Thursday, October 4, 2012

Commodore Barbossa & Wil Wheaton Explain Senate "Rules"

On twitter yesterday, Brad DeLong got into it with a Bush-era Treasury & Senate Budget staffer on whether or not Senate Democrats could have used reconciliation, a procedure by which certain legislation cannot be filibustered in the Senate, to push through additional stimulus. The complication here is that Senate Democrats had enacted pay-as-you-go restrictions that subjected any deficit increasing legislation or amendment to a 60-vote test, even when attached to budget bills that are considered under reconciliation. This is a feature as far as any progressive is concerned, since without it, Senate Republicans could offer tax cuts or business-friendly legislation that many Senate Democrats would feel compelled to vote for out of ideological preference, parochial interest group desires, or political survival. Had Democrats unwound their own PAYGO rule to enact more stimulus, they would have opened the door to an unending series of votes that would be extremely uncomfortable for Evan Bayh, Blanche Lincoln, Joe Lieberman, Ben Nelson, Kent Conrad, Kay Hagan, etc. It would not be a good trade for Democrats.

But the focus on rules here ignores the fact that the Senate is not a rules-driven institution. It's a norms-driven institution, similar to, say, NFL officiating or running a major airline. Former Bill Bradley staffer, New America Foundation fellow, American Prospect editor, and ... well, I'm not sure what he's doing now... Mark Schmitt wrote about this more eloquently here, here, and here, and Oregon Senator and official Donkeylicious mascot Jeff Merkley talked about it in an interview with Ezra Klein here and here. To drive the point home, though, let me try a pop-culture infused explanation.

If all Senators used the Senate Rules to achieve local maximum advantage, nothing would ever get done, in roughly the same way that if American Airline pilots wrote up every repair that the FAA considered a potential flight risk, no plane would leave on time. So it's unusual for rules to be enforced to the letter at all times.
The Senate rules are such that any Senator (or group of Senators) with sufficient commitment, can act as a check on action in such a way as to grind Senate business to a halt. Various procedural tools: the filibuster, anonymous holds, offering large numbers of amendments, etc., can be used at almost any point in time. We've seen this several times in just the past four years. Jim Bunning placed a hold on an unemployment extension that was otherwise agreed to; Lindsay Graham threatening to block all nominations to the NLRB until it dropped its complaint against Boeing; Tom Coburn forcing Bernie Sanders' single-payer bill to be read out loud on the Senate floor; repeated filibusters, public hold, or anonymous holds on various subcabinet appointments, and so forth.

In practice, then, the Senate has only one rule, which is that you can't actually use all the rules all the time. The only thing that keeps the Senate going at all is whatever version of Wheaton's Law is most palatable to the geriatric old men (and not enough women) that populate the Senate. Enough Senators have to realize that to get anything done, they can't actually assert all the power to which they're entitled under the Senate's standing rules. The fact that most Senators will spend time both in and out of power means that the majority will have some empathy for the minority's situation, and vice versa. The end of this basic understanding is a big piece of the reason why Congress has broken down over the past two decades. Prior to Bill Clinton's election, social norms among Senators severely limited the application of the filibuster. But that norm has eroded as Senators from both parties -- but mostly Republicans -- have become more interested in using Senate procedure to extract maximum short-term partisan advantage.

There is no way out of this box through rule changes. If the filibuster were to go away, Mitch McConnell would have plenty of other tools at his disposal to delay or deny the President's agenda. The only way out is to replace current Senators with new Senators whose personal preference is for a less calcified legislative body, or for existing Senators to decide that gridlock is one of the root causes of electoral defeats.
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