Category Archives: legislation and legislatures

TPM reports.

Sarah Binder sees confusion ahead.

See here.

Very important NYT article on what’s going on with the Senate, procedurally and politically.

Tyranny of House majority.

NYT Editorial:

“Regular order!” That has been the demand of House Republicans for three years, insisting on a return to the distant days when Congress actually passed budget resolutions and spending bills, instead of paying for the government through shortsighted stopgap measures.

“Senate Democrats have done nothing,” Speaker John Boehner said on “Meet the Press” on March 3, referring to the Senate’s failure to pass a budget since 2009. “It’s time for them to vote. It’s time for us to get back to regular order here in Congress.” The two chambers could try to resolve their differences in a conference committee, he said, “and maybe come to some agreement.”

But a funny thing happened a few days after those comments were made: the Senate agreed to that demand and actually passed a budget. Suddenly all those Republican cries for regular order stopped. Suddenly the House has no interest in a conference with the Senate. Instead, Congress is preparing for yet another budget crisis.

NYT reports.

TPM reports.

Jonathan Bernstein and Sarah Binder.

A self-inflicted wound.

Tonja Jacobi and Jeff Van Dam have posted this draft on SSRN.  Here is the abstract:

The filibuster has effectively become a supermajority requirement for all lawmaking in the Senate, an effect worsened by ill-conceived attempts at its reform. Once an obscure budgetary procedure, reconciliation is now the primary mechanism of avoiding filibusters, and so it is now the means by which the most significant pieces of legislation in recent years have been passed. The effectiveness of mechanisms of restraining reconciliation — particularly the Byrd rule — as well as constraints on more meaningful filibuster reform all hinge on who has supervisory power over Senate rules. Ultimately, this rests not in the courts or the Parliamentarian but in the Senate itself. The battle between majoritarian and minoritarian power in the Senate, and so over the nature of legislation creation in Congress, depends upon individual incentives and institutional norms. We show that those incentives are structured towards minoritarian power, due to particularism, institutionalized risk aversion, and path dependence. Consequently, filibuster reform is likely to be continually frustrated, as the most recent skirmish illustrated. Only through the largely accidental change proffered by reconciliation has majoritarian power resurfaced, and yet still the pull of minoritarian influence continues to reassert itself.

Andrew Cohen blogs.

Politico: “The Senate minority leader has signaled privately that he has no interest in sitting in the same room as Majority Leader Harry Reid (D-Nev.) to discuss a possible “grand bargain” on budget and tax issues, Senate insiders tell POLITICO. McConnell is fine with talking to Obama — just talking at this point — but he doesn’t want Reid there when it happens.”

Dan Balz:  “Bipartisanship and cross-party alliances are suddenly in vogue in the Senate this spring. The question is whether the Senate is a leading indicator of a change in politics or largely an aberration in a nation divided along red and blue lines.”

Interesting perspective from Larry Summers.

Eric Alterman Nation column:

Believe me, I’m more annoyed at having to write this column again than you are at reading it. But dammit, nothing changes. The Republican Party has gone off the rails by virtually every available measure, and the media continue to blame “both sides.”

Let’s look at some data. According to a forthcoming study in the Drake Law Review by Richard Hasen, a law professor at the University of California, Irvine, we are experiencing “the largest and most uniform gap in the ideological orientation and voting patterns in the Senate and the House of Representatives in modern times.”…

WaPo reports.

Seth Masket:

Rick Hasen has a really interesting paper up discussing partisan polarization and the possibility of changing the Constitution to deal with it. (And you should really read Jonathan Bernstein’s response, too.) Hasen starts off by asking whether we should be considering moving toward a more parliamentary style of government.

It’s a fair question. We have what looks like a serious mismatch between our parties and our governing institutions. We live in an era of sharply distinct, internally disciplined, programmatic parties with very different visions of how the nation should be run. That’s fine—we have some time-honored institutions, such as elections and majority-rule legislatures, for settling disagreements, even when the disagreements are sharp.

TPM: “Senate Majority Leader Harry Reid (D-NV) threatened in his most explicit terms yet to use the so-called nuclear option to weaken the filibuster if Republicans keep blocking judicial and other nominees from coming to a vote.”

NYT: “Members of both parties say Mr. Obama faces a conundrum with his legislative approach to a deeply polarized Congress. In the past, when he has stayed aloof from legislative action, Republicans and others have accused him of a lack of leadership; when he has gotten involved, they have complained that they could not support any bill so closely identified with Mr. Obama without risking the contempt of conservative voters.”

The Fix reports.

Jonathan Bernstein has written this piece for Salon responding to my new draft article (which I presented Saturday at the excellent Drake Law School symposium), Political Dysfunction and Constitutional Change.

Jonathan begins:

The American political system is not broken. What’s broken is the Republican Party. And it’s not clear how it will recover.

What’s wrong with American politics and what can be done about it is the question that election law expert Rick Hasen sets for himself in a fascinating new paper. In particular, he asks whether American politics is so broken that the only cure is to chuck the Constitution and replace it with a parliamentary system or some other radical systemic reform.

He continues:

I think the emphasis on partisan polarization is misplaced. There’s nothing about strong partisanship that makes effective government in the U.S. impossible. That Hasen highlights budget problems makes this, in my view, especially clear. Budgets are, by their nature, fairly easy to cut deals on! Indeed: I suspect the game theorists might actually find that it should be easier for two well-organized parties to cut those deals, even if their ideal points are quite distant, than it would be to reach a deal between unstructured, factionalized parties, even if there are no extremists among them. During the current 113th Congress, all that should be needed is for the captains of both teams to find an agreeable midpoint, and budget issues can be solved.

And yet: dysfunction, crises, threats of shutdown and irrational outcomes no one claims to want.

My conclusion? It’s not partisanship. It’s not polarization. It’s not even extremism.

It’s the Republican Party. The GOP is broken. Not too conservative; not too extreme. I have no view of where the GOP “should” be ideologically, and I don’t think there’s much evidence that being “too conservative” per se is losing elections for Republicans.

I hope to write a response to Jonathan’s very interesting piece soon.  In the meantime, I’ll be doing a live chat tomorrow at Talking Points Memo about the new piece.  It should begin at 6 pm eastern.  Thanks also to Taagen Goddard’s excellent Wonk Wire (now housed at Roll Call) for making my paper its Abstract of the Week.

I have just posted this draft on SSRN, a paper for the Drake Law School symposium I’ll be speaking at on Saturday.  Here is the abstract:

This Essay was prepared for a symposium at Drake Law School on “The U.S. Constitution and Political Dysfunction: Is There a Connection?” Signs of political dysfunction abound in the United States government. Perhaps the best illustration is the ongoing fight over the U.S. budget, the national debt, and tax and entitlement reform , which has led to extraordinary (and so far unsuccessful) efforts to resolve legislative stalemate including the “super committee” and the sequester. The source of these deadlocks over budget reform is hardly a mystery: it is the mismatch between highly ideological political parties and our divided form of government which makes passing legislation difficult even in the absence of partisan deadlock. The partisanship of our political branches and mismatch with our structure of government raise this fundamental question: Is the United States political system so broken that we should change the United States Constitution to adopt a parliamentary system either a Westminster system as in the United Kingdom or a different form of parliamentary democracy? Such a move toward unified government would allow the Democratic or Republican parties to act in a unified way to pursue a rational plan on budget reform on other issues. Voters could then hold the party in power accountable if the programs its pursued were against voter preferences. It seems a more logical way to organize politics and insure that each party will have a chance to present its platform to the voters, to have that platform enacted, and to allow voters at the next election to pass on how well the party has managed the country. But changing the Constitution is a big deal.Even if a sense of national crisis and paralysis allowed an opening for parliamentary constitutional change, we should not lightly change the fundamental rules of our governance. There is a value to our constitutional tradition. Change can have unintended consequences. The country has weathered many crises under our existing form of government, and tinkering with long-term success, even given profound recent dysfunction, can be dangerous.
In this Essay, I briefly examine four arguments against making constitutional change to deal with current political dysfunction. The first two arguments contend that the current governmental system is not that dysfunctional. First, the current political stalemate may reflect the preferences of the median voter or the public at large. Second, the current political system actually produces a good amount of legislation, and a parliamentary democracy might produce too much rash legislation. The third argument accepts the premise that the current system is dysfunctional, but contends the dysfunction could be cured by sub-constitutional change, such as eliminating the filibuster or adopting additional open primary systems to produce more moderate candidates. The fourth argument also accepts the premise that the current system is dysfunctional, but sees that dysfunction as temporary, and expects dysfunction to be self-correcting as voters reject the current Republican Party far from the median voter, leading the Republican Party, and then Democrats, to move to the center. Evidence supporting the first three of the arguments against constitutional reform is conflicting and somewhat weak, but that the fourth argument is plausible and hard to evaluate in the midst of a potentially transformative era. We are in the middle of a highly partisan moment in American history but it is hard to know how long it will last. I conclude it is worth waiting to see if the political system self-corrects, especially given the risks of tinkering with the constitutional system and the value of not changing our constitutional traditions lightly. Given current political dysfunction which would block a move toward a parliamentary democracy in any case, waiting not only prudent but unavoidable.

Comments welcome!