Tedious Filibuster Talk: Was Rand Paul’s talk-a-thon a Filibuster?

Short answer: Yes. There are a couple reasons cited as to why it was not a filibuster. However, neither disqualifies Paul’s 10-hour talk-a-thon.

Paul’s filibuster came at a somewhat odd time. NSA spying was not on the Senate floor last night. The upper chamber was still considering the trade promotion authority (TPA) bill. Since TPA was on the floor and the Patriot Act was not, some argue that Paul was delaying action on the wrong bill and therefore,  his talk-a-thon does not qualify as a true filibuster.

Delaying action on unrelated bills does not disqualify a filibuster. This is a practice that happens virtually every day. Though it wasn’t the case last night, dilatory actions, like filibuster, are often used as leverage. Senators can place holds on bills and nominees, threaten to object to unanimous consent agreements, and use other dilatory actions to secure consideration, votes, or even passage of other unrelated measures.[1]  These actions, which are effective filibusters or threats to filibuster, are commonplace in the Senate and a part of what makes individual senators so powerful. So the fact Paul was attempting to extend debate on a different bill does not disqualify last night’s very long speech.

Another reason many are floating contends that Paul’s speech did not actually delay legislation. The vote to end debate on TPA was set up two days ago. In the meantime, the Senate was just killing time until the cloture vote was held today.

This also does not disqualify Paul’s filibuster. Setting up a cloture vote is necessary to overcome a filibuster. For the past 10 years the majority of cloture votes per Congress successfully cut off debate. Put differently, most filibusters fail. Majority leaders don’t tend to waste time on votes they can’t win. Meaning, on the majority of bills that are filibustered, the delay is a maximum of two days. And in most cases, that delay is built into the schedule, as the leader will make a motion to take up a bill and file a cloture petition simultaneously, effectively preempting the filibuster before debate has really begun. If a filibuster could only be called a filibuster if it delayed legislation beyond the 2-day cloture vote process, this would disqualify roughly 74% of the filibusters in the 113th Congress.

If further evidence is needed to prove that Paul’s filibuster was legitimate, today Majority Leader McConnell filed cloture on two measures to addressing the NSA surveillance programs. This wouldn’t be necessary if Paul was not filibustering the Patriot Act.

While these criticisms don’t necessarily disqualify Paul’s filibuster, they do highlight the hollow nature of the modern “talking” filibuster. The last four filibuster-talk-a-thons have doubled as publicity engagements. Today’s filibusters harkens back to a romanticized Senate tradition that simply no longer exists. The practice of physically extending debate through long-winded speeches died a long time ago when cloture became the preferred tool to end debate in the 1970s. As a result, nearly all of the recent talking filibusters occurred when the Senate was killing time until a vote on cloture was in order.

In this context it’s not surprising that the last four talking filibuster-ers are current presidential hopefuls. They use Congress’s most widely known process to grab a national platform. Yet, while today’s talking filibusters don’t match those of the 1940s, 50s, and 60s, they nonetheless fit within the frame of extending debate.

[1] Senators have also used holds to secure agreements from the executive branch, ensure the administration responds to an inquiry, or to signal that a negotiation on something related or unrelated needs to take place before a bill or nominee will move forward.

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Political parties are often too convenient an explanation

Teagan Goddard asked the question, can politics be “unbundled” from political parties? In other words, if there is a market where we can unbundle phone and internet service, why isn’t there a market to unbundle politics from parties? Hans Noel wrote an excellent piece describing how the electoral and governing process inherently bundles politics for us. It is a process that simplifies our system but also, in Noel’s piece, ties politics to the parties.

Both pieces are excellent reads with some great points. But at what point do we risk overstating parties’ influence on politics? A common, underlying thread to both these pieces assumes that “unbundled politics” – politics that is distinguishable, or not driven by, party politics – do not or cannot exist in American politics.

This strand of thought often glosses over how unbundled American politics actually is. Politics is about coalitions, but it’s not always about party coalitions. They are, without question, the dominant political coalitions and polarization is the defining narrative of our time. However, we often use these reasons as intellectual crutches and in the process we unfortunately obscure an important and nuanced understanding of representation, particularly in Congress.

There is a good reason political parties are the focus of most observers’ explanations. Falling back on parties as the “bundles” of politics works most of the time. To borrow an example from Hans Noel’s post, the Affordable Care Act (ACA) is either something you like or something you don’t. Today, those that dislike the ACA are nonetheless forced to live with it. And often one’s partisan preference determines their opinion about the ACA, or vice versa. On the big votes, like those to enact the bill into law, political parties perfectly explain the divide on expanded healthcare coverage.

But this black and white choice also oversimplifies the problem. What’s most troubling is it glosses over the geographic, demographic, and ideological differences that render a more rich and complex picture.

For example, millions of people dislike the ACA but also overwhelmingly support many of its provisions. On the other hand, several provisions are also unpopular on a bipartisan basis. Eighty-one Democrats, a full 42% of the House caucus, voted to block the individual mandate in 2011. A repeal of the medical device tax received 37 Democratic votes in the 113th Congress. Unsurprisingly, most members who voted against the ACA’s provisions represented more moderate districts.

Factors other than partisanship have divided and continue to divide members in Congress. The presence of two parties in Congress does not inevitably lead to partisan problems or issue breakdowns. Democrats frequently get the credit for civil rights legislation because they were in power when it passed. But Republicans supported civil rights legislation in the House and Senate in higher percentages than Democrats throughout the 1950s and 1960s. In fact, an entire generation of Congress was defined by a majority party divided on major issues like civil rights, education policy, and energy regulation, just to name a few.

Today, despite better sorted partisan and ideological coalitions, we still observe these patterns. The majority party is divided on foreign trade, government spending policy, the deficit, government surveillance and privacy, the Export-Import Bank, immigration, prison reform, and the list goes on.

We may only have one president, one Congress, and two parties but that Congress and those parties are remarkably complex. The original FARRM bill vote in 2013 illustrated rural Democrats with farm heavy constituencies were willing to stomach more than $30 billion in cuts to SNAP, a major party priority. Congress is currently debating trade promotion authority (TPA) that, if enacted, would divide moderates in both parties from their less moderate co-partisans.

Votes that highlight demographic and ideological divisions within the parties are less common but nevertheless present. Today, it’s just harder for the ideological, geographic, and demographic outliers in each party to differentiate themselves. Leaders press for unity, not discord. As a result, outliers have a difficult time getting their time in the legislative sun. For example, it’s much harder for members like Rep. Justin Amash (R-MI) to receive the green light on his amendment that almost perfectly divided both parties. It happens. It is just much less frequent.

In other words, there is ample evidence that politics is already unbundled. Senators Harry Reid, Joe Donnelly, Jon Tester, and Joe Manchin are all Democrats with high ratings from the NRA. Representatives Rodney P. Frelinghuysen (NJ), Robert Dold (IL), Greg Walden (OR), Richard L. Hanna (NY) are all Republicans who have taken pro-choice positions. On issues like banking regulation or energy policy, the list of elected officials breaking from their parties multiplies by at least three. They break from their parties for good reason. If they didn’t, they probably would not be in Congress.

America’s governing and electoral institutions have created strong incentives to toe the party line. The idea that “unbundled politics” do not or cannot exist glosses over the most interesting political and representational issues of our time. Today political parties explain a lot in the American political system. But at times its ubiquity is overstated. And unfortunately, this intellectual shortcut can undermine important examples that illustrate exactly how geographically, demographically, or ideologically diverse representation in Congress can be.

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Why is Congress working?

Many in the media are beginning to notice that Congress is, in fact, working again. It’s negotiating deals, passing significant compromises, voting on amendments, and taking on serious issues. As the 114th Congress was being sworn in I outlined a few reasons for optimism and potential areas of compromise. That said, the 114th Congress is even surpassing those expectations. But the bigger question is: why is it working?

It should be expected that full Republican control of the Congress would help. Divided congressional control devastated legislative output. Historically, it is a very unusual institutional situation. When it does occur however, it tends to seriously depress output. Now that both chambers are under single party control, they are unsurprisingly working better together.

Unified control of Congress is also a major reason the executive and legislative branches of government are working better together. The Senate majority under Harry Reid effectively acted as a presidential veto for the last four years. It blocked House bills to repealing or defunding Obamacare, rolling back provisions in Dodd-Frank, obstructed several bills affecting energy regulation, prevented interferences in EPA regulations and alterations to the CFPB, and more. Many, in fact most, of these bills passed the House with large bipartisan majorities. However, if these bills were opposed by the president, they were conspicuously missing from the Senate calendar.

Now that the House and Senate are working together rather than simply checking one another, Congress once again has a negotiating position with the executive. Negotiations have shifted from the leaders’ offices on opposite ends of the Capitol to the offices at either end of Pennsylvania Avenue. That’s a major shift. Obama must now address Republican priorities and vice versa. As I pointed out in January, we should expect more vetoes – and the president has already doubled his veto total in three months – but we should also expect more compromise.

Is this a new era of bipartisanship? Don’t bet on it. While the doc-fix legislation, human-trafficking deal, Iranian negotiations, a deal on trade promotion authority and other bipartisan news dominated the headlines, the House inconspicuously passed a repeal of the estate tax, mortgage regulation changes, and financial services bills with very partisan majorities. And don’t forget that the human-trafficking filibuster is due to a breakdown in bipartisan staff relations and trust in the Senate.

So yes, we should applaud the 114th Congress and its leaders for its progress. However, this should not have been entirely unexpected. It’s just a departure from a previously dismal situation in the 112th and 113th Congresses. And unfortunately, do not expect it to continue for the full term of this Congress. There are more deals to be made but they will likely become increasingly rare as the congressional parties gear up for 2016.

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The budget rule is uncommon but (small ‘d’) democratic

The House budget proposal is being brought to the floor under an uncommon rule called the queen-of-the-hill. It’s being framed as quirky, odd and, at times, a signal of Republican dysfunction. However, it perhaps best described as a release valve.

Under the queen-of-the-hill process multiple amendments (which is a full substitute bill) are offered to the House for a vote. The amendment with the most votes wins (as long as it attains a majority). This gives members the opportunity to vote on multiple budgets.

The process emerged from a more heavy-handed rule called king-of-the-hill. Under king-of-the-hill rules, the last amendment to achieve a majority wins. Democrats created this approach in the 1980s to give members the opportunity to vote on multiple versions of the same bill. The rule makes several substitute amendments (referred to as amendments in the nature of a substitute) in order, and members can vote for or against each one. The catch was the last amendment to receive a majority was adopted. To win, all leaders needed to do was put the amendment they supported last in the voting sequence. As long as that version achieved a majority, it passed. At times, this led to the House adopting amendments that received fewer votes.

As a result Republicans created the queen-of-the-hill rule when they retook the House majority in 1995. It is similar to the king-of-the-hill rule but with a softened edge. It was used several times in the 104th and 105th Congresses to vote on welfare reform, constitutional amendment establishing term-limits, the balanced budget constitutional amendment, and for the Tax Code Termination Act of 1998 (for more on this read Sinclair’s Unorthodox Lawmaking). This gave members the same opportunity to take nuanced stands on the subject but allowed the amendment with the most votes to be adopted.

It’s often used as a release valve amid strong differences of opinion on an issue before the House. It is telling that the last two times the queen-of-the-hill process was proposed were on bills forced to the floor through the discharge process: the Bipartisan Campaign Finance Act of 2002 and the Continuity in Representation Act of 2004. Neither bill had overwhelming support from the House majority. Leaders prudently avoided the bills as long as they could to avoid dividing their caucuses until the discharge process forced their hands. (footnote: to my knowledge 2002 was the last time it was actually used. In 2004, it was proposed in a discharge petition but circumvented by leadership through the Rules Committee)

While the queen-of-the-hill process may be unusual, it’s a more democratic approach than many of the options available to the leadership. They could have changed the text of the budget resolution, or banned alternative amendments that would have significantly challenged their own. Not all issues are conducive to a queen-of-the-hill approach. So enjoy the votes and drama while it last. It’s unlikely to come around again for some time.

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With Ted Cruz’s announcement, the 2016 campaign is starting late, but more intense than ever

Like a bugle at the start of a horse race, Ted Cruz’s announcement yesterday signals the beginning of the 2016 presidential election.

Indeed, in the American political lexicon the term “horse race” refers to the media’s obsession with electoral prognostication.  Even casual observers know that political gamesmanship will be the prevailing narrative from now until November 2016.  Cue the endless discussion of “who’s up, who’s down” in a given day, week, or month.

If you think the media’s obsession with the so-called horse race has grown in recent elections, you get a cookie.  According to one study, for example, the media’s focus on presidential campaigns (as opposed to the candidates’ issue positions or background) nearly doubled from the 1960s to the 1990s.  It’s hard to overstate, but elections weren’t always like this.

2008 was a watershed moment in this horse race obsession.  For example, according to an analysis by Pew and Harvard University, in 2008 63% of campaign stories focused on “political and tactical aspects of the campaign” in stark contrast to just 15% that focused on the candidates’ policy views.  It concluded:

This election is unprecedented in terms of its early start and how much early coverage it received. By February 2007, nearly 11 months before any citizen would cast a primary vote or gather for a caucus, the race became one of the biggest stories in the news.

Let that sink in for a moment.  In 2007, nearly two years before the election was held, the media focused on campaigns, rather than actual issues, by a 4-1 margin.

All this begs the question:  How is the 2016 horse race shaping up?  (An alternative title for this post could be: “Let’s horse race the horse race.”)

On the one hand, it’s easy to juxtapose the start of two (or more) presidential campaigns: simply compare when the candidates declared their intentions to run.

In the 2012 presidential election, for example, Newt Gingrich was first out of the gate, announcing his plans on May 11th, 2011.  So by that token, 2016 is beginning early.

In the 2008 campaign, however, then-Senator Obama announced his candidacy on February 10th, 2007, beating Ted Cruz by well over a month.  Moreover, Obama was late to the game.  Hillary Clinton announced her intentions on January 20th, 2007; Biden entered the race on January 7th; and John Edwards announced his intentions on December 26th, 2006!

So, while it may “feel” like the 2016 campaign is starting earlier than normal, this is contradicted by the simple fact that in 2008, every major Democratic candidate had announced before Ted Cruz.  On average, in fact, the major Democratic candidates announced more than two months earlier than Cruz.

Of course, official announcements can be a poor measure of the nature of campaigns and campaign coverage.  For example, at present a half dozen major Republicans are in a nebulous “exploratory mode,” including Scott Walker, Chris Christie, Rand Paul, Marco Rubio, and Jeb Bush.  Living in South Carolina—with its “first in the South” primary—the 2016 campaign has clearly begun.

A more relevant metric is the volume of media coverage.

In the figure below, I report the volume of New York Times articles from January 1 the year before the election (2015, 2011, 2007… 1951) to March 23rd the same year (the date of Cruz’s announcement).  I used two search terms (with Boolean operators) to quantify the volume of campaign coverage:

  • presidential w/5 candidate
  • president AND 2016 w/10 campaign

The first search returns stories where the word “presidential” appears in an article within five words of the term “candidate.”  The second returns stories where the word “president” and the election year appear in an article within ten words of “campaign.”  Both search terms produce estimates of campaign coverage that correlate at 0.70.

In the figure, the data represent the relative volume of campaign coverage from 1951 to 2015. Higher values indicate a greater volume of campaigning articles relative to the volume of all political news articles.  Details below.

Relative

Despite the apparent “slow start” to the 2016 presidential race, we can see in the figure that the volume of campaign coverage is up 100% from this time in the 2012 cycle.  Even when compared to the 2008 election–a watershed moment in the horse race–the volume of campaign coverage is up 25%.  In the end, Americans are being inundated with more campaign coverage than ever!

In one important respect, the horse race is even worse than the raw numbers imply.  Recall that in 2008, every major Democratic candidate (save John Edwards) announced between January and March of 2007.  So, the media’s emphasis on presidential campaigns is up 25% from 2008 despite the fact that only one candidate has announced.

Additional findings

  • We can see that the volume of campaign coverage has grown exponentially since the 1950s. If we compare the five presidential campaigns from 1951 to 1967 to the five campaigns from 1999-2015, the volume of campaign coverage is up 200%.  If we restrict it to the first three and last three, campaign coverage is up almost 300%.
  • 1980 was anomalous compared to the previous seven presidential elections, with campaign coverage in 1979 doubling the average in the previous seven cycles.
  • As the Pew and Harvard study notes, 2008 seems to be the year when campaign coverage really spiked. We can see a modest increase between 1979 and 2003, but the single biggest election-to-election increase was from 2003 to 2007.
  • Generally, elections featuring two non-incumbents (2008, 2000, etc.) generate greater early campaign coverage (though clear exceptions exist, most notably 1980). Obviously, this is a reason why 2016 is shaping up to be a big cycle.

In conclusion, while Cruz’s announcement starts the horse race later than in 2008, the 2016 campaign is already more intense at the same point in time despite the absence of any candidates.

—–

Methods: First, the number of stories containing each search term was compiled, divided by its average over the entire time series, and then added together in one summary index.  Second, because the data spans the entire post-War period (from the 1952 campaign to 2016 campaign) it is important to account for the baseline level of political news coverage.  For example, a higher volume of campaign stories in 2015 could reflect greater attention to politics in general compared to 1951.  In some respects, this also creates a baseline level of political news reporting.  For this, I simply used the volume of stories containing the words “politics” or “congress.”  I then created a “baseline” index in the same manner as the campaign index.  Finally, I divided the campaign index from the baseline index such that higher values indicate a greater relative share of campaigning news stories.  Note that the same results are evident we use the raw volume of campaigning new stories, without diving by the total number of political news stories.  If anything, the estimates reported in the figure are conservative.

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Most budgets lack details. That doesn’t mean they’re ineffective.

Since the House budget resolution dropped yesterday a lot of complaints have surfaced about its lack of detail. Lack of detail have some claiming it abandons Paul Ryan’s budget, – even though it is remarkably similar – and many pundits and politicians lamenting the vague character of the House Republicans’ proposal.

There are a lot of reasons to criticize budgets. Lacking policy details isn’t one of them. The teeth of the budget are not in its policy. It is in the processes it establishes for legislation for the remainder of the fiscal year.

The practice of including policy statements in budget resolutions is actually a relatively new one. According to a CRS report, since 1994 congressional budget resolutions have included an average of 22 declaratory statements. Between 1976 and 1993, congressional budget resolutions included only an average of 3 policy statements. The fact that the number of statements have increased as the parties polarized reinforces what everybody already knows: budgets are political documents. They may express party goals but those statements do not bring Congress any closer to enacting those provisions.

The main reason budget resolutions are not policy documents is because the policy statements found in them are nonbinding. They have the same legal effect as nonbinding resolutions expressing the sense of Congress, the House, or the Senate. Vaunted legislation passed with the same nonbinding status have included welcoming India’s prime minister to the U.S., authorizing concerts by the National Symphony on Capitol grounds, expressing a sense of the Congress that the U.S. should take a strong role in implementing decisions made at the Earth Summit, and thanking congressional colleagues for the manner in which they presided over the chamber. The policy statements in the budget resolutions may express a sense of the chamber or Congress, but they have no procedural or legal weight. It’s simply a statement.

The real teeth in budget resolutions are in the processes put in place when passed. First, budget resolutions set the topline spending and revenue numbers. Once passed by Congress future legislation has to conform to those numbers. All appropriations bills, amendments, and committees must fit within the 302(a) number prescribed by the resolution.

Second, the budget committees can instruct other committees in Congress to find savings in existing law and provided the committees meet the numbers, Congress could pass those bills with a simple majority in both chambers (i.e. filibuster-proof legislation). This process is known as reconciliation. The annual budget resolution outlines this annual process, detailing which committees can change government spending without worrying about a filibuster in the Senate. If you want to save money by tailoring Medicare and Medicaid, this is where you do it. For example, this year’s House budget gives instructions to 13 House committees to find a minimum of $4.75 billion in savings. If the committees meet the budget guidelines of the instructions, they can use reconciliation, avoid a filibuster, and pass the bill. However, how the committees find the savings is left to the committee of jurisdiction.

For example, the House proposed budget that dropped yesterday instructed Ways and Means to find $1 billion in savings over the next 10 years. Despite the fact that that the Budget Committee included policy statements expressing an interest in changing Medicare and Medicaid, they cannot force Ways and Means to introduce policy doing that. If Ways and Means finds $1 billion in savings in tariffs, there is nothing the budget committees can do about that. That bill will still go through the filibuster-proof reconciliation process.

There are lots of reasons to debate the budget resolution. We can argue the merits of the House and Senate numbers and whether or not they actually accomplish what they claim to do. But “lacking policy detail” is not a great reason for criticism. That’s largely out of the budget committees’ hands. Regardless, the numbers and processes they put in place make it a very important document; just don’t expect it to have a lot of policy details.

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House process quick hit: Overthrowing the Speaker.

As rumors swirl and fade about Boehner’s removal from the speakership, it’s a good time to clarify a few things about House process and its history.

No speaker has ever been removed from office mid-Congress. If members want to remove a speaker from office, they would need to make a motion to declare the chair vacant. That motion has never succeeded.

That includes Speaker Cannon (R-IL). Several news outlets have said the motion to remove the speaker was invoked against Cannon. That’s not accurate. Cannon’s “overthrow” did not remove him from office. Rather, he was “overthrown” because his power as Speaker was significantly curtailed. In addition to being speaker, Cannon was the chair of the Rules Committee and was also responsible for assigning all members and chairs to each standing committee of the House. Both of these tools gave him exceptional power to control House business. On March 17th, George Norris (R-NE) offered a simple resolution to strip both powers from Speaker Cannon on a week that many of Cannon’s allies were missing from Congress largely due to St. Patrick’s Day.

After the resolution passed two days later, Cannon, to the surprise of practically everybody in the chamber, entertained a motion to declare the office the Speaker vacant. That motion failed. In other words, Republicans did not want to remove Cannon from office. They just didn’t want him exercising as much power as he had during his tenure.

The surprising part of this story is not that Cannon was not removed. The surprise was that Cannon entertained a motion that could remove him from office at all. House rules lean heavily in the speaker’s favor. This is why Boehner will likely remain Speaker in the 114th unless he voluntarily steps down.

Speakers have the right of recognition. They choose who will be recognized to make a motion from the members on the floor. Without the Speaker’s recognition, members can’t do much of anything. Speakers can also actively ignore members they do not want to make a motion. If the speaker does not like the reason the member has sought recognition, he or she can simply refuse to recognize them. Without recognition even a privileged motion goes nowhere. This makes removing the speaker through the motion to declare the office vacant highly unlikely because the speaker or his designee would have to allow the motion to be put before the House in the first place.

Procedurally, the more likely scenarios would involve intense collusion between Republicans and Democrats over the course of several votes. While it’s possible, I don’t believe Pelosi, Democrats or the faction that want a new Speaker are willing to go to those lengths. Though if it did happen, you’d be watching one of the more exception episodes in House history.

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