Senatorial Courtesy, Blue Slips Caught in the Fallout

Ian Millhiser has a very good piece on judicial nominations and blue slips over at Think Progress. It covers a lot of ground and is a wonderful read.

However, I do have some bones to pick with his take. At the core of Millhiser’s argument are blue slips and their place in Senate history. He contends that blue slips, the process by which home-state senators grant approval to president’s judicial nominees, has little rooting in Senate process and history. There are a couple problems with this.

First, blue slips are the Judiciary Committee’s extension of senatorial courtesy. While the formal practice of blue slips, with letters from the Committee to the nominee’s home state senators, extends back to at least 1917, senatorial courtesy extends to the 1st Congress (1789-1791). There is no formal rule outlining the practice but it stems from a very rich history of “advice and consent.” In this way, blue slips are not unlike many Senate practices. The Senate is heavily guided by customs and precedents. Blue slips are not an aberration to this principle. Rather, they are a modern example of that history.

Second, it is improper to compare today’s blue slip process with those in prior congresses. Given my training is in congressional development and history, this is not an argument I normally make. However, the advent of the post-nuclear Senate has fundamentally changed the importance of the blue slip process.

For most of Senate history, the blue slip process has not been absolute. Failure to approve of a nominee did not prevent floor consideration, though it often meant the demise of the nominee. Today, floor consideration for judicial nominees is fundamentally different. The minority party no longer has the ability to filibuster judicial nominees (except SCOTUS nominees). Because of this, the majority can run roughshod over minority opposition, effectively ignoring their concerns as they approve judicial nominees by majority vote.

This has shifted minority opposition from the floor to the committee room. With no other place to stop or slow the nomination process, it is not surprising that blue slips are now in the crosshairs.

Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, is the first Senator since James Eastland (D-MS) to use blue-slips as an effective veto on a nominee. As Forrest Maltzman and Sarah Binder point out, blue slips were never intended to be a veto. However, Leahy’s position as arbiter of the blue slip is much more precarious post-nuclear option. And in all likelihood it is untenable. Arguments like Millhiser’s illustrate Leahy’s predicament. Either Leahy adheres to his current blue slip practice and hopes Republicans honor it when they retake the majority (either in 2015 or later), or he can ignore it and ensure its demise under Republican majorities.

The nuclear-option has stressed the blue slip process. With no other avenues to object, the minority has turned to its few remaining tools. Unfortunately, the nuclear-option’s collateral damage includes the minority’s role in “advice and consent” on nominations, and now appears to threaten advisory practices that stem from senatorial courtesy.

In a polarized atmosphere it is easy to become frustrated with bipartisan practices, precedents, and customs. However, eroding these customs compromises the Senate’s function as the check on overambitious majorities.

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Liberal Bias in the Classroom: College of Charleston vs. the State Legislature

Yep.  You’ve no doubt heard it.  College professors, who are disproportionately liberal, skew the views of their impressionable students by assigning leftist books and poking fun at conservatives in the classroom.  Rick Santorum famously called colleges “indoctrination mills” and anecdotes certainly abound.  But is there any systematic evidence of this?

But while the “liberal bias in academia” mantra is so widespread, making it hard to get worked up about it much less write a blog post, recent events at my institution—the College of Charleston—merit some attention.  At issue is the book “Fun Home” by Alison Bechdel.  While the book explores various “coming of age” issues, the central themes are sexual orientation, gender identity, and Bechdel’s complex relationship with her closeted gay father.  Further, “Fun Home” is written in the style of a graphic novel, which, you know, nakedness!

Anyway, because “Fun Home” was supposedly purchased with “tax payer money” (it wasn’t) and was “required” reading (it wasn’t), the South Carolina legislature voted to strip $52,000 out of the College’s budget (the overall cost of the reading program).  Coincidently, the legislature stripped $17,000 from USC Upstate for also assigning a “gay themed book.”  Rep. Gary Smith, one of the originators of the proposal, was quoted as:

I understand diversity and academic freedom. This is purely promotion of a lifestyle with no academic debate.

Colleagues at the College of Charleston (see excellent articles by John Warner, Alison Piepmeier, Tim Carens, and Chris Korey) have addressed various dimensions of this issue, ranging from the necessity of academic freedom to the value of campus reading programs.

I felt it important to address the bigger issue: Can college professors actually sway the views of their impressionable students?  In fact, this is the underlying issue (which is implicit in Rep. Gary Smith’s claim that the book “promotes” a lifestyle).

So… is there any evidence that college processors turn their students into liberals?  The answer: No.  In an innovative paper, political scientists Matthew Woessner and April Kelly-Woessner sent surveys randomly to 200 political science professors and their students, asking questions about party identification, ideology and the appropriateness of discussing personal politics in class.  Notably, Woessner and Kelly-Woessner conducted the survey twice: once at the beginning of the semester and once at the end.  Armed with this data, they were able to assess if students became more liberal or conservative over the semester and whether changes in ideology correlate with the professor’s views.

Here’s what they found in the data:

  • Despite instructors’ best efforts, most students are able to accurately guess their professor’s partisanship.
  • According to the result of the survey, 28% of students reported a change in their partisanship during the semester.  Notably, much of this shift is toward the Democratic side of the aisle.
  • Most importantly, however, this movement does not correlate with either (1) the students assessment of the professor’s beliefs or (2) the instructor’s actual beliefs.

As Woessner and Kelly-Woessner explain:

While student views do shift over the course of a semester, they tend to move somewhat randomly, usually regressing toward the mean…Thus, while students’ partisan orientations did shift over the course of time, the changes are hardly what one might expect if faculty members were systematically indoctrinating their students.

What’s often lost in the debate about bias in college classrooms is the larger question about where political attitudes come from.  According to published studies, children experience the greatest growth in their political learning during adolescence (not college) and by about 9th grade children develop an ability to think in ideological terms (Erikson and Tedin 2011, pg. 128).  In terms of party identification, the biggest influence on preadult socialization is not schools or even peers, but that of the family.  According to one estimate, 76% of children have the same partisan attachment as their parents (Erikson and Tedin 2011, pg. 132).

Simply put, in addition to the lack of systematic evidence that professors “indoctrinate” their students, the assumption that college students are “impressionable” is not supported either.  In fact, overly political college professors are likely to generate one kind of outcome more than any other: negative evaluations!  Seriously.  In yet another study, Kelly-Woessner and Woessner show the partisanship yields negative classroom evaluations and a general dislike of the subject matter.

But how are we to make sense of the fact that students’ political attitudes do move in a modestly Democratic direction during college?  Well, it’s important to be clear what we’re talking about.  Studies have shown that education is strongly correlated with greater tolerance, which in turn has a liberalizing effect on social issues (Erikson and Tedin 2011, pg. 139-142).  It’s also true that college students are exposed to a large volume of media and interact with a more diverse segment of the population and are therefore at the forefront of changing social norms.  But on economic issues, there is no aggregate change over the course of a college career.  In fact, the better educated are typically more conservative on economic issues (Erikson and Tedin 2011, pg. 139-42).

In sum, college certainly has an effect on the views of college students, and one of those is a liberalizing effect on social issues (but on economic issues, there is no change).  But the evidence does not support the view that it’s “indoctrination” or the “promotion of a particular lifestyle” by individual faculty or assigned textbooks.  Rather, this outcome stems broader educative effects, an exposure to more diverse groups of individuals, and greater media consumption by young adults.  In all seriousness, the “solution” would be to simply avoid college altogether.

Finally, I’ve had this conversation before.  One response is: “So two college professors did a study of college professors and found no evidence of liberal bias?  I’m skeptical of this study’s objectivity.”  Well, for starters, the paper was peer reviewed in a leading political science journal, which should stamp out faulty research methods.  But second and perhaps more importantly, Matthew Woessner is a conservative himself!  I’d also direct skeptics to Mike Munger’s excellent book “Scaling the Ivory Tower” which was published by the conservative Institute for Humane Studies.  In this book, Munger (a noted conservative) explains that while bias in academia certainly exists to an extent, it’s much smaller than conservatives realize.

—–

Robert Erikson and Kent L. Tedin “American Public Opinion” (2011, eighth edition).

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A Caveat on Congressional Productivity

On Thursday, Chris Cillizza examined an Obama statement in Texas: “This has become the least productive Congress in modern history, recent memory. And that’s by objective measures, just basic activity.” Cillizza agrees and extrapolates this a little too far, saying this Congress is the least productive in history. By the numbers many would argue this isn’t exactly accurate, but I’d argue he’s ultimately right.

First, if we take Obama’s statement at face value, he is right. This Congress is on pace to be the least productive in modern history (modern, in this instance, referring to the post-WWII period). However, it is decidedly not the least productive in history. The current Congress has thus far passed 98 laws. This is awful but it is not the fewest in American history. The 113th Congress, though it still has a couple months to legislate, is already more productive than several congresses prior to the Civil War. So strictly speaking this Congress will not be the least productive in history.

If you think that is a low-bar to evaluate policy productivity, you’re right. To fully examine policy productivity, we need to account for the need for policy. In short, what should Congress be doing. Reauthorizing existing policies and programs, addressing pressing social problems, or fixing broken policies are at the core of congressional responsibility. Sarah Binder examined policy demand in Stalemate to examine gridlock since 1947. She found that even when controlling for policy demand gridlock has still increased over the post-war period. This reaffirms what we already knew but doesn’t evaluate policy demand in the antebellum period (mostly due to data constraints), the last time we saw productivity levels this low.

We already know there were several antebellum congresses that passed fewer laws, so the 113this not the least productive in history. However, when put in the context of policy demand, it very well may be. The Federal Government today has more responsibilities than it did 150 years ago. The Industrial Revolution, and the economic and social problems that accompanied it brought enormous challenges to society and Congress, spurring a slew of labor legislation, economic regulations, and other policies addressing those problems. Modern shipping practices have facilitated interstate commerce. This has boosted economic potential but also made monitoring corporate financial and economic activity and controlling things like food borne diseases more difficult. Technological advances have brought the privacy versus security debate to the forefront of government functions as monitoring private conversations and access to private financial information has become easier.

Social and technological advances have created new problems for governments to address. As a result Congress has more to do. One could argue the best government governs the least, but in many ways that shirks social responsibilities already under the federal government’s purview. Legislators should oversee and direct existing programs toward the proper ends. Unfortunately, unproductive congresses often fail in this capacity. This Congress’s basic budget and spending squabbles have overshadowed this fact. According to CQ, almost a third of discretionary government spending in 2014 funded programs that have not been reauthorized by Congress. Government programs are potentially wasting money on outdated projects because Congress has failed to perform its legislative function.

Pending lawmakers do not want to return to a period where employees were required to work 60 and 80 hour weeks for extremely low pay, food quality standards were lax, basic infrastructure needs were not met, or wiretapping and information hacking goes unchecked, these problems demand attention. However, given the current policy environment these vital functions are largely ignored.

In short, the 113th Congress is not the least productive in history. But relative to policy demand it very well may be.

Posted in American Political Development, Legislative Politics, Policy Agendas, Political Institutions | 1 Comment

Boehner’s Overthrow and the “Then What?” Problem

Boehner’s time as Speaker may be limited. Yesterday Tim Alberta reported on substantial conversations to replace Boehner. This morning Brian Buetler verified that these talks are not particularly covert. According to several accounts, House Republicans are not hiding their dissatisfaction with the leadership. However, as both articles mention the plan suffers from a “then what?” problem. Conservatives’ discontent with Boehner is obvious but they have no consensus replacement.

The successor problem is important. However, it’s unlikely to play a role in determining whether Boehner stays or goes. Naming a successor is ideal but more often than not it isn’t a prerequisite for effectively displacing a sitting speaker.

Here is why. Historically, sitting speakers have avoided electoral confrontations on the House floor. When rumors emerge of a potential coup they have been far more likely to remove themselves before any potentially embarrassing results occur. Thomas Brackett Reed (R-ME), David Henderson (R-IL), and Newt Gingrich (R-GA) are all notable examples. Each stepped down from the speakership amid serious rumors of an overthrow. (To a lesser extent Carl Albert was also facing pressure to step aside, though he announced his retirement from the House in June, well before the rumors reached a critical mass) The only speaker to buck this trend was “Uncle” Joe Cannon (R-IL). In the 61st Congress Cannon ran and again won the speakership despite plans, hatched members of his own party, to deny him the position. However, his tenure was short lived. A year later the Republican Insurgents stripped Cannon of his authority, effectively overthrowing him as Speaker.

Politics is obviously not governed by historical law. Despite popular idioms, we are not always bound to repeat the past. However, these rumors follow some very familiar historical trends. Rumors of Reed’s overthrow began in 1895, four years before his retirement in 1899 to “go make some money.” Speaker Henderson (1899-1903) endured calls for his job throughout his four-year tenure. And Gingrich began facing coup rumors early in his second term in 1997.

Boehner currently finds himself in a similar position. Of course this is speculative. The rumors could die down and Boehner’s coup could never materialize.  However, given Boehner’s refusal to schedule bills that even remotely endanger their 2014 electoral chances and conservative’s discontent with that meager legislative schedule, it appears unlikely the rumors will dissipate.

As Beutler points out the conservative’s plan suffers from uncertainty. Historically, however, this has almost never prevented forced retirement. Is Boehner’s speakership safe absent a challenger? Not by a long shot.

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Will McCutcheon Decision help the House Majority?

To say the Republican majority has struggled with the influence of outside groups during the past two congresses is to put it mildly. These groups have stymied progress on major legislation, counseled members into bad strategic stances with serious economic and political consequences, and generally frustrated House and Senate compromise. From the government shutdown, Hurricane Sandy relief, and the various debt limit bills, these groups have made Speaker Boehner’s job very difficult.

Two big factors make House leaders’ job in the 113th Congress more difficult than in previous years. The first is the ban on earmarks. The second is the growth of outside money in politics. The Supreme Court’s McCutcheon v. FEC decision may ameliorate, to a degree, the influence of outside money by potentially making parties more powerful fundraisers. Will this have a huge effect on House politics? The likely answer is some, but not much.

The 2010 Citizens United decision allows outside groups to raise and spend money more easily than formal party organizations. Rather than develop vast networks of small donors, these groups could raise huge sums of money from only a few individuals. By easing fundraising barriers, their influence in Congress grew because they could credibly threaten sitting members of Congress. They became better suited to bolster or challenge members that did not share their views.

Citizens United also somewhat trivialized traditional fundraising techniques. For example, in 2010 Tom Marino, a candidate mired in scandal allegations, was able to unseat incumbent Chris Carney. While 2010 was a wave election bringing 63 new Republicans to the House, Marino probably should not have been among them. Throughout the campaign Marino trailed Carney by well over a million dollars in fundraising and spending. Yet over the last 2 months of the campaign the ratings shifted from Carney’s favor to Marino’s. Outside groups were able to step in just before the election, close the funding gap and give Marino enough help to pull off the upset. Prior to 2010, this was a virtually impossible scenario. Large funding gaps were difficult to overcome in the final months of an election, even with support from the party. However, today outside groups and Super PACs play a much more central role in elections. In this sense, Citizens United skewed factors that normally forecast candidate success away from traditional predictors like candidate and party driven campaign fundraising, and toward outside influence.

That electoral influence has affected politics within the Republican majority. In recent years, Members have paid closer attention to the key vote alerts sent by outside groups. And at times this has pulled the majority coalition in different directions. In the 113th Congress these groups have actively opposed several leadership priorities, thwarted leadership strategies, and some have started “Fire Boehner” whip lists on their websites. In many ways Citizens United made “getting 218 frogs in a wheelbarrow,” as Speaker Boehner put it, much harder.

That said, campaign funding is only one piece of a broader change in leadership politics. Over the past few years leaders have lost critical tools needed to build coalitions. Prior to 2011, earmarks and campaign contributions were the carrots in the leaders’ pockets. Since then, earmarks were banned and direct campaign contributions were weakened by the growth and quantity of outside money. As a result, leaders’ tools have become more punitive. Rather than sweetening deals, they must rely on negative consequences. Rather than giving something to members, they are more often taking something away. For example, rather than creating jobs in members’ districts through pork-barrel projects, members are threatened, committee assignments are stripped, a member’s bill may be pulled from the floor schedule, and their proposed floor amendments may not be made in order on the floor. In other words members are threatened with less legislative and political influence. This is not to say that these strategies are altogether new. However, today they are the few remaining tools left to the leadership. In this light it may come as no surprise that leaders’ relationship with their rank-and-file has chafed over the past 3-4 years.

So while some expect the McCutcheon decision to empower party leaders, it is not likely to have a big effect. First, the decision affects campaign funding but only slightly. Leaders can coordinate with national party organizations to spread money around more generously. However, caps on contributions to individual candidates still exist. The decision will likely bring outside spending and formal party spending into better balance. However, outside group spending is not going away. And at times, the party may have to fight those groups to keep incumbents loyal to the leadership. It’s likely the party will still lose some of these battles.

These changes will likely have the greatest influence on “middling Republicans,” those not in the Tea Party camp but nonetheless influenced by outside group threats. It’s possible that many of these lawmakers will gravitate closer to the leaders over the next few years. However, as mentioned above, that is hardly a guarantee.

On the other hand, members closely aligned with Tea Party groups are unlikely to suddenly change fundraising strategies, find new money networks, or cozy up to lawmakers they routinely challenge or undermine in public. In other words, don’t expect the Tea Party coalition to suddenly start jumping into Boehner’s wheelbarrow as a result of McCutcheon. Their independence from the leadership will be significant in congresses to come. And without the cooperation of this group, Boehner lacks a majority. So, on many issues, we will likely find ourselves in the same place.

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This Quiet House

This past week the House passed by voice vote the SGR patch, or “doc fix,” setting Medicare physician reimbursement rates. This means we don’t know how individual House members voted. Given the significance of the legislation, this was an unusual departure from normal floor process. It was even more unusual that no member, Republican or Democrat, motioned for a recorded vote. In other words, the first step in a two-step process was not even taken. There was zero attempt to put the votes on record.

It is too early to cite a definitive reason for such voting tactics,  but it increasingly looks like an attempt to help members avoid being “scored” by outside groups. The SGR patch did not have an offset, which means that it added to the deficit. While key-vote alerts did not go out prior to last week’s vote, it is feasible that most majority members did not want to go on record in case these groups decided to score the vote after the fact, as they did on the flood insurance bill.

This past February there was a similar instance on the bill to raise the debt ceiling, which passed with only 28 Republican votes. For years, outside groups like Heritage Action and the Club for Growth – the most effective groups pressuring members – have warned members about voting for these necessary hikes. For the past few years members avoided negative scores by allowing the bill to come to the floor, by voting yes on the rule, but then opposing the bill on final passage. In February, some groups (e.g. Red State) became frustrated by what they saw as the Republicans’ complicit support for the debt hikes and decided to score the vote on the rule. So Republicans and Democrats agreed to voice vote the rule. This allowed Republicans to avoid damaging votes on scorecards and Democrats the opportunity to take credit for passing the debt ceiling hike.

While interest group scorecards were originally intended to keep members honest they are beginning to have the opposite effect, pushing members into unsustainable policy positions. As Jon Bernstein points out, these groups are forcing the House into a position where responsible policymaking is pretty much impossible. Even modest compromises are scored, making it difficult to foresee the potential for any substantial policy revisions. While some argue outside groups’ influence has waned, Thursday’s events suggest they are far from unimportant.

 

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Tradition v. Partisanship: Holds in a Post-Nuclear Senate

Originally posted for the Government Affairs Institute at Georgetown.

Since roughly the 1950s, “holds” have been a staple of the Senate landscape. Though they can’t be found in the Senate rulebook or precedents, holds have played an important role in Senate operations. At times, holds have delayed or killed legislation, as well as executive and judicial nominations.  They also have been used to extract concessions. For example, senators use holds to bring their bills to the floor, to secure amendments, or as bargaining chips with the executive branch (particularly useful on executive branch nominees).

Ever since the Senate used the nuclear option on judicial and executive nominees, there has been a debate about whetherholds on nominations are dead and why. While they are not completely dead, the nuclear option drastically reduced their effectiveness from both a negotiating and delaying standpoint.

Why? A hold is effectively a threat to object to unanimous consent or to filibuster a nomination. Once a hold is made known, it is the majority leader’s prerogative to honor the hold or move ahead. The majority leader is the primary agenda setter in the Senate, so it is his decision. There are a lot of factors to consider, but time is the most important.  The majority leader has to weigh the importance of the nomination against the amount of time it will take to overcome the dilatory tactics that accompany trying to overcome a hold.

This means holds are effective on some nominations but not very effective on others. For example, holds on minor nominations – i.e., a district court judge or low level executive branch nominee – are particularly effective. It is unlikely the majority leader will want to spend a week of Senate floor time trying to overcome dilatory motions on a minor nomination. On the other hand, there is little chance the majority leader would honor a hold on a major nomination. Some positions are so important that the Senate must consider the nominee, regardless of the stalling tactics employed. For example, Janet Yellen, the Chairman of the Federal Reserve, would be considered, or at least voted on, regardless of the number of holds placed on her nomination.

In both senses, the nuclear option drastically reduced the effectiveness of holds. With only 51 votes required to invoke cloture, nominees can be considered and passed with only majority party votes.

What does this mean? As a tactical tool, holds are now much weaker. For one, there is no longer any need for the president or majority leader to consult with the minority leader on important nominations. In the pre-nuclear Senate, Republicans had significant negotiating power on big-time nominations like Yellen. It was significant enough that if they wanted, they could have denied cloture on Yellen and forced Obama to find another nominee. Today, the majority can effectively ignore the minority’s wishes and push ahead. Second, the Senate can now also move with ease to appoint nominees to more minor judgeships and executive branch positions. So even for nominations on which holds were considered the most effective, their utility is now drastically reduced.

This is where I depart from Jon Bernstein’s take. Yes, Republicans placed holds on almost all judicial and executive branch nominees. However, the effect of the nuclear option uniformly reduces the validity of a hold. The threat no longer carries the same weight. Not only will they not produce negotiating leverage, they also will not obstruct Senate operations to the same degree. The minority’s ability to prevent action, and therefore gain concessions if they wish, was undermined in a fundamental way. And as a result, the Senate has less reason to reach back to its tradition of bipartisanship.

The caveat is that this is temporary. Next Congress, the compromise that reduced debate time on more minor executive and judicial nominations will end. And as @Mansfield2016 points out, the minority could force 30-hours of debate on all nominations. This could have a huge effect. It is unlikely that the majority leader, whoever that may be, has 1) the followership in the respective caucuses to force all-night sessions on a routine basis or 2) the desire to use days of floor debate on lower level nominations, forcing the Senate to delay action on other bills or nominations.

In sum, the nuclear option has likely produced short-term relief for a president trying to fill the executive and judicial ranks. However, it has come at the expense of norms that encouraged the parties to interact. The next Congress will test whether the Senate is moving closer to a majoritarian type of institution.

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