A Byrd in the Hand, or the 3 R’s of the Senate: Reid, Rules, & Retribution

Forceful confrontation to a threat to filibuster is undoubtedly the antidote to the malady.
–Sen. Robert Byrd (D, WV)

Filibuster reform in the US Senate has once again begun to attract attention.  In a nutshell, Majority Leader Harry Reid (D, NV) is—ahem—upset that—in his opinion, at least—Republican Senators are unreasonably holding up executive branch nominations out of either animus towards the Obama Administration, hostility to the missions of the government agencies in question, or both.  As a result, Reid is contemplating “the nuclear option,” in which the Democrats and Vice President Joe Biden, as President of the Senate, would use the essentially majoritarian character of the Senate’s rules to clarify that the Senate is—particularly when a majority is ticked off—an essentially majoritarian body in which 51 votes wins.

Senate Republicans, who hold a minority of seats, are understandably upset about the possibility of “the bomb being dropped” and are threatening retribution if Reid goes nuclear.  I will not describe the procedural details of the nuclear option, which are easily found for those who, like me, enjoy parliamentary skullduggery. Instead, I will focus on the “mathofpolitics” of Reid’s situation.

Let’s set up the problem in a succinct fashion.  Going nuclear, Reid and the Senate Democrats can at least ensure an up or down on nominees.  While it isn’t clear (feel encouraged to clarify this for/update me in the comments or “offline/online” by emailing me)  exactly how “big” of a nuclear bomb Reid will/can drop in the sense of whether it would guarantee votes on all executive nominations, including judicial, or just those to executive agencies (or some other subset), I’ll keep it simple and just presume it’ll apply to all nominations, but not legislation.

Presumably, being able to get a timely up or down vote on nominations will be good for Reid and the Democrats right now, because President Obama is a Democrat.  So, there’s the easiest argument for why Reid should “go nuclear.”

However, there are at least two frequently forwarded arguments for why Reid should not go nuclear: the “scorched earth” argument and the “uncertain majority” argument.  The scorched earth argument goes as follows: if Reid goes nuclear and ensures votes on nominations, then Senate Republicans will find new ways to halt business, and retaliate by slowing the Senate down even more.  The uncertain majority argument, on the other hand, points out that the Democrats will not hold the majority forever, and their procedural victory will eventually get used against their interests by a subsequent Republican majority. I’ll consider these arguments in turn, and then summarize a “third way” that Reid might go.

As Ezra Klein points out, the scorched earth argument is (arguably, at least right now) less powerful than one might presume.  In a nutshell, this is because one might argue that the Republicans are currently “blocking everything” anyway.  (This is shorthand—as Minority Leader Mitch McConnell (R, KY) and others have pointed out, the Senate Republicans are not blocking everything, or even all nominations.)  Accordingly, from a game theoretic perspective, one might argue that this argument should not have much impact on the Democrats’ decision to go nuclear or not.  Indeed, it suggests a rationale for why Reid and the Democrats should at least threaten to go nuclear: if the Republicans recognize that the scorched earth argument does not have much pull on the Democrats, then they will take such a threat more seriously and, to the degree Republicans do not want the nuclear option used, they will have an incentive to offer concessions to avoid its use.  (See the great series of posts essentially about this dynamic by Jonathan Bernstein and Sarah Binder, (here’s Bernstein’s response, and Binder’s response).)

Perhaps as a result of the limitations of the scorched argument in the current stand-off, the uncertain majority argument has been quickly brought forward by Senate Republicans.  Indeed, while the scorched earth argument has been publicly forwarded, too, it has essentially been quickly replaced/backed up by the uncertain majority argument. For this reason, as well as the fact that the excellent exchange between Bernstein & Binder essentially focuses on the likelihood/credibility of the scorched earth response, I will move on to the uncertain majority argument.

First, the uncertain majority argument is not dispositive. (Note that the scorched earth argument, to the degree that the minority can credibly implement it, is potentially dispositive in the sense of its irony: vote to speed things up and instead slow things down.)  This is because a bird in the hand is arguably better than two in the bush.  Reid’s experience with the Senate Republicans may have shown him that there may not even be one “in the bush.”  The real worry here is that, to the degree that Reid and the Democrats are actually tempted by the nuclear option, the GOP will presumably also be tempted by it when it gains the majority.

Let’s think about this for a second.  Thinking about the strategic situation in a little offers some insight into the relevant factors all Senators should be thinking about.

Suppose first that the nuclear option is “popular” in the sense that the public will approve (or at least not disapprove) of its use.  Well, in this case, the majority party should realize that, if they go nuclear, then—ceteris paribus—they are more likely to retain the majority.  More subtly, if we presume that this popularity is likely to hold into the near future, the majority should realize that if the minority party gains the majority in the near future, the new majority party will face a similar situation and, accordingly, the current minority party is likely to go nuclear at that point.  Both scenarios suggest that the Democrats should go nuclear: it would be popular and the minority party would do it if they gain the majority in the future.

So, under what conditions would the nuclear option not be a good choice?  Well, it boils down to two questions:

  1. Would “going nuclear” be unpopular/electorally costly? (Republican Senators are arguing that it would be.  Extra credit: given that we have a two-party system, why should one be at least a little skeptical of this statement?)
  2. If one does not go nuclear now, will “going nuclear” be popular in the future?

The first question is more pressing than the second, if only because of “bird in the hand” reasoning.  I don’t know the answer, and it’s not clear to me that anyone does, because I don’t think voters care, per se, about this procedural move: they want the Senate to “play by the rules” and “get things done” (i.e. the “cake and have it too” syndrome).  What is clear to me, however, is that Reid’s actions will frame the issue and at least partially determine the popularity of “going nuclear.”  I return to this below to conclude the post but, in a nutshell, I think this dimension is what will ultimately prevent the Democrats from going nuclear and, to be clear, I think part of that is Reid’s fault (but maybe by design).

The second question—will going nuclear be popular in the future—is truly secondary for now, but this will potentially be less true in 2016, should the Democrats hold on to the Senate majority in 2014.  This is because President Obama is a Democrat, and the Republicans’ promised uses of a “51-vote Senate” (e.g., read to the end of this) include using “their majority control to jam through a repeal of the Affordable Care Act, a repeal of the Wall Street Reform Act and other GOP priorities.”  Indeed, Sen. Lamar Alexander (R, TN) “said the GOP conference could pass with a simple majority vote legislation to weaken unions, authorization to complete the Keystone XL oil sands pipeline and other items.”

Because neither party controls two-thirds of either chamber, I have a strong suspicion that neither “a repeal of the Affordable Care Act” nor “a repeal of the Wall Street Reform Act” will actually occur before January 2017: I just can’t see President Obama signing such bills (in fact, I kind of doubt that the GOP would pass such bills even if they had the numbers).

So, I think the primary question for Senate Democrats is how electorally costly going nuclear would be.  As I alluded to above, I think going nuclear would give the GOP a useful mobilizer for the 2014 midterm elections.  Right now, the GOP doesn’t have much of “an issue” to run on in my opinion (neither do the Democrats).  “Breaking the rules to ram through executive appointments” particularly against the backdrop of the AP wiretaps/PRISM/IRS/Benghazi scandals (not to mention the for-now-arcane recess appointments dustup), might have a lot of traction with swing voters.

Reid’s actions at this point are key.  For all of the parliamentary Dr. Strangelove’s out there, this is how I would go nuclear if I were Reid.  (I’m not the first by any means to make this argument, but sometimes it’s good to repeat things that seem to make sense.)

Reid should force the GOP to take the floor.  He should essentially set aside the “tracking system” in which the Senate moves from item-to-item in a parallel fashion.  He has said the GOP is being obstructionist.  Instead of trying to invoke cloture on the nomination of (say) Gina McCarthy (currently awaiting confirmation as administrator of the EPA), Reid should bring McCarty’s confirmation up for debate, and not let the Senate move on until a vote is taken.  MAKE THE GOP FILIBUSTER/OBSTRUCT IN PUBLIC

In equilibrium, voters should not believe Reid’s claims that the GOP is obstructing business.  We as the electorate could, I suppose, crack open the Congressional Record and try to discern the counterfactuals but (1) that is actually pretty hard to do in a sensible way—if obstruction is unpopular (which it essentially must be if going nuclear will be electorally popular), then obstructionists have an incentive to obfuscate their obstructionism (say that 3 times fast), and (2) as Anthony Downs famously made clear, we not only aren’t going to, it isn’t even clear that it would be rational for us to take the time to do so.  No…if overcoming obstructionism is a big deal, Reid and the Democrats need to sit down and send the costly signal of its importance to the public by (ironically) forcing the GOP to obstruct in a visible fashion.  I don’t think Reid is going to do this, and maybe that’s the right decision, given the facts, but if he doesn’t do this, I don’t think he’ll go nuclear.  Senate rules are kind of like an A-Team episode: sure, there’s a lot of fights, but nobody ever dies.

With that, I continue a theme and leave you with this.