Broken

by hilzoy

Finally, four months after his nomination, Harold Koh has been confirmed by the Senate as the State Department's legal advisor. Various Republican Senators have put holds on Koh. They threatened to filibuster, and 31 of them voted against cloture. 

The Republicans who voted in favor of his nomination were Olympia Snowe, Susan Collins, Richard Lugar, Mel Martinez, and George Voinovich. Those who had the decency to vote for cloture even though they opposed his appointment were Lamar Alexander, Judd Gregg, and Orrin Hatch. 

Meanwhile, Dawn Johnsen's nomination remains on hold, although TPMDC reports that she has -- gasp -- been seen in DC, so maybe things are looking up on that front as well.

This should not be happening. Normally, nominees for administration positions are confirmed unless there's some reason to think that the nominee is just beyond the pale. But this time, the Republicans seem to have decided that they will filibuster things at will. The government cannot function this way. The Senate is broken, and it needs to be fixed.

I'm in favor of having a filibuster so long as it is used only in extreme situations. But the understanding that it will be so used has broken down. Reporters who should know better routinely write that some bill or nominee cannot get "the sixty votes needed to pass", as though it were standard operating procedure for the Senate to require qa supermajority.

It is not. And if the Senate Republicans want to make it into one, it's time to end the filibuster (though I'd be open to keeping it for judicial appointments, which are for life.)

Comments

[Tony P.]

I'm sure this has been discussed in previous filibuster-related threads, but what would be the implications of changing the rules so that cloture can be invoked by 3/5 of those present rather than 3/5 of the entire Senate?

Keeping the filibuster as an option, especially for lifetime appointment votes, seems prudent. This country has been nuts enough to elect Republican majorities to the Senate before, and might someday do it again. Abolishing the filibuster altogether seems dicey in the long run.

The trouble with the current set-up is that the minority doesn't have to turn out in force to defeat cloture. A 59-1 vote for cloture fails, as I understand it. The minority doesn't even have to bother showing up. That is just plain ridiculous.

--TP

[JR]

Yes, the Senate is broken, but fixing it starts with sacking Reid. To me, that is beyond obvious... but no one's going to do it, and if they won't bother with problems that obvious then there's no way they're going to tackle really heavy stuff. And why should they? They don't answer to anyone but their local constituents. Why make waves?

[Warren Terra]

I'm sure this has been discussed in previous filibuster-related threads, but what would be the implications of changing the rules so that cloture can be invoked by 3/5 of those present rather than 3/5 of the entire Senate?

Indeed, this was the entire point of a very important post by Hilzoy earlier this year describing the mechanisms and tactics of the filibuster and why as currently constituted it's much more costly to the side trying to pass the legislation than to the side doing the filibuster. At least, that post was where I first learned about those aspects of the filibuster.

On the subject of this particular cloture vote, good for Orrin Hatch. His hypocrisy on the subjects of nominees, filibusters, and especially judicial appointments has previously appeared nearly boundless, so it's good to see him doing the right thing this time - though I worry that he's just building his credibility for use in future outrages.

[Jesurgislac]

Tony: I'm sure this has been discussed in previous filibuster-related threads, but what would be the implications of changing the rules so that cloture can be invoked by 3/5 of those present rather than 3/5 of the entire Senate?

What has repeatedly been proposed is that Senators who invoke a fillibuster ought actually have to fillibuster - if they want to stand for days reading out recipes and card games in order to stop someone from being confirmed, let them.

I think it's much the same - keep the fillibuster as an option, but make it cost something to the people who invoke it.

[Hartmut]

I can only repeat my proposal that for-life appointments should simply require a 60% or 2/3 majority by law (or even better by constitution), if the whole for-life could not be abolished instead.
Other countries have detailed rules about what majorities are required for what purpose, so why can't the US do the same*? That would make the filibuster essentially superfluous.
The alternative would of course be a legal version of Pride's Purge ;-)

*OK, purely rhethorical question. I know there are several standard answers that usually allow to identify the worldview of those giving them.

[cleek]

i wonder if the R's abuse of the filibuster is intended to get D's to try to do away with it ?

that would make for some good GOP fundraising

[Pithlord]

The critical part of the present equilibrium is that most Democratic senators like the de facto sixty vote super-majority. The Blue Dogs like it because it constrains Obama and they all like that it makes the Senate much more powerful.

It's possible to imagine that changing, but the Republicans won't really do anything that would be so unifying for the Democratic caucus that it would change.

Whether that's good or bad depends on wha you think of Obama's legislative agenda.

[Gobo Fraggle]

Jesurgislac shares my opinion. I'm fine with the filibuster, but I'm sick of a threat of filibuster having the same result as an actual filibuster. Reid rolls over and displays his throat every time someone even mentions the word.

If they want to filibuster a nominee or bill, let them do it. Let them sleep sitting up, wear the same clothes for however many days, and eat nothing but take-out brought in by their staffers. I'll bet after one or two of those, especially given the elderly nature of many Senators, they'll be a little more sparing about the tactic.

[Bernard Yomtov]

I agree with Hartmut that it would be better to just have a 60-vote requirement for judicial confirmations. The complexity(1) of the whole filibuster business does nothing but make the process, and the actions of individual Senators, obscure.

(1) No, it's not really that complex, but I bet a fair percentage of the population, including reporters who talk about 60-vote requirements, doesn't understand it.

[Ben Alpers]

I was once a strong supporter of a reformed filibuster, but I've lately become more or less convinced me that there's no good argument in favor of it. It's defensible neither in theory nor in practice. It has always been a much more effective tool for the right than for the left. End it, don't mend it. And the problem with lifetime appointments to the Supreme Court is that they are lifetime appointments to the Supreme Court. If we insist on having them, the right reform is a simple supermajority confirmation vote (as Hartmut suggests) rather than maintaining a special filibuster rule.

[Ben Alpers]

Reid is only a symptom of a much larger problem. He has the full support of the Democratic caucus. Reid is the kind of leadership Senate Democrats want and any likely replacement would provide them with more of the same.

The problem is the Democratic Party, not Harry Reid.

[Hartmut]

You see, the government-provided health insurance does not cover spine transplants or antipsychotics.

[Pithlord]

Ben Alpers' position would make sense, except that the only reason the Democrats have a Senate majority is that they nominate people who don't think like Ben Alpers to run for the Senate, especially in Red States. The median Senator probably represents the median voter in the median state.

[Ben Alpers]

Ben Alpers' position would make sense, except that the only reason the Democrats have a Senate majority is that they nominate people who don't think like Ben Alpers to run for the Senate, especially in Red States. The median Senator probably represents the median voter in the median state.

While it's certainly true that people who hold my political views are unlikely to get elected to the Senate in red--or for that matter blue--states, it does not follow that the median Senator represents the median voter in the median state. Nor does this have anything much to do with this discussion, which concerns Harry Reid's apparent leadership failures.

Harry Reid is incapable (or unwilling) to take full advantage of the prerogatives of the Senate majority (which are, admittedly, more constrained than the prerogatives of the House majority). This in turn means that he is often unable to deliver on the promises that the actual Democratic Senators made to actual Democratic voters.

Reid's inability/unwillingness to turn (what are supposedly) the positions of the Democratic majority into legislation has less to do with the views of the median voter in the median state and more to do with the political culture of the Democratic Party's leadership, a culture formed not by reflection (even imperfectly) of voters' desires, but rather by a variety of structural and historical factors over which a number of political and economic elites have a lot more say than do the voters who elect the Senators.

[Ben Alpers]

Also, fwiw, half the Senate was elected in non-presidential election years, in which the median voter in the median state didn't vote at all.

Arguing that whatever the Senate does, it must by definition represent the will of the voters is political panglossianism.

[Pithlord]

I think it is unwillingness, not inability, and is not peculiar to Reid. Most Democratic Senators want to give 40 Seantors a de facto veto. That's both because it increases their individual power and because it puts a block on the more liberal President and House. On this second part, they probably faithfully represent their own voters' preferences.

The "median voter" is a statistical artifact and, of course, votes by definition. There's no evidence that non-voters are more liberal than voters, but even if they were, it wouldn't matter.

[Ben Alpers]

I think it is unwillingness, not inability, and is not peculiar to Reid. Most Democratic Senators want to give 40 Seantors a de facto veto. That's both because it increases their individual power and because it puts a block on the more liberal President and House. On this second part, they probably faithfully represent their own voters' preferences.

I agree with most of this. I'm not sure that Obama is actually more liberal than most Democratic Senators, but House Democrats certainly are.

More significantly, I'm not at all convinced that Senators represent the will of their voters on, for example, a real public option for health care. In part this is by design. The Framers structured the Senate to be less influenced by the will of the voters than the House. Even with the popular election of Senators, longer terms mean that they are, in certain ways, less influenced by voters' desires than either Congresspeople or even Presidents.

[cleek]

their 6-year, staggered, terms and the at-large nature of the office may reduce the amount by which Senators are influenced by voters. but it does nothing to limit the amount by which they are influenced by lobbyists and big business.

and that's the problem.

[polyorchnid octopunch]

I think you could fix the filibuster situation by making them, you know, actually filibuster in fact instead of the the virtual filibuster that's going on now. You want to filibuster? Start reading the phone book until the clock runs out.

[wj]

Rather than saying that a Senator represents the median of his or her state, it would be a whole lot more accurate to say that he shows the median of those who vote in his party's primary...and that his party's median is closer to the overall electorate's median than the median of the other party.

Thus, to take an example from real close to home, Senator Barbara Boxer (D-CA) is nowhere near even California's median voter on lots and lots of issues. But she is closer than the opponents she has been lucky enough to get out of the California Republican Party.

[tgirsch]

I agree 100% with polyorchnid, or however the heck you spell that. If you make them ACTUALLY filibuster, that's a huge disincentive against overuse.

[Harald Korneliussen]

Letting them filibuster anything they want, no matter what practical hoops you set up for them, is just silly. Making legislation is ugly enough as it is without adding to it the circus of marathon phone book reading sessions.

So don't you agree with Harmut, people? Wouldn't it be better to just add supermajority requirements to those issues deemed "too important to lose the ability to filibuster"? I don't see anyone explaining why this is a bad idea, yet I don't see anyone changing their minds either.

Polyorchnid Octopunch, Gobo Fraggel, or Jesurgislac: why are practical annoyances a better way to rein it in, than just setting down the borders once and for all when there should be a supermajority requirement and not?

[Harald Korneliussen]

wj: Senators are obviously lousy at representing the median voters of a state, but they are also pretty bad at representing the median voters in their primaries. Even in party primaries, where it would be easy and beneficial to change, the parties persist in using FPTP.

It just shows how far elecoral reform has left to go...

[Ben Alpers]

Rather than saying that a Senator represents the median of his or her state, it would be a whole lot more accurate to say that he shows the median of those who vote in his party's primary...and that his party's median is closer to the overall electorate's median than the median of the other party.

If this were the case, Barbara Boxer and Dianne Feinstein (who were actually elected in the same year as one was filling out an expired term) would have identical positions on the issues. Clearly they don't.

Voters, even primary voters, don't get to choose from an infinite array of possible candidates who collectively represent all possible positions within their party. Nor do they base their choice among the limited number of serious (i.e. well-funded) primary candidates that do run purely on the basis of positions on the issues.

When primary voters are selecting a challenger or a candidate for an open Senate seat, a whole series of contingent factors determine among whom they get to choose. About a year before the 2006 election, the leading Democratic candidate to challenge then incumbent (and pro-choice) Republican Sen. Lincoln Chaffee in RI was anti-choicer Jim Langevin. Pro-choice groups hounded him out of the race. Eventually the liberal and pro-choice Sheldon Whitehouse won the nomination and the seat. This turn of events had nothing whatsoever to do with the median RI Democratic primary voter.

And of course, once a Senator has been elected, they become very, very hard to unseat, especially in a primary. For at least a dozen years before he switched parties, Arlen Specter did not represent the views of the median Republican primary voter in Pennsylvania.

The Senate was not designed to be a democratic institution. And not surprisingly it doesn't function as one.

[Old Soldier]

I don't mean to give away my age but, does anyone remember how senators used to be chosen.( was not at the first battle of Bull Run)

[Gary Farber]

"... does anyone remember how senators used to be chosen."

Large corporations would bribe state legislators, when political bosses weren't arranging the appointments on their own.

I'm thinking we should perhaps try Confucian competitive exams.

Or reality show contests.

[Gobo Fraggle]

"why are practical annoyances a better way to rein it in, than just setting down the borders once and for all when there should be a supermajority requirement and not?"

Because filibustering is supposed to be difficult to do. It is only allowed in the first place because this was assumed to be true.

Because grinding obstructionist Senators down through sheer exhaustion is something that Reid could do now without having to put a rules change to a vote (if he had any balls, that is).

[mds]

To everyone longing for Senator Reid to force a scene reminiscent of Jimmy Stewart or Strom Thurmond, it is apparently time once again to link to this.

The key portion thereof:

As both Reid's memo and Dove explain, only one Republican would need to monitor the Senate floor. If the majority party tried to move to a vote, he could simply say, "I suggest the absence of a quorum."

The presiding officer would then be required to call the roll. When that finished, the Senator could again notice the absence of a quorum and start the process all over. At no point would the obstructing Republican be required to defend his position, read from the phone book or any of the other things people associate with the Hollywood version of a filibuster.

"You cannot force senators to talk during a filibuster," says Dove. "Delay in the Senate is not difficult and, frankly, the only way to end it is through cloture."

If this analysis is true, it's a whole lot easier to be the blocking side than to be the side trying to hold a vote. The only reason to stand on the floor talking is to make a point. And Republicans don't have any point to make. So good luck tarring them with the optics of repeated quorum calls.

Now, as to why filibusters were so rare until recently if they're that easy to make stick? Good question. Perhaps comity or mutual interest really did used to count for something.

[bc]

so it's good to see him doing the right thing this time - though I worry that he's just building his credibility for use in future outrages.

So nice to see you agreeing the appointment of Koh is an outrage! :).

[Marty]

Well, I can't find it off the bat, but the basic premise that this new to the Republicans in this Senate is simply not close to true. There were hundreds of appointments of varying kinds from these political appointments to judges that the Democrats held up for all 8 years of the last administration. It's not really broken though, because the Senate was designed to do everything slowly to offset the perception of the dangers of the House. Not really a bad design.

[Matthew Austern]

I'm wondering the same thing that mds is. Nowadays it's taken for granted that there's a 60-vote supermajority requirement in the Senate. As recently as 10 or 20 years ago, though, that wasn't true: it was understood that filibusters were rare and extraordinary, only used for issues that specific Senators were passionate about. Controversial bill used to pass with fewer than 60 votes.

What I don't understand is what changed. It seems to me that the incentives in the mid 70s were the same as today. Has there been some subtle change in the formal rules that non-experts like me didn't notice? Is this a symptom of the fact that parties' ideological coherence is greater now than it once was? Or did filibusters once have a cost, even if it was an informal cost, that prevented them from being used as the routine tool that Republicans have turned them into today?

[hilzoy]

Marty: "Well, I can't find it off the bat, but the basic premise that this new to the Republicans in this Senate is simply not close to true. There were hundreds of appointments of varying kinds from these political appointments to judges that the Democrats held up for all 8 years of the last administration."

Actually, no. There's a chart here (if you care, this article is by Norm Ornstein, a conservative.) It shows that the number of filibusters rose throughout the 90s, dropped again in 2000 (when we had the Senate), dropped again when we lost control to the Republicans, and skyrocketed during the last Congress, when the Democrats retook control.

[mds]

I've been thinking some more about what Mr. Austern picked up on, so:

Is this a symptom of the fact that parties' ideological coherence is greater now than it once was?

Yes, if a party begins acting in lockstep, with a non-cooperation model, the old case of individual senators holding something up over personal objections becomes rare. The Senate becomes a parliament with a supermajority requirement and staggered, diluted electoral feedback.

Or did filibusters once have a cost, even if it was an informal cost, that prevented them from being used as the routine tool that Republicans have turned them into today?

This probably follows from the first. The Senate was a collegial body, where being a senator often trumped party affiliation, and horse-trading was the order of the day. So as long as legislation tended to be bipartisan, and individual senators weren't voting in lockstep with their party, there was probably a sort of mutual assured destruction at work. "Hold up too many of my bills, and I'll start blocking bills that you want." But again, once a party's only goal is to obstruct (or gut) all legislation in hopes that it makes the other party "fail," and is sufficiently united around the idea, then the whole thing goes off the rails.

Hmm, if that analysis about quorum calls is correct, perhaps reform could consist of requiring a filibuster to hew closer to people's romantic image of one. Then it might go back to being a last resort.