Three quick thoughts on the payroll tax:

1. Here’s President Obama, Wednesday:

I think it’s fair to say that if the payroll tax cut is attached to a whole bunch of extraneous issues not related to making sure that the American people’s taxes don’t go up on January 1st, then it’s not something that I’m going to accept.  And I don’t expect to have to veto it because I expect they’re going to have enough sense over on Capitol Hill to do the people’s business, and not try to load it up with a bunch of politics.

As I’ve written before,  I don’t think a veto threat is particularly credible for the President under the current political dynamics of Congress. With the Senate controlled by the Democrats and everyone is now attuned to the idea that 41 Senators can stop legislation, it’s hard to imagine the President vetoing legislation that got a supermajority in a Democrat-controlled chamber. And if he can’t veto it, then the veto threats are empty, and veto bargaining should be theoretically just cheap talk.

2. I didn’t think I’d ever live see the Democrats so forcefully arguing for a reduction in the payroll tax. Twenty years ago, I’m pretty sure the modal liberal response to such an idea would have been, “well that’s a backdoor into gutting social security.” And even though the payroll tax holiday has not affected the social security trust fund, I’m not sure that should alleviate such liberal concerns: some portion of the political support for social security is based on the (mostly correct) public perception that it’s a social insurance program for workers paid for by those same workers, not a redistribution program transferring wealth from the rich to the poor.

This has been both good and bad for social security: it has allowed it to escape the wrath of public objections to “welfare” programs, but it has also produced a hesitancy among supporters for doing things like raising the cap on the payroll tax, which has left it as pretty-much the most regressive federal tax. But make no mistake: a payroll tax holiday is essentially no different than making social security a redistribution program. On the one hand, that’s good if you think (as I do) that the U.S. could a little more progressivity in its tax structure. But it’s not great if you like the program and think support might slip among the middle class when viewed as a wealth transfer program.

3. I honestly don’t see how the payroll tax could return to it’s former 7.65% (6.2% +1.45%) anytime soon. Since we all now know that for 47% of Americans the payroll taxes of SS/Medicare are more or less the sum total of their federal taxes, the 2% cut from December 2010 was the equivalent of a 26% decrease in taxes. Even worse, to restore it would mean a 35% increase in current tax burden. Even though the payroll tax cut was a temporary stimulus measure, I’m pretty sure the Republicans aren’t interested in raising taxes on anyone anytime soon. And I have a hard time believing the Democrats will ever sign on to what amounts to a 35% increase in total federal tax burden on the poorest half of Americans. But hey, I’ve underestimated them before.

Following the failure of the Senate to invoke cloture on the Halligan nomination yesterday and the Cordray nomination today, Steve Benen was a bit annoyed by a Politico piece that equivocates over which party is responsible for the rise in Senate obstruction over the last decades. Here’s Benen:

The Senate keeps an updated table, charting cloture votes by Congress over the last nine decades, using three metrics: (1) cloture motions filed (when the majority begins to end a filibuster); (2) votes on cloture (when the majority tries to end a filibuster); and (3) the number of times cloture was invoked (when the majority succeeds in ending a filibuster). By all three measures, obstructionism soared as Republican abused the rules like no party in American history.

Now, I’m not defending Politico here or saying that obstruction hasn’t increased over time — I think it has, and I think there’s some good evidence for it, especially in the case of nominations (which are the easiest to study, as it turns out, because there are no amendments and thus filibusters tend to be direct opposition, not strategic bargaining chips to win concessions). And I’m not going to wade into the debate over who or what party is responsible.

But proving that obstructionism is on the rise — or figuring out when it began or how much it has increased — is not as simple as Benen describes. Using cloture actions as a proxy for filibusters or obstructionism is a less than desirable metric, and also is open to easy political manipulation. Regardless of how many filibusters actually exist, the majority leader has the discretion (and often the strategic incentives) to produce very few or a whole lot of cloture votes.

Here’s a Venn diagram that will be helpful as I explain why. The entire box is the policy/nominations agenda, the largest circles are cloture motions filed and filibusters, respectively. The medium-sized nested circle is cloture votes taken, and the smaller nested circle is cloture motions invoked.

What we want to know is something like this: in any given Congress, what percentage of the large box (i.e. the total policy/nomination agenda) does the filibuster circle take up? And has that percentage been growing over time? What we know, for sure, is the absolute value of (1) cloture motions filed; (2) cloture votes taken; and (3) how often cloture is/isn’t invoked on those votes.

This leaves a bunch of problems:

1) Cloture motions are both under-inclusive and over-inclusive of filibusters. This is represented by areas A and B on the venn diagram. Area A includes times when a filibuster is occurring but the majority doesn’t file for cloture. This happens all the time: the majority informs the minority that they are thinking about bringing something to the floor, the minority says they will not give unanimous consent, and the majority just discards the idea and never brings it to the floor. Similarly, the majority might bring something to the floor, fail to get UC to move on it, and then just give up.  Area A also includes the situation in which a UC is reached that includes a 60-vote threshold for final passage. That’s obviously a filibuster, but there’s no cloture motion filed.

Area B is the opposite situation: a cloture motion filed on something that is not a filibuster. This occurs only occasionally, but it does happen: the majority leader thinks some floor action may be contentious, so he immediately files for cloture upon calling up a bill/nomination. It turns out there’s no filibuster, a UC agreement is reached for debate, and a final passage majority vote occurs with no cloture vote ever taken. But the converse happens all the time: no cloture motion is filed, a UC is worked out, and the bill gets a final passage vote. Whether or not there was a filibuster in either situation, or both, is unknown. But only one has a cloture motion associated with it. Similarly, the majority leader might occasionally pre-emptively file for cloture on a bill and then never take it up, because a different bill became the vehicle for the legislative action.

Now, none of this would be a huge problems if areas A and B could be precisely known or measured. But they can’t be. Even more to the point, the majority leader has almost complete control over the size of area A and area B. If he runs into a situation in which there’s a bill/nomination he would like to take up, but he knows that it will be filibustered and cannot pass, he then has the option of choosing whether to not take it up (area A), or going through the process of bringing it up, filing, and holding a cloture vote. That decision can be largely political, based on how the majority party thinks a failed cloture vote will play publicly. So depending on the political situation and temperament of the majority leader, an identical number of filibusters can be associated with a large number of cloture motions, or a small number. That is, to say, it’s not impossible that the observed increase in cloture actions over the last few decades is entirely the result of the majority leader taking a formerly private fight public. And while it’s unlikely that explains the entire rise in cloture actions, it’s almost certainly part of the equation.

One final point here: Area C, where there is a filibuster and cloture is filed, also contains a problem: more than one cloture motion can be filed on the same bill, and often is, in order to stack up potential cloture votes over a period of days. That means that any individual filibuster can have multiple cloture motions associated with it, again at the majority leader’s discretion.

2) The absolute number of cloture votes has the same problems, and another one. It seems pretty solid to think that a failed cloture vote (i.e. cloture not invoked) is evidence of a filibuster, as in Area D of the Venn diagram. But that’s not exactly true: if a cloture vote does not get even a bare majority of support (i.e. 50 or 51 votes), that’s good (but not airtight) evidence that it wasn’t a filibuster standing in the way of the bill/nomination, it was the preferences of the Senate, and is illustrated in teh diagram as Area E. This is not the case on many cloture votes, but it happens more often than you might imagine.

Still, there’s a bigger problem with trying to correlate total cloture votes (or failed cloture votes) with filibusters: any filibuster can be subject to multiple cloture votes. It seems silly to say that if there were 12 cloture votes on a single bill and all of them failed, that there were somehow 12 filibusters, rather that one. And once again, this puts the majority leader in the driver’s seat; if he’s stubborn and/or just wants to emphasize minority obstruction, he can pump up the number of failed cloture votes simply by holding cloture votes over and over again on the same measure. Which means, once again, that the political situation and the bargaining disposition of the majority leader is going to affect the number of cloture votes.

3) The absolute number of times cloture is invoked isn’t as good a measure as it sounds. For all the reasons already discussed, plus a few more. Area F is the standard case: the minority filibustered and the filibuster was broken by the majority getting to 60 votes. But the majority can get 60+ votes in situations when there really isn’t a filibuster (area G), or a situation in which a filibuster could have easily been defused without a cloture motion. For example, cloture can be used as a shortcut in many situations in which a UC was plausibly available. Say there are only a handful of objectors to a bill/nomination and both the majority and minority leadership are ready to move the bill. One option is to try to mollify the objectors, get a UC agreement to structure the debate, and go straight to final passage, which may get as many as 95+ votes. But the other options is to just file a cloture motion, do something else until it ripens, and then pick back up on it for the cloture vote.

This is especially attractive if the objectors have non-germane amendments they are trying to get into the mix. But the main point is this: there are occasionally cloture votes that pass by very large numbers, which often indicates that a UC might have been available and that the cloture vote was a strategic choice, not a necessity in response to filibuster. It also highlights the difference between a handful of objectors and a full-on minority party objection that has the support of he minority leadership. Both are technically filibusters and both are potential institutional problems, but they are very different things as far as the strategic options available to the majority are concerned.

4) The absolute value of the various cloture actions don’t control for the size of the policy agenda. This is perhaps the most important point. Even if we knew there was a perfect 1:1 correlation of cloture motions to filibusters, we still wouldn’t be able to say anything concrete about the use of the filibuster across Congersses, because saying “there were only 10 filibusters then but there are 15 now” doesn’t mean anything unless you know for sure there is a common denominator. If there were 30 things on the agenda “then” and 100 “now,” well, the filibuster rate — the percentage of the policy agenda subject to a supermajority threshold in the Senate — has actually gone down.

Now, the point in saying all of this isn’t to say that minority obstruction or use of the filibuster has not gone up over the past few Congresses. The point is that it’s a lot harder to judge than you might think, and it’s not at all clear that using metrics related to cloture are a good way to go about it. As described above, the majority leader has a lot of latitude in his strategic choices, and those choices can make cloture filings and votes go up or down, regardless of the number of underlying filibusters. And, also as mentioned, the absolute number of filibusters, even if it could be determined from the number of cloture votes, is not particularly interesting absent a sense of the size of the legislative agenda.

What I’ve said here isn’t a particularly new idea in political science. There are a number of scholars who have attempted to find alternative ways of measuring filibusters for quite some time. The best place to start if you are interested being Gregory Koger’s Filibustering, which uses news coverage to generate an independent measure of the number of filibusters and provides all the bibliographic references needed to locate others who have made similar attempts in the past. It’s not easy to count up filibusters, there’s definitely no perfect method. But methods like Koger’s are vastly superior to relying on cloture actions or other procedural count-ups in the Senate.

Update: Jon Bernstein has some related thoughts regarding the big picture of what’s going on in the Senate, and I definitely recommend reading it. I don’t think he disagrees with what I wrote (if I’m reading him correctly), and I more or less agree with him when he says:

I think that there’s a bottom line here that’s easy to overlook: the institutionalization of the 60 vote Senate. It’s not really a question, in other words, of whether any particular piece of legislation or nomination was attacked by filibuster; it’s that increasingly beginning in 1993, and overwhelmingly since 2009, minority parties have insisted that the majority produces 60 votes for everything.

It’s definitely my sense that minority obstruction has increased in the Senate; It wasn’t my intention to give off the impression that I think otherwise: it seems true on its face, and pretty much all research seems to confirm it. I’m just wary of using cloture actions as the measure; they purport to provide far too sure of an answer given how problematic the data can be.

As far as cold-war era nuclear showdown movies go, 1984’s made-for-TV Countdown to Looking Glass is mostly forgettable but, like most movies of its ilk, occasionally bone-chilling. Constructed in the “crisis seen through the lens of newscast” genre, it it similar to Special Bulletin and Without Warning. As an obvious product of the Cold War, it now feels quite a bit dated. On the other hand, the causes of the portrayed crisis resonate mildly with contemporary global politics: terrorism, banking collapse brought on by sovereign defaults, and middle east nations undergoing regime change.

One bonus of Countdown is that it features 3rd-term House Member Newt Gingrich (D-GA), playing himself in two TV interviews. Below is the first interview, on day three of the crisis and after American forces land in Saudi Arabia at the request of the King, deployed in order to quell domestic uprisings spurred on by the Soviet-led coup in Oman, and potentially defend the peninsula from the growing crisis over the closure of the strait of Hormuz :

 

While keeping in mind that this is a fictional interview from a script in a movie, I found two things interesting:

1) Gingrich’s claim that “this is the biggest crisis facing the Western alliance since either the Bay of Pigs invasion or the blockade of Berlin”  struck me as strange, in part because I don’t think of the Bay of Pigs as much of a “crisis” or as something that involved the Western Alliance in anything but the most general sense. But mostly because the Cuban missile crisis, which Gingrich didn’t mention, seems like the obvious natural analogy to the situation. Since this seems like an almost impossible oversight, it makes me wonder why either Gingrich or the movie producers chose not to mention it.

2) Gingrich’s use of perhaps-dubious broad historical context is on beautiful display. He notes that the Soviet desire for the Arabian oil fields follows several hundred years of the Russian czars trying to overtake that part of the world, and that the British had successfully fended them off in the past, but now it is up to us. But I don’t think the connection quite works: it seems like a reasonable position that we should defend the Saudis because the oil field are of strategic value, but what does the czarist/British tilt in the 19th century have to do with anything?

Here’s the second interview, on day eight of the crisis, after the USS Nimitiz has arrived near the strait and a Dutch oil tanker has been destroyed trying to run the blockade:

 

Again, I’d first remind you that this is a fictional interview. But two points:

1) I don’t get Gingrich’s response to the question. I mean, I understand the principle: there are things worth fighting for, even if it means horrible war. But if no “thing” is worth nuclear war, how can slavery be less palatable than a nuclear war that may end up destroying the world. Is the idea here that freedom is not “a thing,” and thus certain ideals are worth risking nuclear war? That doesn’t seem like much of a guiding principle. But, you know, whatever.

2) And yes: Churchill! Gingrich is nothing if not a would-be statesman in waiting, in his own mind. The first sentence is also classic Gingrich — Tragically (Tragically!), you’ve asked the right question.

Finally, one more general point about the movie. I found it rather unnerving that not a single mention seems to be made of Congress’s role in the crisis. The entire film is centered around the President’s military and diplomatic responses. The news reports cover public protests, mass evacuations, presidential speeches, DoD communications, and State Department maneuvers. But not a word about the legislature. And here we are interviewing a Member of Congress, and not one question about congressional authority over the matter. And not a word from Gingrich either.

In the last scene of the film, the news anchor grimly reports that the President’s Emergency Airborne Command Post — code-named Looking Glass — has taken off from Andrews AFB and will join a second plane in the sky, which is carrying members…of the strategic air command! No word is given on where Congressman Gingrich or any other Members of Congress have been or will be taken. Bone-chilling indeed.

Over at his blog, John Bernstein makes a good point about how reporters need to be careful when using the term “filibuster” to describe a discrete event in the Senate:

What you don’t want is, as the WaPo’s Felicia Sonmez put it in an otherwise very nice story, that “Republicans on Tuesday filibustered the nomination.” Why not? Because they’ve been filibustering it all along, not just on Tuesday — and because they would have been filibustering even if they had failed to sustain it in the cloture vote. That is, a filibuster that fails to stop something is still a filibuster (after all, we all call what Strom Thurman did in 1957 a filibuster, even though eventually he lost and the bill passed). Politico’s Scott Wong also had it wrong with similar wording. The Hill’s Josiah Ryan had the somewhat better “The Senate voted to sustain a filibuster,” but unfortunately the headline was the terrible “Senate GOP votes to defeat…”, which takes the filibuster out entirely and suggests that a majority voted against Halligan. The AP had “blocked…failed to break a filibuster,” which is probably the best of the lot.

I think this is quite right. What I’m more torn about is Bernstein’s preferred language:

But I’d highly recommend “defeated by filibuster.” Or, if you want to be even more accurate and convey more information: “defeated by minority filibuster.” It’s concise, and includes the two crucial facts: that the nomination was in fact defeated, and that the means of defeat was a filibuster.

The problem I see with “defeated by filibuster” is twofold. First, it doesn’t tell you how the filibuster won; it could be the case that a cloture vote was defeated (which is what actually happened today). But it could also be a number of other things. The Majority Leader could have pulled the bill/nomination from the floor upon the realization that the votes for cloture weren’t there. Or the leadership could have sought unanimous consent to proceed to the bill/nomination, and abandoned it when there was objection. Or the leadership could have never attempted to bring the bill/nomination to the floor in the first place, because in private discussions they were told that there would be objection to the UC request. All of those things, I think, would fit under the concept of “defeated by filibuster.”

Second, “defeated by filibuster” isn’t technically correct in reference to what happened on the nomination today. Cloture was not invoked, and under regular order that would still leave the nomination as the pending business of the Senate. The leadership is perfectly free to continue the debate on a bill/nomination in which cloture is not invoked. Now, you might say, wait a second Matt, the cloture vote came up under a UC agreement and everyone knows that the cloture vote was the actual vote in this case and that its defeat means the defeat of the nomination for all intents and purposes. And in this case, I agree. But that same argument could be used to justify any description of what happened, including Felicia’s “filibustered the nomination” language. After all, it’s just as easy to argue that everyone knows what that means, too.

I guess my point is that I think the best language is the language that is most precise. I suppose my preferred language for what happened today would be something like  “the Republican minority defeated a motion to invoke cloture and end debate” on the nomination. The objection, of course, is that such a phrase is mealy and maybe muddles the water more than it clears it, because it throws in the concepts of “motion,” “invoke,” and “cloture,” none of which may be familiar to some readers. I guess it could be simplified to “the Republican minority defeated a vote to end debate” and that would work too.

Of course, the lack of the word filibuster might bother some people, but I’m just as well to be done with it; as described above, the use of that word can mean any number of things, and doesn’t really tell you much about what actually happened. If the goal is to concisely and accurately describe what happened and make sure the reader realizes that the will of the majority was thwarted, I’m comfortable with my suggestion. I’m willing, however, to be convinced otherwise.

Looking at the bigger picture, part of the problem here is that it’s actually not that easy to define what is and what isn’t a filibuster. The very concept of a filibuster is something like the concept of evolution: it’s a way of describing a process, not something that exists on its own. There’s no “motion to filibuster”; it’s not part of the rules, but rather a consequence of the rules. Just as evolution describes the process of repeated natural selection, filibuster —in the broadest sense — describes the strategic and tactical process of not allowing majority final-passage votes to occur, either by making it too costly time-wise for the majority to expend the necessary floor time to move the bill under regular order, or by making it utterly impossible to do so by holding together a coalition large enough to block repeated cloture votes, or both.

The key to thinking about the filibuster analytically is to set aside the narrow notion of unlimited debate, and start from the concept of  limited floor time and the much-wider consequences that flow from it. The goal of not allowing a majority final-passage vote is accomplished by a variety of visible tactics — including objecting to unanimous consent requests on motions to proceed or on limitations to debate, introducing large numbers of amendments to a bill, and of course defeating cloture motions. But it also includes the mere relaying of private information that any of those things will happen if the bill is called up.

Today is the first Monday in December. Prior to the passage of the 20th amendment in 1933, the start date of each Congress was controlled by Article 1, section 4 of the Constitution, which says that the Congress:

shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

As I’ve written about at length before, this accidentally created a highly consequential (and somewhat ridiculous) situation in which the congressional elections and the sessions of Congress were very serious out of sync. For example, if the old calendar was in place right now and no special session had been generated by law or by Presidential call, today would be the first day of the 112th Congress. Yes, that’s right. Today would be the first meeting of the Congress elected in November 2010. And yes, the second session of the 112th Congress would not, under normal conditions, happen until next December, after the 2012 elections had been.

A more direct reason today was so important is that in the early days of the union, Speakership contests in the House were quite common, due to lack of party control over backbencher voter and the persistent existence of small factions of 3rd and 4th party Members of the House holding the balance of power. Whereas today the organization of the House on the first day of Congress is largely pro forma, it was often an unknown and fluid situation in the pre-civil war union. These could be protracted battles: on a number of occasions, the House failed to organize for a month or more.  Charles Stewart has done some excellent work in this area if you are interested in reading more.

One of the longest Speakership battles actually occurred 152 year ago today, December 5, 1859, the first day of  the 35th Congress. The Republicans for the first time had the plurality of seats (113), but still not a majority (there were 234 total seats, 118 for a majority). Neither did the Democrats (96), who also had the problem that a large number of the few remaining northern Democrats had declared themselves as anti-LeCompton or Independent Democrats and were not going to necessarily align with the southerners. The balance of power sat with the the American party (9 seats) and the Opposition Party (16 seats), both reflections of the breakdown of the Whigs in south and north.

A two-month deadlock ensued over the election of the Speaker; the Democrats could not coordinate on a viable candidate, each wing finding candidates from the other unacceptable. Neither could a majority be mustered to pass a rule allowing for election by plurality. One of  the original Republican candidates, John Sherman, probably could have gotten over the top except for one problem: he, along with about half of the Republican Members, had endorsed The Impending Crisis of the South, which I’ve written about before. This made him too radical for the minor party voters to touch him, and the Republicans eventually substituted William Pennington of New Jersey, who proved able to win the necessary votes, but less capable of effectively leading the 35th Congress under what eventually became crisis conditions in 1860.

The House of Representatives is scheduled to take up Senate Concurrent Resolution 32 today, a concurrent resolution to authorize the Clerk of the House to make technical corrections in the enrollment of H.R. 470. That makes this a good time to talk about everything that happens between Congress approving a bill and the President signing it.  I’ll go Q&A style on this one.

Q: What’s enrollment?

A:  Under Article I, section 7 of the Constitution, all bills must be passed by both the House and Senate and then presented to the President prior to becoming law. Enrollment is the congressional process that both physically prepares the legislation for presentment to the President, as well as verifies and certifies that the legislation has indeed passed both chambers, and done so in identical form.

Q: What regulates the process?

A: The Constitution is silent. Federal law (in the surprisingly fascinating Title I of the U.S. Code) provides the basic structure for engrossment and enrollment. Much of the detail is filled in by chamber rules and precedents of the House and Senate.

Q:Wait, what’s engrossment?

A: After a bill is passed by one chamber, 1 U.S.C. 106 requires that it be printed and signed by the corresponding chamber official, either the Clerk of the House or the Secretary of the Senate. Official copies of the bill are printed on either blue paper (House) or white paper (Senate), verified as accurate by the Clerk or Secretary, and then signed as an attestation to the accuracy. The signed version of the bill is the document that is physically transmitted to the other chamber for further consideration. The physical transfer of the papers is called “messaging.”

Q: Back to enrollment. Where does that fit in?

A: After both chambers have passed a bill in identical form, the papers are sent to the chamber that originated the bill, and enrolling clerks under either the Clerk/Secretary prepare the final version, which is called the enrolled version. The clerks again verify the accuracy of the bill as passed by the chambers, and the clerk/secretary of the originating chambers certifies it by signing the bill. The enrolled bill is then signed by the Speaker of the House and the presiding officer of the Senate, or a designee authorized under chamber rules or orders.

Q: How does the bill physically get to the President?

A: This is presentment. In the past, Congress had a joint committee on presentment. In modern times, the responsibility lies with the Clerk of the House or the Secretary of the Senate, depending which chamber had responsibility for enrollment, which turns on where the legislation originated. The materials are physically delivered to the White House (or, in some cases, to the President at a different location) and timestamped to verify the date on which the constitutional clock begins for the President to act on the measure. The Clerk/Secretary then report their actions back to the chamber.

Q: What can go wrong in engrossment and/or enrollment?

A: Any number of mistakes are plausible. The most important is an error that results in an engrossed/enrolled bill that doesn’t reflect the intent or actions of a chamber. On the intent side, this might occur if a chamber inadvertently takes a final vote on incorrect or incomplete text. Conversely, a chamber might vote on the intended text, but the engrossed or enrolled bill might contain different text.  A second class of errors are technical ones, often errors made in drafting the original legislation, which then flowed through the legislative process. This could include wrong section numbers or table of contents mistakes. Third, errors could occur in the actual printing  at GPO. Finally, at the enrolling phase, there is also the issue of non-identical texts being voted on in the second chamber.

Q: How are engrossment problems rectified?

A: During engrossment, typographical errors in GPO printing may be “star printed” to fix the problem without further House or Senate action. If the problem is technical or substantive in nature, then the question turns on who has possession of the papers. If the papers have not been transmitted to the other chamber, then the chamber can authorize (via unanimous consent) its own officials to changes. If the papers have already been transmitted across the Capitol, however, then the chamber must adopt a resolution requesting the return of the engrossed bill or resolution.

Q: What if a problem is discovered during enrollment?

A: It can only be corrected by concurrent resolution of the two chambers. That is what is going on with S.Con.Res.32 today. But like engrossment, it depends on where the bill is in the process. If the bill has not yet been signed by the Speaker or the presiding officer, a concurrent resolution can just direct the Clerk or Secretary to make necessary changes. If it has already been signed but not sent to the President, a concurrent resolution will also do the job, but must rescind the signatures as well, ultimately requiring re-enrollment. If the papers have already been delivered to the President but not signed into law, a concurrent resolution can request the return of the bill to Congress. If the President has already signed the bill into law, then a new law must be passed to make changes.

Q: What if a bill is enrolled but both chambers didn’t actually agree to the same text?

A: In theory, a federal court could strike down either an entire law or the portion of the law that was not properly enacted. In practice, the courts have tended to decline to do so. Under the 1892 Supreme Court decision in Marshall Field & Co. v. Clark (143 U.S. 649), the Court adopted a rule of not “looking behind” the enrollment process. That is, the courts will not seek to verify whether the legislation, as signed by the Speaker and Presiding Officer of the Senate, was properly enrolled. The became an issue in the 109th Congress, with P.L. 109-171. An error in Senate engrossment led to text being enrolled that was not the intent of either chamber. During the enrollment, the text was changed to what was the intention of both chambers, but no concurrent resolution was adopted to do so; in effect, text was enrolled that neither chamber has actually agreed upon in its final form. Several lawsuits were brought against the law on these grounds, but none were successful.

Q: When does the clock start on the President’s 10-day window to sign or veto a bill?

A: By custom, it starts when the bill gets to the White House. But this creates problems: what if the President is going abroad for two weeks — can Congress hold legislation and the present it to the White House then, in an attempt to circumvent a veto? It’s not clear. In the past, Presidents have informally negotiated with Congress to delay presentment in such situations, or to deem presentment to have taken place upon the President’s return.

Q: So does Congress have the perogative to not enroll/present bills passed by both chambers?

A: This is a tricky question, especially since the presentment is the job of one chamber, not both. In theory, it shouldn’t seem like Congress would ever want to permanently abandon presentment, since they are the ones trying to make the law. (One can think of wild hypotheticals such as the leader of a chamber vehemently opposing a bill and thus refusing to sign the enrolled copy, or a Congress that changed its mind about legislation post-enrollment, but they don’t seem realistic and probably have relatively simply remedies).

Q: What about delays in enrollment/presentment?

A: Yes. There are certain circumstances where delay in presentment might be in the institutional or political interest of Congress. First is in the case of pocket vetos. If Congress is worried that the President might pocket veto a law while they were adjourned in August or between sessions (to avoid an override attempt or a veto message), they might hold a presentment until there were less than 10 days until they returned from adjournment. (Of course, the constitutionality of the pocket veto in non sine a die adjournment situations is hotly contested and a muddled area of Court rulings).

Q: When else?

A: Politically, there are a few situations in which delay might be profitable. The first is if a veto is expected. In those cases, the congressional leadership might like some extra time to begin building both a public case in favor of the bill (to put pressure on the President) and an internal whipping operation to solidify congressional support for an override. This was apparently the case in 1991, when Congress held a unemployment benefits bill for eight days, while leaders gathered support for overriding an expected veto. Another situation would be in the timing of multiple bills. If Congress passed bill A, which the President likes, but not yet bill B, on which they fear he will veto, they might hold bill A while bill B passes, and then send bill B to the White House first, keeping bill A in reserve as leverage in the hopes the President will sign bill B. Finally, congressional leaders may have political incentives to delay signing an enrolled bill if they wish to publicly promote the bill in a “signing ceremony,” which might benefit from advantageous, but delayed, scheduling.

Q: How long can Congress delay enrollment and presentment?

A: It’s not clear. The Constitution is silent on the matter, and so it is likely that the only controlling rules would be either federal law or chamber rules. Chamber rules do not specify a time limit on the clerical tasks related to enrollment. Presentment, however, is supposed to occur “forthwith” after the enrolled bill is signed. This raises a second issue, which is that strategic delays in enrollment and presentment are difficult to distinguish from one another, given that any delay might be occurring before or after signatures had been affixed. In any case, it is unlikely that enrollment and presentment would be seen as anything but an internal congressional issue, and therefore delays could only be remedied by floor action in one or both chambers.

As a general matter, enrollment might be expected to take at least some amount of time, simply because the bill needs to be printed, reviewed, and signed. Depending on length, the typical bill can be enrolled in a relatively short time — in most Congresses the average time between second-chamber passage of a bill and presentment is only a handful of days. And in the case of many bills, same-day presentment has bee accomplished. On the other hand, H.R. 1757 in the 105th Congress had a 176 day delay between second-chamber passage and presentment. 

Some stuff I enjoyed reading from this week:

1. I consider myself a very pragmatic libertarian. But some things cannot be compromised. Like the rule of law and habeas corpus. So do me a favor and read Conor Friedersdorf’s coverage before, then during, and finally after the Senate debate on indefinite detention of U.S. citizens. Also on this, Glenn Greenwald slaps the Obama administration. As I’ve said in the past, I will not vote for candidates  who support this crap. Obama. Romney. Forget it. And I don’t buy the argument that there are more important issues on which to base your vote.

2. Seth Masket reviews Herman Cain’s foreign policy acumen. Here’s a more serious post from him on Newt’s chances.

3. Tom Pepinksy sits through jury duty selection and ponders issues of compliance.

4. John Bernstein reminds everyone that Herman Cain wasn’t done in because poor staff provided him with bad spin. He also makes a good point about Barney Frank that also has wider applications for thinking about what elected officials hold what jobs.

5. Brendan Nyhan on how journalists should approach candidate claims.

6. Suzy Khimm has a nice visual on the decline of congressional hearings. She ties it to a decrease in oversight, which is certainly a factor, but it’s related to a much wider set of institutional changes in the House and Senate, none of which are great news.

7. Scott Page is running a free online class on thinking with models.

8. I still think Nate Silver is wrong to be so poll-driven in his assessment of the GOP primary, but this is a nice point about why the world might be different now, although I see other, more directly plausible implications of it than primary elections.

9. Erik Voten on Google search as a predictor of political behavior, with links to some interesting reserach.

10. Pretty much everyone has already linked to this excellent Jonathan Chait article on how liberals think about liberal presidents.

11. Newt Gingrich is not as bad as you think on civil liberties. He’s worse. And here’s a Elias Isquith column on Gingrich. And Bernstein again, pointing out how Newt tends to strip-mine his political relationships.

12. I continue to believe that Mitt is a huge buy at 50% on Intrade. Huge. But if this becomes a real race, then the South will play a bigger role, I think, than has currently been discussed, and thinking like this might have some merit. Might.

13. Donald Trump will be hosting a debate. A presidential debate. WTF I’ve found the live-tweeting aspect of the 2012 GOP primaries to be one of the best media breakthroughs of my lifetime, both on the serious side and the humor side. But a Trump-moderated debate might actually crash Twitter. I can’t wait.

13. It’s nonsense, but do read Tom Edsall’s NYT piece on Obama abandoning the white working class. Just so you are fully back-filled for the various commentary, which you might want to start here.

14. The National Review’s Ramesh Ponnuru endorses Romney. Ramesh is not one of my favorite conservatives, but I think this is the modal argument you are going to be hearing from smart, sane conservatives who want to win.

This post is a rerun of something I wrote quite some time ago on a different blog. But I get asked about it so often that I thought it was worth running again here. Here’s the question:

If the Senate has unlimited debate, how come they just said that there would be 4 hours of debate on bill X?

The answer is that the Senate has adopted temporary rules by unanimous consent. That is, every single Senator — even those that might oppose the legislation in question — has agreed to give up some of their individual rights (namely the right to unlimited debate) during the consideration of the bill.

This, of course, raises some questions:

1) Why adopt temporary rules to consider a bill?
2) How does unanimous consent work?
3) Can you reneg on your consent after you give it?
4) Why would a Senator opposed to a bill ever grant his consent to limit debate?

We can take these one at a time.

Why adopt temporary rules to consider a bill?

Mainly because the standing rules of the Senate — the rules that would be in force without a unanimous consent agreement for temporary rules — are an extraordinarily difficult means by which to pass a bill. The following are two key features of the standing rules in this regard:

1) Unlimited debate. It is well-known that under normal Senate rules, debate on certain motions cannot be stopped against the will of a Senator without a supermajority for cloture.

2) No restrictions on germaneness of amendments. The normal Senate rules (unlike the House) allow a Senator, in most situations, to offer an amendment on any topic at any time. This can often lead to debate on a bill ceasing to be about the bill itself; instead, the entire debate shifts to debate over an amendment. The minority is quick to take advantage of this — the democrats were famous for offering minimum-wage amendments to everything under the sun in the late 90’s Republican-controlled Senate.

These two features — unlimited debate and no restrictions on amendment germaneness — form the essential conditions under which bills are debated in the Senate under the standing rules. When combined with the a third pillar of reality in the Senate — the general scarcity of floor time available during a session of Congress — it becomes imperative that the majority leadership finds ways to consider bills under conditions that limit debate and amendments.*** They do this by reaching unanimous consent agreements among all Senators.

How does unanimous consent work?

Fundamentally, it works on the principle that “if no one objects, then there cannot be a violation of Senate rules.” Parliamentary procedure in most legislatures requires that formal objections be lodged against rules violations. Absent such objections, it is not the job of the chair to enforce the rules. Thus, at any time, the person controlling the floor may ask for unanimous consent to do something that they otherwise could not do under the written standing rules.

This happens dozens of times a day on a casual basis; the Senate simply could not be run with any efficiency under the existing rules. So Senators will often be heard saying, “I ask unanimous consent to dispense with the reading of the journal” or “I ask unanimous consent to dispense with the current quorum call” or “I ask unanimous consent to skip the reading of the amendment.” All of these are things that could not be done if even a single Senator objected. And they are all things that would take a significant amount of time if they had to be done as stated in the rules. So instead, by unanimous consent, they are waved. And things proceed quickly.

Any Senator who wants to play hardball can go sit in their desk all day and just object to all verbal unanimous consent requests. It would bring the Senate to a grinding halt (although it wouldn’t win the Senator many friends or future allies). This has happened on occasion. Senator Metzenbaum used the tactic in the 1970s on several occasions, and quickly was mollified by the leadership.

Unanimous consent agreements for the consideration of a bill are slightly different. Often called “time agreements,” they will often be printed and placed in the Congressional Record. They might cover all aspects of debate on a bill, specifying the amount of time for debate, what amendments are allowed, the amount of time for debate on each amendment, and a specific time at which a final vote will be taken. Or they may only specify one of those things. They may be done piecemeal as events develop during a floor debate. You may see quorum call after quorum call occur during a floor debate as leaders attempt to hammer out a time agreement. It is entirely based on what the leadership can arrange with both the rank and file of their party and the minority. Here’s an example of a full agreement:

Ordered, That when the Senate proceeds to the consideration of bill X, , debate on any amendment in the first degree shall be limited to 1 hour, to be equally divided and controlled by the mover of such and the manager of the bill, and debate on any amendment in the second degree, debatable motion, appeal, or point of order which is submitted or on which the Chair entertains debate shall be limited to 30 minutes, to be equally divided and controlled by the mover of such and the manager of the bill:

Provided, That in the event the manager of the bill is in favor of any such amendment or motion, the time in opposition thereto shall be controlled by the Minority Leader or his designee;

Provided Further, That no amendment that is not germane to the provisions of the said bill shall be received.

Ordered Further, That on the question of final passage of the said bill, debate shall be limited to 6 hours, to be equally divided and controlled by the Majority Leader and the Minority Leader, or their designees: Provided, That the said Senators, or either of them, may, from the time under their control on the passage of the said bill, allot additional time to any Senator during the consideration of any amendment, debatable motion, appeal, or point of order.

A UC agreement might even specify that 60 votes are required for passage of the bill — this is a way to avoid a filibuster and cloture vote without having to actually go through the time consuming process of cloture. Similarly, even when the Senate is seeking cloture on a bill, consent agreements are usually reached on things like the timing of the cloture vote (which by the rules can only be taken at specific times).

Unanimous consent agreements are usually worked out informally. Obviously, if any Senator objects, they fall apart. So it is incumbent on the leadership to accommodate all Senators in the process.

Can you reneg on your consent after you give it?

No. Once an agreement is reached, the only way to overturn it is by a subsequent unanimous consent agreement. So not only can 1 Senator not back out of a unanimous consent agreement that has been reached on the floor, but 99 Senators cannot back out of an agreement if there is 1 Senator who objects to changing it.

Why would a Senator opposed to a bill ever grant his consent to limit debate?

Because it allows them leverage over the issue at hand as well as other issues. There are many, many bills that the leadership would like to pass, but can only afford to bring up if they know they won’t have to spend weeks on it and fight through a cloture vote. Therefore, it is in leadership’s interest to modify and compromise with both their own rank and file and the minority party. This generally takes two forms: individual Senators can get concession on the contents of the bill at hand, either by consenting only to the consideration of a substitute compromise bill or requiring specific amendments be allowed or not allowed; similarly, Senators can gain favor on other bills that they are interested in — basically a logroll in which they allow the leaderships bill to come up under unanimous consent in exchange for either concessions on another bill or promises to bring their bill up on the floor.

If you think about this for a few minutes, you begin to realize (a) how important informal negotiation is in the Senate, (b) how much leverage individual Senators have, and (c) how powerful the leadership’s incentive is to try compromise instead of filibuster-breaking. When any individual Senator can derail the entire chamber by objecting to unanimous consent requests for things like the reading of bills and the ending of quorum calls, or more likely just objecting to time agreements, it becomes paramount for the leadership not to ram things through when playing nice is at all possible. Of course, there are limitations to individual power: Senators who continually object to agreements (or sit on the floor and object to trivial things, as mentioned above) can be frozen out politically and legislatively, which tends to keep people largely in line.

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**One might ask: why not just change the Senate standing rules? Two quick answers: first, it takes a super-supermajority (2/3 of all Senators) to get cloture on a debate to change the rules. Second, individual Senators perceive the current arrangement of the rules as beneficial, since the unanimous consent system gives them leverage over all bills, and particularly over all bills that are important to them. There’s no doubt that the majority leadership would love to change the rules while they are the majority. But the can’t, because of the supermajority requirement, and they are wary of it because they might someday not be in the majority.

Two institutional items from yesterday:

1. It’s baaa-ack. House Budget Committee Chairman Ryan and Ranking Member Van Hollen introduced a bill yesterday (H.R. 3521) to give the President a  line-item veto over appropriations legislation. Since the statutory line item veto legislation (P.L. 104-30) enacted in 1996 was ruled unconstitutional by the Supreme Court in 1998, the Ryan/Van Hollen bill is technically a process known as “expedited rescission.” It doesn’t directly give the President the power to veto parts of a bill; instead, it allows the President to propose line-item rescissions to any spending bill for 45 days after the bill becomes law, with the proposed rescissions getting fast-track authority for an up-down vote in Congress. The President would also have authority to not obligate the funds while the rescissions were adjudicated. Two versions of expedited rescission are plausible: one in which both chambers of Congress must approve the rescissions for them to go into effect, another in which they go into effect automatically unless one (or both) chambers disapprove. The new bill is of the former variety.

Expedited rescission seems constitutional on its face, but just as bad an idea as the traditional line-item veto. The main problem is still the same: there’s a major political power transfer from Congress to the President, without any guarantee that the result will be budgetary savings. It just fundamentally changes the veto-bargaining. With the power to cancel pieces of a bill, the President gains significant leverage over each individual Member, all of whom must live in fear of the White House slashing their favorite appropriations. This leverage could (and would) be used by the White House across all policy areas, spending or otherwise, as the President used threats of appropriations cuts to buy up votes for his position on any bill being considered, be it a bill to cut spending, increase spending, or make social policy. A related secondary problem is that congressional leaders might have a harder time cutting deals on appropriations bills, given that they wouldn’t be able to credibly commit to language with the possibility of Presidential rescissions looming in the future.

In the 90’s, the Supreme Court was able to save Congress from itself on the matter. This time, that out would not be available. In fact, once this power is given to the President, the ratcheting-up problem (in which Congress can give the President increased power by majority, but can only rescind it over veto by 2/3 supermajority) means  it’s probably not coming back. Some people might mollify themselves that expedited rescission still leaves the power in the hands of Congress and doesn’t give away the whole store to the President. Maybe so, but it still gives away a lot of it. How much support will Members be able to muster to reject an up/down vote on a spending item that the President is publicly saying must go? Perhaps some. But probably not enough to make Members feel secure in the face of White House pressure and threats.

2. Allowed vs. Required. There was an excellent debate on the Senate floor yesterday over Senate Amendment 1126 to S. 1867, the FY12 Defense Authorization Act, which followed a similar debate on SA 1107 (which failed 38-60 on Tuesday). Here’s the text of SA 1126:

On page 360, between lines 21 and 22, insert the following:

(e) Applicability to Citizens.–The authority described in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of the hostilities.

You can imagine the liberty vs. security debate that ensued, and I recommend watching some of it on C-SPAN. (The primary debaters were Sens. Kirk, Lee, Graham, Levin, and Durbin). There’s also lots of good commentary out there, and I’d start with this Slate piece, mostly because it has just a ton of links in it.

One thing that struck me from the debate is that a lot of the arguments implicitly gave the Supreme Court more authority than it actually has within the Constitutional system. For example, much of the argument against the amendment relied on the idea that the Supreme Court had upheld the constitutionality of indefinite detention for enemy combatants, while the proponents of the law tended to attack this argument by either (a) denying that the court had extended that logic to U.S. citizens on U.S. soil or (b) implicitly arguing that the Court was misreading the plain text of the 4th, 5th, and 6th amendments. In any case, much of the back and forth concerned how to interpret the Court’s ruling in Hamdi v. Rumself and other relevant decision.

This largely puts the horse before the cart. When the Supreme Court upholds a statute as constitutional, they are merely ruling on its permissibility under the Constitution, not on its wisdom and certainly not that it is required under the Constitution. The wisdom of individual pieces of legislation — and the Court often says as much in its decisions — is not its concern.A statute struck down by the Court might be the greatest or most well-intended idea since sliced bread, and a statute upheld may be the worst injustice known to man or borne of bad motivations. It’s nice when that’s not the case, and bad laws are struck down (see line-item veto, above) and good ones upheld (ex. 1964 Civil Rights Act), but it’s just as often the case that unwise policies are constitutional (see Korematsu v. United States) and well-intentioned laws are not (see  Lopez v. United States).

But while the wisdom of laws is not the Court concern, it is precisely Congress’s concern. And this is where yesterday’s debate was somewhat lacking. The proponents of the amendment argued at length that the non-amended policy in the bill was unconstitutional and the opponents of the amendment argued that it was constitutional, but precious little time was spent on the issue of whether indefinite detention of U.S. citizens, whether constitutional or not, was good policy. News flash: the Courts did not set up the military tribunal system. The Courts did not write the statues granting presidential authority in the war on terror. And the Courts do not write the laws regarding indefinite detention. Congress does. It’s simple but often lost: if Congress wants to give the President the power to indefinitely detain U.S. Citizens, then can write a law that is subject to Court review of its constitutionality. But if Congress wants to repeal such a law, or not write one in the first place, they have absolute sovereign authority to do so, and no Court has the power to change that.

Now, there was a strand of the debate yesterday that seemed to take issue with this, on the following theory: Congress has the responsibility to do whatever it can to protect the country, and therefore must give the President every bit of power that it allowed under the Constitution. Therefore, whatever the outer-limits of what the Court allows is what we should do. In other words, the wisest policy is simply the maximum security policy allowed under the Bill of Rights. I reject this argument on both policy and principle grounds. On policy grounds, it’s a strawman: no one is honestly proposing that Congress do everything it (practically) can for national security. That would involve massive increases in the number of federal agents, things like cameras on tons of public street corners, massive restrictions on entry visas, and so forth. There are obviously trade-offs being made in the security debate, and therefore, because we are not simply interested in doing the maximum possible bar none, the wisdom of any individual policy is worthy of consideration.

But more importantly, I reject the argument on principle, because it makes life too easy on Congress. The Supreme Court should not be a crutch on which to lean policy positions.** Nor is the constitutionality of a policy position under the Bill of Rights the end of discussion about liberty concerns within a policy. To understand policymaking that way would let Congress off the hook for the responsibility for its own choices.  Now, I don’t want to sound like some weak-kneed liberal here. I’m not. But I do think that there is room for discussion of the constitution in a debate about the wisdom of a policy that is, on the legal merits, utterly constitutional. That may sound odd, and I certainly don’t want to reduce it to some sort of “spirit of the Founders intent” nonsense, but I think it’s both necessary and practical. I’m not arguing for sovereign congressional interpretation of the Constitution, but I am arguing for the idea that policies can be constitutional in a legal sense and at the same time be unwise precisely because they seem antithetical to the spirit of the constitution.

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**One place this will undoubtedly turn up is in next year’s SCOTUS decision about the health care mandate. There are two unknown truths about the mandate: it’s either a good idea or a bad idea, and it’s either constitutional or unconstitutional. But knowing one tells you nothing about the other. Just as it’s not constitutional simply because it’s a good idea, it’s not a good idea simply because it’s constitutional. Unfortunately, in the wake of the decision, I think a lot of the wisdom of the policy is going to be read into its determined constitutionality, regardless of which way the decision goes.