Sunday, December 20, 2009

Procedural Reform, Not Ultimatum Games, Can Rein In Policy Nihilists

It's hard to feel confident after how up-and-down the process has been for the last several months, but it looks like we've finally got enough votes to get health care reform past a filibuster and into conference, which is the biggest hurdle in the whole process. Jacob Hacker and Paul Krugman will take the deal we've got, and so will I. The public option that mattered was the one that could negotiate rates somewhere close to Medicare, and I've been convinced by Ezra that the weak public option we had at the end thing was a good thing not worth dying for. Regulated competition on the exchanges is what we'll have to count on to keep private insurers under control. Sounds plausible enough.

I don't want to be too tough on the Public Option Or Nothing ultimatum that Jane Hamsher and other activists were pushing people in Congress to accept -- I think they had an ultimately positive effect on the process, and they were using the only tools available. What they didn't do, however, was get the public option through the Senate. And here it's a good time to reflect on why the tools they had aren't especially effective in passing major domestic legislation.

History suggests that the costs of not passing health care reform once you've made a big push for it are devastating. I don't just mean that you lose the next election badly like in 1994 -- you get knocked out of the game for 15 years, and then you crawl back with a proposal half as strong as you had the last time. The gap between success and failure is tremendous, and the gap between half-success and failure is pretty huge too.

Under these conditions, people who are indispensable to your efforts but can credibly claim that they don't care about the outcomes have the bargaining power to demand huge concessions. That's Ben Nelson and Joe Lieberman. Blue Dogs in the House are in a slightly worse position, as they may not have the deep public support to hold onto their seats if the bill fails and post hoc rationalizations of failure make Democrats look bad. But Nelson and Lieberman can force ultimatums that you have to accept if you don't want to wait another 15 years for something half as good.

You can try to push counter-ultimatums as the public option activists did, and maybe you'll have some success as long as you keep your goals small and achievable (no Stupak in the Senate bill, for example). But you just can't go up against the Nelsons and Liebermans when they've dug in and expect your ultimatums to beat theirs. Everybody knows that progressives have a lot more to lose if a bill doesn't pass than egoistic nth term policy nihilists do. There's not much you can hold over the nihilists' heads, because they don't care about policy outcomes. So progressives have to fold or be crushed. Again, I'm not faulting the activists for trying to push progressive representatives into ultimatum games -- at the time, that's the only tool they had. But at this point you have to come out and say that it's not a great tool.

What we need, first, is a bunch of reforms inside the caucus that will give mainstream Democrats leverage over the policy nihilists. Most importantly, we can't keep going with a system that assigns committee assignments and chairmanships on the basis of seniority. That just rewards people who care about staying in power and are never willing to take one for their principles or the team. Allowing Democratic Senators to vote for their committee chairs, as Republicans do, and perhaps also having an option by which a recalcitrant Senator could have his seniority reset to 0 for the purpose of committee assignments by a vote of the caucus would be an excellent idea. Ideally, this would involve the creation of a new Senate Butt Committee, dedicated specifically to legislation pertaining to the butt, which could be Lieberman's lone committee assignment. But even without this additional proposal, the idea has merit.

As for large-scale reforms, abolishing the Senate > eliminating the filibuster > using reconciliation for more stuff. The first of those is basically impossible, given that such a bill would have to pass the Senate with a Constitutional Amendment size majority, but it's the kind of Overton Window move that one has to wholeheartedly support because it is in fact the right proposal. (Tell me again why states each need 2 votes whether they have a million people or 20 million?)

So how do you and I as grassroots progressive Democrats influence our Senators enough to do something to move all this stuff forward? As usual, Matt Yglesias has a bunch of good ideas. I have a nifty idea too, which involves this dude, and if some stuff works out right I'll be posting about it pretty soon.


Dara said...

Can we call the "reset to 0" proposal the Chutes and Ladders Theory of Committee Chairmanship? (I would propose naming it the Candy Land theory, because I have a soft spot in my heart for Plumpy, but Candy Land penalizes you for bad luck rather than irresponsible decisionmaking.)

Matt12 said...

(Tell me again why states each need 2 votes whether they have a million people or 20 million?)

In my case the disparity is even worse than that. My Congressional district has a population of around 640,000. Wyoming has a population 532,668. Yet not only do they get one Congressional Rep like we do, they also get two Senators. Democracy!

Here's a useful comparison between the House and Senate Bills from the Washington Post.

In a world with just a House we would have been done with all this stuff over a month a go. We would also have a bill that covers more people and has a pretty decent public option. Thankfully our House of Lords got their opportunity to weigh in.

Fuck James Madison.

Neil Sinhababu said...

I think more things should be named by you, Dara.

Unknown said...

Getting the Senate to vote on Constitutional amendments is the traditional way to amend the Constitution. But the legislatures of 2/3 of the states can get the ball rolling without the Senate. I think given the fact that state aid in the stimulus bill got cut in the Senate for starters, there's at least a case to be made at the state level.

BruceMcF said...

Its fine to be convinced by Ezra Klein that the weak public option we were left with at the end was not worth including ... just don't fall into his same simple mistake of equating the general problem of an insurance death spiral with the individual mandate.

That latter is Ezra Klein's biggest current mistake, because of the risk of the individual mandate to buy corporate health insurance being a very poison pill indeed. After all, the reason why we are not getting bigger fight on so many measures restricting health insurance companies is they are massively unpopular and they know it ... so they (and Wall Street) are focused on limiting the damage and keeping as many of the regulations in reach of later loopholes as possible.

But that unpopularity means that the drumbeat over the next two election cycles of "government forcing us" to buy that crap from those bastards threatens to have real bite.

And the argument that the individual mandate that went through the Senate is the strongest available prevention of an insurance death spiral is just nonsense ... which is why its left tacit, in framing the question as the individual mandate or nothing.

In the real world, if the House employer mandate was redirected to the employee account for all employees that had an account, that would be a far more effective brake on the death spiral than a 2% income penalty. And since that would be built on top of language the House has already passed, its well within the ambit of Conference negotiations, if pushed by House conferees.

[public-option], [public-option&indvl-mandate], [neither-public-option-nor-indvl-mandate] ... those are the three outcomes that duck the poison pill. Not surprisingly, the Senate version is the one that swallows the poison pill.

BruceMcF said...

My favorite procedural reform may well be the "bring back the real filibuster".

That is, after cloture have been voted and defeated, if the President of the Senate recognizes the absence of a quorum at the end of one round of a quorum call, he or she may accept a motion to bring the matter to a vote. That measure must pass by 60% of Senators Present.

Set it up so the majority can go home and get some sleep, and come back at the pre-arranged time after a member of the majority has suggested an absence of a quorum. The blocking minority has to stay and hold the Senate floor against a snap close to the filibuster.

"If they're serious, they'll stay."

A couple of nights sleeping in cots to defend a filibuster and the practice of routine filibusters would quickly come to an end.

Rich C said...

I don't know who that dude is, so I'm curious, but here are a few thoughts somewhat at variance with Matt Y:

First, remember that all revenue and spending bills must originate in the House. The Senate typically writes its own revenue and spending legislation by taking a House bill and amending it by stripping out all the original language and inserting the Senate bill (that's a first step, other amendments can follow). But that amendment is debateable, and hence fillibusterable. So the strategy is that the House includes in each money bill it passes a provision that limits Senate debate to five hours, with a five hour extension possible only by majority vote or unanimous consent. Now, on the one hand, we know that legislation can limit Senate debate (1974 budge act and amendments), but the problem is that you'd need 60 senators to support filibuster reform in order for such legislation to pass, and if you've got that you can use the nuclear option. But with this House led strategy, reformers can use the filibuster against itself: you only need 41 Senators to block an amendment to strip the entire house bill. This smaller block of Senators could insist on only supporting an amendment to strip the original bill as long as the cloture reform measure remains. Or they could trade support for other reform goals. But part of the point here is that bills both conservative Dems and the GOP care about (highway bills, ag bills, even defense bills if the reforms are feeling brave) can be either held up or turned into a poison pill (since the include cloture reform), and all as a result of action by the House. And this is a strategy that can be used repeatedly, even if you can't organize 41 anti-filibuster Senators on the first go round. That in turn increases the incentive for a Gang of 14 scenerio in which it becomes possible to get 67 votes for a Senate rule change.

Secondly, this same strategy could be pursued but using a reconciliation bill. Here the challenge would be that the fillibuster ending provision would seem to be excludeable under the Byrd rule. But in principle, the filibuster does make it much harder to achieve responsible fiscal policy, and that is why the reconciliation process was developed in the first place. Indeed, the Byrd rule includes some language such that measures that do not directly affect revenue and spending could still survive an objection under the rule if they, in combination with other provisions of a bill, help to reduce the deficit. I've heard from a former aid to the Sen Parliamentarian that this argument would not prevail, but you could try.

Third, I think proponents of filibuster reform should try invoking the nuclear option on a semi-regular basis. For one thing, it would be good to know where we stand on the filibuster. For another, such votes would provide targeting information for outreach efforts. Also, since the nuclear option sets a precedent, it could be used to limit debate on certain kinds of measures where the argument would be strongest. So conference reports, which cannot be amended, really should have a fixed debate limit. As I hinted above, the Constitution clearly vests the House with the power to originate revenue and spending bills, and does not explicitly allow the Senate to ignore those bills. Arguably, the unconstrained filibuster is specifically violating this clause of Article 1, Section 7, and thus no money bills can be subject to unlimited debate. And so on. Again, by repeatedly carving out areas where the filibuster is least defensible, and where the long term perceived risk of filibuster reform is smallest (when was the last time a conference report never got cloture?), we can chip away at the filibuster and incentivize moderates to support new cloture rules