finalizing spending for the year. (Closing small airports in rural Republican states might do the trick.) Republicans are counting on the opposite: The public shrugs as the cuts are phased in, deflating Democrats' ability to replace or delay the sequester. On the legislative calendar, the end of March comes pretty soon, potentially undercutting Democrats' efforts to turn the sequester into an unacceptable outcome. In any case, Republicans might still be far from resolving their internal disputes over whether or how to replace the sequester. At least for this year (nine more on the horizon…), the sequester might have more staying power than originally foreseen.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Wolfgang Rattay / Reuters

Thoughts on the Hagel Filibuster and its Political Implications

Sarah A. Binder — Thu, 14 Feb 2013 00:00:00 -0500

I’m late to the conversation about whether or not Republican efforts to insist on sixty votes for cloture on Chuck Hagel’s nomination as Secretary of Defense constitutes a filibuster. Bernstein’s earlier piece ("This is what a filibuster looks like") and Fallows’ recent contribution provide good, nuanced accounts of why Republican tactics amount to a filibuster, even if some GOP senators insist otherwise. In short, the duck test applies: If it looks like a duck, swims like a duck and quacks like a duck, then …. it’s a filibuster!

Still, I think there’s more to be said about the politics and implications of the Hagel nomination. A few brief thoughts:

First, let’s put to rest the debate about whether insisting on sixty votes to cut off debate on a nomination is a filibuster or, at a minimum, a threatened filibuster. It is. Even if both parties have moved over the past decade(s) to more regularly insist on sixty votes to secure passage of major (and often minor) legislative measures and confirmation of Courts of Appeals nominees, we shouldn’t be fooled by the institutionalization—and the apparent normalization—of the 60-vote Senate. Refusing to consent to a majority’s effort to take a vote means (by definition) that a minority of the Senate has flexed its parliamentary muscles to block Senate action. I think it’s fair to characterize such behavior as evidence of at least a threatened filibuster—even if senators insist that they are holding up a nomination only until their informational demands are met.

Second, there’s been a bit of confusion in the reporting about whether filibusters of Cabinet appointees are unprecedented. There appears to have been no successful filibusters of Cabinet appointees, even if there have been at least two unsuccessful filibusters against such nominees. (On two occasions, Cabinet appointees faced cloture votes when minority party senators placed holds on their nominations—William Verity in 1987 and Kempthorne in 2006. An EPA appointee has also faced cloture, but EPA is not technically cabinet-level, even if it is now Cabinet-status). Of course, there have been other Cabinet nominees who have withdrawn; presumably they withdrew, though, because they lacked even majority support for confirmation. Hagel’s situation will be unprecedented only if the filibuster succeeds in keeping him from securing a confirmation vote.

Third, using cloture votes as an indicator of a filibuster underestimates the Senate’s seeping super-majoritarianism. (Seeping super-majoritarianism?! Egads.) At least two other recent Cabinet nominations have been subjected to 60-vote requirements: Kathleen Sebelius in 2009 (HHS) and John Bryson (Commerce) in 2011. Both nominees faced threatened filibusters by Republican senators, preventing majority leader Reid from securing the chamber’s consent to schedule a confirmation vote—until Reid agreed to require sixty votes for confirmation. The Bryson unanimous consent agreement (UCA) appears on the right, an agreement that circumvented the need for cloture. Embedding a 60-vote requirement in a UCA counts as evidence of an attempted filibuster, albeit an unsuccessful one. After all, other Obama nominees (such as Tim Geithner) were confirmed after Reid negotiated UCAs that required only 51 votes for confirmation, an agreement secured because no Republicans were threatening to filibuster.

Finally, what are the implications for the Hagel nomination? If Republicans were insisting on sixty votes on Senator Cornyn’s grounds that “There is a 60-vote threshold for every nomination,” then I bet Reid would have been able to negotiate a UCA similar to Sebelius’s and Bryson’s. But Hagel’s opponents see the time delay imposed by cloture as instrumental to their efforts to sow colleagues’ doubts about whether Hagel can be confirmed (or at a minimum to turn this afternoon’s cloture vote into a party stand to make their point about Benghazi). Of course, it’s possible that the time delay will work to Democrats’ benefit if they can make headlines that GOP obstruction puts national security at risk. (Maybe Leon Panetta should have jetted to his walnut farm to make the point before the cloture vote.) Whatever the outcome, the Hagel case reminds us that little of the Senate’s business is protected from the intense ideological and partisan polarization that permeates the chamber and is amplified by the chamber’s lax rules of debate and senators’ lack of restraint. Filibustering of controversial Cabinet nominees seems to be on the road to normalization—even if Hagel is ultimately confirmed.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Kevin Lamarque / Reuters

Brookings Expert Roundtable on President Obama’s State of the Union Priorities

Sarah A. Binder, William A. Galston, Ron Haskins and Thomas E. Mann — Thu, 07 Feb 2013 13:30:00 -0500

President Obama will use the first State of the Union address of his second term on February 12 to present his agenda for the year ahead, the issues he wants address and the battles he hopes to win. In a roundtable discussion, Brookings experts Tom Mann, Sarah Binder, Bill Galston and Ron Haskins preview the hot-button issues the president is likely to cover in his speech. The nation’s economy and the debt crisis top their list, and they offer insights about how the still-pervasive partisanship on Capitol Hill could stand between the White House and its goals.

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Take a Little, Give a Little: The Senate's Effort at Filibuster Reform

Sarah A. Binder — Thu, 24 Jan 2013 00:00:00 -0500

Today could have been the day when Senate Democrats went nuclear – reining in minority party abuse of the filibuster with a simple majority vote. That would have been my Super Bowl. Instead, the Senate is poised to adopt a bipartisan set of modest (many say, meager) changes to the Senate’s cloture rule. More like the Famous Idaho Potato Bowl, I say.

As many have noted (for starters, Ezra Klein here and Jonathan Bernstein here), the proposed changes to the Senate’s Rule 22 fall far short of what reformers had hoped for. Much blame has been heaped on Harry Reid, the Democratic leader, and on a few senior Democrats, highlighting their resistance to abandoning the Senate’s sixty-vote threshold for bringing the chamber to a vote. The reforms are modest, largely finding ways of speeding up the Senate once both parties have agreed on the matter at hand (for instance on the way to advancing a measure to the floor or after cutting off debate on a nomination). Even if the changes may seem to many like small potatoes, I think there’s more to be gleaned from the Senate’s brush with reform.

First, take a little, give a little. Today’s rule changes remind us that there is no free lunch when it comes to Senate reform. That hurdle is built into Rule 22, given its requirement that 67 senators consent to a vote on efforts to reform Rule 22. In the absence of majority willing to bear the costs of asserting the majority’s right to change its rules, Senate reform is necessarily bipartisan and incremental. Reforms must secure the consent of the minority, or be packaged with changes judged equally important to the opposition. (Recall that even when reformers reduced cloture to 60 votes in 1975, they paid a price: 67 votes would still be required to end debate on changing Rule 22.) Today’s reforms allow a majority to circumvent filibusters of motions to proceed to legislative measures. In return, the majority pays a price each time: The minority is guaranteed votes on two amendments, whereas previously recent leaders might have precluded all amendments by immediately “filling the tree.” To be sure, this potentially dilutes the value of the rule change for the majority. But concessions are dictated by the Senate’s inherited rules. (And, of course, nothing is that simple when it comes to Senate rules; the majority may yet fill the tree, at least after the disposition of the minority’s amendments.)

Second, I suspect we might be underestimating the importance of a non-debatable motion to proceed for the majority party in a period of partisan polarization. Judging from the increase in filibusters on the motions to proceed in recent years, minority parties have fought hard to keep bills off the floor that they oppose on policy or political grounds. So long as the motion to proceed could be filibustered, majority and minority parties shared agenda-setting powers. Today’s change grants the majority a slightly stronger hand in choosing the chamber agenda. To be sure, the minority can still filibuster the bill and amendments beyond those newly guaranteed, but the reform undermines the minority’s ability to throw the majority off course. Take immigration policy, for example. Filibusters of the motion to proceed have kept the DREAM Act off the Senate floor in recent years. Minority influence over the Senate’s agenda is diminished with today’s reform.

Third, these are leader-driven reforms, shaped by the unique burdens carried by the majority and (sometimes) minority leaders. For example, the reforms speed up post-cloture debate on some judicial and executive branch nominations, and allow the chamber to hurry onto cloture votes on motions to proceed to legislative business when the minority offers a modicum of support. No surprise that these housekeeping changes elicit little enthusiasm. These changes don’t make it any easier for a majority to break sizable minority opposition. And they potentially make it harder for rank and file senators to exploit the rules in pursuit of their own policy goals. But from leaders’ perspectives, the reforms rein in the excesses of rank and file dissent when a bipartisan group is ready to move ahead. As one Senate Democrat aide confided, “that’s all Reid ever really wanted.”

Finally, this episode highlights the limitation of the Constitutional option and other “reform-by-ruling” strategies. There appears to have been a majority or near-majority support for securing only very limited reform of Rule 22. Senators seem unwilling to use the tactic for a major overhaul of the Senate’s cloture rule—in part because of the fear of minority retaliation, in part because the filibuster rule likely serves as the foundation of senators’ power. To be sure, Harry Reid aggressively used reform-by-ruling in the fall of 2011 to secure smaller changes to Rule 22 (as did Robert Byrd in the 1980s). But we have to reach back nearly forty years to the 1975 reforms to find a Senate majority willing to go nuclear to impose major changes to Rule 22. (Even then, reformers proceeded without the support of the majority leader, Mike Mansfield.) Perhaps senators see the consequences of weakening Rule 22 in a different light when the parties polarize over policy problems and solutions, with senators nervous about curtailing extended debate when the tables turn on their majority. Regardless, so long as majorities will only form to impose minor reform by majority vote, those majorities will be forced to live under supermajority rules that daily frustrate their policy and political agendas.

And in the Senate’s world, those frustrating days can last for weeks!

Authors

Sarah A. Binder

Publication: The Monkey Cage

Image Source: © Kevin Lamarque / Reuters

Prospects for the 113th Congress

Sarah A. Binder — Mon, 21 Jan 2013 00:00:00 -0500

Sen. Joe Manchin (D-W.V.) nailed it as the 112th Congress drew to a close: "Something has gone terribly wrong when the biggest threat to our American economy is the American Congress." The new year's battle over the fiscal cliff drove home how dysfunctional our nation's political system has become. To be sure, a deal was reached that averted tax increases for over 99 percent of the nation's taxpayers -- but only under the threat that stalemate would throw the economy back into a recession. And the deal did not address the nation's long-term debt and deficit problems. Instead, Congress and the president kicked the can down the road into the hands of the 113th Congress.

Why is Congress so prone to gridlock, and what hopes should we have for a turnaround in the new Congress? Numerous Washington observers have charged that the 112th Congress was the most dysfunctional Congress ever. Brinkmanship and last-minute deals prevailed. Lawmakers nearly caused a governmental shutdown and came perilously close to forcing the government to default on its obligations. Along the way, legislators stalemated over long-term solutions on perennial issues of transportation, agriculture, education, climate change and others. Although we lack a metric to know whether this was the worst Congress ever, judging by the public's reaction, Congress' performance was abysmal. At times only 10 percent of the public was willing to admit to pollsters that they approved of Congress's on-the-job performance.

Three forces fuel today's gridlock. First, divided party control of government raises the bar against major policy change. Parties are the only glue for bridging policy and electoral differences between the ends of Pennsylvania Avenue, meaning that more can be done in periods of unified party control. Just compare President Obama's first two years in office (with Democrats controlling both branches) with the second two years (after Republicans captured the House). Congress was remarkably productive under unified control, enacting numerous landmark accomplishments, from health care reform to Wall Street reform. Under divided government, only do-or-die deadlines brought the parties to the table. Divided government continues in the 113th Congress, handicapping Congress even before it gets underway.

Second, legislative parties have polarized over the past half-century, even though Americans remain centrist in their policy views. Polarization increases deadlock, because our political system requires large coalitions to adopt major policy change. Such coalitions are harder to build when few legislators occupy the ideological center. Increased polarization reflects the parties' ideological differences over the proper role of government, plus a strong dose of sheer partisan team play. As a result, much of congressional disagreement is strategic: The parties hold out for a full loaf rather than compromise on a half. Not surprisingly, when deadlines forced parties to the table in the 112th Congress, they often kicked the can down the road. As a result, the 113th Congress starts with a huge plate of leftovers, leaving little room for new issues.

Third, stalemate is fueled by bicameral disagreement. Even when a single party controls both the House and Senate, disagreements arise that reflect electoral and institutional differences between the chambers. Bicameral differences are compounded when the parties split control of the chambers, as Congress's recent record attests. Bicameral obstacles remain high this year, with a smaller and more conservative Republican House facing off against a larger and more liberal Democratic Senate.

What do these trends portend for the new Congress?

In many ways, the new Congress should look like the old one. Some of the incessant partisan fighting might lessen now that the president no longer faces the challenge of reelection, but elections always loom large for members of the House and a third of the Senate, so pressures from the parties' activist bases will continue to pull legislators to the extremes. Democrats will resist major changes to government entitlement programs, preferring to resolve the country's fiscal mess by raising new revenues through the tax code. Republicans will continue to push for spending cuts on discretionary and mandatory programs, rejecting moves to tax the wealthy to reduce the deficit. In other words, prospects for a grand bargain over taxes and spending remain dim.

I also expect that congressional power will remain concentrated in the hands of party leaders, and that rank-and-file legislators will continue to grumble about it. This is a natural outgrowth of polarized parties that legislate on the brink. Because the parties resist compromise until the 11th hour, it's no wonder that leaders take up the reins of power. Given continued polarization and deadlines in early 2013 to fund the government and raise the debt ceiling, it will likely be déjà vu all over again. Deadlines will force the parties to the table at the last minute, allowing leaders to claim for their partisans that they secured the best and only deal possible under the circumstances.

What role can the president play in generating politically acceptable solutions to vexing public problems? Some say that the president should use his electoral leverage to take his battles to the public, generating pressures on lawmakers to support his solutions on immigration, gun control and so forth. Perhaps going public will make it harder for lawmakers to resist proposals advanced by the president. But as the fiscal cliff episode showed, even a full-court presidential press on the top issue of his campaign -- raising taxes on the top 2 percent of the wealthiest taxpayers -- faced rough sledding. On many issues the public is nearly equally as divided as the lawmakers they send to Washington. Although voters tell pollsters that they prefer compromise to stalemate, finding acceptable solutions in a period of polarization often proves difficult. The power of the president to short circuit gridlock in today's political environment is limited.

Legislative stalemate creates few winners and comes at high cost. By delaying action on the nation's long-term fiscal needs and policy priorities, Congress undermines public confidence and threatens the nation's economic health and public welfare now and into the future.

Authors

Sarah A. Binder

Publication: The Huffington Post

Image Source: © Kevin Lamarque / Reuters

Oh 113th Congress Hastert Rule, We Hardly Knew Ye!

Sarah A. Binder — Thu, 17 Jan 2013 15:22:00 -0500

Is the Hastert Rule dead? Speaker Denny Hastert coined his eponymous rule in 2003 when he declared that the “job of the Speaker is not to expedite legislation that runs counter to the wishes of the majority of the majority.”

Some are calling last night’s House vote (extending fifty billion dollars for disaster relief in the wake of Hurricane Sandy) a harbinger of the Hastert Rule’s coming demise. That bill involved what we might call a Hastert Rule violation, a roll call vote on which a majority of the majority party votes against a bill, but it passes. On the vote to pass the Sandy relief bill, just 49 Republicans joined all but one Democrat to pass the bill. In the parlance of many legislative scholars, the majority party was “rolled,” a strict no-no for a leadership said to be guided by Hastert’s rule. Coming on the heels of the New Year’s Day fiscal cliff vote that passed with only 85 GOP votes, one might reasonably ask whether the days of the Hastert Rule are numbered.

It’s too early to know whether Speaker Boehner will continue to violate the Hastert rule. Instead, I’ll offer some brief thoughts on the recent past and potential future of the Hastert Rule.

First, the logic of the Hastert Rule predates Denny Hastert. The basic premise of the rule—that House leaders will use their leverage over the floor agenda to keep measures off the floor that might divide the majority party—has guided House majority party leaders at least since the early 1980s. As Barbara Sinclair and Steve Smith documented some years ago, Democratic party leaders transformed the use of special rules in the 1980s and early 1990s to more aggressively structure votes on the House floor. Sometimes “restrictive rules” protected bipartisan deals hatched in committee; other times, they immunized party priorities from challenges on the floor. Judging from the number of Hastert Rule violations charted below (as identified by the New York Times’ congressional votes wiz in my twitter feed), it was extremely rare (even before Hastert became speaker in 1999) for the majority party to be rolled on a final passage vote. (To put the number of violations into perspective, there are roughly under 200 final passage votes in most recent congresses, meaning that majority rolls typically constitute less than five percent of final passage votes.) In other words, the Hastert Rule reflects a decades-long pattern in the House of more aggressive Democratic and Republican majority party leaders (denoted by the blue and red bars below) willing to exploit chamber rules on behalf of cohesive majorities.

A brief data digression … Cox and McCubbins’ count of majority party rolls on final passage differs in a few congresses from the NYT’s count. I suspect this stems from the NYT’s more generous reading of “final passage” to include final House votes to concur on Senate amendments, from the NYT’s inclusion of a supermajority suspension vote, and so on. Regardless, the N’s are very small here. And that’s the point. Still, these data might underestimate leaders’ fealty to Hastert’s rule, since the measure by necessity excludes measures pulled off the floor by leaders eager to avoid party-splitting votes. (For a different critique of roll rates, see Krehbiel’s work here.)

Second, the Hastert Rule violation on the Hurricane Sandy bill was typical of many majority party rolls: A good portion of majority rolls occur on “must-pass” bills. Some of these are must-pass because they are mandated by previous legislative decisions. For example, a majority of the Republican majority in 1997 was rolled on a motion to reinstate funding for international family planning groups, a vote that was mandated by a previous year’s spending bill. Other rolls, such as last night’s Sandy disaster relief vote, occur on appropriations bills. (Even if House Republicans threaten to shut down the government this year, I’m still counting these as “must pass” bills!) The remaining rolls tend to occur on salient, popular issues for which the majority party might pay a reputational cost for opposing. Majority party rolls on campaign finance in 2002 and on stem cell research in 2005 come to mind. In other words, more seems to be at stake in these votes than the policy commitments of the majority party’s rank and file. Instead, leaders seek to avoid blame for blocking what amount to must-pass measures. Leaders’ perceived need to attend to their party’s brand name might compel them to facilitate votes in these cases, even at the cost of violating Hastert’s rule. That motivation seemed to undergird Boehner’s 11th hour move to allow a vote on the Senate-passed fiscal cliff deal. Such calculations also likely shaped Boehner’s about-face on the Sandy relief bill after Governor Chris Christie gave GOP leaders a tongue-lashing for killing the bill at the close of the last Congress.

Finally, keep in mind that on the fiscal cliff and Sandy rolls, the leadership brought the bills to the floor under restrictive rules endorsed by a majority of the majority party. The party was not rolled on the pivotal procedural vote. As Frances Lee and David Karol observed here, nearly every Republican voted in favor of bringing the Senate-passed fiscal cliff deal up for a vote. And nearly every GOP voted to bring the Sandy spending bill to the floor. This certainly suggests that despite the Hastert Rule violation, Speaker Boehner has not lost control of his conference. Rank and file members seem to understand that on a narrow set of bills, their party leaders’ hands are tied: Killing a bill is understood to be unacceptable, and so instead legislators make the best of a bad hand by casting votes against the bill—knowing it will pass. The trillion dollar (platinum, of course) question is what other bills (at the 11th hour) might be deemed “must-pass” by the GOP in the 113th Congress. The bill to raise the debt ceiling? A move to avoid the sequester? The next omnibus spending bill? Possibly all three. And will other measures gain must-pass status as well, perhaps fueled by strong public sentiment even from some GOP quarters? Immigration reform and scaled-back gun control are potential candidates. How Boehner manages conflict between the party’s brand name and his rank and file’s policy priorities will shape the fate of the Hastert Rule (and Boehner speakership’s that lies in the balance).

Authors

Sarah A. Binder

Publication: The Monkey Cage

A Congress Nerd’s Super Bowl: Watching the Fiscal Cliff Game

Sarah A. Binder — Wed, 02 Jan 2013 09:15:00 -0500

Some people watch football; I watch Congress. The fiscal cliff drama was my Superbowl and Rose Bowl wrapped into one. First, two septuagenarians negotiated a tax deal overnight, which was then approved in a bipartisan Senate vote at 2 AM. Then, we were treated to a House GOP rant and rave against a deal that cuts taxes for more than 99 percent of taxpayers, before closing out the night with the majority party being rolled on one of the most salient votes of the 112th Congress. Call the game!

There’s plenty to be said about the events that brought us to a scaled-down tax deal to avert the worst of the fiscal cliff. For now, just a few thoughts as I don’t want to miss the post-game show.

First, it seems the fiscal cliff was indeed a cliff, rather than a slope for both parties. The conventional wisdom before and after the November elections suggested that the Democrats had greater leverage in addressing the fiscal cliff, since deadlock returned tax rates to their pre-Bush levels. Democrats’ willingness to go over the cliff, the argument went, would put them in the driver’s seat and allow them to raise taxes on upper income taxpayers. In fact, the president’s ardent desire for a deal led him to break his commitment to set the threshold for tax increases at $250,000. As in the battles over shutting down the government and defaulting on the debt in 2011, the policy and political consequences of stalemate were deemed unacceptable by a Democratic White House and their congressional leaders. Going over the cliff would have tagged the Democrats with a governing failure. For their part, Republicans in the 11th hour blinked, seemingly motivated by a desire to avoid blame for pushing the country back into a recession. Certainly McConnell’s calling out to Vice President Biden to put some of the pieces of a deal back together suggests that leaders from both parties thought they would be better off with any deal than no deal. Despite the near revolt by House GOP (and half of their leadership) when confronted with a deal that raised revenues and cut very little spending, the desire to avoid blame for going over the cliff seems to have motivated House GOP to give up their fight at the end of the 11th hour.

Second, on one of the most important House votes of the year, the minority ruled. The Hastert Rule (go forward only with the support of a majority of the majority party) has been displaced (at least for now) by the Boehner Rule (sometimes a majority of the majority has to be rolled for the sake of the party’s reputation). One might say this is evidence of the median voter model at work. Alternatively, we might consider this vote a reminder that parties and their leaders pursue a mix of goals, including the desire to protect the party’s electoral brand name. The sequence of events matters here because it started with the Plan B debacle in which the Speaker misjudged his conference and washed his hands of negotiations. By punting so late in the game, Boehner foreclosed reliance on the Hastert Rule. Given other leaders’ incentives to avoid going over the cliff, the Speaker had no leeway for re-crafting the package to avoid his majority from being rolled. Electoral considerations—avoid blame for blocking tax cuts and dragging down the economy—prevailed in Boehner’s willingness to allow a vote on the Senate-passed bill to go forward.

Third, legislative scholars have noted for years that the rise in polarized parties has brought leaders to the fore in negotiating policy solutions on behalf of their rank and file. The incentives to legislate through brinkmanship at the 11th hour further fuel this dynamic, given the time constraints under which last minute deals are cobbled. What is so striking about the fiscal cliff drama is that polarization seems also to have undermined the capacity of legislative leaders themselves to bargain and compromise behind closed doors. The Obama-Boehner pairing failed again, relations between Reid and McConnell are in need of repair, and Boehner and Reid seem incapable of even being in the same room together, leaving the job to old Senate friends Biden and McConnell. Would incentives for a deal been strong enough to secure a solution had Biden and McConnell not had such a relationship? Political scientists tend not to put much stock in the relevance of personal characteristics—not least because it’s hard to gin up a counter-factual for testing the impact of leadership. But the spread of partisan distrust to the leaders themselves does make me wonder about how a negotiations over raising the debt ceiling will proceed.

Finally, the fiscal cliff solution punted on the key fiscal issue of the day: How can the U.S. address its future fiscal sustainability? This week’s drama is a good reminder of the difficulty Congress faces in legislating solutions to long-term problems. Imposing costs today to secure benefits tomorrow puts legislators at risk for voter backlash. Myopic policies for myopic voters, Ed Tufte once wrote. The result is that Congress more often plays a new round of kick the can than tackles solutions to its fiscal mess. This time, Republicans think they will have the upper hand, as the parties go to battle over what it will take to raise the government’s debt ceiling. I suspect any solution will involve a new set of future deadlines intended to force Congress to legislate. Deja vu all over again.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Reforming the Senate at a Snail’s Pace

Sarah A. Binder — Sun, 30 Dec 2012 00:00:00 -0500

As the clock runs out on the dysfunctional 112th Congress, few have been impressed by its paltry record and balky performance. But pardon my glee: December has been a great month for students of Congress. First, the House leadership was handed a blistering defeat on its “Plan B” to resolve the fiscal cliff. Next, while their leaders were meeting to negotiate an 11th hour of the 12th month fiscal cliff deal, eight senators unveiled a bipartisan proposal to head off a Democratic threat to change the rules by majority vote. When it rains, it pours!

The reform package—addressing “talking filibusters” and filibusters on procedural motions – deserves a bit more attention. And it deserves an appropriate historical illustration: To the right, a 1928 Chicago Tribune cartoon that features not the talking filibuster…but a sleeping one. Seems that talking filibusters might have been few and far between even back then.

Ezra Klein and Jon Bernstein have detailed the proposed changes and weighed in here and here, as has Steve Smith by tweet here and here. Since then, a coalition of nearly fifty liberal groups has rejected the proposal out of hand as watered down reform. To these several perspectives on the McCain-Levin plan, I would add the following thoughts:

First, these are at best incremental reforms. The majority leader would essentially gain the right to set the Senate’s agenda by majority vote, as a four-hour debate limit would be imposed on the motion to proceed. But the majority leader would pay a price for that new power: He would lose his power to block amendments (by “filling the tree”) and the minority bill manager and leader would be newly guaranteed an amendment each upon consideration of a legislative measure. (The majority leader, it seems, might still be able to fill the tree after the guaranteed amendments are dispensed with.) This change leaves untouched the sixty-vote threshold for invoking cloture on the measure or other amendments, similar to the plans of Democratic reformers. In short, the change tries to address the grievances of both the majority (by circumventing filibusters of the motion to proceed) and the minority (by creating and guaranteeing amendment opportunities).

Second, the incremental nature of the reforms is not accidental. Ezra has a point when he argues that this is “filibuster reform for people who don’t want to reform the filibuster.” Still, the incremental nature of the proposal strikes me as the price of negotiating procedural change in a legislative body whose rules already advantage the minority party: The majority gets a little only by giving a little. The barrier to reform is entrenched in the Senate’s cloture rule, given the supermajority required for ending filibusters of proposals that curtail minority rights. A Senate majority could circumvent that barrier by going nuclear with 51 votes, but that strategy is not cost-free. To be sure, reformers claim to have 51 votes for a reform-by-ruling move. But it’s not clear to me yet that the majority would be willing to pay the accompanying costs of weathering the minority’s response to going nuclear.

Third, the rules address leaders’ interests more so than those of the rank and file. Some of the proposed changes are aimed at time management. For example, with the consent of the majority and minority leaders and a bipartisan handful of senators , the cloture process is sped up markedly. Similarly, the three debatable steps required to get to conference are condensed to a single motion (albeit one still subject to sixty votes if the minority objects). Other proposed changes alleviate the minority leader from objecting on his colleagues’ behalf, undermining individual senators’ ability to threaten to filibuster without actually showing up. Then again, there’s no enforcement mechanism in the proposal: Senators would be counting on the minority leader to play by the new rules and to abandon his practice of lodging objections on behalf of his absent colleagues. It’s fair to be skeptical that such informal reforms would ever stick.

Fourth, I think there’s promise in the proposal’s directive to the presiding officer to put questions to a (majority) vote when opponents no longer seek to debate a bill. I share skeptics’ views that majorities might rarely want to hold the minority’s feet to the fire to wear down the opposition and that minorities might at times relish the spotlight while holding the floor. But the proposal strikes me as a potentially valuable chance to see if the change would make a difference. If approved, the McCain-Levin proposal would be adopted as a standing order of the Senate for just the upcoming Congress, providing a testing ground for this version of the talking filibuster. (Standing orders are typically approved opening day by unanimous consent; would there be such consent for McCain-Levin or another negotiated proposal?)

Finally, it may be that incremental procedural change is all that a polarized Senate can agree on—especially if some Democrats are skittish about changing the rules by majority vote. Granted, majority senators won’t agree to the plan if it’s perceived as empowering the minority, not the majority, as Senator Harkin has suggested. Nor should they. In that case, an incremental package may be more than a polarized Senate can agree on—leaving the nuclear option as the only avenue for Democrats seeking to rein in the excesses of the Senate minority’s parliamentary rights.

Authors

Sarah A. Binder

Publication: The Monkey Cage

Three Reforms to Unstick the Senate

Sarah A. Binder — Thu, 29 Nov 2012 00:00:00 -0500

"We are now locked in a rolling filibuster on every issue, which is totally gridlocking the U.S. Senate. That is wrong. It is wrong for America."

Who said that? Democrat Harry Reid, majority leader of the Senate? Guess again. Try former Republican leader Trent Lott, bemoaning the troubled state of the Senate in the late 1990s.

No recent majority leader of either party has been saved the headache of trying to lead a Senate in which minorities can exploit the rules and stymie the chamber. This is not a new problem. Harry Reid may face a particularly unrestrained minority. But generations of Senate leaders from Henry Clay to Bill Frist have felt compelled to seek changes in Senate rules to make the chamber a more governable place.

Some things never change.

Twice this week, the Senate has opened debate with its party leaders engaged in a caustic battle over Reid's plans to seek changes to Senate rules in January.

Read the full piece at CNN.com »

Authors

Sarah A. Binder

Publication: CNN

The Lame Duck Congress — A Live Web Chat with Sarah Binder

Wed, 14 Nov 2012 12:30:00 -0500

Event Information

November 14, 2012
12:30 PM - 1:00 PM EST

Online Only
The Brookings Institution
1775 Massachusetts Ave., NW
Washington, DC

With the elections done, Congress has returned to Washington to finish the final session of the 112th Congress. There is much to be accomplished in the lame duck session, including critical negotiations among the White House, the democratic-controlled senate, and the GOP-controlled House over the impending budget sequester as the fiscal cliff looms. What compromises can we expect from either party during the lame duck? How have the election’s results have affected either party’s strategy for the lame duck session? Beyond the fiscal cliff, what issues will legislators tackle in these final weeks?

On November 7, Brookings expert Sarah Binder took your questions on the lame duck Congress in a live web chat moderated by Vivyan Tran of POLITICO. Read a transcript of the chat below.

12:30 Vivyan Tran: Welcome, let's get started.

12:31 Comment from Scott Neuman, NPR: Will a deal to avert the fiscal cliff be less likely in this session because the turnover in Congress was relatively small and there are fewer lame ducks who can waddle off the stage after voting for a compromise?

12:34 Sarah Binder: This is a great question -- and it gets to the heart of our notions about lame duck sessions. Historical lame duck sessions could promise some drama since there was such high levels of turnover in Congress and high levels of "shirking" by the lame duck members. In recent congresses, however, turnover is low. Perhaps 90+ percent of MCs are returning to the House and Senate. So we really shouldn't expect politics in the lame duck session to look too much different than the politics of the regular session -- namely a lot of stalemate and kicking of the can down the road. If there's a dramatic exception here, it's because of the looming fiscal cliff -- not your usual situation for a lame duck session!

12:34 Comment from Noa: Do you think those that have lost their seats are no longer motivated to do work?

12:35 Sarah Binder: Great question, Noa! Historically, we do see lower rates of participation from these lame duck members in these final sessions. So, yes, motivation definitely goes down for some lame ducks -- particularly those still contesting their races at home! That said, participation rates in House voting are pretty high, so even if lame ducks curtail their voting, participation remains relatively strong.

12:36 Comment from Brian Alexander: Thank you for taking our questions. Can you please discuss the historic performance of lame duck sessions, in terms of productivity. Also, what factors impact productivity, such as partisanship, divided government, or others, and how should we expect the fact that this has been a "status quo" election to shape whether the lame duck gets anything done. Again, thanks!

12:40 Sarah Binder: This is a central question for understanding these quirky (quacky?) lame duck sessions. Keep in mind two trends. First, lame duck sessions tend to look like close mirrors of the regular session -- primarily because there are so few lame ducks. Think about that incredibly productive lame duck session in 2010 -- Start treaty, don't ask don't tell, tax and stimulus deal, etc. That occurred in a period of unified Democratic control with near filibuster proof Senate majority. No surprise it was so productive, even in light of the House Dems loss of the chamber in the Nov. elections. Compare that to 2008 lame duck. What happened? Divided government produced little -- in fact the Dems key initiative -- the auto bailout bill -- was killed by a GOP filibuster in the Senate. So, lame ducks do carry over much of the politics of the regular session. Second trend, the agendas of these lame ducks are typically carried over of unfinished business -- typically appropriations bills. In that light, this year's lame duck looks a bit different with the fiscal cliff approaching.

12:41 Comment from Jason, Arlington: Will the GOP's loss during the election impact its strategy during the lame duck when it comes to the fiscal cliff?

12:42 Sarah Binder: Good question. And a tough one. If we see compromise from the House and Senate GOP, it'll be hard to know whether it's because they read the tea leaves from the election or because they really did not want to be blamed for going over the fiscal cliff. That said, I really don't see House /Senate GOP giving in on their central tenet of keeping all income tax rates low. I think we're very far away from the parties reaching an agreement on these tough tax and spending issues.

12:43 Comment from JJ: Are there any concrete deliverables that you foresee happening during Lame Duck before the new Congress begins in January?

12:46 Sarah Binder: I do think there are a few things that are likely to come up and to be addressed. 1) Disaster aid will probably be tackled , though it's hard to know if conservatives will agree to "unpaid for' disaster aid without a broader agreement on taxes and spending. 2) Farm programs expired Sept 30th. I don't think the country wants to go back to 1941 agricultural law. I doubt that House GOP is ready to put aside their internal differences that stalemated the Farm renewal bill earlier this year, so most likely we'’ll see a one year extension of existing law to buy time for a broader agreement this coming year. 3) Congress never finished the defense authorization bill. I suspect we'll see a streamlined version since the Senate won't have time for a full-fledged debate with a gazillion amendments – it’s typical practice for that bill. So some things will be passed/enacted, though they tend towards "unfinished business" - -which would be keeping with the norm for lame duck sessions of recent decades.

12:47 Comment from M. Allen: Long-term tax and spending reform will likely be kicked down the road -- but what parts of it will Congress have to wrestle with during the lame duck?

12:50 Sarah Binder: This is the most important and toughest question. The answer depends on whether the two parties really want avoid going over the fiscal cliff. If they do, then we'll probably see one of two outcomes: 1) kick the can down the road. That is, the parties will temporary turn off sequester and extend the tax rates temporarily. 2) some down payment on spending cuts from the sequester and a "framework" for how the parties will proceed on a longer term package in the coming year. I suppose it's possible that's we'll see something closer to grand bargain, but I'm highly skeptical. If there's no agreement that prevents going over the cliff (or down the slope ...), then all bets are off on the timing for a broader deal.

12:50 Comment from Taylor S.: The tone post-election has changed in official syntax from both Boehner and President Obama - does this really reflect a shift in momentum to cooperation in the new term?

12:53 Sarah Binder: Call me cynical, but I think these are opening signals from the two parties (or leaders). Obama wants to claim every bit of political capital that he can from the election to claim a mandate for raising taxes on the wealthy to restore fiscal sanity. And he's signaling to his supporters that he's not giving in/up (at least not yet!) Boehner's olive branch is at once a sign that he recognizes the Romney loss and a signal to his House GOP that they have to be responsible and go to the table. Of course, Sen. GOP leader McConnell isn't really waiving any olive branches. So, we're getting two signals from the same party. Either way, I don't see this as a new dawning era of cooperation. But certainly the parties know that they don't want to be blamed if things go sour and off the cliff.

12:53 Comment from Gronk: How would you react to the assertion that the fiscal cliff is not actually a "cliff" per se, and in comparison to the debt ceiling actually seems minor? My understanding is that the fiscal cliff isn't something that is actually going to impact the US credit rating or Global markets in the way that not raising the debt ceiling would have, and even if we go off the "cliff" it's something that we can fix the next day, or the next week...

12:57 Sarah Binder: Another great question. I think many economists would agree with the statement that this is more a slope than a cliff -- at least assuming that Congress and the president address the fiscal issues after Jan1 even if they don't do so before. Having said that, I'm not so sure that it's a slope *politically.* GOP will likely be blamed for going over the cliff. That doesn't serve their political position very well and diminishes their ability to be perceived as constructive players in any deliberations this coming year. At the same time, it would be a governing failure for Democrats -- it just doesn't look good! And those political costs could be important in producing at least a short term agreement or kicking the can for a bit. All that said, markets may think there's an economic cost to going over the cliff-- even if the worst of the effects aren't felt or could be reversed. I don't think the parties actually want to find out, though of course, I could be wrong about that. :)

12:57 Comment from Gyan: Do you expect a recess appointment for the head of the Federal Housing Finance Authority?

12:58 Sarah Binder: Great question. This is a lingering issue that has been a thorn in the side of folks who want a more aggressive housing recovery policy. I doubt Obama wants that particular fight right in the middle of the fiscal bargaining. My guess is that he waits till the new year given the 55 Dem plus Indy senators who might bring confirmation of a regular appointee more likely. Perhaps!

12:59 Sarah Binder: Thanks for all of your questions. Sorry I couldn't get to more of them!

12:59 Vivyan Tran: Thanks everyone, see you next week!