January 3, 2018

Episode 7: Rules Around the Senate Filibuster



The filibuster effectively means 60 votes are usually required to take action in the Senate. But Senate majorities can make or change rules to get around it. In 2017, Republicans went “nuclear” on Supreme Court nominations and used reconciliation rules to pass tax cuts (but chose not to limit the scope of the Byrd Rule). New books by Molly Reynolds and James Wallner explain when Senate majority parties use procedures to get around the filibuster. Reynolds finds parties follow their electoral and policy preferences, but Wallner finds that minority party threatened retaliation can deter change. Matt Grossmann talks to both about the future prospects for the filibuster and the ways around it.

The Niskanen Center’s Political Research Digest features up-and-coming researchers delivering fresh insights on the big trends driving American politics today. Get beyond punditry to data-driven understanding of today’s Washington with host and political scientist Matt Grossmann. Each 15-minute episode covers two new cutting-edge studies and interviews two researchers.You can subscribe to the Political Research Digest on iTunes here.

Transcript

Grossmann: This week on Political Research Digest: How U.S. Senate majorities play hardball. Avoiding the filibuster and using budget reconciliation. For the Niskanen Center, I’m Matt Grossmann.

Senate Republicans have restricted the use of the filibuster a lot this year. Going nuclear on appointing a new Supreme Court Justice, reversing Obama administration Policy, and using budget reconciliation to pass tax reform.

A new book, “Exceptions to the Rule; The Politics of Filibuster Limitations in the US Senate”, published by Brookings Institution Press argues that majorities use exceptions to win policy closer to their ideals and to benefit electorally. I talked to author, Molly Reynolds, of the Brookings Institution about how the latest use fits historical patterns.

There’s a long ratcheting up of Senate hardball, between the parties, but sometimes the potential rules changes are diffused. To find out why, I also talked to James Wallner, of the R Street Institute about his new book from the University of Michigan Press: “On Parliamentary War; Partisan Conflict and Procedural Change in the US Senate”. He finds that term and senate minorities could deter majorities from changing the filibuster.

Political scientists traditionally argue that the filibuster (the requirement to get 60 votes to end debate) means both senate actions require widespread support; but Molly Reynolds finds a long history of majoritarian exceptions:

Reynolds: I think a most important lesson that folks can take away from my book is that, yes, the filibuster is really important in understanding how the Senate works, and how the Senate has changed over time. So if we care about not just the Senate as an institution, but also about the policies that the Senate is capable of producing, we’re really missing an important part of the picture if we just think about the filibuster and don’t pay attention to these exceptions to the filibuster that I talk about in the book.

Grossmann: But the exceptions tend to increase partisanship rather than solve gridlock.

Reynolds: When the Senate develops special procedures and then uses the special procedures that it has, it largely does fall in line with partisan motivations and so we don’t necessarily want to think about what’s happening in the book as kind of the solution to the gridlock confront conduct.

Grossmann: Budget reconciliation, used this year for taxes and healthcare, is one big example.

Reynolds: Budget reconciliation is probably the best known example of the classic procedures that I studied in the book and I realize that it’s sort of funny to say that reconciliation is the best-known example of anything, but it’s probably the one that folks are most familiar with and so it is it is one procedure among a set of procedures that basically involves a limitation on how long the Senate can debate a particular bill, so in the case of reconciliation, it’s 20 hours. As anyone who’s watched either the on the health care debate over the summer or should it be the ongoing tax debate, knows that once that clock starts ticking on those 20 hours on the floor of the summit, that’s the amount of time the summit has for debate, and that has the effect of preventing the possibility of a filibuster.                   Once that 20 hours is up, they have to take the vote.

Grossmann: It’s not new. Reconciliation has been a big part of major policy changes for decades.

Reynolds: It has pretty wide-reaching policy responses, so again we’ve see that this year, vis a healthcare and taxes, but if by that you meant going back to the early 80’s, there are other major policy changes including Clinton’s Welfare Reform, those rounds of the tax cuts under George W Bush, as parts of the Affordable Care Act. They were all enacted using that particular procedure.

Grossmann: Reynolds finds that the Senate uses reconciliation when the Floor majority prefers the relevant committees likely built the 60th Senate voters’ preferences.

That was true for taxes this year, but not for cap and trade under Obama.

Reynolds: When the majority party leadership is trying to decide what committees to give instructions to, it has to think about what kind of bill is a committee going to produce. Is it going to produce a bill a simple majority of the majority party in the Senate is going to like or would that simple majority prefer the outcome they would get if they handled the same issues through a regular one-sided process. In the book I talk about this example in Cap And Trade, into [00:04:35], where I think there’s pretty good evidence that the median member of the full senate, who is a moderate Democrat, might have preferred a kind of Cap And Trade Bill that was generated through the regular legislative process than one that the applicable Senate committee could just write themselves and that would be hard to change on the floor.

Grossmann: The cost of reconciliation is that bills must be designed to affect spending and taxes, and not increase the deficit after 10 years. Provisions enforced by the Bird Rule:

Reynolds: What we now call the, “Bird Rule”, [00:05:12]sort of puts a box around what could be considered reconciliation though. I think that by and large it’s still kind of what Bird intended in terms of keeping the process hemmed in.

Grossmann: Sometimes parties can achieve the same policy results by changing the mechanism to fit the rule:

Reynolds: A lot of the things that they initially took to the parliamentary in 2015 was a straight refuel of the individual mandate, and the requirements that individuals have to purchase health insurance coverage, and the parliamentarians said, “No, you cannot repeal the individual mandate as part of the reconciliation process as per the [00:05:45]Bird Rule”, so then the Senate staff went back to the drafting table and said, “Alright is there a different way that we could accomplish this?”, and it turns out that the Parliamentarian was okay with just setting the penalty for not purchasing health insurance at zero.

Grossmann: What’s different in 2017 is that both major bills were advanced through reconciliation.

Reynolds: This year we had, there were a couple things that congressional majorities tried to use the process twice in one year, which is a little unusual, they had the healthcare attempt and the tax attempt, and so it will be interesting to see if they hey continue to try to use it for the big party-defining goals.

Grossmann: But reconciliation is hardly Reynolds’ only example of exceptions to the filibuster:

Reynolds: Other examples that folks have heard of include the procedures for closing military bases, long-term out-of-time trade agreements, we’ve seen recently some of these procedures and ones that are, ‘similar to them” cross off in the foreign policy arena, so we’ve seen, for example, in several laws that Congress passed regarding the nuclear deal with Iran.

Grossmann: Some of these procedures are used to avoid blame, like on Fast Track Authority for trade agreements:

Reynolds: One category of these procedures in the book I refer to them as, “Delegation exceptions,” are in my mind largely meant to help Congress avoid blame for things, so in the case of trade, for example, you’re absolutely right that we have we have a long history of using what are generally called, “Fast Track” procedures for trade agreements, where basically Congress gives the President the authority to negotiate the trade agreement and then that trade agreement comes back to Congress for [00:07:33]no amendments vi agreement and can’t be filibustered in the Senate and part of why that of why Congress thought that was a  good idea is because to the extent that there are benefits to free trade, they are realized in a very diffuse manner. To the extent that there are costs. Those costs are felt and concentrated often particular geographic areas.

Grossmann: This term, Republicans have taken advantage of their exception to review administrative acts.

Reynolds: The Congressional Review Act, which is another procedure that I talked a little bit about in the book, where Congress can roll back a newly promulgated executive branch regulation, and the resolution to doing that can’t be filibustered in the Senate. This was used, this procedure was used pretty heavily by Republicans at the beginning of Congress, I think in part since they came into office in January and were looking for a pretty easy off-the-shelf policy accomplishments.

Grossmann: Republicans also extended the nuclear option to the Supreme Court this term, confirming Neil Gorsuch with a 50-vote threshold.

James Wallner finds that the majority parties incentives to create exceptions are not always clear-cut:

Wallner: The most important thing about my book is that it explains why procedural change occurs in the Senate over the objections of the minority party. That is, why the majority will use what we’ve referred to as, “The Nuclear Option”, which is changing the Senate rules and violation of those rules are circumventing or ignoring the Senate rulings via a majority vote on the Senate floor.

Grossmann: He clarifies it using fights over, “The Nuclear Option” during the Bush and Obama administrations:

Wallner: It really does present us with a puzzle because in reality, a majority can change the Senate rules whenever it wants to, right? Simply by overturning the ruling of the Chair and creating a new precedent that supersedes those rules, even though it may be in violation of them.

Now this presents us with a puzzle because it’s not clear why the majority would ultimately tolerate a rule in a process it is used to thwart their agenda, which is has been in increasing years, right? In recent years.

On one hand, one explanation is, “Well it’s not really needed”, right? They don’t need to use the Nuclear Option and because they can ultimately change rules whenever they want to and therefore we just assume that the majority likes the rules as they exist, and if they don’t, then they will just threaten to change the rules and then the minority ultimately complies. And so therefore, it’s okay, and that explains it and that’s not entirely clear because that’s not able to explain past instances of contested procedural change like, say that that occurred in 2005 when the majority, the Republican majority at the time, on the Senate, clearly wanted to change the rules of the objection of the minority Democrats, but were unable to do so.

There is another explanation and the conventional wisdom in the academic literature on the subject that says, “Changing the rules is really hard, especially over the objections of the minority party”, and therefore, the filibuster that persists because the majority doesn’t have the capability to change the rules as much as it would like, and this is what we would refer to maybe as like a path-dependent view of the Senate rules, and it will. It points to the 2005 instance and says, “Look. Here’s a case where the majority wanted to change the rules and minority said, “No” and threatened retaliation and the majority was ultimately unable to overcome those threats and decided to not follow through and meet the filibuster at the time.

But the problem with that explanation is that it doesn’t explain 2013 instance when the majority Democrats ultimately used the Nuclear Option to eliminate the filibuster over the minority’s objections.

Grossmann: The comparison shows the minority party can deter rules’ changes.

Wallner: Comparing the 2005 instance to the 2013 instance, then it’s not simply a uni-directional motion of ever greater obstruction of ever-greater restriction, that the majority’s ability to ultimately go nuclear is, I think, contingent in part on the minority’s response, and that the minority that is determined to react, determined to link the rank-in-file members of the majority’s decision to go nuclear with unpalatable policy outcomes in the future, they can condition and deter the majority from ultimately following through.

Grossmann: Wallner says the Democrats did not issue retaliatory threats over Gorsich this year.

Wallner: Today, you see something very similar when the Republicans use the nuclear option to eliminate the filibuster for the Supreme Court. You go back and look at what the Democrats did to try to dissuade the Republicans from following through with their threats. They didn’t actually threaten retaliation, right? There’s no real effort to increase the cost on the rank-in-file members of  the majority party, either in the moment, or in the future, for ultimately going through on it.

Grossmann: Minority parties have a variety of tools to gum up the works, even without the filibuster.

Wallner: If you force-recorded votes on every resolution, every motion, every amendment, every nominee, there’s just not enough time for the Senate to do everything. There’s not and I look at this in the book and try to, using a counter-factual analysis, [00:12:56]recent Congress, is then assume what would happen, what would the agenda look like, what would the work week look like if all of these recorded votes were insisted on.

Wallner: The other thing is that you can offer amendments, right? Right now the majority fills the tree and blocks all amendments, in an effort to protect it’s members from forcing, from taking votes that it doesn’t want to take, but there’s no reason why any member can’t just stand up and offer an amendment anyway. It’s not in order, the Chair rules it out of order, you appeal the ruling of the Chair, right? With 20 members, you get a vote. Should that amendment be pending? It’s the 20 votes, it’s 20.

Grossmann: For that reason, even a determined faction within a party could force bargaining.

Wallner: The tactics that it outlines for how minorities can really threaten majorities, they’re not dependent on a unified minority party, right? A faction within that party can, or a faction within the majority party for that matter, can employ these tactics as leverage to get whomever the powers that be in the Chamber to bargain with them.

Grossmann: Wallner says this year Republicans used reconciliation because it was easier than rules changes:

Wallner: Senators will always follow the path of least resistance, and reconciliation does offer an alternative path to past big-ticket items, and it speaks to the continued power of the Senate rules, even those that authorize the filibuster, they are willing to follow that path, even thought it entails certain costs, right? There are lots of restrictions with regard to reconciliation that make it more difficult to do things that otherwise would be.

Wallner: With regard to the Bird Rule, you know it was exclusively designed to narrow the use of reconciliation and prevent it from being used as an end run around the filibuster. It’s interesting that the Bird Rule, efforts by the majority to adjudicate precedent on the Bird Rule were greeted with such fierce pushback and this is very similar to the pushback used when members try to challenge the amendment tree and offer what I call in the book, “Third Degree Amendment”. Both the Amendment Tree and the Bird Rule are largely defined by precedent, not by standing rule or by statute.

Grossmann: What can senators learn from this research? Wallner says the majority should take a long-term view:

Wallner: They would hope that the leadership would read this and see that the minority does have, whether it be an interim party minority, or the minority party itself, does have leverage, and to negotiate with the majority, with the minority to resolve outcomes so that they don’t get to this extreme situation where you have gridlock. I think more broadly viewing the Parliamentary process, the legislative process, and the struggles between the two sides in that process as in the context of the Parliamentary war, right? And putting it in that larger, strategic context, it shows the majority that there are ways in which they can actually prevail over a minority.

Grossmann: Reynolds says making exceptions to the filibuster won’t turn the Senate into the House:

Reynolds: Using these procedures doesn’t just turn the Senate into the House. There are other features of the Senate, particularly, in my mind, the Senate’s unique electoral structure. I mean that it’s just a different kind of an institution than the House is, so even if you are using there procedures that prevent the possibilities of filibuster, you are still going to end up with a different institutional environment than in the Lower Chamber.

Grossmann: While Wallner says the minority party can learn that it has a lot of power to make life difficult:

Wallner: If you’re in the minority, what you’re trying to do is you’re trying to dissuade members like Susan Collins, right? Members like Lisa Mikowski, members like John McCain or Bob Corcoran, but also Conservative members who are institutionally minded like a Mike Lear or others who are fundamentally uncomfortable, I think, with this idea of the Nuclear Option. You are trying to dissuade them from ultimately recording the majority effort to Nuke the filibuster, right, what you ultimately want to do is you want to force them to do things that are unpleasant.

Grossmann: So where are we headed? Reynolds suggests Congress could be using filibuster exceptions to check administration foreign policy.

Reynolds: The idea that Congress, what it’s concerned about is it’s ability to weigh in on foreign policy decisions. One thing that it can do is use some of these special procedures to enhance it’s ability to at least have some public input on what’s happening and signal to the public how it’s using them to [00:17:27]foreign policy choices and I think it will be another important thing to watch.

Grossmann: Wallner says to accept more filibuster exceptions for judiciary nominees:

Wallner: My expectation is that you will see further restrictions of the filibuster on the judicial side, and by that I mean Rule 22, so it’s not just the threshold by which Court has ended, the filibuster has ended, which was reduced from the 3/5th to the simple majority by the repeated use of the nuclear option, both earlier this year and 2013, it also defines what it takes to follow through and confirm a nominee, so my expectation is you will see the majority, either the Republicans or the Democrats eventually use the Nuclear Option to reduce the 30-hours debate time.

Grossmann: For researchers, Reynolds says the next step is to figure out just which Senators are empowered by filibuster exceptions:

Reynolds: Questions about who in the Chamber gets advantaged by the use of the process, and so there’s obviously a partisan story and it’s the story I tell in the book but on an even more-micro-level, there are certain people who understand how the process works and can try to use it to their advantage.

Grossmann: There’s a lot more to learn. Political Research Digest is available biweekly from the Niskanen Center.

Thanks to Molly Reynolds and James Wallner for joining me today.

Join us next time to find out how the parties use tax expenditures to benefit their constituents and why they’re debated as tax relief and not income-subsidization.