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The Senate as a collective action problem

senatecollective.JPG

Most people know that the Senate can't do much of anything these days unless it can muster the votes to break a filibuster. What fewer people know is that the Senate also depends on unanimous consent for its non-controversial functions. And as the name implies, unanimous consent requires, well, unanimity. One senator can bring the whole thing down -- or at least make it take a while. As Ian Millhiser says, "it may only take 60 votes to get something accomplished in the Senate, but it takes 100 votes to do so quickly." And the Senate does not have nearly enough time to do everything slowly. If it can't function through unanimous-consent agreements most of the time, it can't function.

That, however, creates a dangerous incentive for individual senators: Given that the Senate cannot function without their consent, their consent has a lot of value. And that value can be traded for things they want.

We saw two examples this week. First, Sen. Jim DeMint vowed to block all further legislation that wasn't cleared through his office last night. He doesn't mean he'll vote against legislation that he doesn't have the time to review. He means he'll obstruct such that other members of the chamber won't be able to vote on it before they recess. If the procedure doesn't satisfy him, he'll use his power as an individual to stop the Senate, rather than his vote as an individual to express displeasure.

Across the aisle, Sen. Mary Landrieu has placed a hold on the nomination of Jack Lew to direct the Office of Management and Budget. The problem isn't Lew. "Mr. Lew clearly possesses the expertise necessary to serve as one of the President's most important economic advisors," Landrieu said. The problem is the administration's moratorium on offshore drilling. "I cannot support further action on Mr. Lew's nomination to be a key economic advisor to the President until I am convinced that the President and his Administration understand the detrimental impacts that the actual and de facto moratoria continue to have on the Gulf Coast," Landrieu explained.

Again, Landrieu is not using her vote to get her way. She's using her consent. If the administration doesn't fold, she can hold Lew's nomination through the recess, which means the president won't have a budget director at the precise moment when the Office of Management and Budget is beginning work on the 2012 budget. "Landrieu's hold is both absurd and irresponsible," raged OMB Watch, a nonprofit that's usually critical of the OMB.

There's always been a certain amount of this stuff in the Senate, but in recent years, both individual obstruction, as manifested through holds, and team obstruction, as manifested through the filibuster, are getting worse. We saw Sen. Richard Shelby hold all of the president's nominees because he wanted more pork for Alabama. We've seen Senate Republicans launch record numbers of filibusters. All of this procedural hardball has made sense for the players behind it, but it carries a cost: As this behavior normalizes, everyone will do it. The Democrats will filibuster everything Republicans attempt. Individual senators will place larger holds more frequently in an attempt to get their way, get some media, or both. And if everyone does it, the Senate falls apart.

On some level, the Senate has always been riven by a collective action problem. If the individual senators and the two parties use the rules in the way that are rational for them, the chamber can't function. But there've been norms that held both sides, and most senators, in check. As those norms dissolve and the payoffs of obstruction become clearer to everyone, the collective restraint that allowed the Senate to function breaks down. And then the rules need to change. That, of course, is why the Rules Committee has been holding hearings on the filibuster. We're rapidly approaching the point at which the people who benefit most from the chamber's strange procedures are going to have to face the fact that they've made it necessary for the Senate to get rid of them altogether.

Photo credit: Mark Wilson/Getty Images

By Ezra Klein  | September 29, 2010; 4:20 PM ET
Categories:  Senate  
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Comments

"We're rapidly approaching the point at which the people who benefit most from the chamber's strange procedures are going to have to face the fact that they've made it necessary for the Senate to get rid of them altogether."

Yes. Please.

Posted by: bswainbank | September 29, 2010 4:35 PM | Report abuse

What if the Reid scheduled a Senate vote on one of these held items, and it gets 51 yeahs. The House passes the same bill and Obama signs it. Isn't that a law? Are the Republicans going ask the courts to void the law, on the grounds that it was passed in violation of Senate rules? On what grounds? The Senate can set its own rules, but the Supreme Court would be loath to act as enforcer for those rules. And when confronted with a bill passed by a majority of both houses and signed by the President, it seems the Court would have no constitutional choice but to say the law is valid. If this is right, then all these damn Senate rules would only be operative if the majority felt they were being exercised in good faith, since a majority could override at any time.

Posted by: Ken36 | September 29, 2010 4:42 PM | Report abuse

We need to get 1 Senator who will vow to filibuster every single bill, and put holds on everything, until the Senate removes the ability to do so.

Posted by: donhalljobs | September 29, 2010 4:48 PM | Report abuse

The senate should be abolished.

Posted by: lauren2010 | September 29, 2010 4:49 PM | Report abuse

How did the Senate not explode in dysfunction long before today? Is it really because of "norms" and "comity", or did Senators actually worry (falsely, as we now see) that there would be electoral punishment for such blatant obstructionism? I just can't imagine Senators being so consciously irrational for 200 years.

Posted by: vvf2 | September 29, 2010 4:54 PM | Report abuse

"The Democrats will filibuster everything Republicans attempt. Individual senators will place larger holds more frequently in an attempt to get their way, get some media, or both. And if everyone does it, the Senate falls apart."

That is the point - why do you need anything more than 40 Dem Senators to run the agenda of NO? That is the job for Dems in the next Senate.

Ezra, you writing here, (obviously you know that) is not going to make any difference. Thanks for informing us.

But as you said and other comments, indeed we are looking for a day when this whole 'crappy' institution immolates - so faster we reach to that stage; in the end we all are better rather than this crippling over decades by which time our lunches are taken away by China and as Arianna Huffington says we become a Third World Country. We are reaching there, we need to reach there fast... The fundamental value of GOP in Congress is we will reach there faster.

I doubt 'shame' is the business which works for Senate to change anything. Unless it is political and campaigns are run to 'improve Senate' working; we will continue to have such ‘legislative prostitution’ by our Senators.

In absence of elections to change Senate - let that damn thing collapse and burn down (where are those Britishers when we need them to undertake this another ‘fire job’?); then only we will be freed from this tyranny.

Posted by: umesh409 | September 29, 2010 5:00 PM | Report abuse

Remember when political commentators occasionally wrote articles about committee chairmanships and leadership slots being occupied by politicians who had 'safe' seats?

Posted by: tuber | September 29, 2010 5:05 PM | Report abuse

You are a little ambiguous. Get rid of the procedures or get rid of the obstructive Senators?

I vote for the latter.

Posted by: Mimikatz | September 29, 2010 5:07 PM | Report abuse

Obama ought to make a dozen recess appointments a day until he gets votes on the nominees. And make them really, really liberal folks that would never have a hope of getting through the Senate.

I have a feeling that the Senate would see clear to voting on his nominees.

Posted by: TWAndrews | September 29, 2010 5:13 PM | Report abuse

The question of electoral consequences is key here. DeMint is up for reelection in So Carolina, but against Alvin Greene, hardly a serious opponent. As for the rest, 34 Senate seats are up for election. Of these, 18 are GOP-held. Of these, 6 are open due to retirements (Bond-MO, Bunning-KY, Brownback-KS, Gregg-NH, Martinez-FL and Voinovich-OH, and 2 are open due to the R-incumbent losing his or her primary (Bennett-UT and Murkowski-AK).

This means that only 10 incumbent GOP Senators are actually now facing reelection and none of these are in the slightest trouble with the possible exceptions of Burr-NC and McCain-AZ because they are from dead red states (Coburn-OK, Crapo-ID, DeMint-SC, Grassley-IA, Isakson-MS, Shelby-AL, Thune-SD and Vitter-LA). Ok, maybe Iowa is purple, but Grassely is in no trouble.

So no, there are no elecotral consequences, none at all. Not for GOPers. Not until their failure is much more evident.

Posted by: Mimikatz | September 29, 2010 5:18 PM | Report abuse

"We need to get 1 Senator who will vow to filibuster every single bill, and put holds on everything, until the Senate removes the ability to do so. "

At least as long as the Dems have the majority, that's pretty much the ideal state for DeMint and a fair number of his colleagues, not a threat.

Posted by: zimbar | September 29, 2010 5:27 PM | Report abuse

What are the chances of the next Senate doing something about the slow rate of progress for bills, i.e. the 30 hour debate or holding periods? That would seem to be a big improvement, allowing bills or appointments with large numbers of supporters to get around the blockage of a single senator.

Other recent examples of a single senator blocking legislation are Coburn's recent hold on the food safety bill (S.510) and his blockage of the Shark Conservation Act, which aims to protect shark populations by requiring that any shark fin landed in the U.S. be attached to a shark (requiring the shark to be attached significantly reduces the number of fins that can be landed). Political Correction wrote that "The legislation passed the House by voice vote and has bipartisan support in the Senate. But Coburn objected, saying the issue was parochial, meant to please special interests and would add to the deficit. According to the Congressional Budget Office, implementation would cost $1 million a year." (http://politicalcorrection.org/blog/201009290005)

Posted by: meander510 | September 29, 2010 6:52 PM | Report abuse

Erza typical liberal msm bullshirt the photo that leads this article shows the republican caucus. Last time I checked the dems control the senate and they control the agenda and what bills are voted on period. So your attempt to blame the dysfunction in senate on the Republicans is a lie and Robert Bryd (D) created the current filibuster rules so stick that in your arse as well.

Posted by: DCalle10411111 | September 29, 2010 7:20 PM | Report abuse

There you go again. Maybe maybe "Most people know that the Senate can't do much of anything these days unless it can muster the votes to break a filibuster," but most US adults do not know how many votes are needed to break a filibuster.

This is simply a fact. You have now twice made claims which don't make sense given this fact. I think you mean "Most people who read this blog ..." and then "But not all those readers know that ..."

I think one of the worst problems with journalism is that journalists assume that most people know most of what the journalist knew yesterday (so if it isn't new it isn't reported). Actually worse, I should have written what the journalist should have known yesterday.

You are heroically working to correct this gross error explaining say the ACA again and again.

Respect the public enough to know it isn't a mass of political junkies. Respect your readers enough to assume that we won't be insulted if you tell us something we know already. As far as I know, you are much better at this than all of your fellow Washington Post employees. Don't go MSM on me.

For 2 examples, I knew that senate floor time is in critically short supply and that this explains much of Reid's apparent whimpyness and I know that unanimous consent is required to waive absurd rules such as that bills must be read out loud on the floor. But I am upset that you are overstating the knowledge of "most people" not that you are telling me something I already know (no harm in that).

Posted by: rjw88 | September 29, 2010 9:25 PM | Report abuse

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