I go back and forth on what I think about the propriety of the filibuster for legislative purposes, although I’m inclined towards the view that the filibuster is on the whole a good thing under those circumstances.

The announcement by Sen. Ben Nelson that he would not only oppose but filibuster Obama’s nominee for the National Labor Relations Board, however, provides an opportunity to discuss an area where I think the filibuster is not only inappropriate but also undermines the spirit, though perhaps not the letter, of the Constitution.

In circumstances such as executive and judicial nominations, the filibuster is to my mind utterly inappropriate and even outright toxic.  The power to nominate and appoint federal executive and judicial officers is Constitutionally vested in the President under Article II, although certain appointments are to be made with the “advice and consent” of the Senate.  [Read more →]

by Kyle Mathews

If there’s one thing that most political commentators and Americans can agree upon, it’s that Congress is bad at its job. Presidential approval ratings go up and down, Congressional approval ratings pretty much stay down. These days, it’s become de rigueur to point to hyper-partisanship, legislative relics who’ve all but become permanent fixtures in both houses, the pervasive and harmful influence of special interests in the legislative and electoral process, and the regularity of ethical lapses and scandals.

The prevailing sentiment of the day seems to be “Congress is good, but the people in it are terrible,” and many of our attempts to address Congressional shortcomings stem from that mindset. Recent examples include campaign finance reform, lobbying disclosure requirements, hiring bans, transparency initiatives, and “the most ethical Congress in history.” These reforms aimed to keep bad people out of politics so good people could do good work.

This focus on bad actors; however, ignores the ways in which the system itself incentivizes bad actors. To run for Congress, stay in Congress, and pass legislation requires money, votes, influence, popularity, allies, and expert knowledge. Those requirements increase the value and leverage of organizations or individuals that can provide one or more of those to a significant degree, making those groups something of a super-constituent. These include donors, interest groups like the NRA or SEIU, think tanks like Brookings or Cato, fellow politicians, and the parties themselves.

Super-constituents distort representative government by creating incentives to value the priorities and contributions of a select few over those of a legislator’s constituents. Super-constituents also retain the power to punish elected officials more easily and more severely than regular constituents, by endorsing competitors, stripping legislators of seniority or committee membership, and cutting off access, particularly to donors. With this in mind, more significant reforms modifying the structure of the United States Congress or rather how it does business, not just who shows up to do it, need to be considered.

Broadly, we need reforms to accomplish more legislative/legislator independence, a better representation of people and collective interests, and a greater emphasis on work rather than optics and political gamesmanship.

More specifically, we would benefit from:

· More accurate representation of constituencies;
· Less partisanship;
· Incentives for legislative leadership;
· Breaking up entrenched power;
· Addressing the disproportionate influence of extra-legislative entrenched interests;

To accomplish some of those goals, or at least put us on the road to a less dysfunctional legislature, consider this slate of 8 reforms. [Read more →]

In an otherwise decent piece about Harry Reid’s continuing attempt to corral support for the public option, this paragraph sticks out like a sore thumb:

Just six weeks ago the public option appeared to be dying, under fierce attack by the insurance industry. A clear majority of Democratic senators favor a government-run plan. But public statements by other senators indicate that the proposal lacks the 60 votes ordinarily needed to secure Senate approval for hotly contested legislation. [Emphasis mine]

The problem, of course, is that there is nothing ordinary about this 60 vote requirement.  “Hotly contested legislation” – like any other piece of legislation – requires the support of only a simple majority to become law, and that’s been the case for the vast majority of American legislative history.  In fact, and as congressional expert Norm Ornstein explained earlier this year, this extra-constitutional 60 vote requirement is a relatively recent development, with the number of cloture motions growing steadily over the past thirty years, with a particularly sharp spike during the 110th Congress:

That we’ve basically acclimated to this new 60-vote requirement without much in the way of protest is really a sad commentary on our politics: we’ve gotten so used to legislative inaction that its institutionalization really isn’t that big of deal.  That said, even if we were eliminate the filibuster and make the Senate a more majoritarian institution, it would still be functionally broken.  The Senate is simply too unrepresentative and too powerful to not have an incredibly strong status-quo bias.

If the Senate were something akin to the House of Lords, hidebound and sort of useless but without real power or influence, it would still be really annoying but not terribly critical.  As it stands however, we live with the worst possible arrangement: the Senate is both dysfunctional and an integral part of the legislative process.

On my twitter feed (which you should follow, by the way), a friend asks what I think about the potential use of reconciliation to pass health care reform.  For those of you unawares (or just need a bit more information), reconciliation is “triggered” when Congress passes a concurrent resolution (a legislative measured passed by both the House and the Senate) requiring the committee(s) in question to – by a particular date – report any changes in law which affects the budget.  If those budget instructions affect multiple committees, those committees send their recommendations to the Budget Committee, which then packages them into a single omnibus bill.  Once on the floor, debate is limited to 20 hours, and amendments are sharply limited.  What’s more – and most relevant for our discussion – reconciliation bills cannot be filibustered and only require a simple majority vote.

If that sounds a bit too simple… you’re right, it is.  In 1985, the Senate adopted the Byrd Rule which prevented senators from including into a reconciliation bill any provision which was irrelevant to the purpose of implementing budget resolution policies.  In 1990, the Congressional Budget Act was amended to include the Byrd Rule.  This rule allows any senator to raise a point of order against any provision held to be irrelevant or “extraneous” to the budget.  If the point of order is sustained, then the provision is removed from the bill.

That last point should make progressives wary of using reconciliation to pass a strong public option, or a health care bill more generally.  While there are rules describing what counts as “extraneous,” they aren’t terrible precise, and are very much open to interpretation.  For instance, according to a budget committee report on the Byrd Rule:

Subsection (b)(2) of the Byrd rule provides that a Senate-originated provision that does not produce a  change in outlays or revenues shall not be considered extraneous if the chairman and  ranking minority members of the Budget Committee and the committee reporting the provision certify that —

• the provision mitigates direct effects clearly attributable to a
  provision changing outlays or revenues and both provisions together
  produce a net reduction in the deficit; or
• the provision will (or is likely to) reduce outlays or increase
  revenues:  (1) in one or more fiscal years beyond those covered by
  the reconciliation measure; (2) on the basis of new regulations, court
  rulings on pending legislation, or relationships between economic
  indices and stipulated statutory triggers pertaining to the provision;
  or (3) but reliable estimates cannot be made due to insufficient data.

While it is possible that the public option is a perfectly legitimate part of a reconciliation bill, it’s just as likely that it isn’t.  And if it isn’t, it’s not clear whether the public option counts as an exception to the rule.  Indeed, it’s fair to say that an exception is whatever the Senate Parliamentarian (who is responsible for deciding which provisions are ineligible under the rule) says it is.  What’s more, there is a fair chance that there are plenty of measures a liberal health care bill which would run afoul of the Byrd Rule, and thus be unceremoniously stripped from the final package.  In fact, it’s entirely possible that using reconciliation could result in a bill completely stripped of anything useful.

Honestly, I think progressives should stop worrying about reconciliation, and instead, focus on trying to break the inevitable Republican filibuster.  That said, I think I’m correct to say that the legislative drama over health care reform – and the preoccupation with arcane budgetary processes – serves as another data point in favor of repealing the filibuster.  Not only is it a tremendously anti-democratic tool (situated within a fairly counter-majoritarian institution), but to paraphrase a recent Hendrick Hertzberg post, the it is a clear impediment to those “who see democratic self-government as an instrument of public action.”  At the risk of sounding a little banal, we know that the United States is a vastly different country than what existed two hundred years ago, and we have tailored or changed most of our institutions to reflect this basic fact.  It’s time for the Senate to follow suit.