Flaws in shutdown logic: It is different this time.

Republicans’ flirtation with a shutdown of the Department of Homeland Security intensified over the weekend. Boehner appears entrenched and suggested Sunday that a shutdown is possible.

On President’s Day the dynamic changed… possibly. A federal judge in Texas recently halted the President’s executive action on immigration. Several reports suggest that this could pave the way for DHS funding bill to sail through. However, it is not clear the judge’s decision greased the wheels on either side of the aisle. Republicans are likely wary that the court decision could be reversed in the coming days. Meanwhile, Senate Democrats have no incentive to back down. They’re gaining support from a large and growing portion of their base by fighting Republicans’ attempt to defund Obama’s immigration action. It is unlikely that the court’s injunction has any effect on the political dynamics embroiling this debate.

Matt Yglesias has a very good piece detailing Republicans’ perseverance despite potentially damaging outcomes from the shutdown. Essentially, Republicans felt little to no repercussions from the last government shutdown. The shutdown polled very badly for Republicans in October of 2013 but in November of 2014 they rode a wave to complete congressional control. Put simply, if the 2013 shutdown did not result in catastrophic losses, why would a 2015 shutdown of a single department be different?

Actually, there are lots of reasons to believe this time is different. The one factor in Republicans’ favor is that this strategy would only shutdown DHS instead of the entire government. After that, all advantages break toward the other party.

First, with healthy majorities in both chambers this is Republicans’ boat to crash. In 2013 Republicans shouldered most of the blame but Democrats were also hurt in the polls just not to the same extent. This time there is no Democratic majority to blame. With complete control of Congress, Republicans have been unable to pass a funding bill. Had the President vetoed the legislation, Democrats may take a hit. But at the moment, Democratic involvement in Republicans’ inability to pass legislation is obscure at best.

Yet, Democrats are at the heart of Republicans’ predicament. Their filibuster is preventing Republicans from taking a stand against the President. The problem Republicans face is that blaming Democratic obstruction is not terribly effective. Filibusters obscure accountability. If you want proof of that, just look at how effectively now Majority Leader Mitch McConnell used filibusters to retake the Senate. By increasing obstruction Republicans retook control of Congress. Most voters are unaware of the filibuster and its processes. Put differently, most people are unaware that Democrats are involved at all. Therefore, Republican attempts to blame the shutdown on Democrats will fall on mostly deaf ears. In a worst case scenario it may actually help Democrats by raising awareness and boosting their support among Latinos. This kind of blame game does not fall in Republicans’ favor.

And lastly, the 2013 government shutdown was shortened by intervening factors. The government was reopened only after an 11th hour gambit to prevent a debt ceiling catastrophe. If there was no debt ceiling threat looming on October 17th, it’s unlikely the shutdown would have ended on October 16th. In many ways the debt ceiling prevented further damage from the shutdown. Once the government was reopened, Republicans enjoyed several months of botched ACA rollout coverage. Within a few months, Republican approval ratings had rebounded.

This time there is no negative Democratic press cycle to fall back on or divert attention. There is no confusion over which chamber (or party) of Congress is causing the shutdown. The context of this potential shutdown is drastically different.

Whatever the logic is shutdown politics remain an awful strategy, particularly for a majority party. While some may view the 2014 election as an affirmation of prior shutdowns, expecting the same soft-landing in 2015 is likely a costly mistake.

Posted in Filibuster, Legislative Politics | 1 Comment

Have Republicans Gone M.A.D. (Mutual Assured Destruction) on the Filibuster?

Frustrated House Republicans lashed out against their Senate colleagues Thursday. Without a clear path forward on the DHS funding bill, Rep. Raul Labrador (R-ID) and others blamed Majority Leader McConnell for failing to save what is a bad legislative strategy. Roll Call’s Matt Fuller reports:

“Mitch McConnell can change the rules of the Senate,” Rep. Raúl R. Labrador said Thursday at a panel discussion with conservative lawmakers. “And this is important enough for Mitch McConnell to change the rules of the Senate.”

This is a catchy talking point that would have more bite if it wasn’t also certainly wrong. McConnell can’t go nuclear on the filibuster alone. He needs the support of his conference. Unless some dramatic, earth shattering shift has occurred behind closed doors, McConnell likely does not have the votes to eliminate the filibuster.

The reality is that going nuclear on the legislative filibuster is not very popular on either side of the aisle. All senators gain influence from the filibuster. Today, the filibuster is commonly perceived as the minority’s tool to obstruct business. That’s true but unlimited debate also bolsters the rank-and-file in both parties. Threatening to filibuster a bill gives all senators enormous leverage in the negotiating process. For this reason most majority senators, even insurgents like Sen. Ted Cruz, are unwilling to eliminate the legislative filibuster.

In the process of promising victories they cannot deliver, Labrador and his colleagues are also feeding a couple of underlying problems in the Republican Party. Statements like these set up unrealistic expectations. Many constituents likely believe McConnell is standing between conservatives and their immigration battle with the President. That is not the case.

Further, failing to understand (or acknowledge) leaderships’ limitations makes McConnell’s and Boehner’s jobs harder. Congressional leaders are only effective if others are willing to follow. Framing Republican leaders as weak, not conservative enough, or cowardly deters colleagues and constituents from following leaders’ cues. After all, why would a true conservative follow a weak, liberal Republican? Put simply, comments like these throw their party leaders, and the majority’s capacity to enact laws, under the bus.

Whether it’s principle, stubbornness, or an inability to grasp legislative process, House conservatives have gotten into a bad habit of shooting themselves in the foot and then blaming their leaders when they can’t walk. For whatever reason leadership-bashing has come into vogue in the Republican Party. These tactics undermine credibility and the policymaking process. The only real winners in this scenario are fundraisers and those that do not want the Republican Party to exist in its current form. Because at this rate, it is hard to imagine this majority enacting much of anything resembling a conservative vision for the country.

Posted in Filibuster, Legislative Procedure | 1 Comment

Obama wants filibuster reform. Would it help polarization?

Obama had some interesting things to say about polarization and the filibuster in his interview with Vox. When the question of if government can work in the midst of polarization was posed, Obama mentioned the filibuster:

“Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate… The filibuster in this modern age probably just torques it too far in the direction of a majority party not being able to govern effectively and move forward its platform.”

It’s important to note that this is an answer about governing, not reducing polarization. If you watch the video from the interview, you might assume that Obama’s answer on the filibuster is a response on how to solve or ameliorate polarization. It’s not. This is an important point because reforming the filibuster and reducing polarization are at odds with one another.

For all its faults the filibuster is an inclusive political instrument. It forces majorities to listen and compromise with the minority. However, a new breed of stubborn politics has crippled the honest pursuit of bipartisan compromise. Filibusters are currently used at rate that essentially prevents Congress from addressing problems. While stalling a bill’s progress is hardly new to Congress, the frequency with which they are used today has undermined the filibuster as a means for compromise and transformed it into a means of complete obstruction.

This doesn’t have to be the case. The filibuster could be a process that incorporates minority policy opinions without serving as an insurmountable roadblock. Done properly, filibuster reform could create a system that reduces dysfunction while also assuaging polarization. For example, placing a greater burden on minority senators to sustain a filibuster would make it more politically costly to wage one. This would preserve minority rights while also greasing the wheels of policy productivity.

Unfortunately, those options are not on the table. Presently the most likely reform to the filibuster would be its effective termination. This change would make it easier for a majority to govern in a polarized situation but it would also make the Senate a much more partisan institution. It would eliminate minority debate rights, almost certainly prohibit minority amendments, and undermine the political inclusiveness that has characterized the Senate for most of its history.

Filibuster reform is not likely to occur in the near future. However, the way the politics of filibuster reform shake out, it is a near certainty that changes to the filibuster will not reduce polarization. It will worsen it.

Governing in polarized times is a problem that needs to be addressed. But we should weigh if change is worth the cost of further distancing already outlying political parties.

Posted in Filibuster, Legislative Politics, Legislative Procedure, Polarization | 1 Comment

Why three failed votes is not necessarily a failure

Majority Leader Mitch McConnell received a fair amount of flak this week for his attempts to move forward on the DHS funding bill that expires at the end of the month. Republicans failed to invoke cloture on the DHS funding bill for the third time in three days, raising speculation about a potential shutdown of US security agencies.

Sarah Binder has a great piece at the Monkey Cage explaining the strategy. She argues McConnell’s attempts are not unprecedented or even a failure. Multiple attempts to stop debate on a bill has, at times, put pressure on the filibustering minority to compromise. In this sense McConnell’s is attempting to win a message battle by framing Democrats as obstructionists.

The messaging battle is an important one. However, it’s also a situation where neither party will likely emerge as the victor. In fact both parties win on this particular issue. Republicans are presumably gaining support for their attempt to battle the President on immigration. Meanwhile, Democrats are gaining support among their base by obstructing attempts to roll back what has been a very popular executive action among their base. In other words, it is certainly a messaging battle but it is one that both sides will win. McConnell isn’t winning at the expense of Democrats. Rather, he’s likely bolstering both sides while shouldering accusations that Republicans cannot govern.

The irony is that by failing to stop a filibuster, McConnell is moving closer to governing. As Binder points out, provoking multiple votes on DHS and the immigration rider demonstrates that moving forward on this bill through the normal process cannot work. Democrats are resolute and they have no incentive to back down. Republicans already knew this, signaling weeks ago that they did not have the votes to advance a DHS bill with the immigration rider.

So why use three votes? In addition to demonstrating that this is not a viable strategy, it gives McConnell leeway on his right. Had McConnell taken the obvious action needed to pass DHS from the start – stripping the immigration rider and passing a clean funding bill – he would have been attacked for appeasing Democrats. By demonstrating that their opposition is not avoidable, he eases some of that right-flank pressure.

And lastly, three votes buys McConnell time to strike an agreement to avoid a shutdown. The Senate is an institution of negotiation and unanimous consent. Behind closed doors McConnell is likely searching for an agreement between his conference and Democrats that strips the rider from the bill, offers conservatives the opportunity to make their stand on the issue with a non-passable amendment (60-vote threshold), and a time agreement that ensure the Senate passes DHS well before the funding deadline.

The headlines are not pretty now. But in an odd way, by failing to invoke cloture on Democrats’ filibuster McConnell is likely doing more to move forward than the media are giving him credit for.

That said, this latest episode continues a growing trend for Republicans. They continue to show a penchant for putting themselves in unwinnable political situations. Unless they become more strategically savvy, self-inflicted wounds may become this majority’s calling card. How they manage the upcoming cliffs on the debt ceiling, the Highway Trust Fund, and the Export-Import Bank reauthorization will be telling as we continue to inch toward 2016.

Posted in Bicameralism, Filibuster, Legislative Politics, Legislative Procedure | Leave a comment

Sticker-Schock: Breaking down Members’ Interior Design and Operation Spending

This piece was co-written with Mark Harkins, a Senior Fellow at the Government Affairs Institute at Georgetown University. He worked on Capitol Hill for over 17 years in various positions including Chief of Staff in a personal office.

The Fix at the Washington Post has an interesting piece on the cost of setting up and running a congressional office. This comes in the wake of Sticker-Schock. A piece in the Washington Post which unveiled Rep. Aaron Schock (R-IL) spending tens of thousands of dollars on office furniture. The Fix piece shows exactly how many tax dollars each member of Congress spent on their offices over the last two years. There is a lot of variance in these numbers and it’s helpful to get some context when judging your members’ interior design habits.

The overwhelming amount of money spent on offices is allocated to rent and parking. Not surprisingly, nearly all the top spenders come from high rent areas as the blog acknowledges.  New Jersey, New York, and California almost completely dominate the top spenders list. For example, the chart shows Rep. Bill Pascrell (D-NJ) as the top overall spender at $407,816.  But $392,541 of that is rent and parking.  Look at the second person on the list Rep. Gregory Meeks (D-NY).  His overall cost is $326,002 but his rent and parking are $260,075.  The case can be made that Meeks is a bigger spender as he spent $66,000 on non-rent whereas Pascrell only spent $15,000 on non-rent items.

Another factor these numbers don’t account for are the number of district offices per member and their office travel costs. A large sprawling district need more district office locations to provide constituent services. Rep. Cynthia Lummis (R-WY), who represents the entire state of Wyoming, has four district offices spread out across the state. In contrast, Rep. Jose Serrano’s district (D-NY) is only a few New York City blocks in diameter and only needs a single district office. Larger geographic districts are likely to have higher furniture, equipment, and supply costs eating into their representational allowance (known as the Members Representational Allowance, or MRA). While Rep. Raul Labrador (R-ID) may have spent more than $19,000 over the last two years on furniture and supplies, he represents a district that stretches almost 500 miles from Canada to Nevada. That’s a lot of territory to cover. Unless you prefer your congress persons’ staff to work with old computers with 1998 Windows technology as they track down your loved one’s social security check, federal grant, or passport, furniture and supply spending is not necessarily a bad thing.

Redistricting also has a significant effect on these costs. In some cases members had to open several new district offices to conform to the new lines. The costs of opening new offices could also inflate their spending numbers during redistricting cycles. High office costs in 2013-14 may not be because your member splurged on a fancy chandelier. It’s more likely they had to open a new office to adapt to their new district lines.

And lastly, many costs incurred by an office are on scheduled time frames. For example, despite wear and tear in their Washington offices members can only replace the carpet and drapes every 7 years. So you may want to cut some slack for Rep. Darrell Issa’s (R-CA) $8,000 carpet expenses or Rep. Sanford Bishop’s (D-GA) $2,241 drape replacement. Overlooking this requirement could give many representatives a bad-wrap for updating what are likely extraordinarily well-worn carpets.

Even account for all of this it doesn’t tell the whole story. Members’ representational allowances vary. Salaries, rent, supplies, equipment, computers, software, office travel costs, among others are all paid with this account. Depending on the rent of a members’ district, its distance from D.C., and number postal address (for franking), some members receive more than others due to the costs associated with traveling longer distances and representing a larger area with more people. A large geographic district in California would receive more money than a small one from Northern Virginia. In other words, Rep. Raul Ruiz’s (D-CA) $12,466 dollar office expense is likely a smaller percentage of his MRA than smaller geographic districts located closer to DC.

The Fix’s analysis in light of the Schocking amount spent by some Members of the House on décor is timely. There are always exceptions but more than likely your member’s spending habits are not a case of government run wild. MRA budgets have seen significant cuts in recent years. Most offices do not have enough money left over after salaries and supplies to hire their full complement of staff. It’s helpful to keep an eye on spending. But we also need to understand that many offices are already stretched thin trying to run effective representational operations for, on average, 725,000 people.

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The Senate’s Return to Regular Order?

For the past week, Majority Leader McConnell experimented with an open amendment process in the Senate. Members offered amendments on everything from climate change, to federally protected land, to limiting the President’s ability to initiate and sign bilateral agreements with foreign countries.

The broader question is can McConnell take a positive step toward a functioning Senate?

There are some positives to take away from the past week. Debate has gone smoothly for the most part. Senators have worked together on several fronts. Murkowski and Cantwell, the Chair and Ranking Member on Energy and Natural Resources Committee, have worked behind the scenes to find amendments both sides are willing to tackle. As a result the Senate has debated subjects such as climate change, potential limitations on informal and formal executive treaties, taxation of tar-sands oil, and topics such as private property versus eminent domain. Willingness to work through regular(ish) order has reinvigorated debate and deliberation over the last week. As a result the Senate has voted on more amendments in the last week than all of 2014.

However, it is not all good news. Yesterday some filibusters began to emerge. Several amendments were held to a 60-vote threshold, meaning that not all Senators would allow those votes unless there was an implicit understanding that they wouldn’t pass. As the afternoon turned into the evening, those the seemingly sparse filibusters turned into outright stalemate. The process came to a halt. In what appeared to be frustration or impatience, McConnell killed the pending amendments and filed cloture. This essentially guarantees the bill will move toward passage next week with few if any additional amendment votes. To an extent, the Senate we’ve come to know over the past few years reemerged.

Obviously the Keystone debate has been a more robust one than those in the 113th Congress. But last night highlights just how fragile the process really is. The majority opened up the process to allow the minority to participate. And as has been common among recent congressional minorities, they have wanted more time, more debate, and more amendments. In the eyes of the majority, they want to abuse their privileges. As a result the majority shuts down the process. Steven Smith, the Kate A. Gregg Distinguished Professor of Social Science at Washington University in St. Louis, refers to this erosion of cooperation as the Senate Syndrome, and it appears to have struck again in the third week of session. A week-long debate over amendments to an important bill is a positive step. But it is clear the process is fragile and trust between the parties is not high.

Lastly, Keystone is a unique case. High public visibility and bipartisan support grease the wheels of cooperation. In other words, it’s the type of bill where this kind of bipartisan process can flourish. However, not all issues enjoy broad support. And at some point, likely soon, stronger opposition will reemerge. At that point we’ll see if McConnell’s experiment with regular order is sustainable or if the Senate Syndrome will erode the good will that was built this past week.

Update: Great video of McConnell shutting down the process Thursday night.

Posted in Legislative Procedure, Political Institutions, Senate | Leave a comment

Handicapping the GOP’s Prospects of Repealing Obamacare in the 114th Congress

It didn’t take them long, did it?

Just a few days into the 114th Congress, Republicans in the House passed not one, but two bills to undo elements of the Affordable Care Act.

What follows is the first of two posts about the effort to “repeal Obamacare.”  For today, I’ll address two big picture elements of these repeal efforts.  Next week’s post will tackle some finer questions, looking in particular wehther Republicans are likely to succeed in repealing Obamacare.

What follows is based on two papers I’ve written on the topic of policy repeal.  See for example this paper published in the journal American Politics Research.  In brief, for this project I dug through various historical documents and created a dataset of all major repeals since the late 1800s.  With this data I developed a statistical model that examines when and why repeal happens.

Republicans Are Serious This Time

I first want to suggest that, this time around, Republicans are “serious” about repealing Obamacare. I also want to use last week’s votes to put repeals in historical context.

Recall that, in the 113th Congress, the Republican controlled House of Representatives passed more than 50 measures to undo Obamacare.  Most of these votes were on bills designed to repeal all or most of the law.  Notably, this isn’t how laws are usually undone.

First, the word “repeal” is synonymous with various actions: defunding, invalidation by the courts, sunset provisions, amending activity, etc.  All are tied to a broader topic, “policy change,” but are technically different actions.

Second, it’s quite rare for a law to be repealed in its entirety.  I found in the course of my research that this is true throughout history, but especially true today given the increasing complexity of legislation.  Rather, individual provisions (often, a tiny fraction of a bill) are modified or repealed.

For example, in 1988 Congress passed the Medicare Catastrophic Coverage Act and, just a year later, repealed major elements of it.  Observers remember this landmark law as one of the “shortest-lived pieces of social legislation” (see Eric Patashnik’s excellent book “Reforms at Risk” pg. 74).  But even in this extreme case, some elements of the MCCA remained in place after those repeals were adopted.

What’s important here is that, even if Republicans are successful in their repeals efforts, it’s likely that major elements of Obamacare will remain in place.  Indeed, some aspects of the law are incredibly popular.

Now, in the 113th Congress, because Democrats controlled the Senate, Republicans knew their chances of repealing the entire Affordable Care Act were almost exactly zero.  Voting to repeal the whole bill wasn’t a “serious” attempt but was, instead, an act of what political scientists call “position-taking.”  Note: that’s not a criticism.  In some ways, you could argue the whole repeal drama in 113th Congress was a “good thing” because it gave voters a clear choice between two policy alternatives (i.e. voters knew what the two parties would do if given control of the House and Senate).

Here’s the point: What happened in the first few days of the 114th Congress was something qualitatively different than what happened in the 113th Congress.  On the surface, you would think that, after winning control of the Senate in rather dramatic fashion, Republicans would once again advance a bill to repeal the entire Affordable Care Act.  But again, that’s not how laws are usually undone.

Instead, Republicans advanced two piecemeal bills that target specific provisions of the act.  Ergo, they’re going about it in a very calculated manner this time around (contrary to the wishes of some hardliners, who see this piecemeal approach as increasing the law’s strength).  On Tuesday, the House passed a bill to exempt Veterans from what counts towards businesses’ employee limit.  It passed 412-0.  And on Thursday, the House passed a bill that changes a provision defining the work requirement regarding what’s considered “full time” employment.  It passed 252-172.

As a whole, don’t be surprised to see Republicans succeed in the 114th Congress modifying or even repealing some elements of the Affordable Care Act this session.  In fact, I think it’s an inevitability.

The Likelihood of Repeal Will Increase in the 115th and 116th Congresses

In next week’s post, I’ll examine specific factors that affect the probability of repeal.  However, policy repeal has a broader pattern.  Here’s a chart with what you need to know:

Repeal HazardThe chart (from this paper) is the hazard of repeal after passage for all landmark laws enacted since the 1950s.  Higher values indicate a greater likelihood of repeal in a subsequent congress while lower values indicate a lower likelihood of repeal.

What the figure shows is that repeals become increasingly likely up to five subsequent congresses (or, ten years) after a law is enacted.  We can see that the “peak” in the likelihood of repeal is in the fifth congress after passage.  After this ten year window, repeals become increasingly less likely for the reminder of a policy’s lifecycle. After about 20 congresses have passed (or, forty years), repeals have just a 4% chance of happening.

Now, because this is the 114th Congress, we’re at just three congresses since the law was enacted.  Big picture: the probability of some repeal has indeed increased in the 114th Congress, but we’re still two congresses (or, four years) from when the law will be most “at risk.”  (note: This is based on the general pattern of repeal.  Specific factors will vary.)

Certainly, that’s bad news for Democrats (i.e. the worst isn’t here yet).  However, the good news for Democrats is that if the law survives for the next decade (for example, if Hillary Clinton wins election in 2016), the probability of repeal begins to drop off precipitously.

Why does this regular pattern exist?  In the first part of a policy’s lifecycle, soon after it was signed by the president, when major elements or the law are being implemented for the first time, flaws begin to develop such that the original law needs to be revisited.  In other words, it’s normal for lawmakers to revisit legislation after they observe its real world performance.  After the ten year period, however, laws become “institutionalized” such that modification or repeal is difficult to accomplish.  Consider entitlement programs (like the Affordable Care Act).  It’s hard to repeal a policy that provides groups of citizens with some material benefit.

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