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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Voting Against the Debt Limit Is for Losers Redux

A few minutes ago, the House voted 221-201 to approve a “clean” debt limit increase.  What’s interesting about this—aside from all of it—is that this is yet another violation of the so-called “Hastert Rule” which says that party leaders ought to keep bills off the House floor that divide the majority (more specifically, where a majority of the majority party ends up on the losing side of a roll-call vote).  With only 28 Republicans voting for the debt limit increase, this is certainly a violation of said rule.

What follows is a re-blog of a post from October modeling votes for and against the debt limit.  What we find in the data is that debt limit votes are non-ideological (despite the “principled” arguments from conservatives).  Rather, they are very clearly partisan votes, with the party controlling the White House typically voting for raising the debt ceiling while the opposing party typically votes against it (hence the conclusion that voting against the debt limit is for losers).  I’ll take a look at the most recent vote tomorrow and see if these conclusions hold in light of tonight’s vote.

The full post is available here.

—————

For this post, I examined three distinct roll-call votes in both the House and Senate on raising the debt limit. Notably, the votes examined in this post are “clean” in the sense that there aren’t extraneous provisions included in the bill.  Most importantly, the votes occurred during three district periods: (1) in 2009 when Democrats controlled both chambers of Congress, (2) in 2004 when Republicans controlled both chambers of Congress, and (3) in 2001 when both parties controlled Congress.  The bills are 111 HR 4314, 108 S 2986, and 107 S 2578.

Here’s the results of a logit analysis (1 vote for increasing the debt limit, 0 vote against).  I tested three independent variables: if a lawmaker was in the majority, ideology, and chamber.  In the 107th Congress, Democrats are coded as the minority given that the President was a Republican.  This helps us apply the results to the current Congress.

Regression

Who votes for increasing the debt limit?  Lawmakers in the majority.  In other words, voting against the debt limit is for losers!  Specifically, lawmakers in the majority have an 89% probability of voting to raise the debt limit.  By the way, this applies to both Democrats and Republicans.  Notably, Barack Obama voted against raising the debt limit when he was in the Senate while Mitch McConnell and John Boehner voted to increase the debt ceiling when they were in the majority.

What about ideology?  Despite the conventional wisdom that conservatives are “fiscally prudent” and are more likely to oppose increasing the debt limit for principled reasons, there’s no evidence of that.  Conservatives vote to increase the debt limit just as often as liberals.

What’s perhaps most interesting about the results are the House and Senate differences.  Controlling for the above, we see that representatives are less likely to vote to increase the debt ceiling than senators.  Why would this be?  Well, senators are insulated from public opinion because of their staggered six-year terms.  Voting to raise the nation’s borrowing limit is unpopular.  Thus, representatives have more to fear in voting to raise the debt limit than senators for the simple reason that they’re constantly up for reelection.

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Why Americans “Tune Out” the State of the Union

With the State of the Union just a few hours away, the political science blog-o-sphere is all abuzz.  The essential reading list includes:

  • Can presidential speeches sway public opinion?  Jonathan Bernstein weighs in here.
  • Does the State of the Union help a presidnet’s approval  “No,” according to John Sides.
  • Seth Masekt opines on the media spectacle that is the State of the Union, and notes the symbolic yet important role that Congress plays.
  • And Ben Lauderdale wins “chart of the day” with his graph of the ideology of State of the Union speeches from 1986-2012.

I wanted to address a different question: Is the State of the Union facing an existential threat?

I was asked this question recently, and my answer is generally “no.”  In short, while presidential speeches have witnessed a general decline in viewership of late, the State of the Union still commands considerable media attention.  For example, last year’s SOTU was watched in almost 25 million households according to Nielsen.  Monday’s Grammys, which captured “big ratings,” had a comparable audience, while Wednesday’s episode of American Idol was watched in about half the number of households as last year’s SOTU.

Nonetheless, State of the Union viewership is in decline.  It’s important to note that a general decline in presidential speech viewership began sometime around the early 1980s, so the cause is likely systemic than transitory.  Thus, I’m skeptical that the SOTU drinking game is a long-term solution.  The question is therefore: Why the overall decline in presidential speech viewership?

In an APSR article published in 1999, Matt Baum and Samuel Kernell examine two plausible hypotheses.  First, declining viewership could be a function of political disaffection with the presidency.  In the present context, perhaps fewer people will watch tonight’s speech because they simply disapprove of Obama.  Second, Baum and Kernell hypothesize that with the advent of cable television and greater programming options, more Americans are simply changing the channel.

Baum and Kernell find no evidence for the first hypothesis: political disaffection has no effect on STOU viewership.  Additional research supports this view, finding that presidential approval is not a predictor of whether an individual watches a presidential speech (see a 2000 article by Reed Welch).  However, there is indeed considerable evidence that cable—and it’s greater array of programing options—has decreased the capacity for presidents to communicate “directly” to the American people. As they aptly put it: “What broadcast technology gave the president, cable technology appears to be taking away.”

I think it’s also important to point out the possibility that polarization is to blame as well.  It makes sense that Republicans are more likely to “tune out” tonight’s State of the Union while Democrats are more likely to “tune in.”  And there is, indeed, some evidence to support this view.  For example, in the same study cited above, Welch found that respondents who were on the president’s side of the aisle and referred to themselves as “strong” partisans were more likely to watch a presidential speech while independents and those on the opposite side of the aisle were less likely to tune in.  In short, it seems likely that the usual partisan filtering–evident in numerous studies of media consumption–has decreased overall viewership as our politics have become increasingly polarized.

Finally, while the State of the Union isn’t facing an “existential threat” in the aggregate, the decline in viewership does matter.  According to an JOP article by Garry Young and William Perkins, the increase in alternative viewing choices brought by cable has decreased the impact of presidential rhetoric on public opinion (though I think these effects are small in magnitude).  In addition, according to an AJPS article by Markus Prior, there is evidence that the growth of cable and increase in media choices has led to greater knowledge gaps between those who prefer “news” and “entertainment.”  Jonathan Bernstein notes that the SOTU matters because it helps reveal the president’s policy positions for the coming year (even if the president isn’t able to get those policies through Congress).  And finally, Matt Glassman has an excellent article on the symbolic importance of the State of the Union.  In short, the decline probably matters, just not as far as the president’s agenda or popularity are concerned.

Posted in Legislative Politics, Polarization | 2 Comments

Let’s Pump the Brakes on Congressional Approval Bashing

Let me start with this: yes, America hates Congress. With few exceptions Congress very rarely enjoys high job approval. Job disapproval is in some ways built into the institution’s DNA. However, recently it has been common for people to equate what they – rightly – perceive as poor legislative performance with poor approval. Research tells us this is only part of the case.

Scholars have shown Congressional job approval is influenced by a wide variety factors ranging from economic growth, to partisan conflict, to whether Congress has passed major legislation. Unsurprisingly, several studies show Congress’s job approval drops when the economy is doing poorly. Partisan conflict has also been shown to have a negative effect on congressional approval (Ramirez 2009). And perhaps most interestingly, congressional approval often drops after it passes major legislation.

gallup cong approvalBut there are also structural features that underlie the dismal state of today’s congressional approval. Several years ago scholars linked congressional approval to partisan affiliation. When both chambers are controlled by one party, partisans that identify with that party are more likely to approve of Congress. In the 1990s Republicans had a high opinion of Congress and the job it was doing. When Democrats held the majority, roughly 40 to 60 percent of Democratic identifiers and leaners approved of Congress. The graph above illustrates how trends in partisan approval track – fairly closely – control of both chambers.

Taken together, the last few years have been a perfect storm of congressional disapproval . The economic recession and a weak recovery coupled with high partisan conflict has certainly taken its toll. But exacerbating those underlying factors has been divided control of Congress. Neither party controls the majority in Congress. Therefore, partisan support that normally props up congressional approval when one party controls the institution is gone. If you include the low approval numbers of each party, it is easy to see why approval is dismally low.

If one party controlled all of Congress, it is likely approval would rebound substantially but not overwhelmingly. There are too many factors depressing approval – partisan conflict, weak economy, etc. – for it to reach the levels it enjoyed in the mid-1960s and early-2000s. But this knowledge does temper our opinion of those articles arguing that America hates Congress. Yes, the nation hates Congress. But in many ways, they really hate a Congress divided between the two parties.

Posted in Electoral Institutions, Political Behavior | 1 Comment

Yes, Elections are Cultivating Polarization. But…

Competition for power, gerrymandering, disappearing marginal districts define Congress’s electoral landscape. Today, the American electorate is both closely divided and increasingly uncompetitive. In other words, partisan majorities are narrower today than at any time since the Civil War but congressional districts are also safer – there are fewer competitive seats.

It has been argued that this has a significant effect on polarization. Several political scientists argue that this is a somewhat dubious claim. However, Francis Lee and Sarah Binder wrote maybe the best case for why competitive elections undermine bipartisanship. They argue competitive elections effectively reduce leaders’ incentives to reach across the aisle. Because the parties are more competitive today, they have little incentive to give the other team a win.

This also explains the nasty procedural tactics of recent decades. Filibusters, shutting out minority amendments and dilatory motions are strategies tied to this stiff electoral competition in recent decades. The parties do everything in their power to win on their terms. As a result, bipartisan agreements only emerge after calamity hits (shutdown), or just before (debt ceiling).

My qualm is that these accounts largely ignore the institutional contexts. What often goes unsaid is that the current legislative processes also facilitate partisan competition. Particularly in the House, partisan competition feeds off of the legislative process. For example, a major reason bipartisanship flourished in the mid-20th Century is because Republicans had allies on the Rules Committee. They did not hold the majority (except a few instances), but they could count on conservative Democrats on the Rules Committee to bring bills to the floor that served their interests. Therefore, there was an expectation that bipartisan agreements could be met.

This occurred even in years where electoral competition was tight. For example, in 1952 Congress passed the Immigration and Nationality Act. Despite a narrow Democratic seat advantage of 235 (with only 225 seats occupied at the time) the bill passed the House, and later overrode Truman’s veto, with more minority than majority votes – 107 Democratic votes and 170 Republican votes. In 1953 a Republican House passed a rule with a Democratic majority to consider a tax exemption bill – 120 Democrats and 71 Republicans.  And in 1955, with a Democratic majority of 232 to 200, the House passed a bill that exempted natural gas producers from utilities regulation by a margin of 209-203. The vote was won with 123 Republican votes and 86 Democratic votes. The ability of minority members to attain floor votes was one reason polarization dipped throughout the mid-20th Century.

Conversely, today partisanship thrives because the institution is designed for it to thrive. Examples like those listed above are unfathomable given the current legislative process. The power of party leaders and their incentive to protect their party brand outweigh incentives to advance bipartisan agreements. In other words, elections and the institution together undermine bipartisan negotiations. Tight electoral competition feeds legislative strategies that are enabled by the legislative process.

Without the current process, the partisan tactics we see today are not as viable. For example, if the Rules Committee were a more independent panel, it would be more difficult for the Speaker to block bills with a chamber majority. Put more directly, the Senate’s immigration package or the clean CR, which was never voted on during the shutdown, would have a better shot of passing the House.

Congressional tactics are the result of an interactive relationship between the institution itself and electoral competition. Lee and Binder give an implicit nod to procedural factors in their APSA chapter. However, throughout political science research this is an underlying factor that is not often brought to the forefront. Deals negotiated in Congress are just as heavily influenced by the process as they are by elections.  In a different institutional context, party leaders would be increasingly unable to protect their party’s brand to the extent they do today.

Posted in American Political Development, Elections, Filibuster, Legislative Politics, Legislative Procedure, Polarization | Leave a comment

Rules Changes through Precedent: History and Consequences

Don Wolfensberger wrote a nice piece on the parallels between Majority Leader Reid’s nuclear option  and Speaker Reed’s ruling in 1890 that eliminated dilatory motions in the House. Both are good examples of rules changes through precedent. The two were so similar it was the first example that came to mind as Majority Leader Reid went nuclear and changed the Senate. I mentioned it on twitter but I don’t believe I blogged it. So in addition to Wolfensberger’s post there are some important, though wonky, differences between the two tactics. Unfortunately, the trajectory we’re on has consequences for our system of government.

Speaker Reed and 1890

In the 51st Congress the House was in a similar situation as today’s 60-vote Senate. Republicans held a slim majority in the House. The history books will show that Republicans held 179 to Democrats 152. However, at the beginning of every Congress it was not unusual for contested elections cases to continue well past the first day of Congress. That meant that several members who sat in the 51st Congress did not join the House until well after Congress’s March opening date.

Compounding those absent members were the troubles of 19th Century travel and medicine. Many members were absent due to illness, a sick spouse or child, and difficulty traveling to the nation’s Capitol. In 1889 the travel experience from California to Washington D.C. was neither particularly fast nor carefree.

For House Republicans in the 51st Congress these difficulties contributed to a voting majority much narrower than their official seat advantage. At the very outset of the Congress, the Republicans voting majority was actually just short of the chamber majority required in the Constitution. While they had more seats than Democrats, they often had less than a majority of the House. That meant if Republicans wanted a constitutional majority required to legislate, they had to rely on Democrats to vote. They didn’t need Democratic votes to win the votes. But they did need them to vote “nay,” so that their vote would count toward a chamber majority necessary to pass bills.

As you can imagine, House minorities were not all that keen to let majorities legislate. When a request for the yeas and nays was ordered and the clerks called the roll, minority members would sit silent in the chamber. By not responding, they were considered absent. When the final tally was counted, the House lacked a quorum and could not pass bills. This was how the disappearing quorum – which was also called a filibuster in its day – worked.

In years when the majority had a narrow seat advantage this became the norm. Reed, as the incoming Speaker of the House, knew this was something Democrats planned to use in the 51st Congress. He also knew Republicans would barely, if ever, be able to marshal a chamber majority.

So prior to convening the Congress Reed and his lieutenants devised a plan. First, Republicans did not adopt any rules for the 51st House. This is normally the first order of business in the House. However, adopting new rules reported from the Rules Committee would require a majority vote that Republicans did not have. So instead, they decided to operate under general parliamentary law. Put differently, they operated under Jefferson’s Manual and House precedents. This gave Reed the ability to rule the House based on whatever he assumes to be parliamentary, so long as a majority of voting members sustained his ruling.

This set the stage for Reed to dismantle the disappearing quorum. In January of 1890 Reed called up an elections case from West Virginia. After the vote, Minority Leader, and former Speaker, Crisp (D-GA) made a point of no quorum. Reed then ordered the clerks to count the members that are present but not voting and to add them to the roll call.

Unfortunately for us, the fireworks of the Reid’s nuclear option paled in comparison to the violent response from the Democratic minority in 1890. According to Speaker Reed’s parliamentarian, “pandemonium reigned in the House for several hours.” Members charged the front of the chamber crying foul. Speaker Reed, however, remained cool. At one point, a member charged the Speaker yelling, “I deny you the right to count me as present!” Reed, known for his cool wit, responded, “The Chair is making a statement of fact that the member from Kentucky is here. Does he deny it?” (Alexander 1916, 168).

Later that Congress, Republicans adopted new rules, by majority vote, that included quorum counting among other changes that pinched down on minority rights in the House. From that day forward the House was a different institution.

Differences and Implications

Given this context, there are a couple differences between Speaker Reed’s quorum counting and Majority Leader Reid’s nuclear option. First, the House intentionally refused to adopt rules in order to change precedent. The Senate does not have this luxury. It is a continuing body. Meaning, it does not adopt new rules at the beginning of a new Congress. A new Senate is bound by the rules of the previous Senate. Because there is never a lapse in rules, Reid had to interpret the rules through precedent. This is the inverse of Speaker Reed’s tactic of establishing a precedent and then using that precedent to enact new rules of the House. It also creates a more precarious tension between chamber rules and chamber precedents.

Second, there is a significant trigger point that I imagine will come into play as the Senate continues to debate the filibuster. Senate rules require a two-thirds majority to change chamber rules. At what point will the Senate invoke that clause on future interpretations of the filibuster, for say legislative filibusters? Since interpretations are done through appeals of the chair, which are sustained or overturned by a majority, the voting requirements for a rules change and precedent change do not match. Here is the million dollar question: which is more constitutional? Today’s partisans are obviously willing to reinterpret inconvenient rules. The next question becomes, which take prominence? Do the rules of the chamber or the adoption of a new precedent dictate Senate process?

I don’t believe it will come to this in the near future. There are enough procedure stalwarts in the chamber to ward off this kind of tactic in the short-term. However, partisan guerrilla warfare has been boiling over in the Senate in the last decade. So much so that members of Congress have filed several lawsuits in court to adjudicate their own processes. I would not be surprised if a future majority reinterprets the filibuster entirely. And if that is the case, it may be the first time in congressional history that a court will have to decide which rules and precedents will govern Senate process.

This is a somewhat dangerous trajectory. If this were to happen Congress would not just be losing power to the presidency but also to the courts. Partisan procedural tactics threaten to slide America’s First Branch into third. At that point, the branches furthest from the people will also wield the most power. Anyone who can count and has looked at the articles of the Constitution should be concerned.

Posted in American Political Development, Filibuster, Legislative Procedure, Political Institutions, Senate | Leave a comment