The IPAB and Its Critics
The Affordable Care Act creates a 15-member independent board to propose measures to slow the cost growth in federal health programs. The board is known as the Independent Payment Advisory Board, or IPAB.
The IPAB makes periodic appearances at the business end of Republican talking points. Lately Rep. Paul Ryan (R-Wisc.), Chair of the House Budget Committee, has been raising the call to repeal the IPAB, despite being the same Rep. Paul Ryan who introduced legislation in 2009 creating an independent commission with powers exceeding the IPAB’s—an IPAB “on steroids”—as Don Taylor recently reminded us.
There are basically two lines of attack on the IPAB, both tending somewhat toward the hysterical, and both easily answered. One is the charge of DEATH PANELS or, in more refined parlance: rationing. It seems the force behind the indefatigable claim that the IPAB will ration care has only been made stronger by a provision in the ACA (pdf) specifically forbidding the IPAB from rationing care:
The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums under section 1818, 1818A, or 1839, increase Medicare beneficiary costsharing (including deductibles, coinsurance, and copayments), or otherwise restrict benefits or modify eligibility criteria.
PPACA § 3403, via Austin Frakt. There’s really nothing else to say about that.
The second line of attack consists of the more rarefied charge that the IPAB is undemocratic—a kind of procedural perversion of the normal constitutional order. DrRich at the Covert Rationing Blog recently made the case that the IPAB possessed “dictatorial powers,” a claim he walked back a bit after a thorough takedown by Shadowfax at Movin’ Meat. The key here is that Congress is allowed to delegate powers to administrative agencies if those powers are limited by an “intelligible principle,” like, say, the principle of being related to health care payment reform recommendations.
The extent to which congressional procedure constrains Congress’ own role in reforming payment policy is a separate matter. Shadowfax notes that one Congress cannot prevent future Congresses from changing the law, which is true. I’d explain the point this way: the Constitution lays out the basic framework for lawmaking but gives Congress authority to set its own procedural rules with regard to just about everything else. That means that Congress is free to erect procedures that impede its own effectiveness if it wants to; and it means that Congress is free to remove those impediments if it wants to.
Self-imposed legislative constraints like supermajority requirements do create an uncomfortable doctrinal tension when paired with a relaxed approach to the delegation of legislative authority to independent agencies. But unless you think Congress is not permitted to delegate IPAB-type powers to any agency, there is no real constitutional problem with procedural rules designed to make it harder for Congress to intervene in the the agency’s exercise of the limited discretion Congress itself has delegated.
UPDATE: made the terrible and wrong introduction a little less terrible and wrong.
Legislative History on the Tax Issue, A Compilation of Selected Sources
In my last post I discussed the role of legislative history in the legal argument over whether the penalty for failure to comply with the ACA’s individual mandate is a tax. I’ve been doing some digging, and I’ve compiled excerpts from some of the relevant materials here, in three categories: (A) early drafts and committee bills, (B) the Senate Finance Committee debate transcripts, and (C) floor debate from the Congressional Record.
The basic story these sources tell is this: Early drafts of health-reform legislation plainly and directly called the penalty a tax. The Senate HELP bill was the only exception. Lawmakers on both sides openly discussed the penalty as a tax, with a few instances of Democrats being a little cagey. Then Harry Reid unveiled his merged Senate bill, the Patient Protection and Affordable Care Act (pdf, as passed), which dropped the “tax” label entirely even as it preserved all the functional mechanics of the earlier bills’ mandates. The change of label does not seem to have registered in the public debate or affected the politics or rhetoric very much on either side, if at all. (My research has not been exhaustive.)
A. Early Drafts and Committee Bills
- H.R. 3200 (pdf), Early House bill (introduced July 14, 2009)
Sec. 401, “Tax on Individuals without Acceptable Health Care Coverage” would have amended Internal Revenue Code (IRC) with a new Sec. 59B:
(a) TAX IMPOSED.—In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of—
- H.R. 3962 (pdf), House bill (introduced Oct. 29, 2009, passed Nov. 7, 2009)
Sec. 501, “Tax on Individuals without Acceptable Health Care Coverage” (same as § 401 of H.R. 3200) would have amended IRC with new Sec. 59B:
(a) TAX IMPOSED.—In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of—
- S.1679 (pdf), Senate HELP bill (introduced Sept. 17, 2009)
Sec. 161 institutes “shared responsibility payments.” For individuals without qualifying coverage, “there is hereby imposed for the taxable year…an amount” to be specified by HHS. Not a penalty or a tax, but “an amount.” The HELP bill is the least forthright of all the pre-PPACA bills on this question. However, it goes on to specify that “The amount imposed by this section shall not be treated as a tax” for certain purposes, but “shall be treated as if it were a tax” for certain other purposes. One might quibble with the “as if it were a tax,” but this is consistent with an understanding that the payments would be a proper exercise of the taxing power. If Congress expressed its intent that something be a tax for at least one purpose, any argument that it did not intend to exercise its taxing power is foreclosed.
- Senate Finance Chairman’s Mark (pdf), Baucus draft (introduced Sept. 22, 2009)
Excise Tax. The consequence for not maintaining insurance would be an excise tax. If a taxpayer’s MAGI is between 100-300 percent of FPL, the excise tax for failing to obtain coverage for an individual in a taxpayer unit (either as a taxpayer or an individual claimed as a dependent) is $750 per year. However, the maximum penalty for the taxpayer unit is $1,500. If a taxpayer’s MAGI is above 300 percent of FPL the penalty for failing to obtain coverage for an individual in a taxpayer unit (either as a taxpayer or as an individual claimed as a dependent) is $950 year. However, the maximum penalty amount a family above 300 percent of FPL would pay is $3,800.
- S.1796 (pdf), Baucus bill (introduced Nov. 19, 2009)
Sec. 1301. EXCISE TAX ON INDIVIDUALS WITHOUT ESSENTIAL HEALTH BENEFITS COVERAGE
[...]
(b) IMPOSITION OF TAX.— ‘‘(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a tax with respect to the individual in the amount determined under subsection (c).
Both H.R. 3200 and H.R. 3962 specified that the mandate penalty would not be treated as a tax for certain purposes (namely, calculating tax credits). The fair implication of this proviso—following a canon of statutory construction known by the Latin Expressio Unius—is that the penalty would be treated as a tax for other purposes.
B. Senate Finance Committee Debate
On Sept. 22, 2009 the Senate Finance Committee began a series of executive sessions on health reform for the purpose of debating and marking up Sen. Max Baucus’s “Chairman’s Mark,” an outline of what would later become “the Baucus bill,” S.1796 (pdf). Here, with my notes, are relevant excerpts from the transcript of that day’s session. In [brackets] are page numbers to the pdf of the transcript.
[32] Sen. Hatch says mandate penalties raise $20 billion in new taxes, are “a new tax on middle-class families.”
[57] Sen. Bunning mocks the President’s and other Democrats’ attempts to finesse their way around calling the mandate penalty a “tax”:
And I was stunned when I heard the President say this past weekend that the individual mandate, which is an amendment to the Tax Code and is specifically called an excise tax in the Chairman’s mark, is not really a tax. Perhaps we should change the name of the Tax Code to “A Shared Responsibility Code” so we are not really imposing taxes on the American people.
[72] Sen. Crapo remarks that “it is pretty clear . . . that the consequences for not maintaining insurance would be an excise tax.”
I noted that this weekend there was quite a bit of talk in the news shows about whether or not this proposal even contains a tax or not. I think that it is pretty clear–the proposal itself states that the consequences for not maintaining insurance would be an excise tax and makes it clear that the excise tax would be assessed through the Tax Code and apply it [sic] as an additional amount of Federal tax owed. Yet the President is saying that there is no new tax in the bill, that his pledge to avoid increasing taxes for those who make under $250,000 is honored. Yet last year, in September, he indicated that under his plan no family making less than $250,000 a year will see any form of a tax increase, not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes. And yet we see this major new proposal for more taxes before us now.
[196-97] Sen. Grassley has an exchange with Mr. Barthold, Chief of Staff of the Joint Committee on Taxation:
Senator Grassley. [. . .] So Mr. Barthold, is the penalty here not an excise tax, and will it not affect people making under $250,000 a year?
Mr. Barthold. Senator Grassley, the penalty proposed in the Chairman’s mark is, as you observed,structured as a penalty excise tax. We have other penalty excise taxes in the Internal Revenue Code. We have not separately analyzed. We have worked in conjunction with Dr. Elmendorf and his colleagues at the Congressional Budget Office in terms of the overall effects of what sort of people might purchase insurance through the exchange who would not have insurance provided by their employer, and where the individual mandate or the employer free rider penalty would arise.
We have not done a combined distribution analysis across income to specifically answer your question, but to the extent that, yes, we think that some people would be subject to the penalty excise tax when everything shakes out, we would expect that some would have incomes less than $200,000.
[197-98] Sen. Baucus then jumps in and tries to distinguish the penalty from a tax, saying that IRS collection is only incidental, and that HHS or some other agency could collect the mandate penalty.
Let me just say on that point, it is an interesting question. This is really a penalty that is being collected by the Internal Revenue Service. It could be collected by another body, another entity,another agency, perhaps HHS.
The modification, too, will reduce the penalty significantly, will cut it in half, so it is much smaller than it otherwise was. But somebody is going to have to collect it to the degree that there is one, and it is this committee’s determination–at least it is my determination so far–that the better, more efficient is for the IRS, which is set up to collect these kinds of penalties. So it is really a penalty that we are talking about here, just the IRS, not HHS, is collecting the penalty.
Sen. Baucus’s remark there is the only clear instance I’ve found of a Congressional Democrat denying (or flirting with denying) that the mandate penalty is a tax. But of course, Baucus’s Chairman’s Mark and subsequent bill (see S.1796 [pdf]) are unmistakably clear that the penalty is a tax. (See the excerpts from those draft bills above.)
[303-] Sen. Hatch in another exchange with Mr. Barthold and Mr. Reeder, Senior Benefits Counsel on the Democratic Senate Finance Committee staff:
Senator Hatch. Let us go further. While we are on the topic of upholding the Constitution, the -– legislation would require all U.S. citizens and legal residents to purchase a certain level of health insurance coverage.
They must record qualified coverage on the federal income tax return. Failure to do so would result in an excise tax of $750 on individuals applied as an additional amount of federal tax owed. Would that be a direct tax?
Mr. Barthold. If we applied an excise tax on all individuals –-
Senator Hatch. But you are not. I am told that this would be the first time in our history that Americans would be faced with the situation where they were ordered to do some specific act by the federal government which if they refuse to do it they would be subject to a tax. Is that correct?
Mr. Barthold. I do not know, Senator.
Senator Hatch. I think it is.
Mr. Reeder. If I could jump in here and just add that the code, the Internal Revenue code is replete with excise taxes that are applied as penalties. [typos in transcription, corrected here –JH]
Senator Hatch. Well, this is on a person, not a service or product.
Mr. Reeder. There are lots of excised taxes that are applied to an individual.
Senator Hatch. I guess I’m asking do you believe this individual mandate raises possible Constitutional issues as I have been told? It sure seems like it to me.
Mr. Barthold. Senator, it is just not something that I am qualified to answer. An excise tax applied on activities by all individuals would not seem to be beyond the flush of the Constitution’s authority for the Congress to assess a tax. But I am not the right person to engage in a Constitutional discussion. I’m sorry.
Senator Hatch. It would be a tax on a person for doing absolutely nothing. I mean, can anyone on the panel say whether the mandate of excise tax would be constitutional? Anybody?
The Chairman. Well, I will. This is an equally applied penalty for all persons meeting a certain category. I think it is a stretch to say this is unconstitutional. I will take that argument any day that it is not constitutional. It is constitutional.
Mr. Reeder. We did refer this to CRS and we got guidance from them that it is.
Senator Hatch. To be honest with you, I do not think it is at all. Let me move on. [...] According to the Chairman’s mark, the individuals who failed to maintain health insurance are subject to an excise tax, right?
Mr. Barthold. It is the penalty, excise tax penalty.
Senator Hatch. The penalty for excise tax. The excise tax would be assessed with a tax code and applied as an additional amount of federal tax owed. However, there are various rules protecting those who are uninsured for less than three months or to the extent that the cost of the health insurance premium exceeds 10 percent of adjusted gross income. Are there any excise taxes in the current tax system that are treated this way? And are there any other excise taxes that vary based on the taxpayer’s income? Are there any other taxes at all in our current tax system that are furthered by the failure of the taxpayer to take some action?
Mr. Barthold. Well, as Mr. Reeder noted, there are some penalty excise taxes that apply to individuals for either actions that they take or in some instances for not having taken an appropriate action.
We have penalty excise taxes on excess distributions or premature distributions from qualified retirement plans. There is excise taxes in the tax exempt organization area for, I guess for lack of a better term, for inappropriate activities or decisions made by management of the tax exempt order.Senator Hatch. But are they based on the taxpayer’s income?
Mr. Barthold. None of those are based on taxpayer’s income. The excise taxes on the distribution indirectly are based on income in the penalty taxes for early withdrawals for example key off of the size of the withdrawal.
Sen. Hatch then confuses the mandate penalty “excise tax” with the mark’s other excise tax, the “Cadillac tax” on high-cost plans.
[329] And later:
Senator Hatch. I have a few [questions] now. The CRS report concludes the government can require individuals to obtain health insurance and penalize you if you do not. However, the penalty must be something the government has already given you and can take away, such as the right to a deduction. Now, this is an excise tax imposed on you, regardless of if you have a tax liability or not. I think the CRS has not analyzed the Chairman’s proposal.
And at [352], Hatch refers to his amendment to strike “the new individual mandate tax proposed in this bill.”
Other relevant discussions occurred on subsequent days of the Committee markup. Democrats more or less dodged the debate, and Republicans showed no sign of straying from their normal m.o. in which things that are bad and things that are taxes are conceptually indistinguishable, more or less.
On October 1, Sen. Hatch presents a much more polished constitutional argument and directly challenges the proposition that the penalty qualifies as an “excise tax” as it was described in the Chairman’s Mark. If it is a tax at all, Hatch contends, it must be a “direct tax”:
The second constitutional problem with the individual mandate arises because the penalty for failing to purchase health insurance is, in fact, not the excise tax that the Chairman’s mark calls it. An excise tax is a tax on the manufacturer and sales of goods or services. The gasoline tax would be a good example. The tax imposed upon people who failed to purchase health insurance, however, is the exact opposite. It occurs not when there has been the sale of something, but when there has been no sale of anything at all.
This actually works more like a fine, but the Chairman’s mark said it is an excise tax to be assessed through the Tax Code and collected by the IRS. If this is a tax at all, it is certainly not an excise tax. Instead, it is a direct tax. And while the Constitution requires that excise taxes must be uniform throughout the United States, it requires that direct taxes must be apportioned among the States by population.
Now, just as the excise tax on high-premium plans is not uniform, this direct tax on individuals who do not purchase health insurance is not apportioned. In an analysis just published in the well-respected B&A Daily Tax Report, they looked at this question. I would ask, Mr. Chairman, consent that this be placed in the record at this point.
Sen. Hatch had by this point developed the argument into a fairly sophisticated analysis. It’s just not clear that any other Senators were on board with that analysis. I haven’t found any instances of other Senators picking up the argument, or responding to it specifically. But, as shown below, it is clear that Democrats did not abandon the taxing-power justification of the mandate, and they continued to cite that authority right through the passage and enactment of PPACA.
C. Congressional Record, Floor Speeches
- Rep. George Miller (D-Cal.), 156 Cong. Rec. H1854, H1882 [pdf] (Mar. 21, 2010):
The bill contains an individual mandate to either obtain health insurance or pay a penalty. This provision is grounded in Congress’s taxing power but is also necessary and proper—indeed, a critical linchpin—to the overall effort to reform the health care market and bring associated costs under control throughout interstate commerce.
- Sen. Ensign (R-Nev.), 155 Cong. Rec. S13830 (Dec. 23, 2009):
In this case, if you choose to not do something — in other words, if you do not choose health insurance — this bill will actually tax you. It will act as an onerous tax.
Via Ezra Klein. I discussed the significance of this episode here.
- Sen. Leahy (D-Vt.), 155 Cong. Rec. S13751, S13753 [pdf] (Dec. 22, 2009):Sen. Leahy argues in favor of PPACA, remarks on constitutionality under both commerce power and tax power, citing noted constitutional law scholar Erwin Chemerinsky’s op-ed in the L.A. Times (from Oct. 6, 2009). Note that Chemerinsky’s piece was written and published long before Sen. Reid’s merged bill appeared, so it wouldn’t be properly taken as an opinion about the constitutionality of the actual language of PPACA. But Leahy’s reference counts as another instance of how the Reid bill’s removal of the tax label had no discernible effect on Congressional debate or Members’ talking points.
- Sen. Max Baucus (D-Mont.) 155 Cong. Rec. S13558, S13581-82 [pdf] (Dec. 20, 2009):Sen. Baucus stated his belief that there is “ample authority for Congress to enact such a provision under the Commerce Clause, and also under the congressional authority to tax and spend for the general welfare provided for in the Constitution,” and he submitted an article by Mark Hall, law professor at Wake Forest Univ, for the record.
Conclusion
If you were one of the litigators challenging the individual mandate in court, you would want to find instances of Democrats arguing, in an official forum, that the mandate/penalty is not a tax. I’m not aware that any exist. There’s President Obama’s noted Sept. 20, 2009 interview with George Stephanapoulos, which Judge Vinson cites in his October ruling (pdf). What the President meant by his statement that “the responsibility to get health insurance is absolutely not a tax increase” is arguable. I tend to think he meant the mandate itself is not a tax—not that the penalty isn’t. But then again, I doubt he was really drawing that distinction, so I concede that the other interpretation is fair. In any case, it would be exceedingly strange if an interview with George Stephanopoulos were regarded as a proper source of legislative history.
Other than that, there’s Sen. Baucus’s cagey remark from the Sept. 22 transcript (above). And that’s all I’ve found so far. I’ll update this post if I come across anything worthy of note.
The Uses of Legislative History
Ezra Klein revisits the Senate’s Dec. 23, 2009 vote on a constitutional point of order raised by Sen. John Ensign (R-Nev.) against the ACA’s individual mandate. The point of order was defeated by a party-line vote of 60-39, but the interesting thing about it, says Ezra, is that every Senate Republican (minus one absentee) implicitly endorsed Ensign’s description of the individual mandate as a tax, “an onerous tax,” on those who choose not to get health insurance. That’s interesting because a key argument of the mandate’s constitutional challengers is that the penalty for failing to maintain minimum coverage is not a tax—that is, not an exercise of the taxing power of Article I, Section 8 and the 16th Amendment. Notably, 32 of the very same Republican Senators who voted for the Ensign point of order later filed an amicus brief (pdf) against the constitutionality of the individual mandate (though, to their credit, they did not explicitly argue that the penalty is not a tax).
Now, as Ezra recognizes, this episode is not going to dispose of the issue in court. For one thing, its significance is not unambiguous. The purpose of the vote was to declare the mandate unconstitutional, not to declare it a tax. And if the purpose had been to declare it a tax, the whole basis of the constitutional point of order would have been transparently self-defeating. But also, if you take the 39 Republican votes as an endorsement of the proposition that the penalty is a tax, shouldn’t you then count the 60 Democrats’ votes as a rejection of that proposition?
Legislative history is tricky terrain, and the notion that there is something called the “intent of Congress” that may be reconstructed from legislative history is dubious at best. Trolling through the Congressional Record is not going to tell us definitively whether Congress intended to exercise its taxing authority or not.
But there are uses for legislative history. It can give us—or a judge—a sense of the range of fair readings of statutory language; not whether a certain interpretation is right or wrong, but whether it is fair. It can give us a sense of whether the meaning of a given provision was widely agreed upon or in dispute, or whether it was contemplated at all. In other words, legislative history can serve as a source of second-order facts about how legislators understood the legislation in question. And those second-order facts can be useful, not because they reveal the true intent of Congress, but because they can help us measure the relative strength of competing inferences about legislative intent.
In rejecting the Administration’s contention that the penalty is an exercise of the taxing power, Judge Vinson’s October ruling (pdf) in the Florida case emphasized that the ACA in its final form refers to penalties, not taxes, in describing the monetary assessments imposed for failure to comply with the individual mandate, whereas the House bill and various Committee bills referred to those assessments as taxes. For Judge Vinson, the change of label from “tax” to “penalty” marked a clean break between the ACA’s mandate provisions and the mandate provisions of earlier bills, making it “manifestly clear” that Congress intended not to exercise its tax power. And by that description, the legislative history does seem to offer compelling support for the inference that Congress did not intend to act under its taxing power.
But measured against evidence like Sen. Ensign’s remarks on Dec. 23 and the floor speeches of Democratic Senators who continued to justify the mandate as an exercise of the taxing power, that inference does not look as strong. And by contrast, when you note the fact that the basic mechanism of the penalty—assessed and collected by the IRS through income-tax forms—did not change or vary significantly among the many health-reform bills considered in the run-up to PPACA’s enactment, and that lawmakers consistently referred to the penalty as a tax throughout the process, the inference of intent to exercise the taxing power looks comparatively strong.
And so, the way I see it, even if episodes like the one Ezra dug up can’t establish that the penalty is a tax, they can blunt the force of inferences to the contrary. Maybe Senate Democrats should take up that argument in an amicus brief of their own.
Superminority Report
Yesterday was the opening day of the 112th Congress, and a group of Democratic Senators has unveiled a package of proposals (pdf) to reform the Senate Rules. The reforms fall short of a direct attack on the filibuster—i.e., on the 60-vote supermajority requirement to end debate—but they do represent an effort to curtail excesses of the minority’s exploitation of the rules for obstructionist ends.
Via Greg Sargent, here’s a summary of the reforms:
Clear Path to Debate: Eliminate the Filibuster on Motions to Proceed
Makes motions to proceed not subject to a filibuster, but provides for two hours of debate. This proposal has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.
Eliminates Secret Holds
Prohibits one Senator from objecting on behalf of another, unless he or she discloses the name of the senator with the objection. This is a simple solution to address a longstanding problem.
Right to Amend: Guarantees Consideration of Amendments for both Majority and Minority
Protects the rights of the minority to offer amendments following cloture filing, provided the amendments are germane and have been filed in a timely manner.
This provision addresses comments of Republicans at last year’s Rules Committee hearings. Each time Democrats raised concerns about filibusters on motions to proceed, Republicans responded that it was their only recourse because the Majority Leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution — it guarantees the minority the right to offer germane amendments.
Talking Filibuster: Ensures Real Debate
Following a failed cloture vote, Senators opposed to proceeding to final passage will be required to continue debate as long as the subject of the cloture vote or an amendment, motion, point of order, or other related matter is the pending business.
Expedite Nominations: Reduce Post-Cloture Time
Provides for two hours of post-cloture debate time for nominees. Post cloture time is meant for debating and voting on amendments — something that is not possible on nominations. Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.
Jonathan Bernstein is thoroughly underwhelmed:
The specific details . . . promise no significant change from the newly-instituted 60 vote Senate.
Secret holds? If holds are a problem (and in general I’m only really concerned about them on nominations), then the problem is the hold itself, not secrecy. Making holds public won’t change anything. There’s also a strange, from my point of view, emphasis on forcing “live” filibusters, which (without further rules changes) will also change nothing. Minority party Senators are, in most cases, perfectly happy to be identified with their opposition to what the majority wants. Assuming otherwise, as these reforms seem to do, is a real misunderstanding.
The reform proposal avowedly does not change the 60-vote cloture threshhold. Even under reforms much more aggressive than these, an intense and determined minority would retain the ability to obstruct the majority’s agenda. It is a big disappointment for reformers that the Udall proposal does not include a requirement, such as was included in previously floated proposals, that the minority must continually occupy the floor with some minimum number of Senators (say, twenty) to stave off cloture.
But even some modest reforms might influence behavior on the margins. At least it is possible that Senators in the minority will find it personally inconvenient to bear the opportunity cost of occupying the floor, which might in turn cut down on obstruction of trivial matters. As David Waldman writes:
If the price is high enough, it can discourage the obstructionist strategy of blanket filibusters on nearly all legislation just to waste time by shifting the burden a filibuster places onto the Senators who want to conduct one, rather than putting it on those who’d seek to stop it.
The problem is, the price just isn’t high enough under the Udall resolution. It is not a great burden for the minority if only one Senator at a time must be on the floor to keep the filibuster alive. But the cost for the majority in terms of lost time is much greater. Not to mention the fact that the minority will always win in the end.
As for ending secret holds, it might be the case that making individual Senators own up to their holds would impose some extra cost on them in the form of being increasingly pestered by journalists, constituents, and colleagues over particularly obnoxious and unjustifiable holds. But requiring Senators to go on the record with holds isn’t very likely to curtail their use. After all, it is already the case that someone who is a U.S. Senator must stand up and publicly object in order to place a hold on proceedings. Ultimately, the problem for this kind of limited reform, it seems, is that the obstructionists are not ashamed of their obstruction. They are proud of it. And they probably won’t get any flak from their supporters for it, even if they have to dodge a few more annoying questions than before.
It seems to me that the package has two purposes: (1) to “prove the concept” that reform is possible by establishing a precedent that the majority may change the rules and thereby implicitly threatening the minority that, if they continue with blanket obstructionism, the majority may respond by ending the filibuster altogether; and (2) to test whether changing marginal incentives on individual Senators’ behavior has any effect on the degree of minority obstruction. If it does, then that would point the way to future rule changes that could preserve the filibuster as a last resort for intense and unified minorities, while deprecating it as a tool of ordinary obstruction and delay.
I wouldn’t go so far as to say I think it will work. But I do think it’s reasonable to try.
Filibuster Reform Resources
I was planning to follow up on last week’s filibuster reform series by posting some resources for further reading. As luck would have it, Austin Frakt introduced his own 6-part series on filibuster reform this week with a cache of links to resources, saving me the trouble. I have just a few additional sources I want to mention.
Here are some very helpful reports and articles, mostly about the nuclear/constitutional option:
- Beth, R. (2005). “Entrenchment” of Senate Procedure and the “Nuclear Option” for Change: Possible Proceedings and Their Implications. Congressional Research Service.
- Davis, C. (2005). Standing Order and Rulemaking Statute: Possible Alternatives to the “Nuclear Option”? Congressional Research Service.
- Gold, M. & Gupta, D. (2005). The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster (pdf). Harvard Journal of Law & Public Policy.
- Palmer, B. (2005). Changing Senate Rules or Procedures: The “Constitutional” or “Nuclear” Option. Congressional Research Service.
And I’ll go ahead and add a few bloggers with admirable work in this area:
- I know I’ve mentioned Jonathan Bernstein’s filibuster reform series, posted as guest blogger for Ezra Klein (whose own merits are unrivalled), about a hundred times already. Make it a hundred and one. See also Bernstein’s posts on filibusters at his own place, A Plain Blog about Politics. Examples here, here, and here.
- I’m also a fan of David Waldman’s work at Congress Matters. Waldman manages to put legislative procedure and wit together in ways most people would assume impossible.
- Okay, technically Austin Frakt hasn’t published his filibuster reform series yet. It’ll be another 5 weeks before the final weekly installment is posted. But it’s sure to be insightful. I’m betting on it being a good read and a useful resource.
Filibuster Reformology, Part 5: The 60-Vote Option and Finale
This is the final post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII. In Part 3 and Part 4, I canvassed the 51-vote options, including the “nuclear option” and some of its variants.
Time to wrap this thing up. In this final post, I want to mention a couple of options for reforming the filibuster which could be achieved with 60 votes in the Senate. Not much here to discuss, really, but these 60-vote options deserve mention as potential routes for reform. They could well end up serving as the mechanism for a compromise—especially if under pressure of a credible nuclear threat—such as the one reached in 1975 (see previous post), when the cloture requirement was lowered to 3/5 (from 2/3, except for cloture on amendments to the rules, which still requires 2/3).
Standing Orders and Rulemaking Statutes
Two mechanisms which could create exceptions to Rule XXII and effectively modify cloture requirements are worthy of note: rulemaking statutes and standing orders.
A rulemaking statute is a statute which, like any other statute, is passed by both houses, and which establishes special procedures for certain congressional business. Rulemaking statutes are typically used to “fast track” certain priority legislation which does not get sufficiently timely consideration under the “regular order.” The best example is the Congressional Budget Act of 1974, which created the budget reconciliation process and its famous exemption from the Senate’s 60-vote cloture rule.
To tell you about standing orders, here’s the Congressional Research Service:
Standing orders are regulations that have the force and effect of a rule, but are not contained in Standing Rules. Senate standing orders continue in force until they are altered or repealed, and may be adopted by simple resolution or by unanimous consent. Existing Senate standing orders govern a wide range of chamber business from the simple (the annual public reading of George Washington’s farewell address) to the complex (the creation and operation of the Senate Committees on Ethics and Intelligence). Senate standing orders are printed in a specific section of the Senate Manual.
So…standing orders are less formal than rules, but have the same effect as rules. What are the potential advantages of rulemaking statutes or standing orders for reforming cloture? CRS is glad we asked:
A potential advantage of using a rulemaking statute or standing order over some other parliamentary approaches to limiting consideration is that invoking cloture on these measures would require the votes of only three-fifths’ of those chosen and sworn (60 Senators if there are no vacancies), rather than the two-thirds present and voting (67, if all Senators vote) needed to get cloture on amendments to the Senate’s standing rules. The higher threshold for invoking cloture on rules changes is understood to apply only to direct amendments to the Senate’s Standing Rules, not to other measures having the effect of rules. In addition, in contrast to proposals to amend standing rules, consideration of a bill creating an expedited procedure statute or of a simple resolution creating a standing order would not require a day’s written notice.
CRS also notes that this approach would provide more flexibility than the nuclear option, which could only be launched under fairly specific parliamentary conditions. A rulemaking statute or standing order could also be targeted at, say, presidential nominations. The nuclear option, on the other hand, would probably be impossible to contain in such a targeted area—the precedent established for dodging Rule XXII cloture would inevitably be expanded into other contexts. At which point, the republic would be lost and all hell would break loose, as majority rule was visited upon the United States Senate.
Well, that does it for filibuster reformology. I’m planning to post some links to resources, including those I’ve relied on in this series, soon.
Filibuster Reformology, Part 4: 51-Vote Variants
This is the fourth post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII. In Part 3, I canvassed the 51-vote, “nuclear” option.
We need to tie up some loose nukes from last time before moving on to the 60-vote options for filibuster reform in the final post. Here’s a quick summary of the important steps in the 51-vote scenario, the launch sequence, as it were, for the nuclear option:
- Majority moves to break with Senate rule or precedent (e.g., by raising a point of order that the supermajority-cloture requirement is unconstitutional, or that further debate on a certain pending measure would be “dilatory”).
- Chair (VP or president pro tem) breaks with precedent and issues ruling to close debate on the pending measure.
- Minority moves to appeal the chair’s ruling; the question is presented on appeal to the whole Senate; debate begins on the appeal.
- Majority moves to table the appeal from the chair (a.k.a., moves the furniture). No debate; straight to up-or-down vote on tabling motion.
- Majority votes to table the appeal, upholding the ruling of the chair, ending the filibuster.
- Majority proceeds to up-or-down vote on pending measure, setting new precedent for breaking filibusters with a simple majority of senators.
Last time I mentioned that there could be many variants on this basic design, and that the key to all of them was in step 4, the motion to table the appeal from the chair, since that motion is not debatable and is decided by simple majority. Now I’ll say a little about a few of the variants.
The Constitutional Option
In my estimation, most of the distinctions between 51-vote variants do not make all that much difference. If you understand how moving the furniture (tabling the appeal from the chair) determines the result, you can see that it will work in pretty much any context where the necessary ingredients are operative. It really boils down to the intensity of the majority’s commitment to ending the filibuster era. But that’s strategy talk—you can read about that elsewhere.
So what about those distinctions? The phrase “constitutional option” is sometimes used interchangeably with “nuclear option,” and sometimes distinguished from it. I think the phrase “constitutional option” is best reserved for a scenario in which a majority of senators invokes the Constitution to claim its right to change the rules or depart from an established Senate precedent, or to claim that 60-vote cloture is unconstitutional.
Raising the constitutional question has some (relatively slight) consequences for procedure. According to the Congressional Research Service (pdf), “Under Senate precedents, the presiding officer may not rule on a constitutional point of order and instead must submit the point of order to the full Senate for a vote.” Thus the constitutional question could hop over step #2 in the launch sequence, straight into the filibuster-loving arms of the full Senate, before the furniture is laid out for the pivotal event, the tabling motion. The only thing to table at this stage would be the majority’s own motion. You want to table the other team’s motion, not your own.1
But even so, it would be relatively simple for the majority to rearrange the furniture in their favor. The Chair would only need to break two rules/precedents instead of one. The Chair could rule that the supermajority-cloture rule did not apply to consideration of constitutional points of order; or that in this narrow context, the Chair was permitted to decide the constitutional question. The minority could appeal either ruling, but the appeal could then be tabled by the majority. At that point, we’d be back to step #1, and the Chair could decide the actual constitutional question, followed by appeal, followed by tabling. Isn’t this fun?
The Opening Day Gambit
The “opening day” 51-vote variant is probably now the most actively discussed scenario for filibuster reform. Maybe that’s because there have been several such attempts in Senate history. Of course, they’ve all failed. Reformers came really close in 1975, tabling a point of order that had been raised against a proposal for majority cloture. But—as part of the deal that lowered the cloture requirement to 3/5—it reversed itself on reconsideration the following week and never voted on the proposal for majority cloture.
There is some dispute about whether this sequence of events somehow established a precedent in favor of majority cloture, even though the tabling vote that implicitly supported the majority cloture position was reversed. So…that’s an implicit precedent, explicitly reversed. Seems pretty weak to me. I suppose it creates room for argument, which creates some political cover for the majority. But ultimately, there is not, and could not be, any precedent in the world sanctified enough to protect the majority from accusations that it is betraying the republic.
Strategic considerations aside, the whole rationale behind the opening day gambit is a bit contrived. Its proponents argue that, on the first legislative day of a new term of Congress, the Standing Rules of the Senate have no effect, because they have not been adopted by the new majority. And so the new majority (or an old majority reconstituted) could adopt new Standing Rules, including reformed cloture rules.
The problem is, it has never been Senate practice to re-adopt its rules with every new term. Rather, the Senate has conducted itself as a continuous body, just as it was designed to do. And, though I don’t think it would help to point this out in any kind of formal setting, the whole reason they’re called “Standing Rules” is exactly this. They don’t expire at the end of the term. See also Rule V (“The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”).
In my estimation, there’s nothing constitutionally special about opening day in the Senate. But it’s as good as any other day, and I don’t doubt there are good strategic reasons for reformers to act on it—but that’s a matter for another blog.
- As usual, there are different ways this could shake out. E.g., the minority might be the one to raise the constitutional point of order. There are several important precedents from Senate history that I’ve decided not to get into. They’re related succinctly in this CRS report (pdf), though, and I’ll discuss their significance another time, if anyone asks about them in comments. [↩]
Filibuster Reformology, Part 3: The 51-Vote Option
This is the third post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII.
Now we’ll start looking at ways around Rule XXII‘s 67-vote cloture requirement for amendments to the rules. A second option (or family of options) for filibuster reform could be achieved with the support of a simple majority—51 votes if all senators are present—and the Senate’s presiding officer.1 This option has attained almost mythical status in the political culture. It is radical, obscure, and conspiratorial, and it goes by many names. Most notoriously, due to its power and potential for devastating fallout, it has been called the “nuclear option.”
There are many variants of the 51-vote option. Some of them vary by the grounds on which they are justified (i.e., whether on constitutional or other grounds); some vary by their timing (i.e., opening day or mid-session); and some vary by their scope (whether they affect only judicial nominations or all Senate business). See CRS (pdf) for more background. I’ll have a few things to say about some of these variants, and the distinctions they rest on, in the next post.
So there are many variants and many contexts in which they may develop. But there is something common to them all: a single, distinctive procedural device that shows up in every scenario and that, in every scenario, is the decisive step in breaking with established Senate practice. That device is called “tabling the appeal from the chair,” and once you’ve sufficiently rearranged your mental furniture to grasp its significance, you will understand the nuclear option and all its kin.
When a piece of legislative business is tabled, it is set aside, removed from present consideration—in a word, dead. If an appeal of a ruling by the chair is tabled, then the chair’s ruling stands.
So, let’s say the presiding officer (the chair) makes a ruling that somehow breaks with Senate rules or precedent—e.g., by declaring the 60-vote cloture requirement unconstitutional. Generally, breaking with precedent is not something the chair is supposed to do, and some senator is sure to appeal the ruling (“appeal from the chair”). To appeal a ruling in the Senate is to ask that the question be put to the whole Senate for a vote. And in the United States Senate, if there’s a vote, there’s nearly always debate; and if there’s debate, there’s more debate. And more debate, and more debate, until cloture. And so it might seem that we are stuck: even if the chair ruled to strike down the 60-vote cloture requirement, you’d still need 60 votes to uphold the ruling, right? Well, no, actually. Not necessarily. Enter the motion to table the appeal from the chair—or, as I call it, moving the furniture. If the majority tables the appeal, the appeal is dead, and the chair’s ruling stands. “But,” you’re probably thinking, “can’t the minority filibuster the tabling motion, too?” Good question. No! It can’t! And this is why the furniture motion is so important: it is (a) not debatable and (b) decided by simple majority.2 And so, with a favorable ruling from the presiding officer, a simple majority of senators can have its way, even when breaking with the rules, precedents, and traditions of the Senate.
Let’s walk through it again, with some contextual detail—though, remember, there are many variants that work in different contexts, so the detail here is just illustrative, not limiting.
Imagine that Democratic Majority Leader Harry Reid has brought the Kerry-Lieberman climate bill to the floor, debate has dragged on for a month, and Reid files for cloture (by submitting a petition signed by 16 senators). At the beginning of the second day after Reid files the petition, pursuant to Rule XXII, the Senate votes on the cloture motion. The motion gets just 53 votes, 7 shy of the 60 needed to close debate. Debate resumes, and Vice President Biden takes the chair to preside. Biden recognizes some Democratic senator, John Kerry perhaps, who raises a point of order, asking that further debate on the bill be ruled “dilatory,” and that the bill should proceed to a final vote in spite of the failure to invoke cloture. Biden agrees and rules that the Senate should proceed to a final vote on the bill. Minority Leader Mitch McConnell, shocked that the majority would even consider such skullduggery, objects. McConnell appeals the chair’s ruling to the whole Senate. The question is then put before the Senate, which begins debate on Biden’s ruling. Republicans (rightly) argue that the ruling departs from precedent. And what do Democrats do? Move the furniture. Some Democratic senator, Joe Lieberman perhaps (you never know!), moves to lay the appeal on the table. Without debate, the Senate votes on Lieberman’s motion, and the appeal is tabled by a vote of 53-47. Biden’s ruling stands, and the Senate proceeds without further debate to a vote on the Kerry-Lieberman bill, which passes, saving the planet.
So that’s one variant of the 51-vote option. What’s the key maneuver? Moving the furniture—tabling the appeal from the chair. What’s so special about that? You can’t debate the furniture. So put your chairs on the table and go home. The game’s over.
- The presiding officer could be the president pro tempore or the president of the Senate, a.k.a. the Vice President of the United States. It is likely that the Vice President would have to be on board for the whole scheme to work. [↩]
- See Rule XXII, paragraph 1 (motion to lay on the table “shall be decided without debate.”). [↩]
Filibuster Reformology, Part 2: The 67-Vote Option
This is the second post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate (it doesn’t) and categorized three options for reform: the 67-vote option, the 51-vote option, and the 60-vote option.
Before we dig into the mechanics, we need a general introduction to the seamy underworld of Senate procedure. The Congressional Research Service (pdf) will ferry us in:
The Senate is governed by the Constitution, the Standing Rules of the Senate, permanent Standing Orders of the Senate (adopted in prior Congresses), temporary Standing Orders of the Senate (adopted at the beginning of each Congress), and statutes. It is also governed by precedents, which are decisions made by the presiding officer of the Senate, or the body itself, concerning how its rules operate in practice. [...] Precedents have tremendous weight in deciding parliamentary questions in the Senate, and the presiding officer, whether the Vice President or a majority party Senator, is expected to be guided by these precedents when ruling on a pending question.
The Standing Rules of the Senate would seem to be the obvious place to start if a Senator desired to change that chamber’s procedures. If there is no substantial opposition, the Standing Rules of the Senate can be changed by a simple majority vote; there is no supermajority requirement for changing the rules. If, however, there is opposition to the proposed rules change and if opponents seek to prevent a final vote on the proposal by extended debate and amendment, known as a filibuster, a supermajority requirement does exist for invoking cloture, or ending debate, on a rules change. Senate Rule XXII, which sets out the process for invoking cloture, requires that two-thirds of those present and voting (67 if all Senators participate) vote to invoke cloture on a rules change.
Okay, let’s unpack that a little. First, note that the filibuster is a consequence of the fact that, in its default mode, the Senate allows unlimited debate (and amendment) on any measure. If you want to get to a vote, you have to ask for one. If no senator objects, you can have a vote right away. But if even a single senator objects, you get nothing. At that point you can either give up, try again later (with no guarantee of different outcome), or petition for cloture under Rule XXII.1
“Cloture,” for the uninitiated, means bringing debate to a close. In most circumstances, it is achieved (or “invoked” in the lingo) by an affirmative vote of 3/5 of senators “duly chosen and sworn,” or 60 votes. Invoking cloture on a given measure (a bill, amendment, or whatever) has the effect of breaking a filibuster (on that measure) and allows the Senate to proceed to an “up-or-down” vote, decided by simple majority.
Reforming the filibuster means changing the requirements for cloture; and that means amending, superseding, or sidestepping Rule XXII.
A motion to amend the Senate’s rules can be filibustered like anything else that isn’t specifically exempt from the normal rules (as is the budget reconciliation process). But cloture on a motion to amend the rules requires 2/3 of Senators “present and voting,” or 67 votes.
So, under the normal rules and precedents of the Senate as they are currently understood, it would take 67 votes to change the cloture rule. That’s pathway number one to reform—the most straightforward of the three: the “Rule-22 Option.” Get 67 votes in the U.S. Senate, and you can rewrite the rules.
Obviously that’s a tall order. Next we’ll look at reform options with lower thresholds for votes, but much higher thresholds for intrigue. Head for the shelter, everyone. We’re going nuclear.
Filibuster Reformology, Part 1: The Underview
This is the first installment of a 5-part series I’ll be posting this week on the procedural mechanics of filibuster reform.
A lot of good stuff has been written about filibuster reform over this past year, by people who really know what they’re talking about. Notably, political scientists Greg Koger and Jonathan Bernstein each have an excellent series of blog posts on the subject. That’s what you want to read for the history, theory, strategy, and politics of the filibuster and for evaluation of reform proposals. In short, go there for all the important and interesting stuff.
But I’m also semi-fascinated with the dry weeds of parliamentary procedure that constrain the options for reform. So I’ve set out to distill, with help from the Congressional Research Service (CRS), what are in my view the key procedural mechanics of Senate self-governance. My primary objective in this series is to chart out the available options, with a little gloss here and there, though by no means do I intend to exhaustively classify all the permutations of those options.
Cutting to the chase, there are in my estimation three broad procedural options for ending (or mending) the filibuster: (A) the 67-vote option, (B) the 51-vote option, and (C) the 60-vote option. The 67-vote option is a straightforward amendment of the Senate Rules, in accordance with all the strictures of the existing rules and conventions. The 51-vote option is a trickier, more radical, and more contentious route often referred to as the “nuclear option” or “constitutional option.” And lastly, the 60-vote option is one involving any number of less dramatic maneuvers which would effect correspondingly less dramatic change.
I’ll discuss each of these options over the next three posts. But for the remainder of this one, let’s get the constitutional “underview.”
The Rules of Proceedings clause does not require that the Senate exercise majority rule, but it does preserve the right of the majority to determine the rules.
Article I, section 5 gives each chamber of Congress exclusive control over its own procedural rules: “Each House may determine the rules of its proceedings….” This is known as the Rules of Proceedings clause, and it is an important component of the constitutional framework of separated powers.
One might be tempted to read majority rule into the clause. After all, the text does not specify a supermajority requirement, and the framers knew how to require a supermajority when they wanted one. So, by negative inference, one could argue that the Constitution gives the power to set the rules of the Senate to a simple majority of senators, and thus any supermajority requirement imposed on top of that should be unconstitutional.
But one should resist the temptation. People intuitively dislike the idea that one Senate majority could impose a supermajority requirement that would hobble future majorities without their consent. But the Constitution gives rulemaking authority to the whole Senate, not just the Senate majority. And crucially, unlike the House of Representatives, the Senate was conceived and constituted as a continuous body, with senators serving relatively long, staggered terms.
Ultimately we must accept the following two propositions: (1) the Constitution does not instruct as to how to resolve the interpretive dispute over whether majority rule is required wherever a supermajority is not specified; and (2) the Constitution does not directly empower any entity outside the Senate to regulate the Senate’s interpretation of the Rules of Proceedings clause.
Of course, none of that means the Senate must adopt supermajority rules—just that it may; and if it does, our only recourse to change them is through the political process. In U.S. v. Ballin, 144 U.S. 1 (1892), the Supreme Court wrote:
The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
I emphasize the last bit because it shows that, in a roundabout sort of way, the Constitution ultimately does make it the prerogative of the majority to set the rules of procedure—even when the majority adopts supermajority procedures for a time. That follows from what I said above: just as no one outside the Senate is empowered to impose majority rule on Senate proceedings, so no one outside the Senate is empowered to enforce the Senate’s supermajority rules.
The key here, as with so many aspects of our Madisonian system, is that the relevant constitutional actors, senators, are constrained not so much by the dictates of the Constitution as by the imperatives of politics.
Filibuster reform isn’t just about whether 67-, 51-, or 60-vote cloture would be best for the country, best for Congress, or most faithful to our democratic ideals. It’s about the power each individual senator has over the process. And for individual senators, the politics may cut both ways.
Diagram of the Day
From Mike Wirth, a comprehensive rendering of the federal lawmaking process.
Click to see full image.
Extra points for the subtle resemblance to a sausage. Hat tip to Ezra Klein.
Jonathan Bernstein on Filibuster Reform
Jonathan Bernstein, sage of political science, put together a superb series of posts on filibuster reform last week as a guest blogger for Ezra Klein. I liked them so much I thought I’d gather up links to all of them, so they’d be indexed in one place. So, here they are:
- Our dysfunctional Senate
- The logic behind Senate rules
- The democracy behind Senate rules
- Guidelines for Senate reform
- Best quote about why Senate reform is needed
- Assessing Senate reform proposals, Part 1
- Assessing Senate reform proposals, Part 2
- Wrapping up Senate reform with Superbill
I’ll comment on some of these another time. It’s excellent stuff that really challenges reform advocates to think hard about their positions.
Filibuster Reform Note
David Waldman tosses out an intriguingly simple filibuster-reform idea:
We also hear a lot of demands for Dems to “make the Republicans filibuster” — in the old school sense — but under current rules that puts much of the burden on those who don’t want additional debate, and very little on those who say they do. If there are going to be changes made, what about considering one that keeps the numbers the same, but puts the burden where it belongs? What if cloture still required 60 votes, but that debate only lasted as long as at least 41 of the Senators voting against cloture remained on the floor?
Without thinking real hard about it, I like it. It faintly resembles the usual “live filibuster” proposals—which will never work—but with enough of a twist that it might actually succeed in ending the era of permanent filibuster while preserving the opportunity for minority “debate” time (whatever that’s worth). Not sure if that would be better than no filibuster at all, though.
Weekend Wordery: Permanent Filibuster
Jonathan Bernstein wants to clear up some confusion in the way we talk about obstructionism in the United States Senate. In particular, he wants us all to work from the same definition of the word filibuster:
To filibuster is to insist that a bill or nomination needs 60 votes to pass. A filibuster is a requirement that a bill or nomination takes 60 votes to pass.
The term filibuster predates the cloture rule from which the 60-vote requirement derives. But since the advent of the cloture rule, adopted in 19171, it has become possible to divide filibusters into two categories: the unbreakable, Big-F, full monty Filibuster with enough support to survive cloture; and the mere hindrance, little-f, small fry filibustering, in which the opposition knows it cannot survive cloture, but impedes the bill anyway with whatever parliamentary tactics are available.
Bernstein asks us to embrace the Big F as The Filibuster proper; the rest is just “stalling” or “delay.” But at the same time, Bernstein says, the distinction is not about whether the obstructionists actually succeed in blocking the bill or nomination. A filibuster can fail, after all, if it can’t garner 41 votes. “The decision that matters—the one that makes it a filibuster—is the decision to try to find 41 votes to block the bill or nomination,” he writes.
The sad fact is, the Senate minority is basically in perpetual pursuit of those 41 votes. And it’s a rare event for a senator to make a distinction between merely opposing a measure, and filibustering it. All of which means we are living in…the Era of Permanent Filibuster.
- Senate Rule 22, adopted in 1917, established a 2/3 majority requirement for ending debate. The rule was modified in 1975 to require just 3/5, or 60 of 100. [↩]
Things I’ve Always Wondered About: Cooling-Saucer Edition
According to legend, George Washington explained the existence of the Senate with the metaphor of pouring coffee into a saucer to cool it. Popular passions holding sway in the House would be poured into the senatorial saucer to cool so that legislation would be tempered with the caution and wisdom of the country’s elite.
Okay, so I get the tenor of the metaphor, but the vehicle baffles me. How is this supposed to work exactly? You pour the coffee or tea out of your cup onto the saucer. Hmmm…already foreseeing problems. Ever tried to pour just a little bit of liquid from a full cup without a spout? Well, anyway, imagine you pull that off. Then what? You’ve got a saucer full of drink. Now where do you put the cup? Okay, say you have two saucers. You put the cup down on saucer no. 2, the dry one.
Time for a drink! But, well, er…the beverage—now admittedly cooler—is in a shallow pool on saucer no. 1. Seems like it might be difficult to pick up the saucer and bring it slowly to your lips for a sip without spillage. And surely President Washington will be horrified if you lean over and stick your face in the saucer. This is highly awkward. Moreover, Rule #96 of Washington’s forbidding Rules of Civility & Decent Behaviour in Company and Conversation: a Book of Etiquette is clearly analogous here:
96th It’s unbecoming to Stoop much to ones Meat[.] Keep your Fingers clean & when foul wipe them on a Corner of your Table Napkin.
But say the father of our country is understanding of this predicament, and the bend-over maneuver is sanctioned by the ROCDB in these narrow circumstances. What’s the plan now? Slurp? Oh no. Definitely not. Rule #99:
99th Drink not too leisurely nor yet too hastily. Before and after Drinking wipe your Lips breath not then or Ever with too Great a Noise, for its uncivil [sic].
Lap it up with your tongue? Not while Rule #16 is in effect:
16th Do not Puff up the Cheeks, Loll not out the tongue rub the Hands, or beard, thrust out the lips, or bite them or keep the Lips too open or too Close. [sic]
Loll not out the tongue, you see. We’re swiftly running out of options here, Mr. President. Well, it turns out, according to the Memorial Hall Museum Online, there was a technological solution: deep saucers.
In the 1770′s and 1780′s it became fashionable to drink tea from the saucer, perhaps to allow the tea to cool. One consistent characteristic of tea wares at that time was the deep saucer, borrowed from China. Later in the century, cup plates became part of the tea set and allowed the tea drinker to “park” her cup on the small cup plate while she sipped tea from the saucer….
And there you have it. Deep saucer illustrated below. I’m still not sure how you’re going to negotiate the pouring from the cup to the saucer…unless you bypass the cup altogether and pour directly from the pot into the saucer. In which case: why the cup? But there are limits to one’s curiosity.
Cup and saucer, circa 1725
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