Obstruction: Update

by hilzoy

Recently, when I wrote about Republican obstruction in the Senate, some readers wanted to know how the Republican record of obstructing legislation stacked up against previous Senates. I was curious myself, and thought: well, if I find some free time, maybe I'll prowl around in a database of Senate votes and see how many are cloture votes, and do the same for earlier Senates. Unfortunately, I didn't get around to it. Fortunately, McClatchy did:

"Seven months into the current two-year term, the Senate has held 42 "cloture" votes aimed at shutting off extended debate — filibusters, or sometimes only the threat of one — and moving to up-or-down votes on contested legislation. Under Senate rules that protect a minority's right to debate, these votes require a 60-vote supermajority in the 100-member Senate.

Democrats have trouble mustering 60 votes; they've fallen short 22 times so far this year. That's largely why they haven't been able to deliver on their campaign promises.

By sinking a cloture vote this week, Republicans successfully blocked a Democratic bid to withdraw combat troops from Iraq by April, even though a 52-49 Senate majority voted to end debate.

This year Republicans also have blocked votes on immigration legislation, a no-confidence resolution for Attorney General Alberto Gonzales and major legislation dealing with energy, labor rights and prescription drugs.

Nearly 1 in 6 roll-call votes in the Senate this year have been cloture votes. If this pace of blocking legislation continues, this 110th Congress will be on track to roughly triple the previous record number of cloture votes — 58 each in the two Congresses from 1999-2002, according to the Senate Historical Office.

Senate Majority Leader Harry Reid, D-Nev., forced an all-night session on the Iraq war this week to draw attention to what Democrats called Republican obstruction.

"The minority party has decided we have to get to 60 votes on almost everything we vote on of substance," said Sen. Claire McCaskill, D-Mo. "That's not the way this place is supposed to work.""

I knew it was bad, but I didn't know that the number of cloture votes so far was three times the previous record.

***

Most systems of rules only work when most people are prepared not to try to push for their greatest possible advantage. I think that too many people sue without good grounds these days, but imagine what would happen to our court systems if literally everyone who had any remotely plausible case for damages sued. We have a big problem with tax evasion, but imagine what it would be like if no one paid their taxes unless a cold calculation of the costs of paying versus the likelihood of getting caught showed that they should.

My favorite example (at least, I assume it's an example) of this comes from a talk radio show I heard in the 80s, in which the host had somehow gotten hold of the military specifications for toothpicks, which were apparently absurdly long and detailed. Ha ha ha, said the talk radio host: those ridiculous bureaucrats, imagining that they have to have a rule for everything, and ending up with a 48 page document specifying what counts as a toothpick.

I had a different reaction. I thought that that document, in all its absurdity, probably reflected a lot of experience with people trying to get around the rules. It was easy to imagine. Probably, I thought, back in the days of the Continental Congress, the army just went out and bought toothpicks without any particular fanfare. But then some clever person had the idea of buying all those toothpicks from his brother-in-law at a sizable markup. Hey, I imagine him saying: the army gives me discretion to buy toothpicks: why not abuse it? In response to this sort of problem, competitive bidding was introduced. I imagine that at first, people just relied on common sense to tell them what a toothpick was. But presumably people tried to game the system, for instance by insisting that only their brother-in-law's toothpicks -- the ones with the outrageously inflated prices -- were sufficiently high-quality for our boys in uniform. So the army began to specify what counted as a toothpick, and to require that the lowest bid for a "toothpick", so defined, be accepted. At this point, I imagine, people started to sell the cheapest things they could find that met that definition. If the army didn't actually say that a toothpick had to be at least two inches long and no more than an eighth of an inch wide, they would accept the lowest bid and get scrap lumber. If they didn't say that a toothpick had to be cut along the grain, not across it, they would receive the shavings from planed lumber, carefully cut into strips, like linguini. And so on, and so forth, until you end up with a 48 page document defining "toothpick", all because people tried to game the system.

I think that it's a good thing that filibusters are an option: that in cases of deep division, the minority party has the power to prevent debate from coming to an end, and thus to prevent laws from being enacted, so long as they can muster forty votes. But it is only a good thing if it is not routine. If it is used all the time, then it amounts in practice not to an extraordinary measure reserved for cases that really deserve it, but a requirement that bills get 60 votes if they are to pass the Senate. That's a different thing entirely, and one that I would not approve of -- especially since, given that every state, no matter how small its population, gets two Senators, and thus that Senators representing very small populations could end up blocking any substantive legislation.

It would be much better if all Senators had a sense of responsibility about using the filibuster: if they recognized that in the long run, the only way to preserve it is to use it sparingly. At present, I do not think that they do. And if we are forced to choose between requiring a 60 vote majority for all significant legislation and requiring a simple majority, I would choose a simple majority every time. But I'd much rather preserve the third option: a right to filibuster that is not abused.

Comments

[KCinDC]

I had some of those thoughts back when Al Gore was going around with the ashtray talking about government specifications.

[Steve]

But remember, when the Democrats approved hundreds of Bush's judicial nominees, and filibustered only the half-dozen or so they found most objectionable, that was deemed an unprecedented level of obstruction by the Republicans. It's almost as if they have a double standard.

[cw]

It's almost as if they have a double standard.

They have whatever standards they think will advance their interests. In other words, no standards at all.

I've always found it interesting to see what kinds of laws other societies have (or had). Laws, like regs, don't just appear in a vacuum. And all those ridiculous product warnings? You can be sure that some lawsuit is behind almost every one of them.

[blatherskite]

Extraordinary claims of executive privilege and presidential power?
After debasing himself with lies and "I don't knows" in congressional testimony, the Atty General doesn't resign even if the Dept of Justice morale and functioning goes to hell.

Having a rent-a-riot fomented by staffers to change vote counting in Florida in 2000.

Today's Republican party doesn't respect tradition, comity, custom, or what once was the regular functioning of our political process (all arguably true 'conservative values'). It's amazing how much advantage you can get if you don't care about that stuff.

Everything is for political advantage. Once you realize that,you realize what a difficult and longterm threat they are.

[blatherskite]

Regarding the comment by me just above:
There was a parenthetical comment missing from my comment above. Between "functioning goes to hell" and .. "Having a rent-a-riot" was the parenthetical (insert any of dozens of things all the way back to ...)

[Sorry, I hadn't respected tradition and used angle brackets instead of parens or brackets. If only politicians were so punished by not respecting tradition.]

[hilzoy]

I suppose one reason I understand the long product warnings etc. is because by now, after teaching for a while, I have a long list of things I say when I assign papers, all of which are the result of some episode or other. I say: this is due by 5pm on whatever day; why? Because of the time one of my students appeared at my home at 11:50pm, paper in hand.

[Gary Farber]

"They have whatever standards they think will advance their interests. In other words, no standards at all."

The thing is, the Republican blogs repeat this and worse about the Democrats all the time, constantly, non-stop. So when they hear it from Democrats, they know it for an obvious "lie," which they "know" is all that Democrats do.

That it happens to be true in one case, but not in the other, is irrelevant to many. Thus our problem.

[Incertus (Brian)]

Just a couple of things--first off, the current Congress has beaten the record for cloture votes, etc., but they're only on track to triple the total. They haven't tripled it yet.

The other thing is that perhaps the best way to stop the abuse of the filibuster would be to require the filibustering party to actually stand on the Senate floor and halt business. All of this threatening to filibuster bills and taking cloture votes to see if one side can force the other to a vote strikes me as (and forgive the descent into geekiness) similar to the "war" between Vendikar and Eminiar 7, where computers decided who had died and the people were trained to go to suicide booths.

If the Republicans want to filibuster bills, make them pay the price for it. make them do the actual work. And the same goes for the Democrats if and when they find themselves in the minority again. That's the only way to make it selective again.

[blatherskite]

Gary Farber wrote: "That it happens to be true in one case, but not in the other, is irrelevant to many. Thus our problem."

Exactly. And the frivolous use of impeachment over blowjobs has poisoned the well for the use in circumstances which warrant it. It hurt the Repubs poll numbers for a while, but it crippled Clinton and it reduced the seriousness of impeachment.

I didn't say the problem was easily solved but Republicans can't continue to have few consequences for doing it.

I'd prefer less pussyfooting and more direct and robust tactics. You wanna filibuster? Ok, stand there for hours and filibuster against troops getting 12 months off for 12 months on.

This is one reason the Dems should stop listening to the DC press. As Fred Hiatt regularly demonstrates, Dems will be punished for taking on republicans in any case. May as well do it balls-to-the-wall.

[Equal Opportunity Cynic]

Most systems of rules only work when most people are prepared not to try to push for their greatest possible advantage.

No, I disagree greatly. Most systems of rules provide a framework where everyone pushing for greatest advantage neutralizes each other. That's certainly the brilliance of the Constitution.

Ironically, viewed from this perspective, the problem with Congressional Republicans isn't that they seek power too vigorously. The problem is that they meekly cede all their power to any president with an R after his name, no matter how bad that president's ideas.

Of course there is a sense in which the Congressional GOP is still very selfish, and that's the part that the Founders didn't account for sufficiently. To me no amount of party success would be sufficient compensation for the humiliation of going down in history as Bush/Cheney's lapdog, but that's why I'll never win an office in the present two-party system. The system right now rewards "team players" with the team in question not being our country as a whole, but one or another party representing 30-40% of the electorate.

[Shazam McShotgunstein]

The GOP senators are taking a big risk by creating an ideal situation for the filibuster rule to be overturned.

They're using the non-stop filibusters to block tremendously popular legislation - causing Congress's approval among Americans to tank - and at the same time, they're blaming the Democrats for not being able to get anything done - causing the GOP senators' approval among the Democratic senators to tank (well, even moreso).

So, they have created a situation where eliminating the filibuster rule and going to straight majority vote on cloture would offer the Democratic senators a way out of being accused of not being able to get anything done, and offer the American people a way out of Congress not being able to pass the legislation they eagerly want. They're creating an overwhelming constituency for elimination of the filibuster power.

If only Reid & company have the cojones to take advantage of that situation.

They could still say that they're only eliminating the rule temporarily, as a necessary response to the ridiculous abuse of the power that the GOP senators have committed - while Reid holds up an 8-foot-square copy of that graph from McClatchy (or Sheldon Whitehouse, he has a flair for presenting giant, compelling visual aids).

I don't think restoring the filibuster rule at the end of this Senate term would be a bane, either, because I have little doubt the Democrats will hold close to 60 seats, if not 60 outright, next term.

[Delicious Pundit]

I sure as hell don't see what's so great about the filibuster. Our system was built with enough sand in its gears without another (extraconstitutional) supermajority requirement.

This post is on one of my favorite themes: how custom decays and hardens into law. I have always thought that some of this was a function of population growth -- when you have a small community, you can bend the rules a little bit, but, as the community grows, the temptation to game the system is bound to grow also.

[Equal Opportunity Cynic]

Our system was built with enough sand in its gears without another (extraconstitutional) supermajority requirement.

Well, I'd consider the sand in the gears to be a feature, not a bug, as they say.

But more to the point: Was there really enough sand in the gears to ensure that we only invaded Iraq after due diligence? If not, and if that issue is typical, can you really say there's "enough" sand in the gears?

I'd like to see more sand in the gears, in the form of 4 or 5 major parties that can't rule without building a coalition. That way, if one goes of the deep end like the present-day GOP, the other 3-4 can ostracize them, get them out of power, and move the debate on to terms that better represent the broader political spectrum.

[Slartibartfast]

Well, I think I'd seen enough out of Mel Martinez to consider voting for his opponent, whoever that might be, next time around; this only reinforces that. Bill Nelson has already had my support, not that he needs it.

[Incertus (Brian)]

As a fellow Floridian, Startibartfast, I'm with you on Martinez, but I'm ready to primary Nelson in 2012, if he runs for re-election.

[Slartibartfast]

"primary"? You mean, vote for his opponent in the primary?

I'm not a HUGE fan of Nelson, but I'm also not a registered Democrat.

[radish]

Shorter (partial) hilzoy: We have 48-page milspecs for toothpicks for the same fundamental reason we have brains, digestive systems and eyeballs -- evolution by natural selection.

To which I would add: Amen. We can mock evolution all we want, but it ain't gonna stop happening.

[Ara]

Oh the problems of living in the richest country in the world, where people have so few real external threats that they have the luxury of turning against one another to try to steal as much as possible from one another, eviscerating our institutions in the meanwhile!

[Lars]

Why aren't the Democrats forcing the Republicans to filibuster, as opposed to honoring the threat? It seems like such a blindingly obvious political move to pick a piece of popular legislation that they refuse to pass, and force them to stand in front of national television shutting down the legislative branch by droning throughout the night. Anyone have an explanation, other than some combination of cowardice and political deafness?

[Nell]

I knew it was bad, but I didn't know that the number of cloture votes so far was three times the previous record.

Well, not to go all Gary Farber on you or anything, but I quoted extensively from Harry Reid in response to that same commenter's question, and the threefold ratio showed up there as well.

[Nell]

Anyone have an explanation [of why Reid won't force an actual R filibuster], other than some combination of cowardice and political deafness?

C-SPAN. The Dem leadership's particular form of political deafness and cowardice makes them reluctant to give the Rs the nonstop camera coverage a real filibuster would entail.

However, doing just what you suggest is the demand of many Democratic pressure groups (something I also mentioned in the previous thread, though only with a link). My own suggestion is to start with Webb's adequate-rest-for-troops bill; I predict Rs would cave. If they did, Reid & Co. should then bring on the Medicare-negotiate-with-big-Pharma bill. Both wildly popular, very easy to generate bipartisan support from the grassroots.

[Nell]

In answer to Lars, Ara has some more possibilities (posted -- perhaps accidentally? -- at the end of the previous thread):

If the Democrats are not pushing and making them actually filibuster, there really are only two candidate explanations.

(1) They do not actually want these bills passed, which could be a possibility. Maybe they prefer this political theater and think they can score points against the Republicans as obstructionists.

(2) They are afraid of escalating owing to some greater threat. What could that be? Well, the only thing I can think of is Joe Lieberman. He keeps threatening to switch sides. Maybe Joe is holding a gun to Reid's head.

[john miller]

I agree with Nell. One of the things that has bothered me is that many of the more important bills have been actually amendments to other, somewhat necessary to pass legislation.

Why is there a Webb amendment rather than a Webb bill?

If the Republicans want to filibuster a stand alone bill that demands that the troops have appropriate rest and not extended deployments, let them. And make it the issue, rather than just an amendment to something else.

[Nell]

I'm cynical enough not to rule out Ara
s alternative #1.

Some of the 'pocket filibustered' bills are priorities for the Democratic base, but could conceivably cut off more campaign dollars than they'd generate. I'm thinking of the Employee Free Choice Act; putting it off to beyond the next election could bring in some corporate dough for the DSCC, and the unions could be palmed off with the old refrain of "Help us elect more Dems and we'll pass it in 2009; after all, we can't do anything without 60 Senate votes."

Ditto the Medicare negotiating with Big Pharma -- could Chuck Schumer resist the temptation to try to wring dollars out of the drug companies by promising to bottle up that bill? I put nothing past the power players in our money-soaked system of legalized bribery as campaign funding.

[Nell]

Why is there a Webb amendment rather than a Webb bill?

Because the Defense Authorization bill is veto-proof (or, let's say, highly veto-resistant).

Webb's perfectly willing to offer it as a standalone bill, and I doubt such a bill would meet with any resistance in the Armed Services Committee. It's up to the leadership.

It has outstanding possibilities as good policy and political wedge (or political wedgie).

[Morat20]

One reason: Filibustering brings the entire Senate to a halt. Nothing gets done. I think committees might still meet, but I'm not even sure of that.

No bills pass -- not even unrelated ones. The only official Senate business becomes the filibuster.

This Congressional Session came into session having to do a great deal of the work of the last session (virtually all the approrpriations, for one) and has a backlog of bills they're trying to get out of conference now (ethics and lobbying reform, to name some).

Now, if I were a Democratic Senator, this is what I would think:

I can force the Republicans to filibuster, close down the Senate, and pass some bill limiting Bush's authority. He'll veto it, and I don't have the 60 votes to get cloture, much less the 66 to override. This accomplishes nothing except forcing the GOP to go on record as actively obstructing, since I cannot actually pass the bill over Bush's certain veto.

Ergo, forcing the GOP to actively filibuster is now an act of pure political theater -- at what point will it be most damaging to the Republican party and especially the Republican Senators to force them to talk a bill to death? At what point will this get the maximum number of constituents to chew them out over it, maximizing pressure?

Answer: Not now. September, maybe -- lots of Republicans are on record about September. Having them filibuster an attempt to enforce their own statements would probably give you pretty big bang for your buck.

In the meantime, things like Reid's mini-filibuster prevent them from casting CYA votes to reduce pressure from their constituents.

In one sense -- it's pure political theater. It's purely partisan timing. Why is it purely partisan timing? Because effective action is precluded by Bush's veto power, his legendary stubborness, and by the reality GOP political considerations.

It's cold, calculated, and very practical. If you cannot, no matter what you do, force a change in the status quo on iraq, you spend your time by working on the things you can accomplish (various other bills, committee investigations), and arrange your actions on Iraq to cause the most political damage to Republicans.

You do not allow them to vote on CYA amendments. You force them to fibiluster when the spotlight is particularly bright, when pressure is highest.

Some people don't like that -- certainly if you believe the Democrats could accomplish something on Iraq with enough pressure, it's not a good strategy.

Sadly, I find the Senate Democrat's view on Iraq to be the most realistic. They cannot overcome Republican calls for cloture. Even if they forced the issue (nuked the filibuster, forced a real filibuster, whatever) they lack the votes to override a veto -- and does anyone doubt Bush would veto it?. Since they cannot force Bush's hand without 16 Republican votes, all they can really do is maximize the political damage.

I think I'm seeing the opposite of Charles' famous "Will to Victory" here -- it seems some people are certain that if the Senate Democrats just have enough willpower, they'll manage to accomplish something.

The Green Lantern Theory of Congressional Action, I suppose. It's not realistic. In the end, it's just math. 10 Republican votes to break cloture. 16 to break a veto.

Currently, we can't even find 10 Republicans willing to make Bush veto a bill, much less another 6 to override it. All that's left is political theater, because the Senate Democrats can't do squat until the GOP decides to help. That's reality.

[john miller]

But as part of a different bill, it doesn't get the publicity for what it really is. And as the funding bill shows, with this President, who has no regard for our troops or the military or the nation as a whole, there is no thing as veto-proof.

[Ara]

Nell: Thanks so much for resuscitating my post from that thread! How on earth did it get there?

[Hartmut]

Unfortunately there is no guarantee (to put it mildy) that the spotlight will be aimed at GOPsters filibustering. The current one is already painted as a DEMOCRATic filibuster, not a GOP one, in some influential media (and I don't mean Rush).
According to that it is Reid who obstructs the legislation by ordering the marathon debate.

Getting totally rid of the filibuster looks to me more like removing the brakes of the car because they sometimes activate without order. Just imagine Bush/Cheney with a congressional majority that could pass ANYTHING they wanted. I guess with that we would be in (or after) WW3 already, including preemptive nukes.

[Jeff Eaton]

John Cole has picked it up, too.

[Nell]

@Ara: Maybe you opened a window to follow the link in my comment, and put the comment there by mistake? The post titles are similar.

The only reason I caught it is that I had that window open to grab another link, and refreshed in order to see the recent comments on the new post.

[CharleyCarp]

Nell, what will it take to get a vote out of Warner to end the war? There's no success in any legislative effort without getting Warner on board (because if there's ever to be either a 10 or a 16, he's going to be in it).

I'm not sure Reid could be doing anything more effective to get Warner's vote.

[dmbeaster]

I second Morat20. Sums up exactly what the dynamics are, as well as the notion that the timing for forcing a real filibuster is for a later date.

I can understand why people are frustrated that nothing can be done now, and want something to be done. I do think there is more that can be done to increase the political pressure, and there is a real lack of message discipline so that Reid's point is clear.

But in terms of bottom line analysis, keeping the heat on and putting of the real fights for later this year makes enormous sense.

It definitely is going to put the spotlight on the Petraeus report, which should be another round of Bush spin.

[KCinDC]

What's this 16 that people keep mentioning? We need 17 Republicans to override a veto, right? That's 49 Democrats + 1 Bernie Sanders + 17 Republicans = 67. And that's assuming Tim Johnson is back.

Sure the Democratic majority is 51, but that's counting Lieberman, who on this issue is way over on the other side, less likely to vote with us than most Republicans are.

[Nell]

Nell, what will it take to get a vote out of Warner to end the war?

Wish I knew. I don't think he's going to run again in 2008. Americans Against Escalation in Iraq, about which I have mixed feelings, is organizing around the state, but their focus is electoral (no matter what they say publicly; they're only going after Republicans).

The only thing I can imagine that would make Warner part of a pro-cloture 60 is some actual or impending military disaster that sends high-ranking officers in for a "let's get real" sit-down with him.

Given what is said about the Army and Marines' situation next spring, I can only hope someone will have that talk with him soon. Webb has maintained a good relationship with him, but can't, of course, have the kind of effect he had before rejoining the Democratic Party. Webb might be able, through direct or indirect channels, to get some high-ranking Marines to have that talk with Warner.

[Barry]

Moarat20: "Answer: Not now. September, maybe -- lots of Republicans are on record about September. Having them filibuster an attempt to enforce their own statements would probably give you pretty big bang for your buck."

They're already laying the propaganda base for September being too early to decide.

Remember that the GOP (including, just to be sure, Petraeus), have been spouting happy happy fun talk on Iraq for years now; they still have a base which believes.

[CharleyCarp]

Ok, KC's right about the numbers: 11 and 17. There's no such thing as either number without Warner. There just isn't.

I'm not sure Reid's go a better option than just re-doing the thing every two months until enough Republicans get scared enough by their own constituents that they're ready to give in.

[Noumenon]

That chart with the McClatchy article is just the kind of context I was looking for, Hilzoy. Thanks a lot.

I still wonder about all those non-filibuster ways to stall bills that Nell was telling me about, but counting the filibuster attempts by themselves still paints a good picture.

[rea]

Why is there a Webb amendment rather than a Webb bill?

Because it is tied to spending, spending bills have to originate in the House, and Webb is a Senator?

[Nate]

I would put no trust in Warner changing. He's talked about opposing Bush's war once or twice, but every time it comes down to rubber and road, he bails.

And all I've ever gotten back from his office any of the times I've written or emailed has been a form letter, often unrelated to what I wrote. I've got a big stack somewhere around here.

[J Thomas]

I gave up on writing to Warner about iraq after june 2005. Around the beginning of august I got back a form letter about painting iraqi schools.

While iraq was incomparably better off in june 2005 than it is now, we'd already gotten past the point that paint on schools was a credible response.

Warner did say he was doing a thorough investigation, though. That was something.