Congress, Can You Hear Me? Can You Feel Me Near You?

J. Taylor Rushing at The Hill:

The Senate on Tuesday morning defeated a proposal from Sen. Tom Coburn (R-Okla.) to ban congressional earmarks.

In a 39-56 vote, members defeated a temporary ban on the appropriations procedure. The moratorium was offered as an amendment to a food-safety bill that is scheduled for a final vote Tuesday morning.

Senate Republicans have already passed a voluntary ban on earmarks in their caucus, but several GOP senators have objected to it. Democrats have so far declined to ban earmarks from their members.

David Rogers at Politico:

Tuesday’s vote 56-39 vote on the moratorium contrasts with one last March in the Senate defeating a similar ban by a larger margin: 68-29.

Since November’s elections, the Senate Republican Conference has embraced a two-year moratorium beginning in the next Congress. Tuesday’s amendment, offered by Tom Coburn of Oklahoma, ups the ante by including this budget year and is very much in line with the thinking of incoming House Speaker John Boehner. (See: GOP backs earmarks ban in vote)

Coburn had hoped to get to 40 and was hurt by the defections of eight Republicans, many prominent in the Appropriations Committee. But the House GOP leadership has been unyielding thus far, and with the Democratic defections, hopes to put pressure on Majority Leader Harry Reid (D-Nev.) to accept a temporary ban.

In a recent private meeting, Boehner warned Reid, a long time veteran of the Appropriations process, that he would not accept any earmarks in the 2011 spending bills, according to several sources familiar with that discussion.

Andrew Stiles at The Corner:

Seven Democrats backed the proposal: Sens. Evan Bayh (Ind.), Michael Bennett (Colo.), Russ Feingold (Wis.), Claire McCaskill (Mo.), Bill Nelson (Fla.), Mark Udall (Colo.), and Mark Warner (Va.). All are either freshman members, retiring/defeated members, or up for reelection in 2012.

Eight Republicans, primarily members of the Appropriations Committee, went on the record against the ban: Sens. Bob Bennett (Utah), Thad Cochran (Miss.), Susan Collins (Maine), James Inhofe (Okla.), Lisa Murkowski (Alaska), Richard Lugar (Ind.), Richard Shelby (Ala.), George Voinovich (Ohio).

As Cochran and other have made clear, everyone on that list — apart from Bennett (defeated in primary) and Voinovich (retiring) — should expect a primary challenge in their next election. Only Lugar is up in 2012, though he has been especially defiant in the face of criticism from the right, earning him a place in the heart of the The New York Times.

Even without a formal ban, pork-lovers are going to have a difficult time keeping the practice alive in the 112th Congress, with House and Senate Republicans voting to do away with earmarks on their own. Expect the GOP to continue its efforts to isolate Harry Reid and Senate Democrats on the issue.

Kevin D. Williamson at The Corner:

If you can’t trust these feckless Republicans on a little thing like earmarks, you can’t trust them on a big, hard thing like balancing the budget. I hope the Tea Party guys are planning to primary these clowns

Conn Carroll at Heritage:

Harvard research shows that states that experience an increase in earmark spending suffer from decreases in corporate capital expenditures and employment. Earmarking also robs money from local government transportation priorities to pay for Senator’s vanity projects. And there is a strong correlation between high numbers of earmarks high total spending by Congress.

Jennifer Rubin at Commentary:

The earmark ban, like the freeze on pay for federal workers, is largely symbolic, but let’s be honest: symbols matter, and the voters are looking for signs that their lawmakers “get it.” With the few exceptions noted above, it seems that Democratic senators by and large don’t understand what’s afoot in the country. They remain oblivious at their own peril.

Jay Cost at The Weekly Standard:

I hope congressional Republicans recognize the stakes for this 112th Congress. Even though there is little hope of major policy breakthroughs, they are exceedingly high. It’s not just a matter of setting the 2012 election up nicely. The reputation of the Grand Old Party is on the line here. The Republican party has long been known as the party of fiscal responsibility. You vote for them not because you want to them to save the world — that’s what the liberal Democrats are for — but because they’re the serious fellows who insist on a balanced budget. Yet over the last couple of years the Republican Party in Congress has totally obliterated this image. And now they lose 20 percent of the Senate caucus over what is little more than a symbolic gesture on spending? That does not fill one with confidence.

Jim Harper at Cato:

This morning the full Senate voted down a proposed rule that would have barred earmarks for the next two years. Part of the reason? Earmarks are transparent.

Here’s Senator Dick Durbin (D-Ill.), quoted in a Hill article:

There is full disclosure in my office of every single request for an appropriation. We then ask those who have made the requests to have a full disclaimer of their involvement in the appropriation, so it’s there for the public record. This kind of transparency is virtually unprecedented.

Senator Durbin doesn’t know transparency. Take a look at Senator Durbin’s earmark disclosures. Yes, you can read through them, one by one. But can you make a list of recipients? Can you add up the totals? Can you search for common words in the brief explanations for each earmark? Can you make a map showing where recipients of Senator Durbin’s requests are?

No, no, no, and no.

That’s because Senator Durbin puts his request disclosure out as scanned PDFs. Someone on his staff takes a letter and puts it on a scanner, making a PDF document of the image. Then the staffer posts that image on the senator’s web site. It’s totally useless if you want to use the data for anything. Notably, Senator Durbin doesn’t even include the addresses of his earmark recipients.

The Count Where Everybody Counts

Reid Wilson at Hotline

We’ve broken Dems into 4 categories based on their votes on the original health care bill, passed in Nov., and on the Stupak amendment, a measure to toughen abortion language that passed with overwhelming GOP support and 64 Dem votes.

Dems believe they have a total of 15 to 20 targets, “no” votes the first time around who can be persuaded to switch their positions. Those in the first category, members who voted against the bill and against the Stupak amendment, may be their easiest targets. Those in the second category, who voted against the measure but for the amendment, will be harder to win over.

GOPers are not without their own targets. Rep. Bart Stupak (D-MI) claims he has up to a dozen votes among the second group, those who voted for health care but who are willing to vote against it if abortion language isn’t strengthened. The third category include those members who voted for both the bill and the amendment, and the reservoir from which Stupak is likely to find his backers.

Finally, the fourth category will be harder for the GOP to win over. They include 16 House Dem freshmen, some liberal, some centrist, who voted for the measure but against the Stupak amendment. The most effective argument to win over these members will be an appeal to their re-election chances.

Then again, the one member who voted for the bill and now says he will vote against it — Rep. Mike Arcuri (D-NY) — falls into this category, suggesting the GOP’s target list is far wider than we lay out here.

A reminder of where we stand now: Health care legislation passed by a 220-215 margin on Nov. 7. Since then, Reps. Neil Abercrombie (D-HI), Robert Wexler (D-FL) and Eric Massa (D-NY) have resigned. Rep. John Murtha (D-PA) passed away. Of that group, Abercrombie, Wexler and Murtha voted in favor. Massa voted against. Rep. Anh “Joseph” Cao (R-LA), who voted for the bill, has said he will vote against.

That means Pelosi has lost 4 votes, bringing her to 216. Because there are only 431 members of the House, thanks to the vacancies, Pelosi needs exactly that number to pass reform. Arcuri’s decision today brings the number of yes votes down to 215 — one below the number needed to pass.

Jay Cost at RealClearPolitics:

Current Categories (As of 1:40 PM 3/9)
Democrats Who Voted Nay in November
Very Hard to Persuade: 25
Hard to Persuade: 6
Persuadable: 6
Democrats Who Voted Yea in November
Suggested Might Now Vote Nay (Including Confirmed Stupak Democrats): 17
Other Possible Stupak Democrats: 10

Update, 1:40 PM 3/9 Adding Jerry McNerney (CA-11) to the list of Democrats who voted yea in November but who are now undecided, thanks to this report:

McNerney criticized the current version of healthcare reform passed by the U.S. Senate for the deals it makes with certain states, its lack of a public option and the inadequate number of people it extends coverage to. He said he would not vote in favor of that version of the bill if it comes back to the House.”We want to get our healthcare up to international standards, and we want to do it in a way that is American,” McNerney said in response to a question from the audience. “Costs are escalating at a rate that’s unacceptable, and the people want something done.”

Thanks to Twitter follower “sulzinator” for the link!

Also, a note on methodology. My rule for adding former yea voters to the list of waverers has had to become a little more developed since I first published this list. My attitude is that it is not enough for a member to say that he/she is now “undecided.” I need to read about them making a negative about the Senate bill. This is why, for instance, some journalists have John Spratt as “undecided” but he is not on my list because I have not heard a specific complaint from him about the Senate bill.

Additionally, I’m operating under the assumption that the special carve-outs like the Cornhusker Kickback are getting dropped in the final package, so if a member just complains about the insider deals, he/she won’t get on the list.

David Dayen at Firedoglake:

Some movement since I last updated:

Dan Maffei and Bill Owens, two central New York Congressmen who voted yes last time, are undecided.

Larry Kissell is a confirmed no.

According to the Hill, Marion Berry is a member of the Stupak 12 (which I have as a baker’s dozen), and Ike Skelton is a definite no.

So if you add all that up, you get 194 yes votes and 191 no votes. I’ll show my work:

I’m assuming that all Republicans save Joseph Cao are a no, and all Democrats who voted yes before who haven’t definitively come out as a maybe are still a yes.

There were 39 Democratic No votes before. One of them was Parker Griffith, now a Republican, and one of them was Eric Massa, now the saltiest salt not in Congress. In addition, three other Democrats who voted yes last time (Wexler, Murtha, and Abercrombie) have either resigned or died.

Of the 37 remaining Democratic No votes, we have 14 definite nos (I’ve documented all of these with a link somewhere on the site in the past):

Bobby Bright, Mike McIntyre, Stephanie Herseth Sandlin, Walt Minnick, Artur Davis, Chet Edwards, Frank Kratovil, Mike Ross, Dan Boren, Gene Taylor, Larry Kissell, Dennis Kucinich, Collin Peterson, Ike Skelton

That leaves 23 potential flippers, though only 13 have made noises in that direction so far:

Jason Altmire, Bart Gordon, Glenn Nye, Brian Baird, John Tanner, Rick Boucher, Allen Boyd, John Boccieri, Suzanne Kosmas, Betsy Markey, John Adler, Mike McMahon, Scott Murphy.

The other 10 haven’t said boo. They are:

Travis Childers, Harry Teague, Lincoln Davis, Heath Shuler, John Barrow, Jim Marshall, Tim Holden, Charlie Melancon, Jim Matheson, Ben Chandler

In addition, there are the Stupak 13, who were all yes votes last time:

Bart Stupak, Jerry Costello, Charlie Wilson, Kathy Dahlkemper, Joe Donnelly, Joseph Cao, Steve Driehaus, Brad Ellsworth, Marion Berry, Marcy Kaptur, Dale Kildee, Dan Lipinski, James Oberstar.

Kildee has said he’s not in the bloc, but he was quoted in the Politico “fix it in reconciliation” article as someone with concerns about the abortion language.

Then there are 10 other former Yes votes who have expressed concerns, though none are an out-and-out no yet:

Mike Arcuri, Zack Space, Chris Carney, Mike Doyle, Paul Kanjorski, Ann Kirkpatrick, Alan Mollohan, Nick Rahall, Dan Maffei, Bill Owens.

Some of those may have something to do with the abortion language, but I haven’t added them to the Stupak bloc yet.

Jim Geraghty at NRO:

So here’s what is absolutely certain: Of the 220 “yes” votes, three are gone from Congress with their seats currently empty (Wexler, Abercrombie, and Murtha) and one has said, definitively, they will flip to no (Cao).

That takes the ‘yes’ votes to 216.

Of the 215 previous “no” votes, Nathan Deal is sticking around, Eric Massa is gone (214), and Cao has been added to their ranks. This brings them back to 215.

In other words, right now Pelosi cannot permit anyone who voted “yes” to flip. If every “yes” vote stays on board, she can pass the bill.

Obviously, there are a lot of Democrats who voted “yes” in the fall who have indicated that they want to vote “no” or are considering voting no: Jerry McNerney, Steve Kagan, Henry Cuellar, Kathy Dahlkemper, Dan Lipinski, Marion Berry, Baron Hill, Brad Ellsworth, Dina Titus, Michael Arcuri, Dennis Cardoza, James Oberstar, Bart Stupak, Shelley Berkeley, Dan Maffei, Earl Pomeroy, Nick Rahall, John Spratt and Kurt Schrader. There are probably more, but that’s a starting 19.

There are a very few “no” votes who are talking about flipping to “yes.” Occasionally, you’ll hear someone make vague noises about this, but I haven’t seen anything definitive. Bart Gordon’s a possibilty, as is Brian Baird.

Ezra Klein:

I’m getting a lot of e-mails about this or that congressperson’s latest hedge, or this or that effort to count the votes. So let me take a second to explain why I’m not posting those articles: I don’t trust them.

To a degree that’s really under-appreciated, legislators communicate with each other through the press. That’s particularly true for the specialized Washington press: The Roll Calls and Congressional Quarterlys and Hills of the world. We read those stories as news articles, but the politicians who are quoted in them are often directing their words at their leadership rather than the publication’s lay audience. And that means those comments generally have a couple different meanings. The most common double meaning is that a quote that seems like a prediction (“I am not inclined to vote for this bill”) is actually the opening of a negotiation (“I want something changed in this bill, and I want it badly enough that I’m willing to play up my opposition in the press.”)

Since I can’t see into the souls of legislators, I don’t waste time trying to parse this stuff. The final weeks before a close vote feature a lot of congresspeople making statements of unbending opposition and then cutting deals which turn them into qualified supporters of the legislation. This appears to be happening with Bart Stupak, for instance, even though he’s spent the past few weeks grabbing headlines with his vocal opposition to the bill. So my stance on all this is that we’ll know soon enough, but until there’s solid evidence, I’m not going to spend time chasing statements that may or may not mean what they appear to mean.

Ann Althouse:

How tense! I almost feel sorry for them.  Almost. What’s going through those 431 fervid little minds? Each knows his/her vote is crucial, but then what? Worry that angry voters will say this thing passed because of you? Worry that angry voters will say this thing failed because of you? So, then… be quiet and cooperative? Or be demanding and invite a Massa-style ethics investigation (with naked Rahm-poke)? And then what? Become a blustering media star while wussing out and resigning (like Massa)? Try to stand up to the Chief of Staff and his minions? Or maybe the stress will get to you and you’ll keel over and die like Murtha? Lay low, stand and fight… or go like Murtha/Massa? Poor congresspeople. Not.

A Children’s Primer To The Various Points Of The Reconciliation Debate

Julie Rovner at NPR:

To reconcile or not to reconcile — when it comes to a health overhaul bill, that seems to be the biggest argument of the moment.

At issue is a process called budget reconciliation. By writing Obama’s health care plan as a budget bill, Democrats can prevent a Republican filibuster in the Senate and advance the bill with a simple majority instead of the 60-vote supermajority they no longer have.

Not surprisingly, that has Republicans crying foul. Budget reconciliation, Sen. John Kyl (R-AZ) told reporters Tuesday, “was never designed for a large, comprehensive piece of legislation such as health care, as you all know. It’s a budget exercise, and that’s why some refer to it as the ‘nuclear option.'”

“The use of expedited reconciliation process to push through more dramatic changes to a health care bill of such size, scope and magnitude is unprecedented,” Sen. Orrin Hatch (R-UT) wrote in a letter to President Obama on Monday, urging him to renounce the possibility of trying to pass a bill using the procedure.

But health care and reconciliation actually have a lengthy history. “In fact, the way in which virtually all of health reform, with very, very limited exceptions, has happened over the past 30 years has been the reconciliation process,” says Sara Rosenbaum, who chairs the Department of Health Policy at George Washington University.

For example, the law that lets people keep their employers’ health insurance after they leave their jobs is called COBRA, not because it has anything to do with snakes, but because it was included as one fairly minor provision in a huge reconciliation bill, she says.

“The correct name is continuation benefits. And the only reason it’s called COBRA is because it was contained in the Consolidated Omnibus Budget Reconciliation Act of 1985; and that is how we came up with the name COBRA,” she says.

COBRA, which confusingly did not become law until 1986, was actually a much larger bill, including many nonhealth provisions and many other important health provisions as well (see chart). Among them was the so-called Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals that accept Medicare or Medicaid payments to at least screen patients who arrive for emergency treatment, regardless of their ability to pay.

Tim Noah in Slate:

“You know, we’ve witnessed the Cornhusker Kickback, the Louisiana Purchase, the Gatorade, the special deal for Florida,” Senate Minority Leader Mitch McConnell said Feb. 22 on Fox News.* “Now they are suggesting they might use a device which has never been used for this kind of major systemic reform.” Sen. Orrin Hatch, R.-Utah, wrote Feb. 23 on USA Today’s Web site that the Obama White House is engaged in “an all-out push for the highly partisan ‘nuclear option’ of reconciliation, special rules to circumvent bipartisan Senate opposition, to jam this bill through Congress. To be clear, this procedure was never contemplated for legislation of this magnitude.” Sen. Chuck Grassley, R.-Iowa, said Aug. 23 on CBS News’ Face the Nation, “If you have reconciliation, it’s a partisan approach.” Sen. Olympia Snowe, R.-Me., said much the same in April. “If they exercise that tool,” she told the Washington Post, “it’s going to be infinitely more difficult to bridge the partisan divide.”

But look at the Senate roll call on the conference report for the 1996 welfare reform bill, the most momentous piece of social legislation to become law in the last 20 years. The bill’s formal name was the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (italics mine). It was called that because it passed the Senate through budget reconciliation, even though the bill’s purpose (“ending welfare as we know it”) was only peripherally about trimming the federal budget. Yet McConnell voted for the bill. So did Hatch, Grassley, Snowe, and every other Republican in the Senate. So, for that matter, did most Democrats.

Why did the Republican-controlled Senate use reconciliation to pass welfare reform? Interestingly, when I posed that question to several welfare-reform experts—including one person (Ron Haskins, senior fellow at the Brookings Institution) who’s published a narrative history of it—none could immediately remember why. Why couldn’t they remember? Because the decision to use reconciliation was one of the least remarkable things about the bill.

Ezra Klein:

Elsewhere, political scientist Joshua Tucker found a Congressional Research Service report (pdf) listing every time reconciliation was used between 1981 and 2005, and he built a rough model testing which party used the process more frequently. During that period, there were 19 reconciliation bills, 11 of which were signed by Republican presidents, five of which were signed by Democratic presidents, three of which were vetoed by Democratic presidents, and none of which were vetoed by Republican presidents. “By my admittedly simple classification scheme,” Tucker concludes, “this would suggest that 14 of the 19 times reconciliation was used between FY1981 – FY2005, it was used to advance Republican interests.”

The real story lurking in these arguments is that reconciliation has become the normal process for many of the most important bills in recent years. The Bush tax cuts went through reconciliation. Welfare reform went through reconciliation. The Balanced Budget Act of 1997 went through reconciliation. We’ve never really discussed the fact that we have a majority-rules process tucked inside the supermajority Senate (in part because the realization that we have a supermajority Senate is relatively recent), but it’s been key to getting anything done for at least 20 years now, and it will be an even more constant presence in the next 20 years.

Jay Cost at Real Clear Politics:

Reconciliation bills have a privileged status on the Senate floor. There is no debate on whether to begin consideration of a reconciliation bill. Proposed amendments must be germane to the bill. Debate on the bill and any amendments to it is limited to 20 hours. If you’ve ever heard the phrase “vote-a-rama,” this is where it comes from: when the time limit for debate on a reconciliation bill has been reached, remaining amendments are voted on in quick succession.

All of this is designed to facilitate Congress in making a budget plan, then actually sticking to it. Of course, determined congressional majorities, especially when given clear guidance by a determined President, have used reconciliations rules for purposes beyond the original intent. The first notable event in this history occurred in 1981 when President Reagan and the GOP Senate majority used it to cut spending and taxes by a significant amount. As legislative expert Walter Oleszek has written, “Never before had reconciliation been employed on such a grand scale.”

Liberals like Klein will suggest that this justifies, in some ethical sense, the use that Harry Reid is now apparently planning for budget reconciliation. Conservatives will use words like “jam” and “ram” and phrases like “the nuclear option” to argue that there is no such justification.

When it comes to legislative procedure, I am a strict Hobbesian. There is what a Senate majority can do, and what it can’t do. “Appropriate” or “inappropriate” are not applicable phrases. Congress is sovereign over its own procedures, which are the product of self-interested members working to secure reelection and/or policy goals. Morality doesn’t enter into it. (See the note at the bottom of this post for another thought on this topic.)

I’ll go a step further to suggest that people with strong policy preferences should rarely be listened to in a debate about appropriate procedure. People who care intensely about the final vote tally often don’t care how the votes are counted, so long as they get their preferred outcome. This is why there was no hue and cry coming from most of these born-again majoritarians on the left when the Democrats were looking to filibuster judicial nominees in 2005. It is easy to find numerous examples of conservative hypocrisy on this subject, too.

Michael Gerson in WaPo:

Obama now approaches the Rubicon. The Senate is in disarray. Its procedures frustrate his purposes. Before crossing the river with his army, Julius Caesar is reported to have said, “Let the dice fly high!” For what stakes does Obama gamble?

First, the imposition of a House-Senate health-reform hybrid would confirm the worst modern image of the Democratic Party, that of intellectual arrogance. Parties hurt themselves most when they confirm a destructive public judgment. In this case, Americans would see Democrats pushing a high-handed statism. It is amazing how both parties, when given power, seem compelled to inhabit their own caricatures.

Second, this approach would almost certainly maintain conservative and Republican intensity through the November elections. In midterm elections, it is intensity that turns a trend into a rout. It is one thing to pour gasoline on a populist bonfire. It is another thing to pour gasoline on a populist bonfire while one is already being roasted.

Third, this action would undermine Obama’s own State of the Union strategy, which seemed like a shift toward the economy and away from health-care reform. The White House finds it impossible to settle on a strategy and stick with it. Democrats keep being drawn back into debates — Reid is now proposing the return of the “public option” — they have lost decisively, as if one more spin of the roulette wheel will recover their losses.

Fourth, a reconciliation strategy would both insult House and Senate Republicans and motivate them for future fights. The minority would not only be defeated on health reform but its rights would be permanently diminished — a development that would certainly be turned against Democrats when they lose their majority. Each side would have an excuse for decades of bitterness, creating a kind of political karma in which angry spirits are reincarnated again and again, to fight the same battles and suffer the same wounds.

Fifth, Obama would manage to betray many politically vulnerable members of his own party, proving himself a party leader of exceptional selfishness. Because the legacy of his presidency is at stake, or because of his pride, or because he is ideologically committed to an expanded public role in health care, Obama is pressuring Democratic members to join a suicide pact. When a president doesn’t care about his party, his party eventually ceases to care about him.

Democratic leaders respond: Since we have already taken the damage for proposing health reform, we might as well get the benefit for passing something. But there is always more damage to be taken on a self-destructive political path. And, in this case, there is a respectable alternative: approve and take credit for incremental reforms while blaming Republicans for blocking broader changes.

Obama’s decision on the use of reconciliation will define his presidency. If he trusts in his charmed political fortunes and lets the dice fly, it will raise the deepest questions about his judgment.

Breitbart.TV

Ed Morrissey:

Or maybe God just figured that Joe Biden wasn’t terribly serious about this 2005 prayer, unearthed by Breitbart TV and Naked Emperor News today. He was not the only Democrat bemoaning “majoritarian, absolute power,” either, or complaining about unilateral rules changes at that time. Barack Obama and Hillary Clinton join Biden as current administration officials who have suddenly seen the light of majoritarian power:

[…]

“I pray God when the Democrats take back control we don’t make the kind of naked power grab you are doing.”

Dianne Feinstein said on the Senate floor that “it begins with judicial nominations, next will be executive appointments, and then legislation.” Now, Democrats want to skip over the first two — which never happened — and leap right to legislation. Chuck Schumer called the 2005 suggestion to exempt judicial nominations from the filibuster as “almost a temper tantrum”; if that was the case in 2005, what does 2010 represent? A psychotic break from reality? Strauitjacket time?

It smells like desperation from a political party groaning under the heavy burden … of an eighteen-seat majority.

UPDATE: Ezra Klein

Jonathan Chait at TNR

UPDATE #2: Greg Sargent

Orrin Hatch in WaPo

Andrew Samwick

Atrios

UPDATE #3: Rachel Maddow:

Michelle Malkin

Jonathan Cohn at TNR

Ezra Klein

Daniel Foster at NRO

Brian Darling at Redstate

Ana Marie Cox and Rich Lowry at Bloggingheads

UPDATE #4: EJ Dionne in WaPo

UPDATE #5: Mike Allen at Politico

Jonathan Chait at TNR

Paul Krugman

Brad DeLong

John Cole

Mr. Yglesias Goes To Washington Or The Filibuster Follies

Matthew Yglesias:

We’re suffering from an incoherent institutional set-up in the senate. You can have a system in which a defeated minority still gets a share of governing authority and participates constructively in the victorious majority’s governing agenda, shaping policy around the margins in ways more to their liking. Or you can have a system in which a defeated minority rejects the majority’s governing agenda out of hand, seeks opening for attack, and hopes that failure on the part of the majority will bring them to power. But right now we have both simultaneously. It’s a system in which the minority benefits if the government fails, and the minority has the power to ensure failure. It’s insane, and it needs to be changed.

Instapundit:

CAN I CALL ‘EM, OR WHAT? Back in September, noting a continuing pattern of White House incompetence, I predicted: “Expect this to play out in thumbsucker columns on whether America is ‘ungovernable.’”

And, right on cue, here’s Matthew Yglesias: “The smarter elements in Washington DC are starting to pick up on the fact that it’s not tactical errors on the part of the president that make it hard to get things done, it’s the fact that the country has become ungovernable.”

Funny, that dumb cowboy Bush seemed to get a lot done with fewer votes in Congress. . . .

Plus, from the comments: “There have been no major institutional changes in the United States government in recent history that have caused it to ‘become ungovernable.’ There just isn’t enough political support to enact various news laws and policies that you favor. Tough. If you hadn’t become seduced by the delusion that Obama is a ‘progressive’ and that last year’s election represented some kind of historic realignment in favor of ‘progressive’ policies you might have seen this coming.”

Moe Lane at Redstate:

Actually, I agree with both Reynolds *and* Yglesias.

The country is indeed ungovernable.

…By Democrats.

Yglesias:

My observation the other day that the country has become ungovernable has been treated with general scorn by the right-wing blogosphere. Glenn Reynolds, for example, had the simple quip “Funny, that dumb cowboy Bush seemed to get a lot done with fewer votes in Congress.”

Well, okay, but did he get a lot done?

Maybe “ungovernable” was not a good word for this, but I meant to convey the fact that the political system seems incapable of addressing large-scale objective problems. For example, there’s the long-term fiscal deficit. For another example, there’s anthropogenic climate change. For another example, our tax code is a very inefficient means of raising revenue. For a final one, our health care system involves a massive level of waste. These are real problems, not just ideological bugaboos. And I don’t think anything from the Bush administration experience should give us confidence that they’re solvable. Mostly Bush got “a lot done” by dodging those problems. When he did edge toward tackling them—his tax reform commission, for example—he got nowhere.

Perhaps the clearest way of making the point is simply the observation that George W Bush’s administration had a horrible record. Remember how by the time he left office his political party was completely discredited? Remember how conservatives were distancing themselves from the Bush legacy? If that’s what success looks like in modern American government, then we’re really doomed.

David Weigel at Washington Indepedent:

Matthew Yglesias, making another version of his argument that the multiple veto points in the legislative branch overly empower the minority and make America “ungovernable,” drew a quip from Glenn “Instapundit” Reynolds: “Funny, that dumb cowboy Bush seemed to get a lot done with fewer votes in Congress.” Yglesias clarifies: “I meant to convey the fact that the political system seems incapable of addressing large-scale objective problems.”

I think if Reynolds were to revisit his quip, he’d have to agree with Yglesias. What, after all, did Bush “get done” on domestic policy? As a libertarian like Reynolds knows, his biggest policy achievements made the government bigger, kicking costs down the road for someone else to pay. In 2001 he made an alliance with liberals and got the No Child Left Behind Act passed. In 2003 he made an alliance with liberals and got Medicare Part D passed. When Bush put his weight behind the sort of reforms that Reynolds likes, and that his base wanted — Social Security reform, for example — it died in Congress.

The big exception to all of this, of course, was tax policy. Bush got enormous supply-side tax cuts through Congress. But as Reynolds must know, those tax cuts didn’t need 60 votes to get through the Senate; they went through the budget process and needed 51 votes. I don’t think anyone would make the argument that tax cuts should have to pass a supermajority threshold. I know very few conservatives who are glad that Democratic filibusters, when the party was at an ebb of 45 Senate seats, could kill entitlement reform. But in our current system, cost-shifting policy like that is easy to pass and large-scale policies are tough to pass — note that “deficit hawks” like Sen. Kent Conrad (D-N.D.) are not proposing actual entitlement reforms, but toothless “commissions” to look at those reforms.

Ed Morrissey:

Funny, but I don’t recall Yglesias demanding those changes while Democrats were in the minority in the Senate.  Tom Daschle was no less obstructionist, and Democrats managed to kneecap George Bush on judicial appointments without writing cris des coeurs over ungovernable America.  In fact, Democrats openly bragged about using the Senate’s ancient methods of corralling the majority, even on the novel issue of judicial appointments where such procedures had rarely been used.  And yet George Bush and the Republicans still managed to govern, and that was just a couple of years ago.

Ta-Nehisi Coates:

I caught this over at Andrew’s place, and think it’s worth flagging. Patrick noted Ed Morrissey pointing to Yglesias’s alleged hypocrisy on the filibuster:

Funny, but I don’t recall Yglesias demanding those changes while Democrats were in the minority in the Senate.

There’s a similar note below about liberal hypocrisy. For whatever’s it’s worth, it should be noted that Matt is actually on the record as opposing the filibuster back in 2005. I’m not totally convinced because I haven’t thought much about what a filibuster-less world would look like. Still, at least in Matt’s case, killing the filibuster isn’t a new argument born out of the current congressional make-up.

And here’s Matt Y in 2005 in the American Prospect:

Washington is abuzz with talk that the Senate Republicans will deploy the so-called “nuclear option” — in essence, violating the rules of the Senate to eliminate the possibility of mounting a filibuster against a presidential nominee — in order to obtain the confirmation of a handful of President George W. Bush’s appointments to the federal judiciary. Senate Democrats, naturally enough, are plotting a second strike: Through various manipulations of the Senate rules, they will bring the entire legislative process to a grinding halt. And rightly so. There’s no particular reason why filibusters should be banned just for nomination votes, and there’s certainly no justification for doing so in a way that violates the Senate’s rules. The politics of the fight that would ensue are uncertain but probably winnable for the Democrats. The substantive outcome — no passage of any bills of any sort — is the best liberals can hope for, given the current correlation of political forces inside the Beltway.

There is, however, a better way. Democrats should counter loose talk of going nuclear with a proposal of their own: The Senate as a whole could vote, through proper procedures, to end filibusters on votes of all kind, allowing passage of any bill (or nominee) that can secure a majority vote. Republicans may reject the offer, of course. But if they do so, that will only strengthen the Democrats’ hand politically in combating the nuclear option — by demonstrating a fair-minded commitment to principle over short-term partisan advantage.

Alternatively, the GOP might agree. In the short term, this would produce bad results: confirmation for some bad judges. In the long run, however, eliminating the filibuster will be good for liberals, and Republicans will rue the day they decided to sacrifice a major prop of conservatism in order to put a handful of under-qualified nominees on the bench.

[…]

At any given moment, the filibuster rule helps the minority party. Right now, that’s Democrats. But taking the long view, the filibuster is bad for Democrats. Ideally, you’d want to get rid of it at just the ideal moment. But, realistically, that can’t be done; only minority-party acquiescence will let it happen. Now’s a good time for Democrats to show some rare appreciation for the importance of long-term thinking and let the right shoot itself in the foot — rather than giving them yet another tool with which to rile up their base.

Matt Y now:

Meanwhile, I have the reverse hypocrisy accusation. All those conservatives who were upset about minority obstruction when Bush was president know there will be a moment of conservative political power again in the future, right? Don’t they think that if conservatives win an election based on conservative ideas they should get a fair chance to put those ideas in place? I won’t be thrilled to see it happen, but I’m glad to accept it as part of a fair trade and have been for years.

James Fallows:

The history here is well known to everyone interested in politics but worth summarizing. For most of the first 190 years of the country’s operation, U.S. Senators would, in unusual circumstances, try to delay a vote on measures they opposed by “filibustering” — talking without limit or using other stalling techniques. For most of those years, the Senate could cut off the filibuster and force a vote by imposing “cloture,” which took a two-thirds majority of those voting (at most 67 of 100 Senators). In 1975, the Senate adopted a rules change to allow cloture with 60 votes, and those are the rules that still prevail.

The significant thing about filibusters through most of U.S. history is that they hardly ever happened. But since roughly the early Clinton years, the threat of filibuster has gone from exception to routine, for legislation and appointments alike, with the result that doing practically anything takes not 51 but 60 votes. So taken for granted is the change that the nation’s leading paper can offhandedly say that 60 votes are “needed to pass their bill.” In practice that’s correct, but the aberrational nature of this change should not be overlooked. (The Washington Post’s comparable story is more precise: “A bloc of 60 votes is the exact number required to choke off the filibuster, the Senate minority’s primary source of power, and the GOP‘s best hope of defeating the bill.”)

Again, this is a very well-explored issue in the academic literature and much of the blog world. For blog and magazine discussions, see here, here, here, here, and here. An authoritative academic treatment came from David Mayhew, of Yale, in his 2002 James Madison lecture for the American Political Science Association. It is available here in PDF and very much worth reading. Sample passage:

“That topic is supermajority rule in the U.S. Senate– that is, the need to win more than a simple majority of senators to pass laws. Great checker and balancer though Madison was, this feature of American institutional life would probably have surprised him and might have distressed him….
“Automatic failure for bills not reaching the 60 mark. That is the current Senate practice, and in my view it has aroused surprisingly little interest or concern among the public or even in political science. It is treated as matter- of-fact. One might ask: What ever happened to the value of majority rule?
Everything I have mentioned here is familiar, including the fact that this newly-invented “check” was not part of the original check-and-balance constitutional design. But somehow it isn’t familiar, in the sense of being part of general understanding and mainstream coverage of issues like the health reform bill. Talk shows analyze exactly how the Administration can get to 60 votes; they don’t discuss where the 60-vote practice came from and what it has done to public life. I have a gigantic article coming out soon in the Atlantic — long even by our standards! but interesting! — which concerns America’s ability to address big public problems, compared in particular with China’s. The increasing dysfunction of public institutions, notably the Senate, is a big part of this story.

Paul Krugman in NYT:

Back in the mid-1990s two senators — Tom Harkin and, believe it or not, Joe Lieberman — introduced a bill to reform Senate procedures. (Management wants me to make it clear that in my last column I wasn’t endorsing inappropriate threats against Mr. Lieberman.) Sixty votes would still be needed to end a filibuster at the beginning of debate, but if that vote failed, another vote could be held a couple of days later requiring only 57 senators, then another, and eventually a simple majority could end debate. Mr. Harkin says that he’s considering reintroducing that proposal, and he should.

But if such legislation is itself blocked by a filibuster — which it almost surely would be — reformers should turn to other options. Remember, the Constitution sets up the Senate as a body with majority — not supermajority — rule. So the rule of 60 can be changed. A Congressional Research Service report from 2005, when a Republican majority was threatening to abolish the filibuster so it could push through Bush judicial nominees, suggests several ways this could happen — for example, through a majority vote changing Senate rules on the first day of a new session.

Nobody should meddle lightly with long-established parliamentary procedure. But our current situation is unprecedented: America is caught between severe problems that must be addressed and a minority party determined to block action on every front. Doing nothing is not an option — not unless you want the nation to sit motionless, with an effectively paralyzed government, waiting for financial, environmental and fiscal crises to strike.

Jack Balkin:

This is a time of crisis in American politics: not a crisis created by danger or emergency but by the gradual decay of government institutions. Americans need a Senate that works. The President and the Democrats have an obligation to resolve this crisis, not only for themselves, but for the benefit of the later administrations of both parties.

A government that can do nothing, and is perpetually held hostage to selfish men and women, will lose legitimacy and the confidence of the public; it will weaken and decay, and, sooner or later, find itself unable to respond to crises when they occur. Then the public will demand emergency measures from the executive, acting alone without the consent of Congress, further weakening republican government. A desperate or unscrupulous president will be only too happy to comply. Either we make Congress capable and responsive, or we will eventually lose the republic.

Kevin Drum:

So what would it take to get people to care? One answer: a high-profile supporter.  If Sarah Palin suddenly tweeted that the filibuster is a threat to democracy, for example, everyone would start talking about it.  But who else is a plausible candidate for this?  The president, of course, but he’s not going to.  Anyone else?

Another answer: a popular, high-profile issue that gets blocked repeatedly by a 40-vote minority. Unfortunately, genuinely popular, high-profile issues generally don’t get filibustered.  That’s why Supreme Court vacancies are filled pretty quickly but appellate court vacancies aren’t.  So it’s not clear what issue would fit the bill here.

And a third answer: some kind of fabulously effective grass roots campaign.  That seems pretty unlikely to me, though.  Any other thoughts?

Pejman Yousefzadeh at The New Ledger:

But the big step by extremists will be an attempt to eliminate the filibuster, so that the courts can be packed with judges less committed to upholding the law than Mr. Greer.

–Paul Krugman, back in 2005, decrying the “religious right’s” supposed motivation to eliminate the filibuster in the Senate, so that Republican-appointed judges can strike down “conscience” or “refusal” legislation that may “allow doctors and other health providers to deny virtually any procedure to any patient.”

. . . we need to take on the way the Senate works. The filibuster, and the need for 60 votes to end debate, aren’t in the Constitution. They’re a Senate tradition, and that same tradition said that the threat of filibusters should be used sparingly. Well, Republicans have already trashed the second part of the tradition: look at a list of cloture motions over time, and you’ll see that since the G.O.P. lost control of Congress it has pursued obstructionism on a literally unprecedented scale. So it’s time to revise the rules.

–Paul Krugman, today. Of course, he wasn’t as exercised when Senate Democrats “trashed the second part of the tradition” while in opposition to filibuster appellate court nominees from the Bush Administration.

I have written this before, but it bears emphasis: It appears that Paul Krugman is unaware of this thing called “Google” or “archives” that allow people to go back, examine past and present statements from particular pundits, and determine whether the pundit in question has been hypocritical in the past.

UPDATE: More Fallows

Ezra Klein

UPDATE #2: Bruce Bartlett

UPDATE #3: Ezra Klein in WaPo

Byron York at Washington Examiner responds to Klein

Ed Kilgore at TNR responds to York

Jay Cost at Real Clear Politics on Klein

Ross Douthat

UPDATE #4: Will Wilkinson

UPDATE #5: Reihan Salam

UPDATE #6: More Douthat

UPDATE #7: Mark Schmitt and Byron York on Bloggingheads

Thomas Geoghegan at NYT

Ezra Klein

Kevin Drum