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July 22, 2013 10:50 AM Why Didn’t the Democrats Just End the Filibuster?

By Gregory Koger

Last Tuesday’s announcement of a deal to end an institutional crisis in the Senate gave the Democrats almost everything they were asking for: approval of President Obama’s nominees for Secretary of Labor, EPA Administrator, Ex-Im Bank President, and Richard Cordray as Director of the Consumer Financial Protection Bureau. In addition, Obama will withdraw two nominees for the National Labor Relations Board, but his subsequent nominees are guaranteed approval by the Senate. Nonetheless, it is interesting to ask why the Senate Democrats accepted this deal rather than ending filibusters against executive nominations once and for all. I begin by discussing four commonly-cited explanations we can reject based on this outcome, then two good reasons the Democrats may have taken the deal.

The lopsided nature of the final “bargain” reflects the fact that the Senate Democrats were making a credible threat to permanently end obstruction against executive nominations and the Republican negotiators preferred capitulation to avoid this reform. This helps us dismiss some common explanations why reform doesn’t happen.

It IS possible for a simple majority to change the rules of the Senate in mid-session. As Sergio Campos and I explain in this forthcoming article, a simple majority of senators can restrict obstruction whenever they want, with or without the assistance of the presiding officer, by manipulating the interpretation of current Senate rules. This was reportedly the strategy Reid and the Democrats intended to employ on Tuesday.

The argument that “reform is impossible” is sadly all-too-common, often expressed by people who don’t want the Senate to change, and by frustrated pro-reform commentators trying to explain why filibustering persists in the Senate. An example of the former is Bob Dove, former Senate parliamentarian and current advocate for the status quo. Here’s a recent appearance on MSNBC.

I was flabbergasted by this exchange with Chuck Todd:

Todd: what is it exactly he’s doing that avoids the 67 vote [threshold for cloture on a rules change]?
Dove: okay, i have no idea what senator reid has in mind.
Todd: but he seems to have a way to do this?

Dove: well, he says that he does, but i’m not sure what it is. my reaction is, if he doesn’t get cloture, for example, on one of these nominees, he can lodge an appeal. but appeals are debatable. and it would take cloture to end debate on the appeal. so i really don’t know what he has in mind.

This is incorrect. If the presiding officer of the Senate supported the Democrats’ position, the Republicans would have to appeal and the Democrats could table their appeal. Otherwise, the Democrats could limit discussion of their appeal by lodging a 2nd point of order against prolonged discussion of appeals.

This may be complicated for the average reader, but it should not be too complex for a former Senate Parliamentarian. Either Dove is too stupid about Senate rules to be a credible source, or he is too disingenuously biased to be put on air as an “expert.

The Democrats had the votes to follow through on their threat. I think this has been true in previous iterations of this sort of crisis:

May 2005, January 2011, January 2013. For reasons I discuss below and in other writings, members of the majority party do not necessarily support reforms that empower the majority party. Reform advocates may find 35-45 votes for their cause, but usually struggle to form a majority willing to impose reform on a recalcitrant minority.

In this case, however, it certainly seemed that after 4½ years of dealing with Mitch “Stonewall” McConnell’s scorched earth strategy, the last few holdout Democrats were finally convinced that the status quo rules are not working. The strongest evidence for this is not the Democrats’ public statements, but the unbarking dog: there was very little visible interest group lobbying for reform. If the Democrats had been short a few votes, it is likely that reform advocates would have turned to outside groups with a stake in this fight (e.g. unions, environmental groups, consumer advocates) to lobby the last few holdouts. The absence of this pressure suggests to me that Reid actually had the votes to win.

The Democrats were not deterred by Republican threats of retaliation. The terminology surrounding Senate reform has become clouded by competing talking points and reporters who lacked a shared vocabulary. Sometimes reform-by-precedent is labeled the “Constitutional option,” though sometimes that label is used only for attempts to invoke the Article 1 clause that Each House may determine the Rules of its Proceedings at the beginning of a new Congress. The minority party is quick to label any attempt by the majority party to impose rules changes by simple majority vote a “nuclear option,” referring not so much to a specific parliamentary strategy as the intent of the minority party to retaliate against the reformers using its remaining powers. In this case the Republicans threatened to shut down the Senate [more than usual, if that is possible].

I share Jonathan Bernstein’s skepticism toward these threats. While it is true, as Sarah Binder notes, that the minority party currently does not exploit every opportunity to obstruct and the potential retaliation is therefore tremendous, it is also true that the minority party is currently taking advantage of every opportunity to obstruct for which the benefits outweigh the costs. Any retaliation would mean that the minority party would begin to filibuster in cases where they lose more than they gain. On major legislation, this would mean obstructing immigration reform, farm legislation, and debt limit increases even if it hurts the Republican party’s image. On day-to-day operations, the Republicans could do a lot more to disrupt the operations of the Senate, but keep in mind that a) they already do this by obstructing motions to debate legislation and refusing to agree to votes on amendments once bills are on the Senate floor; b) if the effect of GOP obstruction is to force more roll call votes, that means that Republicans have to spend more time voting as well. For example, the GOP could force the Senate to vote on whether it will adjourn at the end of the day, but this would mean that GOP senators would have to leave their fundraisers, their dinner parties, or their families to cast garbage votes in the Senate. If they don’t show up for votes, their state media and future challengers will heckle them for failing to show up for work. Even better, the Democrats could ask the Senate sergeant-at-arms to track down missing senators and drag them to the Senate chamber to explain their absence. End result: retaliation is mutually costly.

Finally, if the minority party responds to reform with obstruction, that would only invite further restrictions by the Senate majority. After all, they have already imposed one reform, so the Rubicon is crossed. It is likely that they would continue to impose reforms until the minority is pacified. This was the case with the 1975 reform lowering the cloture threshold to 3/5 of the Senate chamber. Some senators—notably James Allen (D-AL)—responded to this change by devising new forms of obstruction, which in turn led to reform-by-ruling in 1978 and a follow-up rules change in 1979 pushed through by the threat of additional reforms-by-ruling.

The Democrats were not deterred by the notion that they would be sacrificing future obstruction against executive nominations

Obviously, in the short term, Democrats will not mind if President Obama’s nominees are “ramrodded” through the Senate by a simple majority vote, whether the Democrats retain majority status in 2015 or not. More interesting, Democrats seemed to embrace (at least for now!) the notion that Presidents should be able to put their “team” in place, even if it is a Republican President.

So Why Did the Democrats Take the Deal?

Filibuster reform is a slippery slope. If the Democrats imposed majority rule for executive nominations now, how can they refuse when outside groups urge them to do the same for judicial nominations? There is a real distinction between the two categories—executive nominations are temporary and part of the President’s “team” while judges serve for life—but on the other hand, outside groups seem to be more interested in judicial nominations than agency posts. After that, majorities may extend majority rule to all legislation as well.

This is a nuanced argument. It accepts the idea that the right to filibuster is quite fragile, and there is no guarantee that future majorities won’t take it away. But, the argument goes, once senators brazenly restrict filibustering on some issues, the public pressure to follow up will be immense and the ability of senators to make fine distinctions between measures that deserve simple majorities and those that need a 60-vote margin will be challenged.

I am sure that many readers may applaud the notion of a simple-majority Senate. I have discussed this elsewhere at length, so I will quickly note here that many Senate Democrats do not share this view. For them, taking one step along this path might mean going further than they agreed.

By suppressing the GOP now, the Democrats would probably end the emerging split within the Senate GOP. Don’t look now, but the Senate is actually beginning to function again: it passed a farm bill (with food stamps!), a budget resolution, and immigration reform. A critical element of this progress is a group of senators who are tired of McConnell’s block-everything, hostage-taking strategy. They are not moderates as much as pragmatists, senators who actually became legislators so they could legislate.

While I doubt that the GOP would really “go nuclear” in response to a parliamentary strategy, I do suspect that the “McCain bloc” (as Politico dubs it) would feel a bit betrayed by their new friends, and less likely to collaborate in the future, e.g. on tax reform, the Voting Rights Act, and the budget.

[Cross-posted at Mischiefs of Faction]

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