Posted by: Patrick Allen Foster | December 13, 2013

Some Links on the Filibuster Reform

I’m a few days behind the curve on this, but, oh well:

1. Chris Cillizza, Washington Post: “Why I was wrong about the nuclear option”:

Viewed broadly, what I misjudged was that the way politics has always been conducted — or the way it had been conducted for a very long time — does not mean that it is the way it always will be conducted going forward. The nuclear option had been used as a threat that both sides knew neither side would ultimately use for much of the last decade. That fact alone, however, did not guarantee it would never be used. The reality is that the Senate (and political Washington more generally) is a different place than it was even a few years ago.

The main reason for that is the massive turnover in the Senate over the past several election cycles. Since 2008, 40 new Senators — 20 Democrats, 20 Republicans — have been elected. Six years ago, 44 senators had served at least three terms; today that number is 32. At the start of the 113th Congress, more than half the senators had served one full term or less. All of that turnover has led to huge numbers of senators who simply don’t know how the other half lives. There are currently 55 senators who have only been in the chamber as a member of the Democratic majority or Republican minority.

That change in the composition of the Senate means that not only are many of the longtime defenders of Senate tradition gone — people like Bob Byrd of West Virginia, Ted Kennedy of Massachusetts, Pete Domenici of New Mexico and John Warner of Virginia — but also that long-timers like Reid face a very different caucus than they once did. Reid had been under pressure for quite some time from younger, more liberal members — like Jeff Merkley — to change the filibuster rules but had resisted. But, over time his resistance waned as he realized that changing the rules was actually what his caucus now wanted — and that they were willing to accept the consequences of their actions when they went back into the minority at some point in the future.

2. Sarah Binder, the Monkey Cage:

So what made deploying the nuke politically feasible this time? The relative costs and benefits of deploying the nuke shifted measurably for the majority. First, fear of minority retaliation (which would have increased the majority’s costs of going nuclear) no longer weighed heavily on the majority’s calculations. As Majority Leader Harry Reid put it, “What could they do more to slow down the country? What could they do more than what they’ve already done to stop the Senate from legislating?” Second, Democrats’ perceptions of GOP overreach (which increased the partisan benefits of banning filibusters of nominees) finally persuaded more senior, reluctant Democrats to support Reid’s nuclear gambit. Perceptions of GOP overreach likely also made it easier for Democrats to shift the blame for going nuclear to the GOP, thereby making Reid’s nuclear gambit more politically feasibility. … In short, even most long-serving Democrats (including Reid) likely calculated that there was a lot to win and little to lose by striking down nomination filibusters with a nuclear strike.

If that shift in costs and benefits was plainly evident to Democrats, why didn’t the threat tame the GOP? One possibility is that Minority leader Mitch McConnell badly miscalculated by underestimating how many votes Reid held for going nuclear. Given several Democrats’ long-standing reluctance to circumvent the chamber’s formal rules to reform the cloture rule, that would have been a reasonable mistake on McConnell’s part. (That said, one of the more reluctant senators, Barbara Boxer, noted as early as the beginning of November that she had become more open to going nuclear.) Still, Jonathan Bernstein offers an alternative explanation for why the GOP failed to drop its judicial blockade, arguing that the more pragmatic GOP senators had tired of being targeted by conservatives for providing pivotal votes for cloture. If true, then Republican senators gave up the filibuster to save themselves. Given that senators’ defense of the filibuster has historically been driven by their political interests rather than by institutional principle, we shouldn’t be surprised to see many Republicans make that tradeoff.

3. Gregory Koger, also at the Monkey Cage:

I don’t expect that there will be a great deal of “fallout” from the nuclear option. Presumably, the Senate Republicans are already filibustering in every case where the benefits of obstruction outweigh the costs. To go any further would mean filibustering in cases when the costs exceed the benefits out of sheer spite. They could try to punish the majority by dragging out Senate action in small ways — refusing unanimous consent for time agreements, for example. …

It is most likely that the majority continues to chip away at filibustering without abolishing it altogether. The Democrats may try, again, to adopt formal rules changes that simplify the cloture process or make it more difficult to obstruct. Or they may declare additional classes of legislation immune to obstruction, such as appropriations bills or debt-limit increases. This preserves the ability to obstruct “ordinary” policy bills while reducing the effect of obstruction on critical legislation.

4. Chris Bowers, Daily Kos, with perhaps some premature optimism:

The result will be thoroughgoing, long-lasting change as the doors to the judicial branch of government are finally unlocked and thrown open to progressives. All the destructive court decisions we have recently suffered through on reproductive rights, on rights at work, on Citizens United, on the Voting Rights Act, on making the expansion of Medicaid optional to states and so much more—we now finally have a path to reverse all of that damage.

5. Megan McArdle:

What’s left to discuss is what this means. In the short term, it obviously means that President Barack Obama can more easily fire people and confirm replacements, and that the D.C. circuit court, which hears regulatory appeals, is going to be a lot more liberal-leaning in the future. In the medium term — if you think, as I do, that Republicans have a pretty good shot of taking the Senate and White House by 2017 — we can expect Republicans to do away with the rest of the filibuster, accompanied by the writhings and groans and outraged cries of many now celebrating Senate Majority Leader Harry Reid’s courageous stand against minority obstructionism. In the long term, the Senate will be a more majoritarian body, for good and for ill; parties will enjoy new power when they are in the majority, and when they are not, they will bitterly lament the bygone respect for minority rights.

But what’s perhaps most interesting is the light this sheds on current Democratic thinking. …

One way to interpret this is that they are confident that they will retain their majority in 2014, and so they have no immediate need to worry about minority rights. But it would be insane for Reid to have grown more confident in the last six weeks. No, I think that this shows the opposite: They think it’s very likely that they will lose their Senate majority in 2014. They are essentially writing off the last two years of Obama’s presidency, which means getting as much done as possible right now. They are going to spend the next year packing as many liberal justices and appointees onto the courts and various bureaucracies as they can, knowing that much of this legacy will live on beyond Obama.


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