Obama wants filibuster reform. Would it help polarization?

Obama had some interesting things to say about polarization and the filibuster in his interview with Vox. When the question of if government can work in the midst of polarization was posed, Obama mentioned the filibuster:

“Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate… The filibuster in this modern age probably just torques it too far in the direction of a majority party not being able to govern effectively and move forward its platform.”

It’s important to note that this is an answer about governing, not reducing polarization. If you watch the video from the interview, you might assume that Obama’s answer on the filibuster is a response on how to solve or ameliorate polarization. It’s not. This is an important point because reforming the filibuster and reducing polarization are at odds with one another.

For all its faults the filibuster is an inclusive political instrument. It forces majorities to listen and compromise with the minority. However, a new breed of stubborn politics has crippled the honest pursuit of bipartisan compromise. Filibusters are currently used at rate that essentially prevents Congress from addressing problems. While stalling a bill’s progress is hardly new to Congress, the frequency with which they are used today has undermined the filibuster as a means for compromise and transformed it into a means of complete obstruction.

This doesn’t have to be the case. The filibuster could be a process that incorporates minority policy opinions without serving as an insurmountable roadblock. Done properly, filibuster reform could create a system that reduces dysfunction while also assuaging polarization. For example, placing a greater burden on minority senators to sustain a filibuster would make it more politically costly to wage one. This would preserve minority rights while also greasing the wheels of policy productivity.

Unfortunately, those options are not on the table. Presently the most likely reform to the filibuster would be its effective termination. This change would make it easier for a majority to govern in a polarized situation but it would also make the Senate a much more partisan institution. It would eliminate minority debate rights, almost certainly prohibit minority amendments, and undermine the political inclusiveness that has characterized the Senate for most of its history.

Filibuster reform is not likely to occur in the near future. However, the way the politics of filibuster reform shake out, it is a near certainty that changes to the filibuster will not reduce polarization. It will worsen it.

Governing in polarized times is a problem that needs to be addressed. But we should weigh if change is worth the cost of further distancing already outlying political parties.

Posted in Filibuster, Legislative Politics, Legislative Procedure, Polarization | 1 Comment

Why three failed votes is not necessarily a failure

Majority Leader Mitch McConnell received a fair amount of flak this week for his attempts to move forward on the DHS funding bill that expires at the end of the month. Republicans failed to invoke cloture on the DHS funding bill for the third time in three days, raising speculation about a potential shutdown of US security agencies.

Sarah Binder has a great piece at the Monkey Cage explaining the strategy. She argues McConnell’s attempts are not unprecedented or even a failure. Multiple attempts to stop debate on a bill has, at times, put pressure on the filibustering minority to compromise. In this sense McConnell’s is attempting to win a message battle by framing Democrats as obstructionists.

The messaging battle is an important one. However, it’s also a situation where neither party will likely emerge as the victor. In fact both parties win on this particular issue. Republicans are presumably gaining support for their attempt to battle the President on immigration. Meanwhile, Democrats are gaining support among their base by obstructing attempts to roll back what has been a very popular executive action among their base. In other words, it is certainly a messaging battle but it is one that both sides will win. McConnell isn’t winning at the expense of Democrats. Rather, he’s likely bolstering both sides while shouldering accusations that Republicans cannot govern.

The irony is that by failing to stop a filibuster, McConnell is moving closer to governing. As Binder points out, provoking multiple votes on DHS and the immigration rider demonstrates that moving forward on this bill through the normal process cannot work. Democrats are resolute and they have no incentive to back down. Republicans already knew this, signaling weeks ago that they did not have the votes to advance a DHS bill with the immigration rider.

So why use three votes? In addition to demonstrating that this is not a viable strategy, it gives McConnell leeway on his right. Had McConnell taken the obvious action needed to pass DHS from the start – stripping the immigration rider and passing a clean funding bill – he would have been attacked for appeasing Democrats. By demonstrating that their opposition is not avoidable, he eases some of that right-flank pressure.

And lastly, three votes buys McConnell time to strike an agreement to avoid a shutdown. The Senate is an institution of negotiation and unanimous consent. Behind closed doors McConnell is likely searching for an agreement between his conference and Democrats that strips the rider from the bill, offers conservatives the opportunity to make their stand on the issue with a non-passable amendment (60-vote threshold), and a time agreement that ensure the Senate passes DHS well before the funding deadline.

The headlines are not pretty now. But in an odd way, by failing to invoke cloture on Democrats’ filibuster McConnell is likely doing more to move forward than the media are giving him credit for.

That said, this latest episode continues a growing trend for Republicans. They continue to show a penchant for putting themselves in unwinnable political situations. Unless they become more strategically savvy, self-inflicted wounds may become this majority’s calling card. How they manage the upcoming cliffs on the debt ceiling, the Highway Trust Fund, and the Export-Import Bank reauthorization will be telling as we continue to inch toward 2016.

Posted in Bicameralism, Filibuster, Legislative Politics, Legislative Procedure | Leave a comment

Sticker-Schock: Breaking down Members’ Interior Design and Operation Spending

This piece was co-written with Mark Harkins, a Senior Fellow at the Government Affairs Institute at Georgetown University. He worked on Capitol Hill for over 17 years in various positions including Chief of Staff in a personal office.

The Fix at the Washington Post has an interesting piece on the cost of setting up and running a congressional office. This comes in the wake of Sticker-Schock. A piece in the Washington Post which unveiled Rep. Aaron Schock (R-IL) spending tens of thousands of dollars on office furniture. The Fix piece shows exactly how many tax dollars each member of Congress spent on their offices over the last two years. There is a lot of variance in these numbers and it’s helpful to get some context when judging your members’ interior design habits.

The overwhelming amount of money spent on offices is allocated to rent and parking. Not surprisingly, nearly all the top spenders come from high rent areas as the blog acknowledges.  New Jersey, New York, and California almost completely dominate the top spenders list. For example, the chart shows Rep. Bill Pascrell (D-NJ) as the top overall spender at $407,816.  But $392,541 of that is rent and parking.  Look at the second person on the list Rep. Gregory Meeks (D-NY).  His overall cost is $326,002 but his rent and parking are $260,075.  The case can be made that Meeks is a bigger spender as he spent $66,000 on non-rent whereas Pascrell only spent $15,000 on non-rent items.

Another factor these numbers don’t account for are the number of district offices per member and their office travel costs. A large sprawling district need more district office locations to provide constituent services. Rep. Cynthia Lummis (R-WY), who represents the entire state of Wyoming, has four district offices spread out across the state. In contrast, Rep. Jose Serrano’s district (D-NY) is only a few New York City blocks in diameter and only needs a single district office. Larger geographic districts are likely to have higher furniture, equipment, and supply costs eating into their representational allowance (known as the Members Representational Allowance, or MRA). While Rep. Raul Labrador (R-ID) may have spent more than $19,000 over the last two years on furniture and supplies, he represents a district that stretches almost 500 miles from Canada to Nevada. That’s a lot of territory to cover. Unless you prefer your congress persons’ staff to work with old computers with 1998 Windows technology as they track down your loved one’s social security check, federal grant, or passport, furniture and supply spending is not necessarily a bad thing.

Redistricting also has a significant effect on these costs. In some cases members had to open several new district offices to conform to the new lines. The costs of opening new offices could also inflate their spending numbers during redistricting cycles. High office costs in 2013-14 may not be because your member splurged on a fancy chandelier. It’s more likely they had to open a new office to adapt to their new district lines.

And lastly, many costs incurred by an office are on scheduled time frames. For example, despite wear and tear in their Washington offices members can only replace the carpet and drapes every 7 years. So you may want to cut some slack for Rep. Darrell Issa’s (R-CA) $8,000 carpet expenses or Rep. Sanford Bishop’s (D-GA) $2,241 drape replacement. Overlooking this requirement could give many representatives a bad-wrap for updating what are likely extraordinarily well-worn carpets.

Even account for all of this it doesn’t tell the whole story. Members’ representational allowances vary. Salaries, rent, supplies, equipment, computers, software, office travel costs, among others are all paid with this account. Depending on the rent of a members’ district, its distance from D.C., and number postal address (for franking), some members receive more than others due to the costs associated with traveling longer distances and representing a larger area with more people. A large geographic district in California would receive more money than a small one from Northern Virginia. In other words, Rep. Raul Ruiz’s (D-CA) $12,466 dollar office expense is likely a smaller percentage of his MRA than smaller geographic districts located closer to DC.

The Fix’s analysis in light of the Schocking amount spent by some Members of the House on décor is timely. There are always exceptions but more than likely your member’s spending habits are not a case of government run wild. MRA budgets have seen significant cuts in recent years. Most offices do not have enough money left over after salaries and supplies to hire their full complement of staff. It’s helpful to keep an eye on spending. But we also need to understand that many offices are already stretched thin trying to run effective representational operations for, on average, 725,000 people.

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The Senate’s Return to Regular Order?

For the past week, Majority Leader McConnell experimented with an open amendment process in the Senate. Members offered amendments on everything from climate change, to federally protected land, to limiting the President’s ability to initiate and sign bilateral agreements with foreign countries.

The broader question is can McConnell take a positive step toward a functioning Senate?

There are some positives to take away from the past week. Debate has gone smoothly for the most part. Senators have worked together on several fronts. Murkowski and Cantwell, the Chair and Ranking Member on Energy and Natural Resources Committee, have worked behind the scenes to find amendments both sides are willing to tackle. As a result the Senate has debated subjects such as climate change, potential limitations on informal and formal executive treaties, taxation of tar-sands oil, and topics such as private property versus eminent domain. Willingness to work through regular(ish) order has reinvigorated debate and deliberation over the last week. As a result the Senate has voted on more amendments in the last week than all of 2014.

However, it is not all good news. Yesterday some filibusters began to emerge. Several amendments were held to a 60-vote threshold, meaning that not all Senators would allow those votes unless there was an implicit understanding that they wouldn’t pass. As the afternoon turned into the evening, those the seemingly sparse filibusters turned into outright stalemate. The process came to a halt. In what appeared to be frustration or impatience, McConnell killed the pending amendments and filed cloture. This essentially guarantees the bill will move toward passage next week with few if any additional amendment votes. To an extent, the Senate we’ve come to know over the past few years reemerged.

Obviously the Keystone debate has been a more robust one than those in the 113th Congress. But last night highlights just how fragile the process really is. The majority opened up the process to allow the minority to participate. And as has been common among recent congressional minorities, they have wanted more time, more debate, and more amendments. In the eyes of the majority, they want to abuse their privileges. As a result the majority shuts down the process. Steven Smith, the Kate A. Gregg Distinguished Professor of Social Science at Washington University in St. Louis, refers to this erosion of cooperation as the Senate Syndrome, and it appears to have struck again in the third week of session. A week-long debate over amendments to an important bill is a positive step. But it is clear the process is fragile and trust between the parties is not high.

Lastly, Keystone is a unique case. High public visibility and bipartisan support grease the wheels of cooperation. In other words, it’s the type of bill where this kind of bipartisan process can flourish. However, not all issues enjoy broad support. And at some point, likely soon, stronger opposition will reemerge. At that point we’ll see if McConnell’s experiment with regular order is sustainable or if the Senate Syndrome will erode the good will that was built this past week.

Update: Great video of McConnell shutting down the process Thursday night.

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

Handicapping the GOP’s Prospects of Repealing Obamacare in the 114th Congress

It didn’t take them long, did it?

Just a few days into the 114th Congress, Republicans in the House passed not one, but two bills to undo elements of the Affordable Care Act.

What follows is the first of two posts about the effort to “repeal Obamacare.”  For today, I’ll address two big picture elements of these repeal efforts.  Next week’s post will tackle some finer questions, looking in particular wehther Republicans are likely to succeed in repealing Obamacare.

What follows is based on two papers I’ve written on the topic of policy repeal.  See for example this paper published in the journal American Politics Research.  In brief, for this project I dug through various historical documents and created a dataset of all major repeals since the late 1800s.  With this data I developed a statistical model that examines when and why repeal happens.

Republicans Are Serious This Time

I first want to suggest that, this time around, Republicans are “serious” about repealing Obamacare. I also want to use last week’s votes to put repeals in historical context.

Recall that, in the 113th Congress, the Republican controlled House of Representatives passed more than 50 measures to undo Obamacare.  Most of these votes were on bills designed to repeal all or most of the law.  Notably, this isn’t how laws are usually undone.

First, the word “repeal” is synonymous with various actions: defunding, invalidation by the courts, sunset provisions, amending activity, etc.  All are tied to a broader topic, “policy change,” but are technically different actions.

Second, it’s quite rare for a law to be repealed in its entirety.  I found in the course of my research that this is true throughout history, but especially true today given the increasing complexity of legislation.  Rather, individual provisions (often, a tiny fraction of a bill) are modified or repealed.

For example, in 1988 Congress passed the Medicare Catastrophic Coverage Act and, just a year later, repealed major elements of it.  Observers remember this landmark law as one of the “shortest-lived pieces of social legislation” (see Eric Patashnik’s excellent book “Reforms at Risk” pg. 74).  But even in this extreme case, some elements of the MCCA remained in place after those repeals were adopted.

What’s important here is that, even if Republicans are successful in their repeals efforts, it’s likely that major elements of Obamacare will remain in place.  Indeed, some aspects of the law are incredibly popular.

Now, in the 113th Congress, because Democrats controlled the Senate, Republicans knew their chances of repealing the entire Affordable Care Act were almost exactly zero.  Voting to repeal the whole bill wasn’t a “serious” attempt but was, instead, an act of what political scientists call “position-taking.”  Note: that’s not a criticism.  In some ways, you could argue the whole repeal drama in 113th Congress was a “good thing” because it gave voters a clear choice between two policy alternatives (i.e. voters knew what the two parties would do if given control of the House and Senate).

Here’s the point: What happened in the first few days of the 114th Congress was something qualitatively different than what happened in the 113th Congress.  On the surface, you would think that, after winning control of the Senate in rather dramatic fashion, Republicans would once again advance a bill to repeal the entire Affordable Care Act.  But again, that’s not how laws are usually undone.

Instead, Republicans advanced two piecemeal bills that target specific provisions of the act.  Ergo, they’re going about it in a very calculated manner this time around (contrary to the wishes of some hardliners, who see this piecemeal approach as increasing the law’s strength).  On Tuesday, the House passed a bill to exempt Veterans from what counts towards businesses’ employee limit.  It passed 412-0.  And on Thursday, the House passed a bill that changes a provision defining the work requirement regarding what’s considered “full time” employment.  It passed 252-172.

As a whole, don’t be surprised to see Republicans succeed in the 114th Congress modifying or even repealing some elements of the Affordable Care Act this session.  In fact, I think it’s an inevitability.

The Likelihood of Repeal Will Increase in the 115th and 116th Congresses

In next week’s post, I’ll examine specific factors that affect the probability of repeal.  However, policy repeal has a broader pattern.  Here’s a chart with what you need to know:

Repeal HazardThe chart (from this paper) is the hazard of repeal after passage for all landmark laws enacted since the 1950s.  Higher values indicate a greater likelihood of repeal in a subsequent congress while lower values indicate a lower likelihood of repeal.

What the figure shows is that repeals become increasingly likely up to five subsequent congresses (or, ten years) after a law is enacted.  We can see that the “peak” in the likelihood of repeal is in the fifth congress after passage.  After this ten year window, repeals become increasingly less likely for the reminder of a policy’s lifecycle. After about 20 congresses have passed (or, forty years), repeals have just a 4% chance of happening.

Now, because this is the 114th Congress, we’re at just three congresses since the law was enacted.  Big picture: the probability of some repeal has indeed increased in the 114th Congress, but we’re still two congresses (or, four years) from when the law will be most “at risk.”  (note: This is based on the general pattern of repeal.  Specific factors will vary.)

Certainly, that’s bad news for Democrats (i.e. the worst isn’t here yet).  However, the good news for Democrats is that if the law survives for the next decade (for example, if Hillary Clinton wins election in 2016), the probability of repeal begins to drop off precipitously.

Why does this regular pattern exist?  In the first part of a policy’s lifecycle, soon after it was signed by the president, when major elements or the law are being implemented for the first time, flaws begin to develop such that the original law needs to be revisited.  In other words, it’s normal for lawmakers to revisit legislation after they observe its real world performance.  After the ten year period, however, laws become “institutionalized” such that modification or repeal is difficult to accomplish.  Consider entitlement programs (like the Affordable Care Act).  It’s hard to repeal a policy that provides groups of citizens with some material benefit.

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It’s not all Gridlock: What Republicans can accomplish in the 114th Congress

Can decades of dysfunction reverse course in a single Congress? No. But despite the general pessimism surrounding Congress there are several reason to expect the 114th to be more productive than its recent predecessors, which were historically bad on several fronts.

Now that divided congressional control is over a sense of mild optimism should overcome you. Plenty of ink will be spilled describing the impending dysfunction of a Republican Congress and a Democratic President. Divided government does depress legislative output, though probably not as much as most expect. However, research has shown that divided congressional control can actually be more debilitating. In her study on congressional stalemate, Sarah Binder found that the ideological distance between the chambers created more gridlock than divided government between the executive and Congress. While that sinks in, consider the 113th Congress was among the most polarized in US history. In other words, Congress was controlled by two different parties at a time when those parties are arguably the furthest apart than they have been since 1879. In that context it’s easy to understand why gridlock gripped the Capitol for the past four years. Now that Republicans control the Senate, we’re likely to see more robust negotiations between Congress and President Obama. The question is over what agenda items they will negotiate.

Republicans have two major roadblocks to legislating in the 114th Congress: the filibuster and the veto. Both checks require a supermajority to overcome (60 for the filibuster and two-thirds in both chambers for the veto). These thresholds are difficult, but Republicans can and will be able to overcome them in some form or another. However, these barriers do constrain the universe of policies that Republicans can target.

Budget Reconciliation

With only 54 votes in the Senate, Republicans will either need to moderate their policies to attract six Democratic votes – a strategy that will hugely frustrate their House colleagues – or use the reconciliation process to circumvent filibusters. This leads us to our first prediction: Congress will pass budgets. Reconciliation is built into the annual budget process. Congress has not passed a budget resolution since 2010. That will change in the 114th. If Republicans want to follow through on their campaign promises, they need to pass a budget in order to use reconciliation.

There is a catch. Reconciliation can only be used on policies affecting direct spending, revenue, and the debt ceiling. Republicans are unlikely to touch entitlements and leaders will likely pass a debt limit hike through indirect means, such as reinstating the Gephardt Rule (where the debt ceiling is raised or suspended upon adoption of a budget resolution). That leaves revenue measures as the most likely policies to be used under reconciliation.

Revenue bills just happen to coincide with several Republican priorities. Republicans can pass bills that repeal the individual mandate, eliminate the medical device tax, alter fees funding immigration deportation processing, corporate and/or individual tax reform, as well as several other policies. In other words, the bills Republicans want to pass to score political points will most likely come through the reconciliation process. And Republicans may very well want Obama to veto many of these bills. For example, a presidential veto killing a repeal of the individual mandate is something the Republican campaign committees are likely drooling over.

It’s also possible that bipartisan compromises emerge through the reconciliation process. However, it will depend on Republican politics and how far the president is willing to compromise on these issues.

Veto-“proof” legislation

There is also reason to expect a large number of bipartisan legislative efforts to emerge. Despite headlines suggesting bipartisan compromises are a thing of the past, a large number of bills passed the 113th House with over two-thirds support. In fact, several issues reached broad consensus on a regular basis. Homeland security legislation, reducing the number of government reports and studies, bills expanding government transparency, veterans’ legislation, among others, all passed under suspension of the rules (requiring two-thirds support).

Keep in mind that just because a bill receives bipartisan support does not mean it is uncontroversial. Several bills reported from the Financial Services and Energy and Commerce committees frustrated the Democratic base, but still managed to pass the two-thirds threshold. In fact, several bills stripping Dodd-Frank regulations were passed with large, bipartisan majorities. The swap push-out provision vilified in the cromnibus package is a great example. Despite liberals ardent objections the bill passed with 292 votes (H.R.992).

Bipartisan bills range from the widely agreed upon to those that divide the Democratic base. It will be very difficult for the President use his political capital to veto legislation if there is a good chance it can be overridden. And in the 113th, there were several policies, controversial and uncontroversial, that will put the president in a difficult position. In the 114th, he can make a stand or accept policy losses. But there is room for Republicans to slowly chip away at the President’s legacy by passing widely-supported policies.

The 114th is likely to be more productive than the 113th. That said, with a presidential campaign season looming, partisan politics could also overcome any modicum of bipartisan agreement.

Posted in Filibuster, Legislative Politics, Legislative Procedure, Policy Agendas | 1 Comment

Can Republicans roll back Obama’s executive order? It’s hard but not impossible.

Republicans have rallied behind the idea of defunding Obama’s executive order on immigration either through the omnibus or a rescission – a bill passed after an appropriations bill. However, this plan ran into some speed bumps. As Jennifer Hing, House Appropriations Committee spokesperson, points out, Citizen and Immigration Services (CIS), the agency that processes immigration petitions and deportations, is funded through application fees. That means its funding is not subject to annual appropriations bills. And as a result, there is nothing Congress can do to defund the executive order.

However, this talking point misleads many into thinking that Congress is helpless, which is categorically wrong. Republicans could pursue several different avenues. They could attach legislative language onto an omnibus or other appropriations bill. This is a routine process that occurs basically every time an appropriations bill is passed (see here under “Legislating on Appropriations”). Even though Congress has a rule prohibiting legislative language in appropriations bills, they nonetheless ignore it all the time.

There are other ways to respond as well. The Budget Committee could grease the wheels and push the bill through the reconciliation process. Legislatively, some piece of this bill would have to do with revenue (fees), though not all necessary provisions would likely be able to pass under reconciliation. Finally, the most obvious solution is to pass a bill. Congress could simply prevent CIS from executing the order.

There is a catch, however. Any process the House could use would be subject to a 60-vote threshold in the Senate. Either the Senate would have to agree to waive the rule against legislating on appropriations, waive the Senate Byrd rule, or overcome a filibuster. That is a difficult but not impossible task. Republicans are hesitant to take this path because in order to get 60 votes they would have to pull back on reversing the executive order.

There is a deeper, underlying point that uncovers Republicans’ strategic motivations. This is not a case of inability. This is a case of inaction. There is nothing procedurally hindering Republicans from pursuing a response to Obama’s executive order. They are not held back by process. They are held back by strategy.

The real reason most Republicans do not like these options is there is no guarantee the bill they want to offer the President could get to his desk. There would be no grand showdown forcing Obama into the awkward situation of choosing between his executive order or funding the government.

In other words, without non-filibusterable, must-pass legislation, Republicans cannot force the president into accepting their terms by presenting him with a catastrophic consequences if he doesn’t. And as a result, we see a lot of hyperbolic rhetoric without much motivation to back it up with legislative effort.

Posted in Filibuster, Legislative Procedure, Political Institutions | 1 Comment