This is an easy one: while I suppose it’s vaguely possible that Republicans could raise reconciliation as an issue in the fall, it’s about as certain as anything could be that it won’t affect any votes. First of all, no one knows what reconciliation is; I mean, shockingly few people know what a filibuster is, really, so it’s pretty clear that no one knows what reconciliation is. Be sure to read this great anecdote from Chris Bowers (and a related one from Matt Yglesias). But beyond that, no one cares. Really.

I can understand why Bernstein, Bowers, and Yglesias feel the way that they do, but not surprisingly I’m inclined to counsel against being too dismissive. Without taking on the issue of whether reconciliation is the correct course of action in this instance — and I’m inclined to believe that it is — the fact that it is procedural or arcane or that there is a perception that no one understands what it is or what it’s for does not mean that it won’t be an issue in the election should the Republicans choose to make it one.

[Read more →]

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 →]

Forget conference committees, any observer of health care reform needs to add the term “ping-pong” to their legislative vocabulary.

Ping-pong is a little known but increasingly used procedural device to pass legislation. A 2008 report by Walter Oleszek for the Congressional Research Service describes ping-pong as “the exchange of amendments between the houses”

It works like this:

PING: House passes a bill and sends to the Senate.
PONG: Senate amends the bill and sends it back to the House.
PING: House accepts the Senate amendment and sends bill to the President.

Sometimes the ping-pong match goes on for multiple rounds, as the House and Senate exchange amendments back and forth until either one chamber caves or compromise language is reached.

Walter Oleszek’s CRS report noted that pingpongs outnumbered conference committees by a 2-1 ratio in 1994, but went up to a 4-1 ratio by 2008.

Earlier this year, SCHIP legislation signed into law by President Obama (H.R. 2) was handled via the ping-pong method. The House passed a bill, the Senate amended it, the House concurred in the Senate amendment and the bill went to the President. Click here for the legislative play-by-play of the SCHIP ping-pong.

There are 2 procedural advantages of the ping-pong method:

1. No conference committee. Ping pong is a take it or leave it proposition. There is no conference committee, so there is no opportunity for compromises to be struck (or nettlesome provisions removed) by a handful of conferees picked by the leadership.

2. No motion to recommit. Bills can be sent back to the committee of juridiction from whence they came. These bills are recommitted with instructions to make certain substantive changes in the bill. Usually, motions to recommit are efforts by the minority party to attach controversial provisions to a bill, forcing the majority to either kill the bill or force vulnerable lawmakers into taking a difficult vote. Since an amendment does not originate in committee, it cannot be re-committed.

Ping-pong often plays a role in controversial legislation. During the 110th Congress, energy legislation was under consideration that would tax windfall profits on oil companies and use the proceeds to develop renewable energy. Republicans wanted to offer a motion to recommit on the bill to allow offshore oil drilling. Democrats wanted to avoid taking a vote on the issue. So the Senate amended House legislation and sent it back to the lower chamber. After a couple of rounds of ping pong, the House adopted the Senate amendment and the bill was signed into law.

What does this mean for health care?

The two touchiest items in the health care debate are now the public option and the Stupak Amendment. The House bill contains both. It is highly likely that the Senate will take up the House bill (H.R. 3962) and gut it from top to bottom, replacing the entire bill with a massive Baucus amendment containing whatever Senate compromise gets hammered out behind closed doors.

On the Senate floor, there will be amendments to the Baucus amendment – amendments for a robust public option, amendments to add the Stupak language, etc. These amendments will likely be subject to a 60 vote threshold, meaning that they will fail. So the Baucus amendment will remain largely intact when it goes back to the House for an up or down vote. Then it will go to the president.

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 →]

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.