Political Veto Points and the Politics of Drift

by Henry on July 15, 2010

Politics and Society, which is my favorite journal, has a special issue centered on Jacob Hacker and Paul Pierson’s “Winner Take-All Politics” argument. They’ve made it freely available for a couple of months, and I recommend people read it, not only for the Hacker and Pierson piece, but for the responses from Lane Kenworthy, Neil Fligstein and others. I’ll be writing a few posts on this, and wanted to start out by pointing to Hacker and Pierson’s discussion of one interesting and not immediately obvious implication of the Senate filibuster and other forms of veto. Very obviously, they make it harder for new pieces of legislation to get through. But they also lead to problems with existing legislation. Over time, legislation can become increasingly unmoored from its supposed purposes, as society changes. Alternatively, existing legislation can turn out to have quite unexpected loopholes. But reorienting legislation or closing loopholes will be very difficult when there are veto points such as super-majoritarian requirements. Hacker and Pierson give the example of an obscure loophole dating back decades, which has been used in a quite unanticipated way to allow hedge fund managers to have their management fees counted as capital gains rather than income (and thus taxed at a much lower rate). Recent efforts to amend the tax code to get rid of this loophole failed in the Senate, and are (as best as I know) unlikely to be revived. This kind of “drift” is also advantageous to politicians who want to favor influential interest groups, because it means that they can protect their interests through inaction (which is often politically invisible) rather than direct action.

It is worth noting though that this mechanism cuts against some of Hacker and Pierson’s previous arguments in Off-Center. There, they suggested that the Republican use of sunset clauses to get tax cuts through were likely to lead to long run change.

it means that future politicians will face a fundamental political quandary: Should they allow enacted provisions of the tax code to expire, explicitly taking from (for the most part, wealthy) taxpayers benefits that they already enjoy? Or should they extend these provisions, incurring the $4 trillion in lost revenue and additional debt service that the sunset provisions of the tax cuts represent? The sunsets, in short, create an unprecedented new political environment – one that is highly favorable to tax-cutters’ core goals. … Republicans reasonably predict that the pressure to extend the tax cuts will be intense, not least because well-off folks who receive the big tax provisions that take effect just before the sunsets kick in will be unusually well poised to make their voices heard. They also expect, no doubt, that the need to protect these provisions will provide a powerful motivation for the wealthy to bankroll Republican reelection effects in the future.

Here, the putative mechanism of policy change was not drift (there is some status quo bias but it is not caused by institutional lock in and veto points). Indeed, it was precisely because of the likelihood that the legislation would be blocked by a Senate filibuster that the Republicans had to pass the bill through reconciliation and jiggery-pokery with the numbers. There is a current debate about the tax cuts’ expiration – but this doesn’t look to me to be a “highly favorable environment” for their retention – and not only because of the economic crisis. There is a substantial minority of Republicans and conservative Democrats who can try to block major efforts to increase taxes on the rich, but (pending the elections), it is probably not be enough to pass new legislation to re-enact the taxes. While we still haven’t seen whether the tax cuts will or will not be renewed, it seems to me plausible that Republicans were too smart for their own good. They might have been smarter to settle for more limited cuts without a sunset clause (putting the future burden of change on those who wanted to repeal the cuts, rather than those who wanted to renew them).

{ 22 comments }

1

Joshua Holmes 07.15.10 at 8:29 pm

Supermajoritarianism may also encourage legislatures to hand off legislative functions to regulatory agencies. I suspect it’s not a major contributor to that trend, though.

2

marcel 07.15.10 at 9:19 pm

This is a bit incoherent at the end. You wrote: it is probably not be enough to pass new legislation to re-enact the taxes. . I think you meant it is probably not be enough to pass new legislation to re-enact the tax cuts. Is that correct?

3

marcel 07.15.10 at 9:20 pm

Well, the “be” in the sentence strikes me as superfluous too, but I don’t think it changes the meaning.

4

Sebastian 07.16.10 at 3:51 pm

“Recent efforts to amend the tax code to get rid of this loophole failed in the Senate, and are (as best as I know) unlikely to be revived.”

Maybe I missed the very most recent iteration of the attempts to close this loop hole, but the last 2 times Congress tried to close this loophole, a fair number of Democrats were against the change. Making it less a filibuster problem, and more a majority vote because some Democratic Senators didn’t like it problem.

Ultimately the problem with the filibuster is that it has become routine. But it has become routine because Democrats have made it costless. Instead of embarrassing themselves with real filibusters, the minority party gets away with the mere threat of a filibuster. This lets them avoid the public and in-your-face combative nature of the real filibuster (which if dealt with by the majority party properly could actually change some voters’ minds) and hide behind an almost faceless procedural vote.

5

yoyo 07.17.10 at 4:29 am

4 is awesome. ’60 isn’t more than 50, because democrats are hypocrites.’

6

James Kroeger 07.17.10 at 8:18 pm

Sebastian 4:

Ultimately the problem with the filibuster is that it has become routine. But it has become routine because Democrats have made it costless. Instead of embarrassing themselves with real filibusters, the minority party gets away with the mere threat of a filibuster. This lets them avoid the public and in-your-face combative nature of the real filibuster (which if dealt with by the majority party properly could actually change some voters’ minds) and hide behind an almost faceless procedural vote.

A very cogent articulation of THE essential political error the Democrats have been guilty of from the very first day of the Obama administration. I wonder what it is that makes the Democratic leadership seemingly incapable of comprehending this point?

7

Walt 07.17.10 at 10:01 pm

Old-style filibusters are no longer part of the Senate rules, and thus requiring them is not an option. They were replaced with the cloture mechanism many years ago.

8

James Kroeger 07.18.10 at 12:39 pm

Walt 7:

Old-style filibusters are no longer part of the Senate rules, and thus requiring them is not an option. They were replaced with the cloture mechanism many years ago.

When did this happen? Is there some reason why “the Senate rules” can’t be changed—again—by the Senators currently sitting in office?

To end the supermajority tradition?

9

Sebastian 07.19.10 at 6:00 am

Walt, this isn’t strictly correct. The new cloture mechanism is a way to stop the filibuster. It isn’t the only way. You can still force it through exhaustion.

A cloture vote is only necessary if a Senator present, who has not spoken twice before already, wishes to continue debate and immediately speak. If there is no such Senator present, and you have a quorum, the vote may happen immediately.

So:

1) Get 51-59 Democratic Senators in the Senate
2) Call a vote for unemployment benefits
3) Republican obstructer wants to continue debate
4) Check to see if he has spoken twice already, if not immediately give him the floor
5) When he is done go to step 2.

No cloture vote is necessary so long as you maintain a quorum willing to immediately vote on the bill.

All the scenarios where this turns out bad for the Democrats involve every single Republican Senator being willing to risk looking like a complete tool NOT through their voting, but rather through giving inane hours-long speeches that you can immediately use for press coverage and youtube videos. And they involves the Republicans not looking stupid while they do it.

In reality, the Republican caucus looks so unified because they are never tested. And in any case, maybe they should be tested once, just to see.

10

LizardBreath 07.19.10 at 12:35 pm

so long as you maintain a quorum willing to immediately vote on the bill.

That is, to make this work you need 51 Democratic senators willing and able to be present and ready to vote continuously, and one Republican senator willing to keep talking. Aside from the logistical problems (huge, for the fiftyone Democrats, trivial for the one Republican who can hand off to any other one Republican) to the extent there’s PR damage from holding up Senate business, it falls on every Democrat and on one Republican.

Just on the logistics, it’s not practical. Forty Senators who can take turns are going to be able to outlast fifty-one who have to all be present simultaneously.

11

Sebastian 07.19.10 at 3:07 pm

“Aside from the logistical problems (huge, for the fiftyone Democrats, trivial for the one Republican who can hand off to any other one Republican)”

Filibusters were broken by this method in the past, and the commitment and embarrassment of doing one kept filibusters from being common back when attrition was the only way to break them.

What Forty Senators are you talking about anyway? Voting against cloture is one thing. Having to speak continuously and publicly in a move against unemployment benefits is an entirely different thing. Republicans have not been publicly tested, so of course they are willing to hang together when it is easy. But you don’t have to make it easy every single time.

It is difficult for me to feel much sympathy for 59 of the more powerful people in the world that they would have to stay in the Senate chamber for a few days breaking the filibuster on some important issue so that the threat to filibuster becomes less routine.

12

LizardBreath 07.19.10 at 3:25 pm

What Forty Senators are you talking about anyway? Voting against cloture is one thing. Having to speak continuously and publicly in a move against unemployment benefits is an entirely different thing.

If you have forty senators who will vote against cloture, then you have a pool of forty senators who don’t want the bill to come to the floor. Only one of those senators (at any given time) has to stand up and give a ridiculous speech. The other thirty-nine can do whatever they like, including deploring the timewasting of the majority keeping the Senate from turning to other business.

The side that wants to break the filibuster needs fifty-one senators continuously, all of whom are going to take heat for preventing the Senate from doing other business. If you want to say that they should do it anyway, great. But it’d be extraordinarily logistically difficult and politically (and substantively — it really would take up time that the Senate needs to actually pass legislation that the parties can agree on) costly.

And once you’ve broken the filibuster once, that doesn’t make it any easier the next time. You’ve made one filibustering senator, but all the senators breaking the filibuster, look, and be, obstructionist.

13

Tim Wilkinson 07.19.10 at 3:32 pm

Voting against cloture is one thing.

Just out of interest: isn’t the number of Reps attending and voting irrelevant to the outcome, since a cloture vote requires 2/3 of sworn Srs, rather than of those present, still less those voting? Or is that wrong?

14

Henry 07.19.10 at 3:55 pm

The other issue that people need to be aware of is that it _takes a lot of time_ to break a filibuster, even under ideal conditions. Even if you just have a single senator putting a hold on, you need the cloture motion to ripen and all that. The result as I understand it is that if you have extensive use of threatened filibusters e.g. to block appointees, and you want to call their bluff, you will have less than zero time to deal with anything else on the legislative calendar.

15

LizardBreath 07.19.10 at 4:05 pm

Right, I was trying to get at that point. Breaking a serious filibuster is going to shut the Senate down for at least a week or so, maybe longer. And that shutdown can (reasonably) be blamed on every one of the fifty-one Senators cooperating to break the filibuster. On the other side, you only have one or two filibustering Senators looking silly.

16

Sebastian 07.19.10 at 4:29 pm

“Just out of interest: isn’t the number of Reps attending and voting irrelevant to the outcome, since a cloture vote requires 2/3 of sworn Srs, rather than of those present, still less those voting? Or is that wrong?”

This is wrong because you don’t need a cloture vote to proceed to the real vote if no one is filibustering, and you can break the filibuster through attrition, just like they always did before.

“And once you’ve broken the filibuster once, that doesn’t make it any easier the next time. You’ve made one filibustering senator, but all the senators breaking the filibuster, look, and be, obstructionist.”

This assumes that facing the threat once has no effect on the plausibility of the threat in the future. The whole reason we are in this mess in the first place is the long standing accommodation to the threat without any cost attached to it. And if you choose your battles carefully, why would the senators breaking the filibuster look obstructionist? For example they could have spent the entire last week breaking the filibuster over unemployment benefits. I’d be shocked if there is a single in-play voter considering voting for Democrats who would become a Republican voter over that. And there certainly wouldn’t be a net loss of votes for Democrats over that.

“Breaking a serious filibuster is going to shut the Senate down for at least a week or so, maybe longer.”

We have no idea if Republicans are committed to a ‘serious’ filibuster because we haven’t called them on it for decades. And again, that is why you choose to break it on something important. The unemployment extension would have been perfect.

And if the filibuster is really lasting a week or so, it is more than one or two filibustering Senators looking silly. That would involve dozens. Which A) I don’t think you actually have available on a well chosen topic, and B) would be great for Democrats anyway.

AD: “Democrats want to help out with unemployment. Republicans thought the best response to that would be reading from the phone book….” [cut to video of the choicest clips] “Democrats want to help the economy, Republicans think that giving speeches is the solution” [cut to clips]

Besides, they didn’t have to do it during the regular sessions. They could have just not taken one of their enormous vacation breaks and broken it then.

And what is this important Senate business that Democrats are up to right now anyway? Isn’t breaking the routine filibuster of everything, such that reporters now automatically talk about votes failing because they don’t have the “required 60 votes”, pretty much the most important thing Senators should be doing?

Think of the difference in the banking bill if it had passed with the 58 votes it had. Or again, there is the unemployment bill. The filibuster is going to take about a week to deal with whenever you bother doing it. There is no time like the present.

17

LizardBreath 07.19.10 at 4:53 pm

The filibuster is going to take about a week to deal with whenever you bother doing it.

(A) There’s no basis for thinking it would take no more than a week. (B) There’s no basis for thinking that breaking one filibuster, once, would reduce the likelihood of the next filibuster.

18

Sebastian 07.19.10 at 5:18 pm

There is a basis for thinking it would take less than a week. I don’t believe there are more than about 5 Senators willing to commit to a full fledged multi-hour push against unemployment benefits. Give them 5 hours each, and they are only allowed to speak twice, so that is 50 hours, which is just over 2 days. If we are generous and give you 10 of them, that is 4 days.

There is also a basis for thinking that breaking one filibuster changes future ones. First, you can tar future cloture votes with the ugly filibuster. You can’t do that now because there hasn’t been an ugly filibuster in about a generation, and the last really ugly one was with Byrd who was in the Democratic caucus, problematizing everything. Also, filibusters didn’t used to be so common. I propose that is because they didn’t used to be so easy. I guess you’d propose that opposition parties were never ruthless until now? But maybe it was that majority parties were more steadfast. If Republicans had tried filibustering everything under Daschle or Mitchell, they would have wrapped it around their throats and strangled them with it. And when Democrats tried it under Frist, he made a big deal about it and forced them to back down.

19

LizardBreath 07.19.10 at 6:05 pm

Also, filibusters didn’t used to be so common. I propose that is because they didn’t used to be so easy.

Well, yes. The rules changed in ’75 making it easier to filibuster (invoking cloture went from 2/3 of senators present and voting, to 3/5 of all senators, so senators supporting the filibuster no longer have to be present throughout it.) That’s why they can be so common now.

20

LizardBreath 07.19.10 at 6:08 pm

Give them 5 hours each

I don’t know this rule.

21

Tim Wilkinson 07.19.10 at 6:19 pm

“Just out of interest: isn’t the number of Reps attending and voting irrelevant to the outcome, since a cloture vote requires 2/3 of sworn Srs, rather than of those present, still less those voting? Or is that wrong?”

Sebastian: This is wrong because you don’t need a cloture vote to proceed to the real vote if no one is filibustering, and you can break the filibuster through attrition, just like they always did before.

Yeah, I (inscrutably) meant so far as cloture is concerned, the Reps’ presence and vote are irrelevant. (But Lizardbreath reveals it’s 3/5 not 2/3, so that bit was wrong). Got it.

22

Sebastian 07.20.10 at 8:17 am

“Well, yes. The rules changed in ‘75 making it easier to filibuster (invoking cloture went from 2/3 of senators present and voting, to 3/5 of all senators, so senators supporting the filibuster no longer have to be present throughout it.) That’s why they can be so common now.”

They are significantly more common now than they were in 1976, 1980, 1982, 1984, 1988, 1992, 1998, 2000, 2002, etc.

It has really only been in the last 6-8 years that it has been totally out of control. And again, for a long time the ONLY way to stop a filibuster was through attrition–for a long time the possibility of cloture did not exist AT ALL. Yet filibusters could still be broken. Cloture was invented to break filibusters when large majorities wanted to end debate. It wasn’t seen as the only way to end filibusters. Relying *exclusively* on cloture is just what lazy Senators do.

When the Senate actually tries to break a filibuster and can’t, because at least some of your major fears about it come true, we can talk about how broken it is. But the Senate hasn’t even remotely tried. Hell they haven’t even tried to make Republicans talk for 2 days, much less 3 or 4.

You’re treating this as purely a procedural problem when the problem is mostly political. Politically, Democrats have never tried to attach any real cost to Republican filibustering. Since there is no cost, Republicans do it. In order to see if Republicans are really committed, you have to test it on something that costs. Democrats have not attempted to do so. At all.

Why not? Because they fear it will take a whole week or so to do it? Cry me a river.

And it seems very likely, that if you choose the topic well, it won’t even take a week.

But until you try it, ever, it is really just fearmongering.

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