On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate

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Acknowledgments There are many people to whom I owe a debt of gratitude. Without their assistance and inspiration this book would not have been possible. I am especially grateful to Matt Green, who helped guide my efforts during the earliest stages of this project. Elizabeth Rybicki graciously spent countless hours discussing with me the importance of bridging the divide between how the US Senate works in theory and in practice. Numerous conversations with Frances Lee and Anthony Madonna helped inform my thinking about the ways in which the intersection of partisan conflict and parliamentary procedure shapes the Senate as an institution. In a very literal sense, this book would not exist without the wonderful people at the University of Michigan Press. I would like to thank Melody Herr for believing in the manuscript and Meredith Norwich for sharing that belief, as well as expertly guiding this project to completion. I am indebted to the Legislative Politics and Policy Making editors, Janet Box-Steffensmeier and David Canon, for including the book in their terrific series. Danielle Coty and Mary Hashman provided much needed assistance in preparing the manuscript for publication. I would also like to thank the anonymous reviewers who read the manuscript and offered helpful suggestions on ways in which it could be improved. I would also like to thank John Fleming, who produced the figures and tables in chapters 2, 7, and 8. His insights on how to communicate parliamentary procedure in an engaging way helped sharpen my own thinking on the subject. Ed Corrigan read the manuscript and offered helpful suggestionsPage x → along the way. His considerable expertise on the Senate informed my understanding of how parliamentary war unfolds in practice. I first began this project as an effort to make sense of the seemingly contradictory developments that I observed on a daily basis as a Senate staffer. The insights contained in the pages that follow would not have been possible without the members and staff with whom I worked in the institution for over a decade. In particular, I would like to thank Jeff Sessions, Pat Toomey, and Mike Lee, who each shaped my understanding of the Senate in unique ways. I am also indebted to the Senate parliamentarians for patiently answering my seemingly endless questions about the institution’s precedents and Standing Rules. Working in the Senate periodically entailed late nights and time spent away from family. Writing a book is no different. I very much appreciate the patience and understanding with which my two children, Graham and Quinn, dealt with the absence of their father. You both make me very proud. Throughout my life, my mother, Robin Wallner, has been a constant source of support and encouragement. As always, my greatest debt remains to my wife and best friend, Kimberly. She means more to me than she will ever know. And it is to her that this book is dedicated.

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One On Parliamentary War On Thursday, November 21, 2013, at approximately 12:11 p.m., Democrats detonated a nuclear bomb in the United States Senate. Well . . . not exactly. The Senate chamber is still standing. The institution’s committees continue to meet. Senators still give speeches and cast votes. To the casual observer, nothing appears to be different. Yet the Senate was fundamentally changed; the Democratic majority had taken a historic step that altered the terms of partisan conflict in the institution. Specifically, it utilized the so-called nuclear option to end a Republican filibuster of one of President Barack Obama’s judicial nominees.1 The nuclear option is defined here as ignoring, circumventing, or changing the Standing Rules of the Senate with a simple-majority vote in direct violation of those rules. As a consequence, the procedures that govern how the Senate makes decisions, and thus dictates policy outcomes, would be dramatically different from that day on. The contemporary Senate is a polarized institution. Partisan bickering and brinksmanship pervade nearly every aspect of its work. The Democratic and Republican parties are more cohesive and their respective members are located farther apart from each other than in the past. The result is that the Senate’s decision-making process is more confrontational today than it has been at almost any point since the late nineteenth century. In such an environment, regular order is virtually nonexistent and unorthodox parliamentary procedures are often needed to pass legislation of any importance. Reflecting the fact that obstruction is now routine, SenatePage 2 → majorities use these procedures preemptively in anticipation of opposition in order to limit the minority’s ability to block their agenda. Yet doing so inevitably limits the ability of minority senators to debate and offer amendments. As a consequence, the minority party justifies its obstructive behavior by pointing to the majority’s management of the Senate floor and the inability of its members to participate in the legislative process. It asserts that such mismanagement is responsible for the increase in obstruction observed in recent years. The implication is that minority party senators who would otherwise support majority party proposals are now driven to obstruct them for procedural, not substantive, reasons. The takeaway from all of this is that the Senate’s current dysfunction is driven by the deteriorating relationship between the majority and minority parties in the institution. Yet regardless of the underlying cause, the fact remains that frustration within the Senate was high in 2013 and that relations between the two parties were at an all-time low on that late November morning in 2013. In short, the majority and minority parties found themselves engaged in parliamentary war. Parliamentary War and the Filibuster Democrats and Republicans are fighting a parliamentary war in the Senate. At stake is the ability to help steer the future direction of the country. Unlike in the House of Representatives, Senate minorities are not defenseless in the face of a determined majority.2 They have several procedural weapons with which to defend themselves. Chief among these is the fact that the Senate’s rules permit a minority of its members to filibuster (i.e., block) legislation and nominations supported by a majority. Indeed, the filibuster has become so central to our understanding of minority rights in the Senate today that the conventional wisdom suggests that senators would be powerless to obstruct without it. The minority can effectively use the right to filibuster, or debate, bills and nominations to prevent their passage (or confirmation). Specifically, Senate Rule XXII requires a vote of three-fifths of the entire Senate to invoke cloture (i.e., end debate) on a motion, measure, or nomination.3 It requires a vote of two-thirds of the senators present and voting to end debate on proposals to change the Senate’s rules. Put simply, it takes more votes to end a filibuster than it does to pass a bill (or confirm a nominee). The filibuster thus gives Senate minorities significant

leverage vis-Г -vis the majority because of the super-majoritarian vote thresholds required to end Page 3 →debate. As a consequence, Senate minorities have typically been able to utilize the filibuster to prevent majorities from passing an agenda over their objections because those majorities have only rarely constituted a super-majority of the institution’s membership, and thus have been unable to muster the required votes to invoke cloture absent some level of minority cooperation. The filibuster has been used to frustrate both Democratic and Republican majorities. It has prevented liberal and conservative policies from passing. Yet its use has not always been a strictly partisan affair. Nevertheless, today it is more often than not likely to pit the Democratic and Republican parties against each other in a high-stakes battle to shape public policy. In this sense, the filibuster represents the front line in the parliamentary war between the two parties. Consequently, it has become the bane of Senate majorities, the House, and the president due to its utility in blocking their agendas. Reflecting this frustration, senators have proposed various reforms over the years to reduce the filibuster’s utility to the minority party. Members such as Jeff Merkley (D-Oregon), Tom Udall (D-New Mexico), Tom Harkin (D-Iowa), John McCain (R-Arizona), Lamar Alexander (R-Tennessee), and James Lankford (ROklahoma) have called, albeit at different times, for reforming the Senate’s rules to limit the minority’s ability to filibuster legislation and nominations supported by a majority. But these attempts at reform have been largely unsuccessful because the minority has been reluctant to voluntarily cede its procedural rights, and the institution’s rules explicitly block the majority from changing those rules over its objections (i.e., the twothirds vote requirement in Rule XXII). In response, reformers have advocated using the nuclear option to circumvent Rule XXII in order to limit the filibuster. Notwithstanding Rule XXII, they correctly argue that the Senate may curtail filibusters with a reformby-ruling approach at the beginning of a Congress (i.e., the so-called constitutional option) or at any point during a Congress (i.e., the nuclear option) to unilaterally create a new precedent that is inconsistent with but nevertheless supersedes the Senate’s rules. Both maneuvers are referred to in this book as the nuclear option because each enables a simple-majority of the Senate to act in explicit violation of the Standing Rules in order to pass legislation and confirm nominations unencumbered by the minority’s opposition. The fact that a majority may technically use the nuclear option to overcome the constraints imposed on it by the Senate’s rules presents us with a puzzle. Put simply, we do not fully understand why Senate majorities have Page 4 →consistently tolerated rules that empower a minority to filibuster. The fact that they have is counterintuitive because the Senate’s rules are ultimately majoritarian in nature (e.g., Amar 2014; Chafetz 2011; Coenen 2012 and 2014; Gerhardt 2004; Gold and Gupta 2004; Rubenfeld 1996); their prescriptive influence depends on the continued acquiescence of a majority of all senators. Yet while technically possible, changing those rules via the nuclear option has very rarely been successful in the past, even in the face of major minority obstruction. This begs the question: why do Senate majorities tolerate the filibuster when doing so means giving minority parties a powerful weapon with which to defeat their agenda? The conventional wisdom suggests that a majority of the Senate believes (and has consistently believed) that it benefits from a set of rules, including the filibuster, which gives the minority the ability to obstruct. Put differently, a majority believes that the costs of eliminating the filibuster are greater than those associated with maintaining the status quo. Yet this account fails to explain the fact that the Democratic majority successfully utilized the nuclear option in November 2013 to eliminate the filibuster for most nominations. At that time, a majority simply did not exist that believed it benefited from the existing Senate rules. Rather, a majority took dramatic action to ignore those rules in order to limit minority rights in a significant way. Utilizing the nuclear option thus enabled the Democratic majority to overcome Republican obstruction by unilaterally lowering the required number of votes to invoke cloture to a simple-majority.4 In so doing, it circumvented the requirement of Rule XXII that debate on such nominations can only be brought to a close by a three-fifths vote. It also circumvented the rule’s requirement that debate on proposals to change those rules can only be brought to a close by a vote of two-thirds of senators present and voting.5

This action clearly demonstrated the ability of a Senate majority to determine the rules of procedure in a legislative body that has, at least up until recently, been widely viewed as a super-majoritarian institution. By limiting the situations in which the minority could filibuster, the successful use of the nuclear option upended the balance of power between the two political parties. That is, the Democratic majority defined the terms of conflict to its advantage by restricting the minority’s ability to filibuster. As a consequence, the minority lost an important source of leverage in its parliamentary war with the majority. Yet the ease with which the majority employed the nuclear option suggests that Senate minorities never had significant leverage vis-Г -vis the majority in the first place. If Page 5 →this is the case, how then do we explain the existence of Senate rules that permit the filibuster? This is a difficult question to answer since it requires contrasting the outcome in 2013 (i.e., a change in the Senate’s rules) to previous nonevents like that in 2005 (i.e., no change in the Senate’s rules). Answering it is nevertheless important because the effort required highlights an underappreciated aspect of the dynamics shaping partisan conflict over procedural change in the Senate today. It also shifts our focus to the underlying foundation on which minority rights are ultimately based in the institution. Finally, the answer improves our understanding of the circumstances in which a Senate majority will be more likely to use the nuclear option again in the future in order to eliminate the filibuster entirely. Existing Explanations The popular and scholarly commentary on Congress offers two conflicting explanations for this puzzle, both of which are incomplete when taken separately. On one hand, it suggests that changing the rules is unnecessary. Instead, the mere threat of using the nuclear option to circumvent those rules has historically been sufficient to compel Senate minorities to limit their obstruction and compromise. Proponents of this claim observe that this dynamic was largely responsible for maintaining order and productivity in the precloture Senate when there was no rule to actually end a filibuster (e.g., Wawro and Schickler 2006). This dynamic was most recently observed in the summer of 2013 when a number of Republican senators, then in the minority, repeatedly relented at the last minute in filibustering several of President Obama’s executive nominations in the face of threats from the Democratic majority to use the nuclear option to overcome their obstruction. In each instance, the majority’s threats to “go nuclear” were sufficient to secure the support of the Republican votes needed to invoke cloture on the contested nominees. On the other hand, some suggest that changing the rules is hard, at least when attempted unilaterally over the minority’s objections. Proponents of this claim argue that the anticipation of the minority’s response to the nuclear option restrains the behavior of Senate majorities (e.g., Binder, Madonna, and Smith 2007; Smith 2014). This dynamic is what gives the nuclear option its name. It is important to note here that it is not the maneuver itself but rather the response that “blows up” the Senate. The hypothesized destruction precipitated by the minority’s response Page 6 →resembles that of a nuclear blast in that very little of the Senate’s business is spared. For example, a unified minority can filibuster other priorities on the majority’s agenda and an individual senator can object to the numerous unanimous consent requests that are necessary to process the institution’s routine business. The argument here is that the threat of a total breakdown in the decision-making process has been sufficient to deter rank-and-file members in the majority party from supporting the nuclear option precisely because it would be more difficult to achieve their goals in a postnuclear Senate. This dynamic was most recently observed in 2005 when Democratic senators, then in the minority, credibly threatened significant retaliation if the Republican majority followed through with its efforts to eliminate the filibuster for judicial nominations. In this instance, the minority’s threats were sufficient to eventually deter seven Republicans from supporting their party’s efforts to go nuclear.6 Yet neither of these explanations fully solves the puzzle. That is, they are each unable to account for the outcomes of parliamentary war in 2005 and 2013. Why did Senate Democrats ultimately decide to use the nuclear option in 2013? Why did the majority tolerate the filibuster in 2005 as well as in the years immediately prior to 2013? What

happened specifically to alter the calculus for Democrats, leading them to change course and support eliminating it in November of that year? Moreover, what do these developments portend for the balance of power between Senate majorities and minorities in the future? A complete explanation of contested procedural change must answer these questions. The only attempt to date at a comprehensive explanation to account for the outcomes in 2005 and 2013 is a straightforward model of minority obstruction begetting majority restriction. That is, excessive minority obstruction eventually altered the costs to the majority party of permitting the existence of the filibuster (Smith 2014). It no longer made sense for the majority to tolerate the filibuster once this tipping point was reached in 2013 because the minority was using the procedure to obstruct so much of its agenda. When approached from this perspective, the successful use of the nuclear option is interpreted as the logical consequence of a minority abusing its rights and pushing the majority too far. This explanation also tells us what to expect in the future. It suggests that the minority’s ability to obstruct cannot persist in the current polarized environment. In other words, the majority will inevitably restrict the minority’s rights so long as the latter continues to obstruct. As a consequence, the Senate will become more like the House, and its majoritarian Page 7 →and highly partisan decision-making process, so long as the root causes of this polarization persist. In short, the institution is a victim of its external environment. The implication is that if we want to change, or fix, the Senate, we must change, or fix, our politics. Unfortunately, this explanation, while helpful in drawing our attention to the contingent nature of procedural politics, is still incomplete. It limits our ability to fully understand the complex relationship between partisan conflict and procedural change in the contemporary Senate. A significant limitation is that it overlooks the minority’s ability to influence the majority’s behavior beyond a simple model of evermore obstruction yielding ever-greater restriction. In reality, the relationship between the two parties is more nuanced. Their interdependence suggests that procedural change is not unidirectional. That is, minority obstruction may prevent majority restriction in addition to precipitating it. Alternatively, minority cooperation may, counterintuitively, precipitate threats of majority restriction. In short, there is more to contested procedural change in the institution than meets the eye. Thinking Strategically about Procedural Change In this book, I account for the persistence of the filibuster by examining it in the context of the parliamentary war currently being waged between Democrats and Republicans. Such an approach helps us better understand the complex relationship between partisan conflict and procedural change in the Senate today. To that end, I present a new theory of procedural change to explain the persistence of the filibuster in the current polarized environment. Unlike existing models, this new explanation accounts for the nature and direction of contested procedural change when it does occur, as well as when it does not. The theory explains why Senate majorities have historically tolerated the filibuster, even when it has been used frequently to defeat their agenda, despite the fact that they have the power to eliminate it. It also explains why the then-Democratic majority chose to depart from past practice when it utilized the nuclear option to eliminate the filibuster for most nominations in 2013. Analyzing procedural change in the Senate in the context of a parliamentary war between Democrats and Republicans is consistent with how we think about congressional politics today. Party Wars: Polarization and the Politics of National Policy-Making (Sinclair 2006), The Gingrich Senators: The Roots of Partisan Warfare in Congress (Theriault 2013), and The SenatePage 8 → Syndrome: The Evolution of Procedural Warfare in the Modern U.S. Senate (Smith 2014) are just three recent books from noted Congress experts that adopt similar characterizations. Smith (2014, 17–18) uses such phrases as a “parliamentary arms race” and “parliamentary warfare” to describe Senate decision-making over the past two decades. In addition, Lee (2009, 3) argues, “congressional parties hold together and battle with one another because of powerful competing political interests, not just because of members’ ideal or ideological preferences.”7 Similarly, Wawro and Schickler (2006, 34) describe a “protracted battle on the floor” over a filibuster in the precloture Senate as a war of attrition.8 They argue that using the nuclear option to eliminate the minority’s

ability to filibuster is “analogous to going to outright вЂwar’” (37). Of course there are limits to this analogy. The relationship between rank-and-file members and their leadership in the Senate differs in several important respects from that between soldiers and their leadership in the military. For one, Senate leaders lack the power to punish defections among their rank-and-file in times of parliamentary war. With that being said, the analogy remains useful to the extent that it captures the dynamics exhibited both between and within parties during periods of procedural conflict in the Senate today. For example, Senate leaders, like military leaders, have difficulty waging a successful battle in defense of their procedural rights if their rank-andfile are demoralized and exhausted, or if there is no agreement on what they are fighting for in the first place. Notwithstanding the similarities in how we contextualize Senate decision-making, my approach here departs from these existing treatments in its more comprehensive focus on the role played by the minority party in driving contested procedural change in the institution. Specifically, prior treatments largely overlook the impact minority behavior has on whether or not the majority is able to unilaterally change the Senate’s rules to overcome obstruction. For example, Wawro and Schickler (2006, 37) conclude that the minority is powerless to stop a determined majority from limiting its ability to filibuster.9 However, it is incorrect to suggest that the minority has no ability to defend its right to filibuster in the presence of a committed majority because its behavior can influence the majority’s decision on whether or not to deploy the nuclear option in the first place. This simple observation illustrates a major limitation of the existing work. Logic dictates that the filibuster would rarely be used to block the majority’s agenda if the minority is indeed powerless to prevent the majority from unilaterally changing the Senate’s rules. Under such circumstances, the majority would have already eliminated the filibuster if it had been used Page 9 →regularly to obstruct its agenda. Given this, a new theory of procedural change is needed to account for the persistence of the filibuster to date, as well as to better understand the conditions in which the majority will attempt to unilaterally restrict the filibuster over the minority’s objections. It is important to note that not all of the prior work on this subject has discounted the ability of Senate minorities to deter the majority from unilaterally changing the rules. For example, Binder, Madonna, and Smith (2007) argue that the anticipation of the minority’s response to the use of the nuclear option restrains the behavior of Senate majorities. Yet, significantly, they do not identify the specific tactics minorities may utilize to retaliate against majorities determined to restrict their ability to obstruct. New work is needed to fill in this gap because it is precisely these tactics that give Senate minorities the ability to deter a determined majority from eliminating the filibuster. To that end, I argue in this book that the ability of Senate majorities to change the rules is contingent on the minority’s behavior. The key then to avoiding prolonged periods of procedural instability associated with the repeated use of the nuclear option by majority parties determined to enact their agenda lies with the minority. This observation builds upon previous work on game theory from the American politics and international relations subfields of political science and the discipline of economics. In short, using a game-theoretic approach that views parliamentary warfare as a bargaining process provides a more accurate understanding of the relationship between partisan conflict and procedural change in the contemporary Senate. It also sheds light on how the assumptions of existing treatments implicitly shape their prescriptions for solving the problems presented by the Senate’s current dysfunction. War Games

Game theory is helpful here because it provides important insights into strategic decision-making. According to Thomas C. Schelling, an early pioneer in the field, “Game theory is concerned with situations . . . in which the best course of action for each participant depends on what he expects the other participant to do” (1960, 9–10). Prevailing in such situations requires strategic thinking. Implicit in this is the assumption that participants in the game are in conflict with each other and that their behavior is interdependent. In strategic games, adversaries try to increase their likelihood of success by influencing their opponent’s behavior.

The adversarial and interdependent nature of strategic games makes Page 10 →game theory particularly helpful for understanding the dynamics of war. The nineteenth-century military theorist Carl von Clausewitz viewed war as a “duel on a larger scale” (1984, 75). He described it as an “act of force to compel our enemy to do our will” (75). Forcing one’s adversary to do one’s will, whether in politics or war, requires rendering them powerless to resist. This, according to Clausewitz, is the “true aim of warfare.” The effort needed to be successful is dictated by an opponent’s “power of resistance, which can be expressed as the product ofВ .В .В . the total means at his disposal and the strength of his will” (77). Game-theoretic models of war assume that participants are rational actors. That is, each side in a conflict weighs the costs and benefits of potential courses of action before making a decision on which one to adopt. In addition, the approach assumes that participants’ interests are not necessarily zero-sum. That is, success is not determined by the exclusive measure of an actor’s gains against their opponent’s losses. Rather, an actor determines success by assessing their gains relative to their goals (Schelling 1960, 4). This is not to suggest that their opponent’s interests are irrelevant. It is simply to say that an actor’s paramount concern is to secure their own priorities regardless of their opponent. This consideration is important because conflict between adversaries can be resolved via a bargaining process when their interests are not mutually exclusive. Actors have incentives to negotiate because war imposes costs on everyone. These costs drive adversaries to engage in prewar bargaining in order to resolve their conflict. War occurs when this process breaks down. That is, the conflict goes from “cold” to “hot” when at least one side prefers war to the status quo. Yet it is important to keep in mind that in this context war simply represents a continuation of the bargaining process, the goal of which is to resolve the original conflict between the adversaries. This insight is reflected in Clausewitz’s famous observation that “war is not merely an act of policy, but a true political instrument, a continuation of political intercourse, carried on with other means” (1984, 87). At first glance, it is not immediately clear why adversaries would view an escalation of conflict as being in their interests due to the costs war imposes on its participants. The lack of information regarding an opponent’s internal decision-making process gives rise to circumstances in which either side may conclude that taking up arms offers a more attractive way to achieve their goals (i.e., to resolve the conflict on their terms). The uncertain information environment complicates an actor’s ability to weigh rationally the trade-offs associated with going to war. Indeed, one of the Page 11 →most frequent causes of war is disagreement between adversaries over their capabilities and determination to prevail in the conflict (e.g., Fearon 1995). The uncertain information environment also creates opportunities for adversaries to influence an opponent’s behavior during the bargaining process. According to Clausewitz (1984, 80), “each side, using the laws of probability, forms an estimate of its opponent’s likely course and acts accordingly.” An actor that can effectively distort their capabilities and determination influences the decisions their opponent makes. During the prewar bargaining stage, such behavior involves the potential application of force instead of the actual application of force. In other words, adversaries make coercive threats in order to impact the outcome of negotiations. The conduct of war reduces uncertainty by providing feedback on whether or not an actor’s initial estimate of their opponent’s capabilities and determination was accurate. Such information either affirms or contradicts an actor’s initial expectation of the effort required to prevail. As a consequence, each side continually revises its expectations throughout a conflict. It is important to note, however, that actors do not passively wait for new information with which to dispassionately update their original estimate. Just as in the prewar bargaining stage, both sides attempt to take advantage of the uncertain information environment in order to influence each other’s behavior. When the costs of continued fighting outweigh the benefits of peace, the result is a compromise that ends, or at least suspends, the war. The duration of the peace that follows is a function of the participants’ willingness to abide by the terms of the agreement. Parliamentary War Games

Strategy is inherent in politics. Congressional decision-making in particular represents an inherently strategic

situation. No single actor determines the outcomes. Rather, the individual members of Congress and, by extension, the political parties to which they belong are interdependent. Each side in a conflict must give some thought to how its adversary is likely to respond before adopting a particular course of action. Game theory’s emphasis on the bargaining nature of war makes it helpful for explaining partisan conflict over procedural change in the Senate. Today, the Democratic and Republican parties use parliamentary procedures as weapons in their struggle to set the agenda and determine policy outcomes. Unlike in the House, the majority and minority parties have substantial procedural tools with which to achieve their goals (e.g., cloture, Page 12 →the majority leader’s priority of recognition, the filibuster, access to the Senate floor, etc.). The two parties are also interdependent to a greater degree than in the House because the utilization of these tools by either party has the potential to negatively impact all members in the Senate, regardless of party. Each side attempts to carefully balance its desire to avoid a costly escalation in the conflict with its desire to secure preferred policy outcomes. Prevailing in such situations thus requires strategic thinking. That is, each side must give some consideration to what the other may do in order to succeed. Adopting a game-theoretic approach draws our focus to the ways in which partisan conflict over the Senate’s rules is analogous to conflict in war. If the underlying forces driving both are similar, then we can apply the insights offered by Clausewitz, Schelling, and others to explain the persistence of the filibuster in the current polarized environment. By extension, we can form a better understanding of the circumstances in which a Senate majority will attempt to use the nuclear option again in the future in order to eliminate the filibuster entirely. The participants in parliamentary war are rational actors. A rich tradition of research on congressional decisionmaking emphasizes the strategic calculations members of Congress make to achieve their goals in the House and Senate (e.g., Fenno 1973; Mayhew 1974). It concludes that members continually weigh the costs and benefits of potential courses of action before making a decision on what they will do in a given situation. Conflict in parliamentary war can be resolved through a bargaining process as long as the interests of the majority and minority parties are not mutually exclusive. Admittedly, the increase in partisan polarization in the Senate increases conflict between the two parties over seemingly indivisible goods (e.g., Theriault 2008; Lee 2009 and 2016). Nevertheless, it is important to keep in mind that even in this environment member interests are not inevitably zero-sum. That is, majority party success does not inevitably translate into minority party defeat. Rather, success is measured against the specific interests motivating individual senators in a particular situation. While the Democratic and Republican parties are certainly more cohesive today, Senate majorities and minorities frequently differ in the ways in which they try to achieve their goals. For example, the minority party may be primarily concerned with securing messaging opportunities on the Senate floor in order to improve their prospects for increasing the number of seats they hold in the chamber at the next election. In contrast, the majority may be primarily concerned with enacting as much of Page 13 →its agenda into law as possible before the same election. In such situations, the minority may be supportive of a process that results in a vote on an important issue even though the majority designs that process to ensure the proposal’s defeat. That is, the majority may be willing to accommodate the minority’s demands for a vote if doing so ensures that it will no longer obstruct the underlying legislation. Both the majority and minority parties have incentives to resolve conflict via a bargaining process because parliamentary war has the potential to impose significant costs on both sides. To that end, the majority and minority party leaders continually negotiate with each other, even in a polarized environment, in order to resolve conflict over the agenda and the manner in which important issues are considered on the Senate floor (e.g., Wallner 2013). Yet the lack of consistent communication and cross-party interaction in the Senate today complicates the ability of both parties to accurately weigh the costs and benefits of an escalation in conflict. As a consequence, the two parties have incomplete understandings of each other’s capabilities and determination to prevail. This makes it more likely that one side, or both, will threaten extraordinary procedural means to influence negotiations. Conversely, misreading an opponent could lead either party to concede more at the bargaining table than otherwise necessary in order to avoid a costly escalation of the conflict. The disconnect between expectations and reality creates opportunities for the two parties to use procedural threats as a means of

coercing their opponent’s behavior. The conduct of parliamentary war reduces uncertainty by providing feedback on whether or not a party’s initial assessment of its opponent was accurate. In a parliamentary war, opponents of a measure must first decide how much they want to obstruct and weigh that against the costs of such obstruction. Similarly, supporters must first weigh the benefits of the measure against the costs posed by minority obstruction. Should the majority escalate further by utilizing the nuclear option to unilaterally change the rules, it must then weigh the costs of doing so (both in terms of the expected minority retaliation and the loss of future opportunities to obstruct when its members may be in the minority) against the benefits of the measure in question. The outcome of this struggle ultimately depends on which side is more willing to bear the costs necessary in order to achieve its desired benefit. The parliamentary war ends when the costs of continued fighting outweigh the benefits of a truce. The result is a compromise between the majority and minority parties that avoids further escalation in the conflict Page 14 →and temporarily prevents the use of the nuclear option to change the rules. The duration of the peace that follows depends on the willingness of rank-and-file members in both parties to adhere to the terms of the agreement. A Bargaining Model of Procedural Change Building on these insights, I offer here a new theory of procedural change to account for the factors surrounding a majority’s decision to go nuclear. Specifically, I develop a bargaining model of procedural change that explains the persistence of the filibuster and identifies the conditions in which a Senate majority will attempt to eliminate it. Notwithstanding the majoritarian nature of the Senate, otherwise willing majorities may be deterred from doing what they want by the institution’s inherited rules of procedure. Put differently, majority party power is contingent on minority behavior. This is because minorities may utilize the Senate’s existing rules to increase the costs of particular actions for the rank-and-file members in the majority. The effective utilization of such tactics links the majority’s efforts to change the rules with less palatable policy and procedural outcomes for individual senators in the majority party. This finding, in and of itself, is not new. Existing treatments have thoroughly captured the extent to which the filibuster limits the ability of Senate majorities to restrict the parliamentary rights of the minority. For example, Roberts and Smith (2007) argue that the lack of a previous question rule to end debate caused the Senate’s procedural development to differ significantly from the House. One consequence of this development is that the majority party is precluded from exercising power in the same way as its counterpart in the House. They conclude, “the inability of the Senate majority to impose rules changes that disadvantage the minority limits the degree to which even a cohesive majority can empower its leadership and centralize decision-making” (203). Yet such treatments fall short in that they do not fully explain how Senate minorities actually limit the majority’s ability to change the institution’s rules. This is because the filibuster is technically subject to change via the nuclear option. As a consequence, it cannot serve as the sole basis for the “stickiness” of the Senate’s inherited rules of procedure (e.g., Wawro and Schickler 2006). The bargaining model developed in this book fills this gap by highlighting the truly sticky features of the Senate’s institutional structure. These features empower a determined minority to use the filibuster, which Page 15 →itself is not sticky, to obstruct the majority without triggering the use of the nuclear option in response to preclude its ability to do so in the first place. Outline of the Book In this book, I explain why Senate majorities have not utilized the nuclear option to restrict the minority’s ability to obstruct more often. To that end, I identify specific tactics that Senate minorities may utilize to increase the costs of going nuclear for the majority. I do so in the context of the bargaining model of procedural change. This new theory provides a better explanation of the factors surrounding the majority’s decision to go nuclear in 2013.

Part I elaborates on the strategic context in which partisan conflict over procedural change occurs. Specifically, chapter 2 develops the bargaining theory by defining a series of a priori assumptions and then making predictions about majority and minority behavior based on them. A deductive approach emphasizes the ways in which interaction between the two parties is responsible for the nature and timing of key changes in the Senate’s rules. The theoretical underpinnings of the two existing explanations for procedural change in the Senate, majoritarianism and path dependency, are then briefly explored before juxtaposing them to the bargaining model. Majoritarianism is understood as a process in which an institution’s parliamentary procedures are determined by a simple-majority of its membership. In contrast, path dependence is understood as describing a process that is resistant to change because the costs of doing so are high compared to maintaining the status quo. In addition, the costs of changing course increase over time (Pierson 2000, 252). The shared emphasis each places on the Senate’s agenda and the desire of the majority party to achieve its goals in the institution is of particular importance because it underscores the centrality of costs in any explanation of procedural change in the Senate. These costs give minorities leverage to deter the majority. Chapter 3 provides the reader with a working knowledge of the Senate’s procedural architecture in order to facilitate a better understanding of how the bargaining theory explains partisan conflict over procedural change in practice. Familiarity with the component parts composing the Senate’s rules and the various ways in which they can be changed is needed given the importance of those rules to the following examination. I also review several early battles over the filibuster from the 1950s through the mid-1970s. In each instance, reformers tried, and ultimately Page 16 →failed, to demonstrate that a Senate majority could overcome minority obstruction by going nuclear. Such a review underscores the hurdles that a determined majority must clear in order to unilaterally change the Senate’s rules over the minority’s objections. It becomes clear when viewing past procedural change from this perspective that the retaliatory efforts of Senate minorities must be grounded in something other than the path dependent features of the institution’s rules if they want to successfully deter a determined majority from restricting their procedural rights. Part II tests the theoretical proposition that the majority’s ability to eliminate the filibuster is contingent on the minority’s behavior in response. It examines two recent cases in greater detail in order to determine if the causal relationships hypothesized in chapter 2 are present. Chapter 4 details the particular methodological approach employed in the book. Specifically, within-case analysis using process tracing and comparative methods is utilized to determine why a majority was successful in circumventing the Senate’s rules in one case and unsuccessful in the other. It is possible to make stronger inferences regarding the causal relationships observed in both cases by juxtaposing the episode from 2005 (chapter 5) in which Republicans tried, and failed, to eliminate the filibuster for judicial nominations to the 2013 episode (chapter 6) in which Democrats successfully utilized the nuclear option to eliminate the super-majoritarian vote threshold to end debate on some judicial and all executive branch nominations. Contrasting each case in this manner enables us to assess the relative effectiveness of different minority party responses to nuclear threats to change the Senate’s rules. After demonstrating that contested procedural change exhibits characteristics consistent with the bargaining model, part III considers how the model works in practice. Chapter 7 first reviews the increasing tendency of Senate majorities to utilize the institution’s existing rules and practices in unorthodox ways. They have done so in response to the greater frequency in which minorities obstruct their agenda for political and policy gain. Such obstruction takes the form of prolonging the time required to pass the majority’s agenda and increasing the number of unpopular political votes its members are forced to cast. As a consequence, the majority is more likely to use existing procedures to limit the minority’s ability to delay its agenda and offer amendments to legislation on the Senate floor. While there are numerous examples of such procedures that are available to the majority, it only utilizes a subset of them to pass its agenda. The determining factor in whether or not the majority will utilize a particular procedure to overcome minority obstruction appears to be the costs it would impose on its members. Page 17 →Chapter 8 uses a counterfactual comparison to test whether a different outcome was possible in 2013. To that end, it considers how Senate minorities can successfully deter a determined majority from going nuclear and identifies specific parliamentary tactics that they may utilize in order to deter such efforts to restrict their

procedural rights. These tactics are informed by the majority’s unorthodox use of existing parliamentary procedures documented in chapter 7. That is, they are designed to impose costs on the majority’s rank-andfile members by increasing the time it takes to pass their agenda and by making them cast tough political votes. These costs for the majority party and its members are then quantified. Costs are defined here as the time and effort required by the majority to consider its agenda on the Senate floor while limiting the alternatives proposed by the minority. Counterfactual analysis is employed to assess the likely significance of these costs. The costs associated with a particular tactic for the majority’s agenda are calculated in the specific context of recent congresses in order to determine whether those costs can be said to be prohibitive. In the absence of such prohibitive costs, it is unlikely that threatened minority retaliation will be sufficient to deter majorities from going nuclear. In short, a counterfactual approach makes possible an assessment of the role played by a minority’s response in precipitating or deterring the nuclear option by imagining its absence. This methodological approach is particularly useful here because counterfactuals enable us to test the competing claims raised above. Also considered in chapter 8 is whether the tactics utilized by Senate minorities to respond to the nuclear option are themselves resistant to additional restrictions by future majority action. Even if a minority’s response poses significant costs for the majority, it is unlikely to have much deterrent value if the procedural rights on which it depends are also susceptible to restriction via the nuclear option. Therefore, it is safe to assume that resistance to the nuclear option is a necessary condition that any threatened tactical response must meet in order to be effective. The book concludes by considering the implications of the bargaining model of procedural change for our understanding of the Senate, as well as the relationship between majority and minority parties in legislatures more generally. Specifically, it sharpens our understanding of the interplay between endogenous rules and member behavior. A greater understanding of how these constraints operate in practice enables us to reconcile the majoritarian and path dependent accounts of procedural change in theory. Identifying the underlying dynamics driving procedural change in the Senate also enables us to better recognize minority behavior that is more likely Page 18 →to push the majority to utilize the nuclear option and thus lead to periods of procedural instability in the institution more generally. Such insights suggest that minority cooperation to forestall the nuclear option may play a role in precipitating majoritarian actions in addition to the more conventional view of the role played by minority obstruction. The bargaining model also emphasizes the importance of communication between the majority and minority parties. Absent clear signals, the majority party may incorrectly interpret prior acquiescence on the part of members of the minority party to majoritarian threats as reflecting a deeper unwillingness to retaliate for going nuclear. This leads to confusion as to the level of resolve among the minority party and may lead to greater instability. Finally, the theory’s focus on the importance of leverage in bargaining highlights the extent to which the unique constitutional design of the Senate continues to shape the institution and its decision-making process today. Specifically, it demonstrates how the role of the vice president as the Senate’s presiding officer effectively precludes the institution from developing into a majoritarian body like the House of Representatives.

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Part I The Strategic Context of Procedural Change Everything in war is very simple, but the simplest thing is difficult. —Clausewitz (1984, 119)

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Two Parliamentary War in Theory The challenge before us is to find an explanation for contested procedural change in the Senate that accounts for both the persistence of the filibuster and those instances in which a majority acts unilaterally to limit or even eliminate the minority’s ability to obstruct. In short, we need to better understand why senators support some rules and practices at particular times over others. This requires identifying the procedural choices members have and linking them to specific outcomes. Finally, insight is needed into how senators evaluate those choices. This is not an easy task. Parliamentary war, like traditional war, is a complex and messy thing. The challenge arises because how we think about conflict is often the exact opposite. Clausewitz writes in On War (1984) that our first impression of battle is that “a few uncomplicated thoughts” account for the decisions made by the greatest generals. However, on closer inspection “we can see how many factors are involved and have to be weighed against each other; the vast, almost infinite distance there can be between a cause and its effect, and the countless ways in which these elements can be combined” (577). This gap between initial impressions of war and reality limits our ability to easily comprehend how the dynamic nature of parliamentary war shapes procedural conflict between its participants and leads to particular outcomes. Fortunately, good theory offers a way to overcome this challenge. According to Clausewitz (1984, 141), theory enables us to “analyze the constituent elements of war, to distinguish precisely what at first sight seems fused, to explain in full the properties of the means employed and to show Page 22 →their probable effects, to define clearly the nature of the ends in view, and to illuminate all phases of warfare.” Put simply, the deductive structure of theory imposes a mechanistic order on the multitudinous events that shape parliamentary war. Such order makes it easier to connect specific causes with particular outcomes. Unfortunately, existing theories of procedural change in the Senate are insufficient. They go too far in simplifying the complex nature of partisan conflict over procedural change. That is, they present two extremes for what in reality is more accurately depicted as a range of alternatives along the same continuum. Claims that minorities can successfully prevent the majority from changing the institution’s rules or that majorities can unilaterally eliminate the filibuster over the minority’s objections are unsatisfying because they overlook much of how the Senate actually works in practice. In short, they do not fully account for each step in parliamentary war as part of a larger process that ultimately links the cause of conflict with its outcome. Yet we should not be resigned to an interpretation of the history of procedural change in the Senate as “just one damned thing after another” simply because the existing theoretical work fails to account for the complexity of parliamentary war (Toynbee 1957). Instead, we need to develop (or borrow) an explanatory framework of conflict that incorporates the two extremes offered by the existing scholarship while also accounting for the range of outcomes in-between that are more likely to occur in reality. A good first step toward developing such a framework is to begin by examining the strategic context in which majorities and minorities battle over the Senate’s rules. Such an approach incorporates both the micro and macro levels of analysis. On one hand, procedural change can be thought of as the sum total of choices made by individual senators. As such, understanding how those choices are made and in what order is critically important. On the other hand, the larger institutional setting also influences those choices. The institutional design of the Senate thus impacts the choices individual members perceive in a conflict, influences how they interpret those choices, and defines the outcomes that they think will result from each decision they make.

Theory and Practice “Everything looks simple; the knowledge required does not look remarkable, the strategic options are so

obvious that by comparison the simplestPage 23 → problem of higher mathematics has an important scientific dignity” (Clausewitz 1984, 119). That is how Clausewitz describes war appearing to the casual observer. It is difficult, he argues, for such a person to truly understand war because it is not experienced directly. Parliamentary war is often similarly portrayed as a relatively straightforward affair. One common view is that external polarization in the electorate leads the two political parties to oppose each other internally in Congress (e.g., Theriault 2008). Specifically, more polarized constituencies send more polarized senators to Congress who, in turn, chose more polarized party leaders. These party leaders subsequently pursue a more polarized legislative agenda by exploiting Senate procedures for partisan gain. The practical effect of this polarization is that Senate decision-making is now more partisan and confrontational. This leads to obstruction and gridlock because the incentives for Senate minorities to block the majority’s agenda in a polarized environment are greater than those pushing the two parties to bargain and compromise (e.g., Binder 2003). As a consequence, the minority party avails itself of all of its procedural tools (especially the filibuster) in order to block the majority’s agenda. In response, the majority utilizes its procedural tools to restrict the minority’s ability to obstruct, including, in the extreme, its ability to unilaterally change the Senate’s rules using the nuclear option (e.g., Smith 2014). This pattern of obstruction begetting restriction, begetting more obstruction, begetting even more restriction, if unchecked, logically ends with the Senate resembling the House of Representatives and its majoritarian decision-making process. Or does it? This account of the Senate and the causes of its current dysfunction probably seems obvious. That is not a coincidence. In many ways, a reinforcing cycle of obstruction and restriction represents how scholars and journalists think about partisan conflict in the institution today. There is only one problem. This explanation does not fully explain how contested procedural change actually occurs in practice. Just as with Clausewitz’s casual observer, such an approach overlooks the complex nature of parliamentary war. Given this, we still lack an explanation for contested procedural change in the Senate. Despite important advances in our understanding of the interplay between institutional rules and member behavior, we are still unable to fully account for the persistence of some rules and practices in the institution. In short, we cannot fully explain the existence of the filibuster. Senate minorities utilize the tool with increasing frequency to block the majority’s agenda. Moreover, Senate majorities clearly have the ability Page 24 →to eliminate it by going nuclear. However, majorities have rarely considered using the nuclear option to overcome minority obstruction. This begs the question: why has the majority been so hesitant to utilize the nuclear option in recent years to change the rules permitting the filibuster? Alternatively, how do we explain instances like that which occurred in November 2013 when the majority chose to use the nuclear option to eliminate the filibuster for most presidential nominations? Unfortunately, existing treatments do not explain why Senate majorities have consistently tolerated supermajoritarian rules that empower the minority to filibuster their agenda. The fact that they have is counterintuitive because the Senate’s rules are ultimately majoritarian in nature; their prescriptive influence depends on the continued acquiescence of the majority party. Yet while technically possible, changing those rules via the nuclear option has rarely been utilized in the past, even in the face of minority obstruction. This raises an interesting question. As posited by Dion (1997, 13), If majorities are obstructed by minorities, and if those minorities are able to obstruct only because of procedural advantages secured by the rules, and if those rules are themselves determined by the majority, then why doesn’t the majority simply change the rules to eliminate the offensive minority rights? We do not fully understand why this has been the case, particularly given the level of polarization in our politics today. The popular and scholarly commentary on Congress offers three conflicting explanations, each of which is incomplete when taken separately. The first explanation is referred to here as majoritarianism. It suggests that it is unnecessary for the majority to change the Senate’s rules in order to overcome obstruction because those rules reflect majoritarian decisions.

Krehbiel (1991, 16) raises the consideration that “objects of legislative choice in both procedural and policy domains must be chosen by a majority of the legislature.” Put simply, a majority remotely determines procedural rules. The provisions of those rules, such as the super-majoritarian requirement to change them, are ultimately supported by a majority of the chamber. The “mutability” of Senate rules enables a committed majority to curtail minority rights in response to excessive obstruction (Wawro and Schickler 2006, 33). Senate majorities may overcome the super-majoritarian barriers in the rules simply by establishing a new rule Page 25 →by simple-majority vote. While minorities may filibuster such efforts, their appeals can be tabled by a simplemajority vote without debate.1 Proponents of this explanation assert that the mere threat of using the nuclear option to circumvent those rules has historically been sufficient to compel Senate minorities to limit their obstruction (e.g., Wawro and Schickler 2006). Anything short of minority acquiescence to the majority’s demands would result in the elimination of the procedural tools it uses to obstruct. The emphasis of the majoritarian approach is on the ability of determined majorities to unilaterally change the rules over the minority’s objections. It is important to note that proponents argue that the absence of such changes in the past is simply reflective of the absence of determined majorities and not indicative of such a majority’s inability to unilaterally change the Senate’s rules in the first place. Nevertheless, this approach does not account for those instances in which majoritarian threats are insufficient in compelling the minority to stop obstructing the majority’s agenda. In such situations, this approach is unable to explain why the majority chooses not to use the nuclear option as a last resort in order to overcome obstruction. An alternative explanation, referred to here as path dependency, suggests that changing the Senate’s rules is hard, at least when attempted over the minority’s objections. This is because institutional rules are path dependent (Aldrich 1994). The Senate’s inherited rules of procedure affect the legislative process by constraining the majority party in the pursuit of its goals and enhancing the ability of the minority to obstruct. In this way, procedural rules are “sticky” (Binder 1997, 6; Shepsle 1986). Binder (1997) argues that the Senate’s inherited rules interact with competition between the majority and minority parties to structure the legislative process in the institution. Senate decision-making is thus dependent on both the partisan need and capacity for change and past procedural decisions that serve to constrain individual member behavior. The principal manner in which the Senate’s rules limit majorities from one Congress to the next is that they require a super-majority vote to end debate on proposals that create new rules or change existing ones. As a result of these costs, the Senate’s rules have remained relatively stable over time. Procedural innovations are typically incorporated into the existing rules instead of replacing them entirely. Because of this, the development of Senate rules reflects a “path-dependent layering process” (Schickler 2001, 16). Viewed from this perspective, the institution’s rules are “historical composites” that continue to impact the legislative process in unintendedPage 26 → ways long after they are created (267). According to Smith and Binder (1997, 23), “the character of the Senate today represents the sum choices senators have made about institutional arrangements since the very first Senate met in 1789.” Proponents of this explanation argue that the anticipation of the minority’s response to the nuclear option restrains the behavior of Senate majorities (e.g., Binder, Madonna, and Smith 2007; Smith 2014). The threat of retaliation has historically been sufficient to deter individual members in the majority party from supporting the nuclear option because it would be more difficult to achieve their goals in a postnuclear Senate. The emphasis of this approach is on the ability of minorities to use the path dependent nature of the Senate’s rules to prevent even a determined majority from changing those rules in order to overcome obstruction. However, the path dependent approach cannot account for instances in which the Senate’s rules, as well as the minority’s threats to use those rules, were insufficient to deter the majority from successfully utilizing the nuclear option to overcome obstruction. A third, more general, explanation posits that a majority of the Senate has consistently believed it benefits from a set of rules that gives the minority an ability to obstruct the majority. In short, most senators view minority rights as beneficial to them, even when they are in the majority. While acknowledging the accuracy of this explanation

in theory, it is important to emphasize that in this book I seek to explain why it failed in practice to account for the successful utilization of the nuclear option in November 2013. In that sense, I am interested in understanding an instance in which a majority that believed it benefited from the existing rules did not exist. Costs and the Senate’s Agenda Both the path dependent and majoritarian models of procedural change emphasize the influence of Senate majorities and their agendas in determining the costs associated with changing the institution’s rules. This is an important point because the ability of Senate minorities to deter the majority from going nuclear hinges on their ability to increase the costs of doing so for individual senators. Binder (1997, 176) argues that there is a relationship between the “size and scope” of the Senate’s agenda and efforts by the majority party to limit the minority’s ability to filibuster and offer amendments. For Binder (1997, 2), “minority parties have historically lost parliamentary rightsВ .В .В . when members of the majority party believe rules changes are necessary Page 27 →to secure favored policy outcomes.” However, she qualifies this argument for the Senate. There, “change in Senate minority rights should be infrequent, adopted by bipartisan majorities, and packaged to both reinforce some minority rights while restricting others” (15). This is because minority rights, defined here as those granted by the Standing Rules of the Senate, are protected by the path dependent nature of those rules. Specifically, the super-majoritarian requirement to effectively change the rules limits the power of the majority party to restrict the rights of the minority. The important point here is that despite the weak control over the legislative process exerted by Senate majorities, they do attempt to change the rules when a rising workload is exacerbated by obstructive minority behavior because it becomes more difficult to enact their agenda. However, the costs associated with changing the rules forces the majority to negotiate with the minority over the substance of any changes. Yet notwithstanding the path dependent nature of the Senate’s rules, Binder (1997, 199–200) acknowledges that Senate majorities have a greater ability to determine the institution’s rules. Their ability to circumvent the Standing Rules by going nuclear “provides a potential means for Senate majorities seeking to mold floor practices in their favor” (199). In theory, this enables the majority to change the rules without negotiating with the minority. Wawro and Schickler (2006) also emphasize the importance of the Senate’s agenda in determining the particular balance of parliamentary rights in the institution at a given point in time. In short, the majority party will resort to the nuclear option to change the rules when the costs of doing so decrease relative to maintaining the status quo. For example, an increase in workload helped undermine the relational nature of the Senate’s decision-making process and led senators to adopt more rules-based procedures in an effort to deal with increased obstruction prior to the adoption of the cloture rule (28). The emphasis placed on the Senate’s agenda by both Binder (1997) and Wawro and Schickler (2006) is significant because it draws our attention to the influence of cost-benefit calculations in determining procedural change in the Senate. For Binder, an increase in workload drives Senate majorities to resort to rules changes in order to reduce the ability of Senate minorities to obstruct their agenda. Yet Senate minorities are able to negotiate a procedural change more favorable to them because of the leverage they derive from the super-majoritarian requirement to end debate in Rule XXII. On the other hand, Wawro and Schickler differ primarily in the extent to which Senate minorities may limit the ability of the majority to unilaterallyPage 28 → change the institution’s rules. It should be noted, however, that their approach does not entirely dismiss the relevance of the Senate’s inherited rules. For instance, they observe, “the sixty-vote threshold specified in Rule XXII does appear to generate true filibuster pivots” (2006, 275). Rather, Wawro and Schickler argue that the path dependent nature of those rules does not prevent, in and of itself, a committed majority from exerting more control over the legislative process. Put simply, Senate majorities are not limited per se by the institution’s rules.

While Wawro and Schickler (2006) argue the rules can be changed with a simple-majority vote, and that the majority’s threat to do so “may temper the extreme use of individual prerogatives” (275), they do acknowledge that changing the rules without minority cooperation is a costly endeavor. “It is important to remember that super-majority requirements are a remote majoritarian choice. A committed majority can change the rules if it wants to, but it has to be willing to bear the costs—both short term and long term—of doing so” (275).2 This perspective is not entirely different from the concept of path dependence as understood here. The primary difference concerns the emphasis placed on the majority by Wawro and Schickler (2006) and that placed on the minority in determining the costs, and thus the durability, of procedural stability as well as the nature of procedural change, when it does occur, in the Senate. Notwithstanding the shared emphasis on the relationship between costs and the Senate’s agenda in determining procedural change in the institution, it still remains to be seen precisely to what extent, and how, the minority influences the process; how it increases the costs of procedural change for the majority. Does the minority exercise some minimal influence over the nature and substance of procedural change in the Senate as Binder (1997); Binder, Madonna, and Smith (2007); and Smith (2014) suggest? Or do majorities dictate the nature and substance of those changes over the objections of minority party members as Wawro and Schickler (2006) suggest? The 2013 decision by Senate Democrats to employ the nuclear option seems to confirm the latter view. As Krasno and Robinson (2013) observe, “Whether one agrees with the decision to go nuclear, it made clear that the Senate minority’s power to, in effect, veto nominees or legislation depends on the majority’s willingness to allow them to do so.” This suggests that the minority’s ability to obstruct is conditional on the majority’s willingness to tolerate obstruction. The logical extension of this argument is that the legislative process, and the particular array of procedural rights in the Senate, reflects the preferences of the majority because anything less would not be tolerated by its members. Page 29 →Yet the argument that the minority’s ability to obstruct is conditional on the majority’s tolerance does not make intuitive sense to those who follow the Senate on a regular basis for two reasons. First, recent majorities have clearly been unhappy with the contemporary process. Moreover, parties are more cohesive today, making collective action to enact an agenda less costly. This has increased partisan conflict. Lee (2009, 3) observes, “Congressional parties hold together and battle with one another because of powerful competing political interests, not just because of members’ ideals or ideological preferences.” Put simply, unhappy members of the majority party are more likely to define their interests collectively due to the increased partisan polarization in the institution. So why then does the majority refrain from changing the Senate’s rules when doing so would seemingly be to its advantage? The minority has not always limited its obstructive behavior voluntarily, nor do majoritarian threats always forestall the next step of establishing a new precedent via the nuclear option, as the recent failure of Senate Democrats to use the nuclear threat to force minority concessions on nominations within the context of the existing rules clearly demonstrates. Do actions of Senate majorities reflect limits imposed on them by inherited rules of procedure? Or does the continued acquiescence to those rules by the majority suggest that the overall decision-making process reflects their preferences in the first place? As Binder, Madonna, and Smith (2007) put it, is it “the ability of a simple majority to vote to create new precedents” that has induced restraint on the part of Senate minorities? Or is it “the credibility of minority threats to retaliate against the majority party” that dissuades the majority from going nuclear (731)? It is my belief that the latter provides a more accurate explanation for the relative stability of Senate rules up to this point in the institution’s history. Specifically, “the threat of minority retaliation is sufficient to derail majority efforts to significantly curtail the filibuster” (Binder, Madonna, and Smith 2007, 732). Such retaliation increases “opportunity costs” for majority party members. In short, “the minority’s leverage under existing Senate rules and practices seems to counter the majority’s technical ability to go nuclear by reinterpreting existing chamber rules via new precedent” (734). Yet this observation does not address the question of why the majority does not simply change those provisions in the Senate’s rules to reduce the minority’s leverage to retaliate. Presumably, retaliatory behavior by Senate minorities would only further frustrate the majority, driving its members to resort to changing the institution’s rules with a simple-majority

vote again in the future. Understanding why majorities do not do Page 30 →so thus provides a richer understanding of contested procedural change in the Senate. It also helps explain the recent decision by the majority party to invoke the nuclear option and allows us to assess the consequences of such behavior for the Senate moving forward. In order to fully understand the dynamics governing contested procedural change in the Senate, or the lack thereof, it is important to first consider the broader strategic context in which the majority and minority parties battle over the institution’s rules. Identifying the ways in which the two parties interact with each other during periods of significant partisan conflict allows us to better explain past procedural change, account for the persistence of procedural tools like the filibuster, and make predictions as to when, and under what circumstances, such tools are likely to be restricted or eliminated in the future.

Parliamentary War in Context While they differ on the extent to which each believes Senate majorities are limited by the institution’s inherited rules of procedure, the majoritarian and path dependent models are implicitly based on a common assumption regarding the causes of destabilizing conflict over procedural change. Proponents of both approaches explicitly or implicitly view resolving such conflict as fundamentally inseparable from ending, or at least significantly reducing, minority obstruction. In short, dysfunction, gridlock, and the cycle of obstruction and restriction to which they lead will continue to plague the Senate so long as polarization persists because the ideological distance between the two parties is what presumably drives the minority to obstruct in the first place. Reducing such polarization is dependent on changes in exogenous factors that result in the election of less polarized candidates and alter the incentives for incumbent senators. Given such changes, Senate majorities will no longer need to utilize restrictive procedures to pass their agenda because the minority will not obstruct their proposals to the extent it does now. In short, changing the environment fixes the Senate by reducing polarization and obstruction. By extension, the Senate will remain broken in the absence of such external change. For example, Smith (2014) concludes “that it is unrealistic to expect the parties to call a truce unless they are forced to do so by internal factions. There is no neutral outcome for polarized parties” (356). However, he argues that it is unrealistic to expect internal factions to call for a truce absent changes in the Senate’s larger environment (357). Yet this is not Page 31 →considered likely given the current trends in our politics. As a consequence, Smith argues that it is unlikely that the filibuster can coexist with cohesive majorities determined to enact their agenda. The combination of polarization and the Senate’s permissive internal procedural environment means that obstruction must inevitably yield to restriction. Similarly, Wawro and Schickler (2006) observe that Senate majorities have historically refrained from using the nuclear option to eliminate the filibuster only because doing so conflicts with the personal power goals of individual senators. However, they argue that this reluctance will decline in the face of the “continuing trend of sharp party polarization” (275). Absent a reversal in this trend, a majority determined to enact its agenda will emerge at some point and will utilize the nuclear option to change the rules in the face of polarization-fueled obstruction. Both of these assessments of the Senate’s predicament take for granted the assumption that it is unable to manage conflict in a highly polarized environment without a strong majority that is willing to utilize the nuclear option to limit the minority’s ability to obstruct. Recent developments, including the successful use of the nuclear option in 2013, seem to confirm this assumption. Yet a closer look at the procedural record reveals that Senate majorities have not always been successful in changing the rules over the minority’s objections. Reconciling these two contrasting observations is dependent on recognizing the broader strategic context in which partisan conflict over procedural change occurs. It is the interaction between the majority and minority parties within this context that determines the way in which parliamentary war unfolds and accounts for the nature and timing of contested procedural change. Recognizing this strategic context requires a better understanding of war. There are two kinds of war: absolute and

limited. Parliamentary wars can be categorized in the same way. The concept of absolute parliamentary war is consistent with the majoritarian and path dependent models in that it suggests that changes in exogenous forces that significantly reduce polarization among the Senate’s members are the only way that the institution’s current dysfunction can be ameliorated. Absent this, obstruction will continue and the majority will have no choice but to utilize the nuclear option to unilaterally change the rules permitting such obstruction in the first place. It is important to stress that such an approach views conflict as something that needs to be eliminated. In contrast, the bargaining model of procedural change assumes that parliamentary war is limited. As a consequence, it views partisan conflict over the Senate’s rules as a given and instead focuses on how to manage it. Page 32 → Absolute War The aim of absolute war is to impose one’s will on one’s adversary. Doing so requires rendering an opponent powerless to resist. As a consequence, the conflict continues until one side is completely defeated. The totality inherent in such outcomes causes the stakes to take on a life of their own and the conflict escalates rapidly. Clausewitz (1984, 77) captures this dynamic, observing that “each sideВ .В .В . compels its opponent to follow suit; a reciprocal action is started which must lead, in theory, to extremes.” Smith (2014) describes a similar dynamic in the Senate as a “condition of a mutually reinforcing set of symptoms”; it is “a partisan process that involves a succession of moves and countermoves—a parliamentary arms race—that creates new strategic premises for the contending parties and their leaders” (40). Implicit in both of these descriptions is the assumption that war represents a form of conflict resolution that is separate and distinct from the bargaining process between adversarial parties. In short, bargaining ends when war begins, and war ends when one party is able to impose its will on the other. When viewed from this perspective, it becomes clear that absolute war has only one possible outcome in the Senate: majority victory. The ability of Senate majorities to utilize the nuclear option to unilaterally change the institution’s rules over the minority’s objections suggests that there is nothing the minority can do to stop a determined majority from rendering it powerless to obstruct. As a consequence, the minority is left with a Hobson’s choice. All it can do when confronted by a determined majority is to comply with its demands and cease obstructing its agenda or persist and lose the ability to obstruct in the first place. If a majority can eliminate procedural tools like the filibuster, it can effectively render the minority incapable of further resistance. The only remaining question is whether or not minority obstruction has risen to the level at which it triggers the majority’s use of the nuclear option. According to an absolute view of parliamentary war, it is inevitable that the majority will use the nuclear option to eliminate the filibuster when obstruction reaches this point. Adopting this perspective makes it easier to understand why existing models emphasize exogenous solutions to the Senate’s dysfunction. The only way to effectively avoid majoritarian restriction is to prevent minority obstruction from reaching the point at which the utilization of the nuclear option becomes inevitable. The implication is that absent such externally induced change, the polarization endemic in the contemporary Senate will Page 33 →inexorably lead the majority to eliminate the filibuster (as well as any other procedural tools that the minority uses to obstruct). Disagreements over procedural rules increase the likelihood that the majority party will try to change, or otherwise circumvent, those rules. This is because the minority’s ability to obstruct its agenda is rooted in those rules. The majority’s attempts to change or circumvent the rules are interpreted as a response to the increased likelihood that the minority party will seek to obstruct, or block, its agenda. For example, Smith (2014, 3) argues that the repeated combination of “minority-motivated obstruction and majority-imposed restrictions” in recent years has given rise to a new pattern of behavior that he calls the Senate Syndrome. Smith claims that the majority and minority leaderships pursue strategies that perpetuate this syndrome at the behest of their ideologically cohesive members. This perspective suggests a causal, unidirectional connection between minority obstruction and majority restriction. In short, obstruction begets restriction.

Wawro and Schickler (2006, 25) adopt a similar approach with their argument that “legislative obstruction is a tool of minorities.” By a “minority,” they mean any coalition of legislators that “opposes passage of a bill, resolution, or amendment, but would be defeated if that measure were subject to an up-or-down vote.” Wawro and Schickler argue that the Senate’s permissive procedural environment that enables minority obstruction in the first place is itself a remote majoritarian choice (33). They contend that excessive minority obstruction will cause the majority to change the rules of the legislative game by establishing new precedents through rulings of the Senate’s presiding officer. Exercising these tools of majority party power precipitates minority party action. For example, Koger (2010) examines the ways in which Senate minorities utilize procedure to obstruct the majority when the latter exercises its agenda-setting powers to limit the minority’s ability to participate in the decision-making process. Specifically, he defines obstruction as “legislative behavior (or a threat of such behavior) intended to delay a collective decision for strategic gain” (16). The legislative process is characterized as a contest between two teams that represent a majority and minority of the Senate. According to this construct, obstruction results from a “united minority party blocking majority party proposals for some sort of political gain as well as policy payoff” (7). Koger argues that Senate majorities are not powerless in the face of minority obstruction. They may avail themselves of several procedural tactics,Page 34 → including: unanimous consent agreements, cloture, and attrition. In the event that these tactics are not successful in overcoming obstruction, the majority may resort to the nuclear option to change, or circumvent, the Senate’s rules by creating a new precedent that restricts the rights of the minority party. In that sense, persistent obstruction of the majority’s agenda ultimately increases the likelihood that the majority will eventually utilize the nuclear option to overcome that opposition. It is important to note here that existing game-theoretic approaches recognize the limited nature of partisan conflict over procedural change. For example, Wawro and Schickler (2006) argue that a majority has to be willing to bear the costs associated with using the nuclear option in order to successfully eliminate the minority’s ability to obstruct. I nevertheless categorize their majoritarian model as reflecting an absolute view of parliamentary war because it is premised on the assumption that the ability of Senate minorities to impose costs on the majority is itself susceptible to restriction by a determined majority. There is no reason to expect that the cycle of polarization, obstruction, and restriction will have a different effect on the majority’s willingness to use the nuclear option to limit the minority’s ability to make changing the rules costlier if they are already willing to use the unorthodox maneuver to eliminate the filibuster in the first place. As a consequence, there is effectively nothing beyond the personal power goals of individual senators for Wawro and Schickler that ultimately prevents the majority from going nuclear. And it is reasonable to assume that a point will be reached when the benefits members derive from the individual power they enjoy under the Senate’s rules will be outweighed by the costs imposed on them by rampant obstruction. While an absolute approach to explaining parliamentary war appears elegant and persuasive at first, things are much more complicated in reality. The reason for this is why absolute war rarely occurs in the real world. According to Clausewitz (1984, 79), “As soon as preparations for a war begin, the world of reality takes over from the world of abstract thought; material calculations take the place of hypothetical extremes and, if for no other reason, the interaction of the two sides tends to fall short of maximum effort.” The concept of friction is why conflict falls short of the maximum effort. Friction makes waging war difficult. These difficulties impose costs on the rank-and-file members of both parties. Those costs accumulate and, in the process, create the space where bargaining can occur. And the bargaining process is what prevents parliamentary wars from turning into absolute wars. Page 35 → Limited War An absolutist perspective of parliamentary war places undue emphasis on the extremes of procedural

development. As a consequence, it misses important aspects of the relationship between the two parties in the Senate. In contrast, analyzing parliamentary war from the perspective of limited war more accurately captures the complexities inherent in this relationship and helps explain both the nature and timing of contested procedural change in the institution. An important distinction between absolute and limited war is on the use of force to destroy an opposing party (absolute war) and the threat of force to coerce, or deter, that party (limited war). A party’s ability to fight must be destroyed in an absolute war before the conflict can end. If a party retains an ability to inflict harm, there is every reason to expect that ever-greater polarization will continue to yield more and more obstruction, which will eventually lead to the formation of a Senate majority determined to use the nuclear option to completely eliminate the minority’s ability to obstruct. In contrast, destroying a party’s ability to fight is unnecessary in a limited war. Conflict can instead be resolved without completely disarming one side. In short, “not every war need be fought until one side collapses” (Clausewitz 1984, 91). Acknowledging this dynamic draws our focus to the various strategic moves taken by both the majority and minority parties to increase the likelihood that conflict is resolved on their terms. These moves are the tactical manifestation of the bargaining process unfolding. How the conflict is ultimately resolved, and whether or not a party wins or loses, depends on how well each side plays the game. Conflict in a limited war is resolved in one of two ways. First, a party may cease fighting when it believes that victory is improbable. Second, and related, a party may cease fighting when the costs of achieving victory are perceived as unacceptable. The political object of war determines the sacrifices that a party is willing to make to achieve victory. It is the standard against which its members evaluate every action. Conflict ceases when the expenditure of effort required for victory exceeds the value of the political objective. Given this, parliamentary war can lead to eventual agreement because the conflict itself reveals important information about the capabilities of each party and their willingness to fight. Yet the likelihood of victory and the costs associated with prevailing are not determined in isolation. They depend in large part on the other party’s behavior. Costs in this context are determined by a party’s expectation of how the other party will behave during the conflict. As a consequence, Page 36 →the parties try to manipulate each other’s expectations in order to increase the likelihood of victory and lower their costs. The majority and minority parties develop strategies designed to persuade each other that victory is unlikely or that the costs of achieving it will be prohibitive. Friction exacerbates the difficulties inherent in war and drives up its costs. Thus, a party’s efforts to win a parliamentary war, to resolve procedural conflict on its terms, are appropriately assessed in terms of their ability to increase the friction experienced by the other party’s members. For Clausewitz (1984, 92), this is best accomplished by “operations that have direct political repercussions, that are designed in the first place to disrupt the opposing alliance, or to paralyze it, that gain [it] new allies, favorably affect the political scene.” In sum, tactics that increase the suffering of a party’s membership, that exhaust its members physically and mentally, can impact its estimate of the costs of victory. Using tactics that increase the friction experienced by the other party works because the majority and minority parties are comprised of individual senators. These members represent latent sources of friction experienced by the party collectively. In that way, they may hinder the larger effort of the party to wage parliamentary war. Their individual will to fight is determined by the institutional and political environment. As a consequence, both parties try to manipulate the larger environment in such a way as to reduce the willingness of their opponent’s rankand-file membership to fight. As noted, Wawro and Schickler (2006) also view partisan conflict over the Senate’s rules in the strategic context of limited war. That is, they view filibusters historically as wars of attrition in which the majority and minority parties assess each other’s willingness to fight and act accordingly. Yet in another sense, they implicitly adopt a more absolute way of thinking about parliamentary war after the creation of the cloture rule and the rise in costless obstruction. For them, the implication of costless obstruction is that the personal power goals of

individual senators in the majority party are the only thing underpinning the Senate’s super-majoritarian rules. That is, members of the majority party are hesitant to use the nuclear option to eliminate the minority’s ability to obstruct because they derive power from the rules, even though they are used to obstruct the agenda of the majority party collectively. Yet Wawro and Schickler note that there is nothing inherent in the supermajoritarian nature of the Senate that makes it permanent. Rather, they argue, “If existing institutions are producing outcomes on highly salient issues that are unsatisfactory to a majority of the Senate, the rules themselves Page 37 →are subject to change” (275). In sum, the stickiness of institutional rules, per se, does not prevent the majority from acting. When this point is reached, as it inevitably must absent changes in the Senate’s external environment that reduce polarization, procedural conflict between the majority and minority parties will exhibit the characteristics associated with absolute war. As such, their analysis suggests that the limited nature of parliamentary war in the Senate is bounded. Once a minority refuses to cease its obstructive behavior and a majority determined to overcome that obstruction emerges, partisan conflict becomes absolute. In contrast, my approach here suggests that parliamentary war in the Senate does not have to reach this point and that avoiding absolute war is not dependent on reducing polarization through changes in the Senate’s external environment. Instead, endogenous features of the Senate may serve to keep conflict in check. Senate minorities have important procedural tools with which to retaliate against majoritarian efforts to limit their ability to obstruct. Most importantly, these tools are not subject to restriction or elimination by the nuclear option. The result is that both Senate majorities and minorities have important sources of leverage to make waging parliamentary war costlier for each other. Clearly recognizing the leverage possessed by the two parties should induce a certain degree of caution on both sides, as well as a desire to negotiate with one another in order to resolve conflict short of nuclear war.

Coercive Diplomacy Recognizing the limits inherent in parliamentary war is an important first step in explaining procedural change. But we nevertheless lack a sufficient understanding of how exactly partisan conflict plays out. In the Senate, such conflict over the rules and practices that structure the decision-making process, and thus help determine policy outcomes, represents a bargaining process between the two parties. This process reflects what Schelling (1960, 5) terms bargaining situations, “in which the ability of one participant to gain his ends is dependent to an important degree on the choices or decisions that the other participant will make.” Yet it is not clear why one party in such situations would agree to disadvantageous terms that end conflict when they still have procedural tools with which to continue the fight. Intuitively, it makes sense that one side concedes when it expects that its opponent will not and it has made the calculation that the costs of Page 38 →continuing the fight are perceived to outweigh the benefits of victory. But how are such expectations formed? The ways in which the two parties attempt to manipulate each other’s expectations of how they will behave in parliamentary war is analogous to the concept of coercive diplomacy in international relations. Coercive diplomacy in this context is simply concerned with persuading members of an opposing party that it is in their interest to adopt certain behavior, or refrain from specific actions, and that failure to do so will result in retaliation that will subject them to even greater costs. Such coercion relies on the ability to compel behavior or deter action. In the Senate, coercion is the driving force behind contested procedural change. It relies on making threats to be effective. Both parties engage in coercive diplomacy in an effort to overcome the opposition. Senate majorities do so in one of two ways. First, they can destroy the minority’s ability to obstruct. For example, a majority can use the nuclear option to eliminate the filibuster. Yet the majority is not powerless to overcome obstruction if it is unable to destroy the minority’s ability to obstruct, or if its members are otherwise unwilling to bear the costs associated with using the nuclear option to unilaterally change the rules. It can also make coercive threats in an effort to compel Senate minorities to refrain from obstructing its agenda. Similarly, there are two ways Senate minorities can defend their ability to obstruct. First, they can use the institution’s rules to frustrate the majority’s efforts to eliminate their ability to obstruct. For example, a smaller minority than that required to block legislative proposals on an up-or-down vote can filibuster proposals to change the rules (34 instead of 41

senators). Yet Senate majorities are technically able to overcome such filibusters by going nuclear. Nevertheless, minorities are not powerless to resist such efforts. They too can make coercive threats in an attempt to deter the majority from using the nuclear option. In both cases, the majority and minority parties use the tools of parliamentary procedure at their disposal to compel or deter, respectively, each other’s behavior. In this way, the twin threats of obstruction and restriction can be used separately and independently to coerce an opposing party. Neither party wants to engage in parliamentary war. Their members would rather secure their preferred outcomes without conflict. Since avoiding conflict altogether is not always an option in the context of polarized parties, the majority and minority parties are left with no choice but to engage in coercive diplomacy to persuade each other’s members that the costs of the conflict will fall disproportionately on them. They do so with Page 39 →the hope that coercive threats will increase the friction experienced by the opposing party. According to Clausewitz, If the enemy is to be coerced you must put him in a situation that is even more unpleasant than the sacrifice you call on him to make. The hardships of that situation must not of course be merely transient—at least not in appearance. Otherwise the enemy would not give in but would wait for things to improve. Any change that might be brought about by continuing hostilities must thenВ .В .В . be of a kind to bring the enemy still greater disadvantages (1984, 77). Coercive threats can be used to either compel specified behavior or deter anticipated action. Typically, the minority threatens to obstruct in order to deter the majority. In contrast, the majority threatens to restrict the minority’s ability to obstruct in order to compel it to drop its opposition. However, this is not always the case. Majorities can use coercive threats to deter anticipated minority party actions and minorities can use them in an effort to compel specified behavior on the part of the majority. Both are similar in that they are designed to influence the behavior of the other party while avoiding overt conflict. They also differ in important respects. A party using coercive threats in order to compel action must be willing to make the first move; it must take the initiative. Additionally, the threatened action must be administered until the opposing party adopts the behavior it wishes to compel. This means that the costs of the threatened action must be tolerable to the rank-and-file members of the party making the threat. The coercive threat is successful when the party whose behavior is to be compelled believes that the costs of the threat for members of the party making it do not exceed the benefits they hope to gain. In contrast, a party utilizing coercive threats in order to deter behavior has to only make the threat and wait. In the process, it cedes the first move to the other party. The strategic goal of a deterrent threat is to successfully persuade the other party to refrain from an anticipated action. It shifts the initiative to them in a way that simultaneously limits their choices. To successfully deter an opponent requires persuading them that the costs of the anticipated action to be deterred exceed the benefits that the party hopes to gain. A deterrent threat does not necessarily have to be tolerable to the rank-and-file members of the party making the threat. Rather, the most important consideration when assessing the threat’s value is the degree to which the threatened party believes that the threat will be carried out. This underscores the importance of credibility in parliamentary war. Page 40 → The Problem of Credible Commitment Not all threats have the same coercive value. Coercive threats must be credible in order to have value. That is, the party making the threat must be committed to carrying it out and the threatened party must be persuaded by this commitment. As such, a coercive threat must be credible if it is going to successfully compel or deter the opposing party. While the costs of such threats for the party making them undermines that credibility to a certain extent, they are largely irrelevant just so long as the threatened party believes that the threat will be carried out regardless of those costs. The most successful threats are those that are never carried out. The party making such threats

achieves its preferred outcome while avoiding the costs imposed by war. How does a party credibly commit to carrying out a threat in the future when it will have failed to serve its original purpose to compel or deter behavior on the part of the opposing party? Senate majorities may commit to change the rules if minority obstruction continues. Similarly, Senate minorities may commit to obstructing other things beyond the issue in question if the majority actually changes the rules to eliminate the minority’s ability to obstruct. Yet neither will be effective if the opposing party does not expect the threat to be carried out. A clear commitment is needed to force the other party to act in a desirable way. Making such a commitment is a strategic move that limits the opposing party’s choices. Absent a credible commitment, the opposing party will not take the threat seriously. The problem of credible commitment can be solved in one of two ways: procedural or reputational. First, a party can commit to carrying out the threat in such a way that leaves it no choice but to follow through in the future. A threat lacks coercive value if the other party believes that the party making the threat retains the choice to not follow through in the future. In such a situation, the party making the threat will not be expected to follow through because the targeted action will have already occurred and the costs to the party of carrying out the threat are high. The commitment must also be unambiguous and involve specified retaliatory actions in order to be persuasive. Second, a party may establish a precedent of credible commitment with its past behavior. In short, a party’s past actions may cultivate a reputation for following through on its threats. This signals a determination to carry out future threats and thus makes the party’s commitment more credible. The reputational basis of credible commitments underscores the ways in which coercive threats, or the lack thereof, are related to each Page 41 →other in parliamentary war. A party’s reputation is determined by its past behavior. This suggests that how future conflicts are resolved depends, in part, on how past conflicts were resolved. The resolution of conflict in the past influences how each party expects the other to behave in the future. For example, backing down in a parliamentary standoff in the past (e.g., not following through on a threat) undermines that party’s ability to make coercive threats in the future. It makes them less credible. As a consequence, backing down from past threats (or not making them in the first place) makes it more difficult to persuade an opposing party that it should take the threat seriously. Put differently, repeatedly backing down from coercive threats in response to aggressive behavior establishes a pattern that may lead the opposing party to expect such behavior to continue in future conflicts. This, in turn, encourages that party to continue its aggressive behavior, which places even greater emphasis on credibly committing to carrying out coercive threats in the future, and so on. In this context, precedents are important because what has happened in the past reinforces expectations of what will happen in the future, and these impressions can be difficult to dislodge. This suggests that we should pay particularly close attention to how procedural conflicts are resolved. Backing down can be viewed as a concession by the other party, regardless of whether or not it is warranted. This highlights what Schelling (1966, 58) refers to as the “California principle.” That is, protecting California from Soviet aggression during the Cold War was important because the failure to defend it would call into question the willingness of the United States to protect other states like Alaska, Oregon, and Washington. In short, failure to respond to Soviet aggression in one instance would significantly alter Soviet expectations about how the United States would respond in other instances. As a consequence, this makes Soviet aggression in those other instances more likely. While extreme, Schelling’s “California principle” underscores the fact that much is conceded when a party makes concessions to resolve conflict or otherwise fails to respond to aggression in the expected way. The impact of concessions on expectations suggests that it is difficult for a party to extricate itself from a commitment without undermining its position vis-Г -vis the opposing party. A party’s goal in the bargaining process is to end the conflict in a way that does not encourage the other party to reevaluate its expectations of how that party will behave in similar situations in the future. As such, it is important that when a party is not able to carry out its threat that it be able to explain any behavior that may otherwise be interpreted as backing down. Successfully backing down from Page 42 →a threatened action requires an excuse, or what Schelling (1960, 34) calls a “rationalized reinterpretation of the original commitment.”

Both parties try to undermine each other’s commitments. Each routinely tests the seriousness of their opponent’s threats. In essence, they are essentially probing the opposing party’s commitments to determine what behavior will lead that party to follow through on its threat. If this exploratory behavior is not resisted, a new precedent is established regarding what kind of behavior both parties can expect to be considered permissible in the future. If the process continues unchallenged, the aggressor will gradually undermine the other party’s commitment, thereby negating any coercive power it may have originally possessed. Similarly, a party may reasonably expect to deter aggression even after the anticipated act has occurred. For example, the majority party may reevaluate the costs and benefits of using the nuclear option if it encounters significant post hoc resistance that it did not originally expect or if the retaliation was costlier than originally calculated. Carrying out retaliatory threats in this context can represent a form of “graduated deterrence” (Schelling 1966, 78) that leads the majority to reverse its behavior, or to at least refrain from using the nuclear option in the future to further restrict the minority’s ability to obstruct. As this makes clear, it is still important to carry out the threat, even after the action to be deterred has already occurred. Failure to do so will negatively impact the majority’s expectation of how the minority will behave in similar circumstances in the future. Finally, there are several additional things that a party may do in order to strengthen its commitment to carry out a threat in the future. First, it can base its stand on a deeply held principle. Such principle-based stands are more difficult to abandon. It will also be easier to maintain support for the threatened action in the face of friction among individual senators, the party’s base constituency, broader public opinion, and in the media to the extent that the threatened action is consistent with deeply held values of the party. In addition, publicly committing to follow through on a threat makes it visible and may reinforce expectations that it will be carried out. Failing to do so could have electoral consequences for the party making the threat. A party can also bluff. That is, it can try to persuade the opposing party that the costs of carrying out the threat are insignificant relative to the costs of the action to be deterred. Finally, a party’s leadership can delegate, informally or formally, responsibility for carrying out the threat to a subset of its members. This is a particularly effective way to make the commitment credible if the agent to which retaliation is delegated has an incentive Page 43 →to act or otherwise benefits from carrying out the threat. For example, the party’s base constituency may reward liberal Democrats or conservative Republicans for retaliating against the other party. Communication Communication is critical for coercive diplomacy to work. To be successful, a coercive threat must be clearly communicated to the other party. Communication represents the process by which that threat and its corresponding commitment is authenticated. Without communication, it is difficult for the two parties to update their assessments of each other’s willingness to fight. Absent communication, there is no bargaining. Absent bargaining, there is no resolution of conflict in a limited parliamentary war. “In bargaining, the commitment is a device to leave the last clear chance to decide the outcome with the other party, in a manner that he fully appreciates” (Schelling 1960, 37).3 Coercive threats are meaningless if a party is unaware that it is being threatened or if it misinterprets the nature of the threat. Its behavior will not be coerced if it has no idea that the other party feels strongly that its behavior should be compelled or deterred in the first place. While this may seem obvious, the fog of parliamentary war creates an environment where direct communication between each side is virtually nonexistent and the commitments they make are routinely misinterpreted. Clausewitz (1984) describes the consequences of poor communication and imperfect knowledge for a military’s ability to form realistic expectations about the conduct of war in a chaotic and rapidly changing environment. “Many intelligence reports in war are contradictory; even more are false, and most are uncertainВ .В .В . [commanders] should be guided by the laws of probability. These are difficult enough to apply when plans are drafted in an office, far from the sphere of action; the task becomes infinitely harder in the thick of fighting itself, with reports streaming in” (117). The likelihood of miscalculation is inversely related to the level of communication between the two parties. It

increases when meaningful contact between the two sides decreases. For Clausewitz, “This difficulty of accurate recognition constitutes one of the most serious sources of friction in war, by making things appear entirely different from what one had expected” (1984, 117). As such, we should expect a decline in communication to lead to a breakdown in the bargaining process and an increase in the likelihood that Senate majorities will utilize the nuclear option to unilaterally change the rules in order to eliminate the filibuster. Page 44 →

The Bargaining Model of Procedural Change Now that we have situated partisan conflict over procedural change in its larger strategic context, we can develop a theory that accounts for the range of outcomes that may occur in reality beyond the two simple extremes acknowledged thus far. Taken separately, the existing models of path dependency and majoritarianism fail to explain why Senate majorities tolerate the filibuster, even though it is routinely used to block their agenda, while simultaneously accounting for the ability of Senate Democrats to successfully utilize the nuclear option to eliminate the filibuster for most nominations in 2013. As a consequence, neither offers a complete understanding of partisan conflict over procedural change. While conceding that Senate rules reflect remote majoritarian choices on a fundamental level (e.g., Wawro and Schickler 2006), such a theoretical approach reveals little about the impact they have on Senate decision-making in practice. Similarly, the path dependent nature of the Senate’s inherited rules of procedure may constrain the goal-driven behavior of members acting individually or collectively. Yet such an observation does not explain precisely how such rules are able to persist in a majoritarian institution when they routinely prevent determined majorities from enacting their agenda. Given these limitations, a more nuanced approach is needed to explain how path dependent procedures that empower Senate minorities persist in a majoritarian institution during an era of polarized parties. Incorporating the concept of path dependence into a majoritarian framework thus offers a richer explanation for what drives procedural choice in the Senate today. In that sense, the bargaining model of procedural change presented here is consistent with these models. Indeed, its assumptions are based on existing scholarship of how the Senate operates and what governs its decisionmaking process. The bargaining model builds on these approaches by accounting for instances of contested procedural change (or lack thereof) that cannot be fully explained by them. As a consequence, the bargaining model better explains why Senate majorities continue to tolerate the filibuster when doing so means giving minority parties a powerful weapon with which to defeat, or otherwise slow, their agenda. Moreover, it yields a more satisfying understanding of the Senate’s procedural development precisely because it is able to account for the timing and direction of key changes in the institution’s most important procedural features, such as the decision by the Democratic majority to use the nuclear option to eliminate the filibuster for most nominations in 2013. The principal features of the Page 45 →path dependent, majoritarian, and bargaining models of procedural change are outlined and compared in table 2.1 below. The Strategic Context of Bargaining The bargaining model emphasizes the extent to which majority power is contingent on minority behavior. Senate minorities may successfully deter the majority from exercising its power to circumvent the institution’s rules through the use of the nuclear option. A credible threat to retaliate made by the minority party in response to such maneuvers effectively links the majority’s efforts to go nuclear with suboptimal outcomes for individual senators in the majority party. The expectation of increased costs is sufficient to deter majority party senators from supporting the nuclear option to the extent that the minority’s retaliatory threats persuade them that it would be more difficult to achieve their individual goals in a postnuclear Senate. Viewed from this perspective, repeated cooperation in the face of majoritarian threats to circumvent the super-majoritarian constraints in the Senate’s rules paradoxically reinforces such behavior and makes it more Page 46 →likely that Senate majorities will threaten to go nuclear in the future in order to overcome minority obstruction. In contrast, retaliatory threats that are clearly articulated and credible reduce the likelihood that the majority will go nuclear when confronted with minority obstruction.

Table 2.1:. Explanations of Procedural Change Model of Basis of Persistence of Procedural Parliamentary Parliamentary Costs to change Parliamentary Rules Change Rules Rules • Quasipermanent Path dependent

• Inherited

• Inherited Majoritarian • Reflects decision of the majority

• Inherited and conditional • Reflects past outcomes Bargaining of bargaining process between majority and minority

• Dependent on minority • Prohibitive absent minority cooperation willingness to resist procedural change • Quasipermanent under certain conditions • Dependent on majority’s willingness to bear costs • Dependent on majority willingness to achieve goals • Quasipermanent under certain conditions • Dependent • Dependent on majority and minority expectations of costs and on relative benefits of procedural change levels of majority and minority determination to achieve goals

The causal relationship linking minority behavior with majority power is brought into sharper relief when viewed in the strategic context of Senate decision-making. This context has certain observable effects on the interactions between the two parties in parliamentary war (see table 2.2). The bargaining model departs from the path dependent and majoritarian models of procedural change in that it is able to account for each step in the mechanistic process that ultimately links a specific cause (i.e., minority obstruction or cooperation) with a particular outcome (i.e., use or nonuse of the nuclear option). The causal explanation linking each step in the process is explicitly stated in terms of two parties, and their rank-and-file membership, engaged in specific behavior. The Democratic and Republican parties are engaged in a parliamentary war. Partisanship drives procedural choice in the contemporary Senate. The struggle between majority and minority parties over the Senate’s rules in parliamentary war determines the direction and extent of procedural change in the institution today (Binder 1997; Gailmard and Jenkins 2007; Roberts and Smith 2007; Koger 2010; Den Hartog and Monroe 2011; Taylor 2012; Smith 2014). This assumption is based on the common understanding that increasingly polarized parties structure the decision-making process in the contemporary Congress and influence the behavior of their members. As a consequence, conflict between the two parties determines both the nature and timing of procedural

change. This understanding of the role played by partisanship in driving procedural change in the Senate is comparatively new. Party effects have historically been viewed as being generally weaker there than the House. As a consequence, the literature on congressional parties has largely neglected the Senate and focused instead on developments in the lower chamber until Page 47 →recently (e.g., Gailmard and Jenkins 2007). Several differences between the two institutions serve to weaken party effects in the Senate. Specifically, the majority’s inability to easily alter formal procedures in its favor, the diverse nature of constituencies that encompass entire states, and the considerable power of individual members to participate in the legislative process each serve to dilute the degree of party control in the Senate vis-Г -vis the House. As a result, the majority party in the Senate does not exert the same control over the legislative process as its counterpart does in the House. Table 2.2. Strategic Context of Procedural Change ASSUMPTION OBSERVABLE EFFECT The Democratic and Republican parties are engaged in a parliamentary Conflict determines the nature and timing of contested procedural change war Partisan conflict over procedural Costs limit escalation of conflict for both sides change is limited Political parties practice coercive Both sides attempt to persuade each other to modify their behavior diplomacy to achieve their goals

Nevertheless, it would be a mistake to then infer that majority parties are weak or powerless in the Senate. As in the House, partisanship, as well as the ideological cohesiveness of the two parties, has increased in the Senate over the last two decades. Monroe, Roberts, and Rohde (2008, 1) cite the “naked-eye partisanship of the contemporary Senate” as one of several reasons to study party effects in the institution. Similarly, Green (2010, 137) observes that “at least in terms of voting behavior, senators are increasingly likely to stand with their party colleagues, and against the opposite party, than they were in the past. The Senate, in other words, has not been immune to partisanship.” Pearson (2008, 104) demonstrates that “party loyalty in policy voting has increased in both chambers.” The assumption that partisanship is the primary influence driving procedural choice in the Senate is supported by existing research on the role played by political parties in congressional organization. For example, Smith (2007) observes broadly, “congressional parties affect policy choices by influencing the behavior of legislators” (2). Theories of congressional parties typically view the Democratic and Republican parties as “teams” or “cartels” (Rohde 1991; Cox and McCubbins 1993 and 2005; Binder 1997 and 2003; Theriault 2008; Lee 2009). These partisan teams “pursue certain objectives or goals held in common by their members” (Smith 2007, 3). The potential for procedural change increases when the partisan goals of the majority and minority are in conflict. Lee (2009) differentiates between the more familiar ideological sources of partisan conflict and its other sources. She agrees that ideology serves as a major source of conflict in Congress. Yet she also argues that the two parties oppose each other even when they are not divided ideologically. This “reflexive partisanship” has important implications for the Senate’s rules because it serves to broaden the ideological conflict characteristic of the polarized environment to incorporate new areas as a result of efforts by the two political parties to gain or maintain power. As a consequence, Lee argues that the parliamentary rules governing the legislative process are often characterized by significant conflict between the two parties. AccordingPage 48 → to Lee, “the majority party attempts to monopolize the agenda for its message, while the minority party contests the majority’s control and tries to change the subject to its advantage.” More importantly, “minority party members continually try to force the majority to take positions on difficult or controversial issues” (11). Such jockeying on the part of the two parties over parliamentary procedures that structure the legislative process

reflects the fact that they are engaged in parliamentary war. Polarization increases the influence of party effects on procedural choice in the Senate. For example, Poole and Rosenthal’s (2000) DW-NOMINATE model demonstrates that partisan polarization in Congress has increased in recent years. DW-NOMINATE is a spatial model that explains individual recorded votes over the course of congressional history. By ordering senators along a left-right continuum, the model captures how senators’ votes relate to one another. DW-NOMINATE scores reflect how frequently conservative senators and liberal senators vote with one another in a given Congress. Today, senators’ DW-NOMINATE scores are increasingly situated in one of two clusters located closer to the ideological extremes of the left-right continuum than the middle. Taylor (2012) connects the broader polarization documented by DW-NOMINATE to procedural change. He argues that partisan influence on procedural choice rises as interparty polarization increases. This is exacerbated, according to Taylor, by an increasing workload and lower membership turnover. The result is that stronger majority parties more frequently attempt to change the Senate’s rules in order to advantage their agenda in the face of minority obstruction. Taylor also stipulates that such polarization is a prerequisite for procedural preferences to fall along party lines. He observes, “Members’ policy and procedural preferences were fused together by party” (Taylor 2012, 181). Put simply, members support procedures that make it more likely that their preferred policy outcomes will prevail. As the parties grow more cohesive, they too seek procedures collectively that advantage their group’s preferred policy outcome. In sum, the potential for significant procedural conflict increases as the two political parties and their contrasting electoral and policy goals take the place of one hundred individual senators in pursuit of different goals. Unlike the gains from trade bargaining environment that characterized the Senate in previous decades, legislative struggles over policy between highly cohesive parties are characterized by significant conflict over what kind of procedures ought to govern the legislative process. Evans and Oleszek (2000) describe procedural disagreements in such a polarized Senate as significant. They claim, “when issues touch on the message agenda of one or Page 49 →both parties, it becomes extremely difficult to devise an acceptable procedure for floor action, with gridlock a likely result” (100). Viewed from this perspective, the Senate will invariably experience gridlock as the national issue agenda becomes more contentious and the parties polarize around conservative and liberal poles. Partisan conflict over procedural change is limited. The common impression is that such gridlock makes it more likely that a Senate majority will go nuclear in order to overcome the minority’s ability to block its agenda. Yet partisanship and polarization do not lead to a recurring cycle of obstruction and restriction and the inevitable elimination of the minority’s ability to obstruct because parliamentary war negatively impacts both parties. In short, the majority and minority parties possess important procedural tools with which they can impose costs on each other. This fact creates the space where bargaining occurs. The ability to obstruct, at least as we think about it today, is rooted in the Standing Rules of the Senate. Specifically, the ability to filibuster is granted by Rule XXII. Rule XXII requires the support of two-thirds of all senators present and voting to end debate on a proposal to change the Standing Rules. This effectively precludes the majority party from altering the text of those rules over the objections of the minority party. Yet despite these super-majoritarian hurdles, Senate majorities have always had the ability to determine the institution’s rules. Majority parties may overcome the super-majoritarian barriers erected by Rule XXII by establishing a new precedent by simple-majority vote. While minorities may filibuster such efforts, their appeals can be tabled without debate, also by a simple-majority vote (e.g., Gold and Gupta 2004; Wawro and Schickler 2006; Koger and Compos 2014). As a consequence, the majority has the technical means to overcome minority obstruction so long as it is willing to do so. It is thus logical to assume that polarized majorities will find it less costly to pursue collective action to change those rules. This suggests that we should observe more frequent majoritarian attempts to change the rules in the current polarized environment so long as minority obstruction remains consistent with current trends and that these attempts should be successful.

Notwithstanding the majority’s ability and desire to change the rules, the path dependent nature of those rules may increase the cost it must bear in order to utilize the nuclear option to circumvent them over the minority’s objection. It is important to note that I understand such costs to be relative, not absolute. That is to say, they are dependent on the minority’s willingness to retaliate and the importance of the majority’s agenda against which the minority may retaliate to rank-and-file senators in the majority Page 50 →party. As such, it is not automatic that the path dependent nature of the Senate’s rules will make it more difficult, if not impossible, for determined majorities to change or circumvent those rules. Rather, the Senate’s inherited rules of procedure may circumscribe the majority’s ability to secure procedural change favorable to it if used properly and under the right conditions by a determined minority. My approach here differs from previous treatments that have generally agreed with this claim in two primary ways. First, the bargaining model of procedural change is not dependent on a unified minority party opposing a majority determined to restrict its procedural prerogatives. Indeed, the model does not assume that the minority party will stay unified and committed. Rather, a small minority of the minority party (and the Senate) may use the Senate’s inherited rules of procedure to impose significant costs on the majority in retaliation for going nuclear without fear that those rules will also be restricted. Second, and related, previous treatments (e.g., Binder 1997; Smith 2014) focus almost exclusively on Rule XXII and the cloture process when explaining how the Senate’s inherited rules of procedure constrain majorities. Yet in so doing, they fail to demonstrate precisely how the path dependent nature of those rules ultimately circumscribes the ability of Senate majorities to change the institution’s rules in the first place. It is true that provisions of Rule XXII requiring a three-fifths super-majority to end debate on nominations and legislation and a two-thirds super-majority to end debate on proposals to change the Standing Rules empower the minority and constrain the majority. Yet Rule XXII itself is subject to alteration by a simple-majority. Thus, the supermajoritarian provisions of Rule XXII are themselves insufficient to prevent the utilization of the nuclear option. In short, Rule XXII itself cannot constrain a determined majority to the extent that it may be changed or circumvented by the nuclear option. In contrast, I argue here that the Constitution, along with the relative importance of the majority’s agenda in a particular Congress, gives Senate minorities the necessary leverage with which to protect the procedural prerogatives granted to them by the institution’s rules and practices. In this sense, the majoritarian nature of the Senate can be constrained by the endogeneity of its rules. However, this constraint only operates to the extent that Senate minorities are willing to utilize constitutional provisions to defend the super-majoritarian provisions of the Standing Rules in the face of additional nuclear efforts to restrict their rights. Admittedly, Wawro and Schickler (2006) observe that constitutional provisions requiring super-majority thresholds for particular categories Page 51 →of Senate business (i.e., treaty ratification and impeachment convictions) constrain Senate majorities when considering specific types of executive business (i.e., treaties and impeachment proceedings). However, they do not argue that other provisions of the Constitution, or the Senate’s rules for that matter, grant the minority an ability to constrain the majority during the consideration of other types of executive and legislative business (i.e., nominations and legislation). Instead, they simply observe that the “endogeneity of rules” needs to be examined “in more depth” (275–76). In the following chapters, I take up their suggestion in order to demonstrate that there are other areas beyond the constitutionally specified super-majoritarian thresholds for treaty ratification and impeachment conviction where it is possible in practice (not just principle) for rules benefiting the minority to be resistant to change by a floor majority. Specifically, these are the provisions in Article I, section 3, clause 4 designating the vice president as the presiding officer of the Senate and Article I, section 5, clause 3 stipulating that any member may call for a recorded vote with a sufficient second. To the extent that these constitutional provisions make the retaliatory tactics discussed in the following chapters resistant to restriction via the nuclear option, and to the extent these tactics impose costs on members of the majority party, then the threat to use them allows a committed minority to effectively prevent an otherwise willing majority from changing, or circumventing, the rules via the nuclear option. As a consequence, these constitutional provisions may be thought of as the foundational backstop, so to speak, that necessarily qualifies the majoritarian nature of the Senate. They represent the truly sticky features of

the Senate’s institutional structure that empower a determined minority to defend its procedural rights from nuclear attack. Political parties practice coercive diplomacy to achieve their goals. The limited nature of parliamentary war drives the Democratic and Republican parties to practice the art of coercive diplomacy to achieve their goals in the Senate. Outcomes in the institution are determined by the interaction of the two parties and conflict imposes costs on both sides. Additionally, it is not clear that the majority or minority party could completely destroy the other’s ability to obstruct or restrict, respectively, even if it was willing to do so. As a consequence, both parties attempt to resolve conflict short of overt war in a way that advantages their preferred outcomes by persuading each other not to obstruct (or restrict). This effort constitutes a continuation of the bargaining process. A party will settle for terms less advantageous when it believes the likelihood of victory is improbable and its costs prohibitive. A party’s calculation of the Page 52 →likelihood and cost of victory is determined by how it expects the other party to behave. To that end, the parties will engage in coercive diplomacy to condition the expectations of the opposing party’s members for how they will behave in the conflict. Coercive threats are employed to influence the opposing party’s expectations. The majority will use coercive threats to go nuclear in order to compel the minority to stop obstructing particular items on its agenda. In response (or in anticipation), the minority will make coercive threats to obstruct even more of the majority’s agenda in an effort to deter the majority from going nuclear in the first place. The effectiveness of the threat depends on the credibility of each party’s commitment to carry it out and the extent to which that threat is clearly communicated. If coercive diplomacy works, there is no nuclear option. If it fails, the majority utilizes the nuclear option to unilaterally change the Senate’s rules. Thus, the breakdown in the diplomatic process between the two parties serves as the proximate cause of nuclear war when it occurs. The proper functioning of coercive diplomacy explains why the filibuster has persisted in the Senate and its breakdown explains why the majority successfully went nuclear to eliminate the filibuster for most nominations in 2013. Claims and Predictions Three predictions about the outcomes of parliamentary war can be derived from these assumptions. They are based on the observable dynamics of partisan conflict over procedural change (see table. 2.3).4 It is the interplay between these claims that fully accounts for the nature and timing of contested procedural change in the Senate today. Specifically, they yield predictions for when Senate majorities are more likely to go nuclear in Page 53 →order to restrict minority rights. They also point to the various ways Senate minorities may prevent, or successfully deter, the majority party from pursuing such changes over their objections in the first place. By drawing our focus to the dynamic relationship between majorities and minorities, we can better understand how, when, and why nuclear action to overcome minority obstruction will be attempted and whether or not such attempts will be successful. This suggests that the Senate’s current dysfunction may be managed in a way that does not rely on exogenous forces imposing change in the form of a less polarized membership. That is, barring any change in the Senate’s exogenous environment, endogenous forces may also reduce gridlock and dysfunction. Table 2.3. Predictions of the Bargaining Model PREDICTION

CLAIM The effectiveness of a coercive A credible minority threat will deter the majority from utilizing the nuclear option threat is dependent on the credibility

of a party’s commitment to carry it out The credibility of future commitments is either Minority cooperation in response to nuclear threats makes it more likely that the majority will reinforced or make similar threats in the future undermined by a party’s past behavior The effectiveness of a coercive threat is A lack of communication between the two parties makes it more likely that the majority will go dependent on nuclear communication between the two parties First, the effectiveness of a coercive threat is dependent on the credibility of the party’s commitment to carry it out. The effectiveness of a coercive threat depends on the extent to which the threatened party believes the commitment to carry it out is credible. The majority will be successful in its effort to compel the minority to stop obstructing its agenda if the latter firmly expects the former to follow through and utilize the nuclear option to unilaterally change the rules. More important for our purposes here, the minority party will be successful in its effort to deter the majority from using the nuclear option if the former can credibly commit to retaliate against the latter for doing so. The majority’s expectation of massive retaliation tempers the willingness of rank-and-file members to use the nuclear option because the perceived costs of doing so exceed the expected benefits they hope to gain. The probability that the majority will be deterred from going nuclear is increased if the minority’s threatened retaliation is specific, grounded in a principled position, and consistent with its past behavior. The majority’s threat to use the nuclear option to compel the minority to stop obstructing its agenda is irrelevant if rank-and-file members of the minority have no reason to expect the majority to carry out its threat to end their ability to obstruct by unilaterally changing the rules. In contrast, a credible threat to go nuclear will compel the minority to end its filibuster without actually having to eliminate its ability to obstruct in the first place. Similarly, a minority using coercive threats to deter the majority from using the nuclear option must make a credible commitment that it will carry the threat out even after the majority goes nuclear and that doing so will be costly for the majority. Second, the credibility of future commitments is either reinforced or undermined by the party’s past behavior. Minority cooperation in response to majoritarian threats makes it more likely that the majority will unilaterally change the rules in the future. The minority repeatedly backing down Page 54 →from threats to obstruct in the past will lead the majority to alter its expectations of the minority’s willingness to fight. This increases the likelihood that the majority will make similar threats more often in the future. In those showdowns, the majority will doubt the minority’s resolve to retaliate. Put differently, it will expect the minority to comply with its demands and modify its behavior accordingly, regardless of its threatened retaliation, simply because it has done so in the past. The negative impact of past concessions on future commitments is somewhat mitigated by the minority’s ability to rationalize its decision to comply with the majority’s demands. While the corrosive consequences of past behavior cannot be completely reversed with a rationalized excuse, it can limit the otherwise steady erosion of the minority’s ability to deter the majority in the future.

Finally, the effectiveness of a coercive threat is dependent on communication between the two parties. A breakdown in communication makes the nuclear option more likely. The majority is more likely to follow through on its threat to unilaterally change the rules if it is unsuccessful in compelling the minority to comply with its demands. The majority’s threat is unpersuasive if the minority does not know that it has been threatened or if it lacks sufficient information with which to evaluate the majority’s commitment to carry out the threat. As a consequence, the minority will discount the likelihood that the nuclear option will ultimately be used and will instead continue to obstruct the majority’s agenda. Additionally, the probability that the nuclear option will be utilized to eliminate the filibuster increases if the minority does not clearly and repeatedly communicate its threat to the majority. That is, deterrence will not occur if the minority does not signal to the majority what actions it wants to deter and the retaliatory steps it will take if they continue. This chapter explored why the nuclear option has rarely been utilized to change the Senate’s rules over the objections of the minority party. It defined a causal relationship between minority behavior and the majority’s use of the nuclear option. In contrast to previous treatments that have focused primarily on the determinative role played by the majority party, I argued here that procedural change in the Senate is contingent on the nature of the minority’s response, or threatened response, to the majority when it tries to change the rules by going nuclear. As a consequence, the key to avoiding prolonged periods of instability associated with the repeated use of the nuclear option by majority parties determined to enact their agenda lies with the minority. Consistent with this, I offered an alternativePage 55 → explanation for why the majority decided to go nuclear in 2013 in order to eliminate the filibuster for most nominations. Specifically, I outlined a new bargaining model of procedural change. The bargaining model draws our focus to the conditions necessary for contested procedural change to occur. First, the two political parties must be polarized. Polarized parties disagree with one another on both policy and procedural questions. Procedural conflict is much less important, or even likely for that matter, in the absence of policy disagreements between the majority and minority parties. Second, minority obstruction of the majority’s agenda must be high. The majority party will attempt to overcome this obstruction by restricting the procedural choices of the minority. The majority party is forced to utilize the nuclear option to overcome minority obstruction because the Senate’s inherited rules of procedure preclude it from changing the rules over the objections of the minority party by more conventional means. Lastly, the majority party must be determined to enact its agenda. The bargaining model also predicts when attempts at procedural change will be successful and when they will fail. Successful majoritarian attempts to change the rules occur when the majority party utilizes the nuclear option to overcome minority obstruction and the minority is unwilling to retaliate. Such attempts fail when the majority threatens to go nuclear and the minority’s threats to retaliate persuade a sufficient number of senators in the majority party not to support the nuclear option. As a consequence, the majority’s decision to utilize the nuclear option to change or circumvent the rules is conditional on the nature of the minority’s response. We now need to determine if the theoretical expectations of the bargaining model accurately capture the dynamics surrounding the majority’s efforts to limit the minority’s ability to obstruct in practice. This is dependent on a thorough understanding of the rules and practices governing the Senate’s deliberations on a daily basis.

Page 56 →

Three The Procedural Architecture of Senate Decision-Making Explaining how partisan conflict over procedural change plays out in practice is dependent on a more general understanding of how the Senate governs its proceedings on a daily basis. The procedural architecture of Senate decision-making necessarily influences the way in which conflict between the two parties unfolds in parliamentary war. As such, we must first develop a working knowledge of the Senate’s rules and practices before we can fully account for contested procedural change in the institution. To that end, I provide here a brief introductory overview of the component parts composing those rules and discuss the various ways in which they can be changed. I then review early battles over limiting the filibuster in the 1950s through the mid-1970s. In each instance, reformers tried, and ultimately failed, to demonstrate that a Senate majority could overcome minority obstruction by unilaterally changing Rule XXII. Such a review demonstrates the hurdles that a determined majority must clear in order to change the Senate’s rules over the minority’s objections. It also underscores the fact that Senate minorities must ultimately base their retaliatory efforts on something other than the path dependent features of the institution’s rules if they want to successfully deter determined majorities from going nuclear. Overview of Senate Rules and Practices The overall structure of Senate procedure is derived from five primary sources: the Constitution; the Standing Rules of the Senate; standing Page 57 →orders; statutory rules passed by Congress; and informal precedents. It is the interaction of each of these component parts that forms the procedural architecture within which the decisionmaking process unfolds in the Senate on a daily basis. Constitutional Basis

The Constitution contains relatively few provisions regarding the internal operation of the Senate. For example, the Senate Composition Clause sets membership qualifications, term lengths, and gives each state two senators who vote per capita.1 Article I, section 3, clauses 4 and 5 designate the vice president as the president of the Senate (i.e., the presiding officer or chair) and authorize the Senate to choose a president pro tempore to serve as its presiding officer in the vice president’s absence.2 Additionally, the Presentment Clause establishes a process for considering presidential veto messages.3 Of these constitutional provisions, the Rules of Proceedings Clause is the most important because it gives the Senate plenary power over its rules of procedure. The clause explicitly stipulates: “Each House [of Congress] may determine the Rules of its Proceedings.”4 With this authority, the Senate establishes both the informal and formal parliamentary rules that govern its proceedings. The Supreme Court ruled in 1892 that, absent a clear constitutional provision stipulating otherwise, the House of Representatives and the Senate are free to make any rules they choose pursuant to their plenary power to determine their own internal rules of procedure under the Rules of Proceedings Clause. Writing for the Court in United States v. Ballin, Justice David Brewer acknowledged that while “the Constitution empowers each house to determine its rules of proceedings,” the House and Senate could not by their rules “ignore constitutional restraints or violate fundamental rights.”5 Other than that, the Court held that the power to make rules is exercised by a majority of each chamber and cannot be limited by rule other than as provided for in the Constitution. Justice Brewer observed, The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.6

According to the Court’s decision, the only requirement to change the rules that is stipulated in the Constitution is “the presence of a majority.”7 As a Page 58 →consequence, a simple-majority of senators is constitutionally empowered to change the Senate’s rules whenever it chooses to do so. But the ability of a simple-majority to change the rules does not necessarily imply that it has been historically acceptable to do so with a bare minimum of senators. Indeed, the Standing Rules of the Senate have long included a provision requiring a three-fifths majority to end a filibuster and an even greater two-thirds majority to end debate on a proposal to change those rules. While there has been some erosion in support for these requirements in recent decades, they continue to hold normative value to this day. This is reflected in the fact that senators from both parties who have advocated the nuclear option have consistently tried to legitimize their efforts by portraying them as being consistent with the Senate’s Standing Rules. Standing Rules

There are currently forty-four Standing Rules of the Senate that govern everything from noncontroversial issues like the oath of office (Rule III) and the committee referral process (Rule XXVII) to controversial issues such as the process to end debate (Rule XXII). For the most part, the Senate’s Standing Rules are very general and do not address circumstances that may arise in specific parliamentary situations. The Standing Rules total only seventy pages in length. These rules remain in effect from one Congress to the next according to the concept that the Senate is a continuing body. Rule V stipulates, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”8 To that end, Senate Rule XXII requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the SenateВ .В .В . except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.В .В .В .”9 It is thus difficult to change the Senate’s rules because the threshold to invoke cloture on proposals to do so (two-thirds, typically sixty-seven) is higher than that required to end debate on other measures (three-fifths, typically sixty). The super-majoritarian requirements to end debate in Rule XXII are generally viewed today as making minority obstruction possible.10 Absent the unanimous agreement of all one hundred senators, a three-fifths vote is effectively required to schedule an up-or-down vote on most questions. In addition to establishing a supermajority vote threshold to end debate, invoking cloture is a time-consuming process. For most debatable measures,Page 59 → the cloture process requires four calendar days to complete. This gives individual senators the ability to singlehandedly delay the consideration of the majority’s agenda on the Senate floor simply by withholding their consent to expedite the decision-making process. Standing Orders

Senate procedures may also be created by standing orders, which have the same effect as the Standing Rules discussed above. There are two kinds of standing orders. Permanent standing orders are created by a simple resolution and remain in effect until repealed by the Senate unless otherwise noted in the text of the order itself.11 A super-majority vote is effectively required to pass a permanent standing order because the resolution can be filibustered. Examples of permanent standing orders include the oft-ignored requirement that senators vote from their desks during recorded votes instead of while milling about on the floor, authorization of gavel-to-gavel coverage of the Senate’s proceedings on radio and television, and the special process granting expedited consideration of certain nominations subject to advice and consent on the Senate floor. The permanent select committees on ethics and intelligence were created by permanent standing orders. Standing orders are also utilized on a more routine basis whenever the Senate enters into unanimous consent agreements. Such orders remain in effect for the period of time specified and are listed in the Congressional Record on the day they are adopted. The Senate adopts several routine standing orders by unanimous consent at

the beginning of each Congress that remain in effect for the duration of that Congress. An example of a temporary, or routine, standing order is the provision for “leader time” on each day that is under the control of the majority and minority leaders for the discussion of routine legislative business. Such standing orders are also utilized to structure decision-making on the Senate floor. These agreements are typically used to set the dates and times at which future votes will occur, schedule floor speeches, and stipulate how much overall time can be used to debate a bill. They may also limit the amendments that can be offered to legislation. Statutory Rules

Senate procedures may also be established pursuant to statutory rules created by bills passed by Congress and signed into law by the president. A Page 60 →super-majority vote is effectively required to create statutory rules because the legislation creating them may be filibustered. A well-known example of a statutory rule is the Congressional Budget and Impoundment Control Act of 1974 (Public Law 93–344). The Congressional Budget Act, as it is known, created many of the procedures that govern the consideration of budget-related legislation in Congress today. The impact of this rule-making statute on the decision-making process can be observed in the periodic consideration of budget resolutions, annual appropriations bills, and reconciliation legislation in the Senate. With regard to the latter, the Omnibus Budget Reconciliation Act of 1990 (Public Law 101–508) made permanent the prohibition on including extraneous provisions in reconciliation bills. The so-called Byrd Rule is enforced by points of order that can only be waived with a super-majority vote. Similarly, the Budget Enforcement Act (BEA; Public Law 101–508) and the Budget Control Act (Public Law 112–25) established annual limits on discretionary spending. The BEA and the Statutory Pay-As-You-Go-Act of 2010 (PAYGO; Public Law 111–139) placed limits on mandatory spending and revenue legislation through a PAYGO mechanism by which any increase in mandatory spending or decrease in revenues would be automatically offset. Both the spending caps and PAYGO provisions are enforced by points of order that require a super-majority to waive as well as an annual sequestration procedure. Congress has also periodically passed legislation to expedite the consideration of trade agreements. For example, the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (Public Law 114–26) reauthorized Trade Promotion Authority (TPA). TPA established special fast-track procedures in the Senate (and House) by which Congress considers trade agreements submitted by the president. Amendments are precluded and debate time is limited. Such provisions make it difficult for a minority to obstruct trade measures in the Senate. Precedents

Finally, and most significantly for our purposes here, the Senate operates on a daily basis largely according to informal rules established pursuant to a collection of precedents. According to the late Senator Robert C. Byrd (DWest Virginia), “Precedents reflect the application of the Constitution, statutes, the Senate rules, and common sense reasoning to specific past parliamentary situations” (Byrd 1991, 52). Former Senate parliamentarian Floyd M. Riddick argued that precedents embody the practices of the Page 61 →Senate pursuant to the Constitution, its Standing Rules, and any relevant rule-making statutes. These practices serve to “fill in the gaps” contained in these procedural authorities when they fail to address specific parliamentary situations (Riddick 1978; Lawrence 2013). In this sense, the impact of precedents on Senate procedures is similar to that of judicial decisions in case law. Both have the force of formal laws and are thus binding in the same way on future action. For example, the definition of germaneness utilized by the Senate today when considering amendments is largely a creature of precedent. Rule XXII makes only a passing reference to the question of germaneness. It stipulates: “No dilatory motion, or dilatory amendment, or amendment not germane shall be in order” during postcloture consideration of legislation.12 However, the rule itself does not provide a definition of germaneness. Rather, the very next sentence states that the presiding officer shall decide “questions of relevancy” without

debate and that the full Senate will determine whether or not the amendment is germane on appeal of the chair’s initial ruling. Both the effect of the chair’s rulings and any subsequent appeals create precedents that flesh out and define this germaneness standard. Between 1965 and 1986, the Senate adjudicated 213 questions of order. During this period, 159 (74.6 percent) involved determinations as to whether particular amendments were in order for floor consideration. Of these, 15.5 percent determined the germaneness of amendments proposed postcloture or under unanimous consent agreements requiring that all amendments be germane (Bach 1989, 14–15). It is the cumulative outcome of these adjudicated questions of order that provides the definition of germaneness used in the Senate today. Similarly, the Senate majority leader has the right of first recognition pursuant to precedent.13 This precedential right serves as the foundation on which the power of centralized party leadership is based in the contemporary Senate. Since any member can technically make a motion to consider legislation or a nomination under the Senate’s rules, being the first to do so enables the majority leader to set the schedule and control the agenda to a limited degree. Priority of recognition also allows the leader to block votes on undesirable amendments. The ability to be recognized first before other members enables the majority leader to “fill the amendment tree,” or offer the maximum allowable number of amendments to legislation, and file cloture on a bill before other senators have a chance to debate the measure and offer amendments. The amendment process itself is governed by “general principles” (RiddickPage 62 → and Frumin 1992, 25). As with the Senate’s germaneness standard, these principles have been established by precedent and not by the Senate’s Standing Rules. Put simply, the amendment process (and its restraints) followed in the institution today evolved over the years and is based on a continued interpretation of past parliamentary practice. Those precedents stipulate the nature of amendment that may be offered at a particular point in time (i.e., first or second degree; perfecting or substitute). According to precedent, “Any senator recognized is entitled to offer an amendment when such amendment is otherwise in order, but he cannot offer an amendment unless he has been recognized or has the floor” (Riddick and Frumin 1992, 45). The process of filling the amendment tree thus follows precedent to block members from offering their own amendments. Precedents can be created by one of three methods in the Senate. First, they can be established pursuant to rulings of the presiding officer, or chair, on points of order against violations of the Senate’s rules, as in the germaneness example discussed above. These rules are not self-enforcing and violations that do not elicit points of order do not necessarily create new precedents. Another example of establishing a precedent pursuant to a ruling of the presiding officer was the highly anticipated parliamentary maneuver that was never utilized in 2005 when Senate Republicans contemplated utilizing this method to change the institution’s Standing Rules to end the minority’s ability to filibuster judicial nominations. In this particular example, a senator would make a point of order that any further debate on a judicial nomination is dilatory and move that a final vote should be taken on the underlying question (i.e., whether or not the nominee should be confirmed). Despite the fact that such a point of order is explicitly not supported by the Standing Rules, specifically Rule XXII, the presiding officer would sustain it and a simple majority of the Senate would then vote to table any appeal of the chair’s ruling. Such action would have effectively established a new precedent that debate on a judicial nomination can be brought to a close by a simple-majority vote. The second method by which a precedent can be created is pursuant to a vote of the full Senate on an appeal of the presiding officer’s ruling on a point of order. Senate Democrats successfully utilized this method when they reduced the threshold for invoking cloture on all nominations, other than for the Supreme Court, from three-fifths of senators duly chosen and sworn to a “majority-vote,” thereby eliminating the super-majority filibuster for most nominations. Employing the nuclear option in this manner violated Rule XXII’s requirement that a motion to invoke cloture, or end Page 63 →debate, on any “measure, motion, or other matter pending before the Senate” requires an affirmative vote of “three-fifths of the senators duly chosen and sworn.”14 Senate Democrats simply ignored Rule XXII by exempting “all nominations other than for the Supreme Court” from the super-majority requirements to end debate under cloture without following the procedures established by the rule. As a result, the nuclear option created a new precedent that is inconsistent with Rule

XXII’s requirement for an “affirmative vote of two-thirds of the senators present and voting” to end debate on a proposal to change the Senate’s Standing Rules. Rule XXII has not been changed. It still requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to end debate on executive and judicial nominations. In short, the rules were not technically amended. Rather, they were simply ignored. Another example of creating a new precedent via this method was the disposition of an amendment in the 104th Congress offered by Senator Kay Bailey Hutchison (R-Texas) to the Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995 (Public Law 104–6), which established a precedent that superseded both the ruling of the chair and Rule XVI of the Standing Rules of the Senate. Specifically, the Hutchison amendment sought to change federal law regarding endangered species. Senator Harry Reid (D-Nevada) raised a point of order that the amendment violated Rule XVI, which the presiding officer subsequently sustained. Senator Hutchison then appealed this ruling to the full Senate, which overturned the presiding officer by a vote of fifty-seven to forty-two. The Hutchison amendment was subsequently adopted by voice vote. This action created a new precedent that legislating on an appropriations bill is allowed under the Senate’s rules, despite the fact that the decision of the chair was technically correct and the Hutchison amendment was in direct violation of Rule XVI. At the time, members voted largely on the substance of the underlying amendment and not based on whether or not the measure violated Rule XVI. That the members did not fully appreciate the unintended consequences of establishing a new rule in this manner is evidenced by the vote to reverse this precedent in the 106th Congress.15 Yet another example was the “FedEx precedent” established during the 104th Congress. During consideration of the Conference Report for the Federal Aviation Reauthorization Act of 1996 (Public Law 104–264), Majority Leader Trent Lott (R-Mississippi) raised a point of order that the conference committee created to resolve differences between the House Page 64 →and Senate versions of the legislation exceeded the scope of conference by including provisions relating to Federal Express. Doing so violated Rule XXVIII of the Standing Rules of the Senate. The chair subsequently sustained the point of order. In response, Majority Leader Lott appealed the ruling and the Senate overruled the chair by a vote of fifty-six to thirty nine.16 As a consequence, the FedEx precedent superseded the provisions of Rule XXVIII prohibiting extraneous matter from being included in conference reports. This had the effect of significantly increasing the power of conferees to include provisions in conference reports that were not in the original House- or Senate-passed measures.17 In the two previous examples, the precedents established did not address a parliamentary situation in which the rules were silent. Instead, they specifically circumvented those rules. This point has significant implications for the 2013 precedent, which has not yet been reversed by a subsequent majority. Rather than acquiescing to a new rules regime, future majorities will continue to break the current Standing Rules of the Senate every time they choose to follow the precedent established by the nuclear option instead of the existing process required by Rule XXII for invoking cloture on nominations. For example, whenever the presiding officer determines that cloture was invoked by a simple-majority, the Senate essentially decides whether or not it would like to continue to ignore the Standing Rules based on the preference of a simple-majority. Had the nuclear option instead been employed in 2013 to amend the rules to permit simple-majority cloture, the Senate would be complying with those amended rules every time it invoked cloture with less than sixty votes but more than a simple-majority. However, because of the particular way in which it was employed, there is no one first act of breaking the rules that legitimizes all subsequent departures from the status quo ante. Rather, an explicit violation of the Senate’s Standing Rules, as currently written, occurs every time senators choose to adhere to the precedent established by the nuclear option instead of its Standing Rules. Finally, responses by the presiding officer to parliamentary inquiries may also create new precedents.18 While such responses are generally treated as nonbinding on the Senate, they do gain precedential value over time to the extent that parliamentary inquiries provide future senators with insight into past parliamentary practice. It is thus important to note that such precedents are not considered as binding on the Senate as those established pursuant to a definitive action such as a ruling of the presiding officer or a vote of the full Senate. Page 65 →

Early Battles over the Filibuster The preceding overview of the Senate’s rules-based architecture yields several important insights about contested procedural change in the institution. Most importantly, it demonstrates that majorities have the technical capability to overcome minority obstruction. In sum, the Senate establishes its internal decision-making procedures pursuant to the Rules of Proceeding Clause of the Constitution (Article I, section 5). Precedents provide structure to the chamber’s daily deliberations. They are more detailed and voluminous than the institution’s Standing Rules. They even supersede those rules when the two are in conflict. A precedent can be created or changed by a simple-majority vote whereas a super-majority is effectively required to create or change new Standing Rules and statutory rules (as well as standing orders).19 As a consequence, Senate majorities are able to overcome the constraints in the institution’s rules of procedure simply by going nuclear, so long as the new precedent created does not violate other constitutional provisions. With that being said, a review of past efforts to limit the filibuster highlights three conditions that must be present before a majority can successfully curb minority obstruction via the nuclear option. First, a majority of the senators voting must support the proposed reform.20 Second, the majority must support implementing the reform unilaterally by going nuclear. Third, the majority must maintain the support of its rank-and-file members in the face of minority retaliation. Unlike partisan conflict over procedural change in the Senate today, these early battles over limiting the filibuster did not pit two polarized parties against each other in combat. Each skirmish instead featured reformers from both parties arrayed against a bipartisan coalition opposed to change. Nevertheless, these early battles demonstrate that these three conditions must be met before a majority can successfully change the rules via the nuclear option. 1950s

Reformers mounted several efforts to limit the filibuster during the 1950s. Each one was centered on demonstrating that the Senate could change its rules via majority vote on the first day of a new Congress. On January 6, 1953, Senator Clinton Anderson (D-New Mexico) moved that “the Senate take up for immediate consideration the adoption of rules for the Page 66 →Senate of the eighty-third Congress.”21 Anderson’s goal was to reduce the threshold to end a filibuster by forcing a simple-majority vote on his proposal. He argued that this so-called constitutional option was permitted on the first day of a new Congress. Anderson’s motion was opposed by members in both parties. After three days of debate, the motion was tabled (i.e., defeated) by a wide margin.22 This suggests that a majority of the Senate did not yet support limiting the filibuster in the first place, much less doing so via a method that was in violation of the Standing Rules. Anderson again tried to use the constitutional option to place limits on the filibuster at the beginning of the 85th Congress. On January 3, 1957, he made the same motion as in 1953, again contending that a Senate majority was permitted to change the Standing Rules on the first day of a new Congress. The reformers were more optimistic this time because their numbers had grown since the previous year’s midterm elections. In addition, Vice President Richard Nixon had changed his position on the issue. He now supported limiting the minority’s ability to filibuster. As a consequence, Nixon was willing to help the reform effort by ruling in favor of the constitutional option if necessary.23 This gave reformers important leverage over their opponents in the conflict. Reflecting the changed circumstances, opponents of reform threatened to retaliate if the controversial maneuver was successful. One longtime opponent of reform, Senator Richard Russell (D-Georgia), warned his colleagues against opening what he termed “Pandora’s box” (Caro 2002, 857). If they did, Russell promised that he and his allies would bring the “legislative business of the Senate” to a halt (Caro 2002, 857). In the end, such retaliation was not needed. Anderson’s motion was defeated. However, the margin of victory for opponents of reform was narrower than in previous years.24 Reformers succeeded momentarily in limiting the filibuster two years later at the beginning of the 86th Congress. The Democrats increased the size of their majority in the midterm elections and the new freshman class included

several members who supported the reform effort. Recognizing the changed environment, Majority Leader Lyndon Johnson (D-Texas) proactively introduced a resolution (S. Res. 5) to reform the Standing Rules. Among its provisions, S. Res. 5 lowered the threshold necessary to invoke cloture from two-thirds of senators present and sworn to two-thirds of those members present and voting. This modest change had the effect of making it easier to overcome a filibuster. S. Res. 5 also applied the cloture rule to motions to proceed (or take up) legislation. Up until that point, cloture could not be invoked on such motions under the precedents and the plain text of the Standing Rules. Page 67 →Yet S. Res. 5 did not represent a total victory for the reformers. Johnson also included provisions in the resolution that were designed to mollify opponents of reform. Specifically, it amended the Senate’s Standing Rules to stipulate that the institution was in fact a continuing body.25 The intent of this change was to make it more difficult for reformers to utilize the constitutional option in the future. Its inclusion in the final agreement reflects the fact that reform opponents had leverage despite the fact that they likely no longer represented a majority of the Senate given the changed environment. The Senate adopted S. Res. 5 on January 12 by a wide margin after only a few days of debate.26 These efforts to limit the filibuster are illustrative of the necessity of securing a majority in support of changing the Standing Rules and, if necessary, circumventing those rules in the process. The attempts in 1953 and 1957 failed because a majority of the Senate did not yet support limiting the filibuster and opposed doing so via the nuclear option. However, reformers eventually succeeded in encouraging Senate leadership to introduce a compromise agreement in 1959 that made it easier to end a filibuster. Nevertheless, opponents of reform had leverage that enabled them to extract concessions. Specifically, their opposition led to the addition of language to the Standing Rules clarifying that the Senate was in fact a continuing body. This was designed to make it more difficult for reformers to achieve their ultimate goal of changing the rules via a majority vote. In that sense, it was an important victory that preserved the leverage of reform opponents for future battles over the so-called constitutional option. 1960s

The 1959 compromise did not quell efforts to change the rules. Instead, an increase in the number of filibusters over the following decade, coupled with the gradual arrival of new, pro-reform, members, ensured that efforts to limit the filibuster by majority vote would continue. For example, a bipartisan group of senators led by Anderson and Thruston Morton (R-Kentucky) proposed lowering the number of votes to invoke cloture to three-fifths of those members present and voting at the beginning of the 87th Congress. Reformers now counted Majority Leader Mike Mansfield (D-Montana) among their supporters. Yet the Anderson-Morton effort was eventually defeated despite such high-profile support.27 Similar efforts were also made at the beginning of the 88th (1963) and 90th (1967) congresses. These efforts to limit the filibuster via majority vote were also easily rebuffed.28 Page 68 →Reformers tried again in 1969 at the beginning of the 91st Congress. A bipartisan group, led by Senator Frank Church (D-Idaho) and James Pearson (R-Kansas), introduced a resolution (S. Res. 11) that would have reduced the number of votes required to end debate to three-fifths of those members present and voting. While identical proposals had been easily defeated in recent congresses, reformers hoped that this time would be different. Outgoing Vice President Hubert Humphrey was a longtime proponent of reform and was willing to make an unprecedented ruling in favor of the proposal given the limited time he had left in which to preside over the Senate.29 On January 16, the Senate voted fifty-one to forty-seven not to end debate on the motion to proceed to the consideration of S. Res. 11. Yet despite the outcome of the vote, Vice President Humphrey ruled that cloture had been invoked even though Rule XXII explicitly required a vote of two-thirds of the Senate to invoke cloture at that time. In a rebuke to the presiding officer’s lack of “authority to declare cloture upon a vote of less than two-thirds of the Senate,” Humphrey’s ruling was immediately reversed on appeal.30 The vote was forty-five to fifty-three. Six senators reversed their position on the second vote, indicating that their previous support for majority cloture did not extend to empowering the presiding officer to unilaterally decide such matter

for them in explicit violation of the Standing Rules. This underscores the institutional weakness of the Senate’s presiding officer.31 Church and Pearson again tried to change the cloture rule via a majority vote two years later at the beginning of the 92nd Congress. The resolution they introduced (S. Res. 9) was supported by a bipartisan group of over fiftyone senators. Yet despite the support of a majority of the Senate, reform opponents, led by Senator James Allen (D-Alabama), filibustered S. Res. 9 for six weeks. During this period, reformers attempted to invoke cloture on the proposal four separate times. While a majority of the Senate voted to end debate in each instance, these efforts were all unsuccessful.32 After the last vote, Senator Jacob Javits (R-New York) appealed the ruling of the presiding officer that cloture had not been invoked. Javits’s appeal was tabled, thereby ending efforts to put new limits on the filibuster in that Congress.33 It is important to note here that Allen’s dilatory tactics significantly complicated his leadership’s ability to maintain control of the floor (Oleszek 2016, 52). Efforts to reform the cloture rule in the 1960s and early 1970s highlight the challenges reformers faced in trying to secure a majority to support limiting the filibuster via the nuclear option even though a majority supportedPage 69 → the underlying policy. The ease with which Humphrey’s unilateral ruling was reversed in 1969 also highlights the difficulties faced by the vice president in forcing his decisions on the Senate when presiding over the chamber’s deliberations. Lastly, the dilatory tactics employed by opponents of reform during these years suggests that a minority of the Senate can make it difficult for the majority to control the Senate floor. This consideration would be brought into sharper relief a few years later when, for the first time, a Senate majority demonstrated, albeit only temporarily and in limited circumstances, that it was willing to limit the filibuster via the nuclear option. 1975

Two of the three conditions that must be met for a majority to unilaterally change the rules over the minority’s objections were present in 1975 at the beginning of the 94th Congress. By that point, a majority of the Senate supported making cloture easier to invoke and was willing to unilaterally changing the rules to do so if necessary. Nevertheless, reformers were unable to maintain majority support for going nuclear in the face of the minority’s opposition. The minority’s retaliation gave it leverage to extract concessions in the negotiations that eventually resolved the conflict. As a result, the conflict’s outcome was a compromise agreement that attempted to address the concerns of both sides. A bipartisan coalition led by senators Walter Mondale (D-Minnesota) and Pearson (R-Kansas) introduced a resolution (S. Res. 4) that would have reduced the threshold to invoke cloture from two-thirds of the Senate to three-fifths of those senators present and voting. Reformers were optimistic that they would finally be able to establish a precedent that a majority of the Senate could change the institution’s Standing Rules in a manner that violated those rules. A large number of pro-reform Democrats prevailed in the 1974 midterm elections due to the Watergate crisis and the subsequent resignation of President Nixon. In addition, the Senate’s new presiding officer, Vice President Nelson Rockefeller, was a supporter of filibuster reform. Yet despite these developments, the ensuing struggle demonstrated clearly that more than a Senate majority was needed to limit the filibuster via the nuclear option in the face of significant minority opposition. The conflict began on February 19 when Senator Pearson made what was essentially a nondebatable motion to proceed to the consideration of S. Res. 4 in violation of the Senate’s rules. Pearson’s motion consisted of three separate parts. First, it specified that the Senate begin consideration Page 70 →of the resolution. Second, it stipulated that the Senate vote immediately on the motion to proceed and that cloture be invoked if supported by a simple-majority. Third, it required that the Senate vote on whether or not to proceed to S. Res. 4 immediately after cloture was invoked. Majority Leader Mansfield raised a point of order that Pearson’s motion was out of order. After some debate, the Senate successfully voted on February 20 to table the Mansfield point of order fiftyone to forty-two, even though it was consistent with the Standing Rules. In short, a majority went nuclear. Specifically, it established a precedent when it voted to table the Mansfield point of order that a majority could change the rules at the beginning of a new Congress pursuant to the Constitution’s Rules of Proceedings

clause. In response, Senator Allen immediately retaliated by calling for a division of the three separate parts of Pearson’s motion and began a filibuster of the first question (i.e., that the Senate begin consideration of S. Res. 4). Because this part of the motion did not contain a constitutional question, Allen argued that the precedent just established did not apply. Using Pearson’s own logic against him, Allen asserted that forcing a vote on the first part of the motion did not touch on a constitutional question and instead would violate the Standing Rules of the Senate. While a majority had just supported efforts to establish majority cloture on constitutional questions on the first day of a new Congress, some of those members were unwilling to go even further and establish majority cloture for questions that did not raise constitutional issues. Allen’s maneuver illustrates the ability of chamber minorities to define the question pending before the Senate in such a way as to make it more difficult for reformers to maintain a majority in support of their efforts. As a consequence, Allen’s maneuver prevented reformers from winning the day. The Senate eventually adjourned and the motion to proceed to S. Res. 4 was defeated. Reformers continued their efforts over the following weeks to force the Senate to begin consideration of S. Res. 4. The Senate considered a similar three-part motion to proceed made by Senator Mondale on February 24. During the subsequent parliamentary maneuvering that ensued, individual senators grew increasingly frustrated with how the vice president was managing the floor. Senator Harry Byrd Jr. (I-Virginia) stated, “I want to protest the rapidity with which the chair is putting these questions and refusing to recognize some of us who have been seeking recognition.”34 This frustration with the vice president reached a boiling point two days later when Vice President Rockefeller refused to recognize Senator Allen on several occasions. Senator Russell Long (DLouisiana) rebuked the vice president in response. “The Presiding Officer presides over the SenateВ .В .В . Page 71 →He does not own this body. I have never in my life seen it happen in the Senate that a man can be standing trying to seek recognition and not be recognized by the chair.”35 Long warned his colleagues, “You have one man cloture right now.”36 Other senators came to the floor to criticize the vice president throughout the day. This eventually prompted Rockefeller to apologize to Allen for not recognizing him (Oleszek 2016, 67). Opponents, led by Senator Allen, filibustered efforts to force S. Res. 4 through the Senate for seven weeks. Their opposition also delayed consideration of other business. Minority Whip Robert Byrd (D-West Virginia) expressed concern about the impact of these dilatory tactics on the majority’s ability to process other important legislative priorities. From January to mid-March, Byrd wanted to proceed with “other responsibilities, one of which is to get urgent legislation disposed of.”37 Yet he acknowledged that the Senate’s leadership was worried that senators would exercise their ability to obstruct the majority’s agenda. “The leadership does not want this thing to develop in an all-out struggle as to who knows most about the rules and who can utilize the rules to the fullest extent. We can all play that game, and I hope we will not get into that business.”38 Mounting frustration with the rules debate and the desire of senators to turn their focus to other legislative business precipitated negotiations between members on both sides of the conflict. A bipartisan compromise agreement was introduced on February 28 by Majority Leader Mansfield, Majority Whip Byrd, Minority Leader Hugh Scott (R-Pennsylvania), and Minority Whip Robert Griffin (R-Michigan). Among its provisions, the agreement reduced the votes needed to invoke cloture to three-fifths of the entire Senate, instead of the three-fifths of those members actually present and voting as sought by the reformers. In another significant concession to Allen and his allies, the compromise also maintained the higher threshold of two-thirds of those senators present and voting to end debate on measures to change the Standing Rules. Finally, and most importantly for our purposes here, the agreement formally reversed the precedent established by the nuclear option just eight days earlier. After fifty days of continuous debate on the issue, the Senate voted on March 7 to invoke cloture on the compromise agreement.39 Reflecting on the historic struggle, Senator Allen emphasized the importance of minority retaliation in preventing a pro-reform majority from ultimately prevailing in the conflict. He observed, “If the idea is prevalent that members of the Senate will lie down, roll over and play dead to this type of

action—unauthorized and not countenanced by the rules—then you can certainly look for that effort to be made.”40 In short, Allen acknowledged the link Page 72 →between minority behavior and the conflict’s outcome. According to this logic, the precedent established by the nuclear option on February 20 would have stood had a minority not aggressively retaliated. Reformers made similar observations about the role played by minority retaliation in preventing the establishment of majority cloture on the first day of a new Congress. That is, the minority’s behavior encouraged some proreform senators to negotiate a solution to the conflict instead of holding out for absolute victory. For example, Senator Dick Clark (D-Iowa) acknowledged that he “reluctantly agreed” to negotiate in response to the minority’s retaliation.41 Clark recalled that “the crucial votes to end debate had been won, and it was possible to move ahead and pass Senate Resolution 4 as originally introduced. But the leadership felt that an explosive situation existed in the Senate, so the proponents of a change in rule XXII have cooperated in their efforts to resolve this dispute.”42 In the absence of minority retaliation, the pro-reform majority would not have had a reason to agree to a suboptimal outcome to the conflict. The preceding analysis suggests that the ability of Senate majorities to overcome a determined minority may not be as great as a technical assessment of the institution’s procedural architecture would otherwise suggest. This then begs the question: can Senate minorities also increase the costs of going nuclear for rank-and-file members of the majority in other situations so that they prefer a negotiated outcome or a continuation of the prenuclear status quo? That is, do different minority responses make going nuclear sufficiently costly for the majority’s members so that it is deterred from going nuclear in the first place? To that end, Part II examines in greater detail two case studies that exhibit different minority responses to the nuclear threat in order to determine why the majority was able to successfully eliminate the filibuster in one and not in the other.

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Part II A Tale of Two Minorities All war presupposes human weakness, and seeks to exploit it. —Carl von Clausewitz (1984, 256)

Page 74 → Page 75 →

Four Analyzing Minority Behavior in Parliamentary War Part II considers whether the causal relationship hypothesized in the bargaining model is present in two recent cases of parliamentary war. A case study approach was adopted because it is the research design best able to account for the interdependent nature of Senate decision-making. Put differently, it can explain how parliamentary war unfolds in practice. What this methodological approach sacrifices in terms of parsimony is offset by the gains it makes possible with regard to explanatory accuracy. Each case is examined individually using process tracing. Within-case analysis yields stronger evidence of the causal relationship between minority behavior and majority power to the extent that it highlights each step in the bargaining process that together compose parliamentary war. The approach also provides a more detailed explanation of how particular minority behavior is causally linked to the outcomes observed in each case (Beach and Pedersen 2016, 302). With that being said, it should be noted that the analysis presented in the following two chapters is not intended to be solely descriptive. Rather, the intent is to situate each case within a larger explanatory framework by focusing on the causal mechanism that is theorized in the bargaining model. The two cases are juxtaposed in an effort to compensate for the limitations associated with process-tracing methods. Specifically, we can generalize the findings observed in each case by combining within-case and crosscase methods (Beach and Pedersen 2016, 228). Doing so makes it possible to apply the bargaining model to explain partisan conflict over procedural Page 76 →change more broadly. Put simply, the two cases examined in chapters 5 and 6 are juxtaposed in order to delineate more clearly how and why they differ. John Stuart Mill’s Method of Difference is utilized in order to better understand why the majority was able to successfully utilize the nuclear option to circumvent the rules and overcome minority obstruction in one but not the other. In short, Mill (1843, 455) observed, If an instance in which the phenomenon under investigation occurs, and an instance in which it does not occur, have every circumstance save one in common, that one occurring only in the former; the circumstance in which alone the two instances differ, is the effect, or cause, or a necessary part of the cause, of the phenomenon. In order to utilize comparative methods in this way, we first need to identify two similar cases in order to utilize this method; one in which a majority determined to overcome minority obstruction was present, by going nuclear if necessary, and one in which a determined majority failed to materialize. We can then isolate the ways in which the two cases differ in order to better understand what factor(s) explain the presence of a determined majority in one and its absence in the other. The minority’s behavior in the two cases considered here is the most striking difference between them. That is, the response of the Democratic minority when confronted with the nuclear threat in 2003 and 2005 differed considerably from that of the Republican minority in 2011, 2012, and 2013. As such, juxtaposing the parliamentary showdown in 2005 in which Republicans tried, and failed, to eliminate the filibuster for judicial nominations, with the showdown in 2013 in which Democrats successfully utilized the nuclear option to eliminate the filibuster for some judicial and all executive branch nominations provides an opportunity to assess the relative effectiveness of different minority party responses to majoritarian threats to unilaterally change the Senate’s rules. Cross-case analysis using comparative methods presents two challenges. Specifically, the cases analyzed must be selected from homogenous populations and they must be independent of each other. With regard to the first challenge, the cases analyzed in the following two chapters were selected because they each represent a clear instance in recent years when a Senate majority tried to change or circumvent Rule XXII in order to eliminate the filibuster. Additionally, the contrasting strategies followed by the minority party in both cases yielded different

outcomes. Comparing and contrasting the minority’s behavior in each case thus enables us to Page 77 →draw conclusions as to which strategies were more effective. Such a comparison is possible because the two cases are similar. Both involve partisan conflict over the confirmation of presidential nominations. Confirmation contests in the Senate are relatively straightforward in that they pit one group of senators favoring confirmation against another that opposes it. As a consequence, the influence of the strategies adopted by both sides on the behavior of individual senators is more easily observed. This is in contrast to legislative contests, which are typically much more complex. The larger political environment in which the conflict played out in each case is also similar. Both the majority and minority parties were relatively cohesive and polarization was high. Both cases also feature unified party control of the Senate and the presidency. Republicans and Democrats controlled the Senate and the presidency in 2005 and 2013, respectively. However, there is one important difference between these two cases that may have an effect on the willingness of the majority to go nuclear. Partisan control of the House of Representatives was not the same in 2005 and 2013. In 2005, the Republicans controlled the Senate, House, and the presidency. In 2013, Democrats controlled only the Senate and the presidency. While the party in control of the House is not relevant to the present discussion in the narrow sense that the chamber does not have a role in the confirmation process, the question of House control does have an impact on the dynamics under examination in these two cases. This is because judicial and executive branch nominations were not the only thing of interest to both parties. The majority in each instance also had a legislative agenda that they wanted to implement. President Bush and congressional Republicans were in a stronger position to implement that agenda in 2004 and 2005 relative to President Obama and congressional Democrats in 2013 because they had unified control of government. As such, they would be less likely to go nuclear to confirm controversial nominees, ceteris paribus, because doing so could jeopardize potential victories on their legislative agenda. In contrast, the Democrats did not have the same expectation regarding their legislative agenda in 2013 because they controlled only the presidency and the Senate at that time. In this sense, unified control of government magnifies the effects of the bargaining model by increasing the relative value of legislative business vis-Г -vis the Senate’s Executive Calendar. This raises the costs of minority retaliation for rank-andfile members of the majority party in the Senate simply because they expect to accomplish more when their party controls the House and the presidency. With that being said, the fact that the Democrats did not control the Page 78 →House in 2013 does not weaken the explanatory accuracy of the bargaining model. Specifically, there is no evidence that suggests that the Republican minority failed to deter the majority from going nuclear because its threats were insufficiently costly as a result of divided control of government. In contrast, the evidence considered in the next two chapters highlights the primary importance of minority behavior in shaping the final outcome in 2005 and 2013. That is, the specific nature of the minority’s threatened retaliation, not unified or divided control of government, led to the final outcome in each case. The two cases provide an opportunity to observe the behavior of different majority and minority parties in action. Republicans were in the majority in 2005 and the minority in 2013, whereas the Democrats were in the minority in 2005 and the majority in 2013. The presence of different majorities and minorities in each case raises the possibility that differences in how each side plays the game will yield different outcomes. Yet this is precisely the point of the bargaining model. Differences in how each party approaches partisan conflict over procedural change (i.e., obstruction or cooperation) are causally linked to the outcome of parliamentary war. If one side plays the game better than the other, then it can expect to win more often than not. The second challenge presented by cross-case analysis using comparative methods is that the cases analyzed must be independent of each other. And the proximity of the two cases considered here admittedly raises the possibility that they are interdependent. That is, the parliamentary war observed in 2013 could have been influenced by how the 2005 conflict transpired. This is a valid concern given that a number of senators, including the leadership of each party, played an active role in both conflicts. It is thus reasonable to expect these experiences in the prior case to inform their approach in the most recent one. This interdependence could impact the causal inferences made by comparing the two cases, thereby limiting the generalizability of the study’s findings. Yet while the two cases are certainly related in the sense that one precedes the other in time, there is no evidence to suggest that

the 2005 case determined, or even significantly influenced, the outcome in 2013. Rather, the Republican minority clearly failed to apply the lessons that could have been learned in 2005 to how it behaved in 2013. For these reasons, the two cases examined here enable us to isolate the important factor driving procedural choice in both instances and to then compare it to the claims of the bargaining model. This is important because the Senate’s lawmaking capacity is at stake, as well as the nature of Page 79 →the way in which the institution makes decisions. If Senate majorities can run roughshod over the minority when obstruction reaches levels unacceptable to them, as the 2013 example suggests, then the Senate may be able to improve its productive capacity in the current polarized environment without the majority party having to compromise its agenda or otherwise make concessions to the minority. While the two cases are similar in many respects, the parliamentary war in both yielded dramatically different outcomes. Any model of procedural change must be able to explain both of these outcomes. To that end, determining why the cases yielded different outcomes presents an opportunity to evaluate the three models of procedural change discussed in chapter 2: the path dependent, majoritarian, and bargaining models of procedural change. Path Dependent Model According to the path dependent model of procedural change, the Senate’s inherited rules of procedure empower the minority by limiting the majority’s ability to unilaterally change those rules over its objections. The persistence of Senate rules like the filibuster is thus determined by the extent to which the minority resists the majority’s efforts to change those rules. Conversely, the costs of changing those rules for the majority absent the minority’s cooperation are prohibitive. The path dependent model initially appears to account for the outcome in 2005 (see chapter 5). In this case, the Democratic minority successfully obstructed several of President George W. Bush’s judicial nominations as well as efforts by the Republican majority to change the rules in order to overcome this obstruction by lowering the number of votes needed to end debate on judicial nominations. However, the path dependent model has difficulty explaining why the Gang of 14 formed and how its members eventually coalesced around a compromise that resolved the conflict short of nuclear war. Similarly, the path dependent model does not explain the outcome in 2013 (see chapter 6). In that case, the Republican minority was unable to prevent the majority from going nuclear. The Senate’s rules did not empower the minority to stop the majority from eliminating the filibuster for most nominations with a simple-majority vote. As a consequence, the path dependent model does not offer a common theoretical framework that can be used to make sense of contested procedural change in both cases. Its explanation of the persistence of institutional rules like the filibuster does not account for the Gang of 14 in 2005 Page 80 →or the successful use of the nuclear option in 2013. In the latter case, the costs for the majority to unilaterally change the rules over the minority’s objections were clearly not prohibitive. Majoritarian Model The majoritarian model acknowledges that the Senate’s parliamentary rules are inherited. However, it differs from the path dependent approach with its contention that a majority must remotely support those rules. That is, the Senate’s rules reflect the majority’s preferences, even though they may periodically be used to obstruct its agenda. As a consequence, the persistence of rules like the filibuster is ultimately dependent on the majority’s determination to achieve its goals. If a minority obstructs too much of the majority’s agenda, the latter will eventually act to limit the former’s ability to obstruct in the first place. The majority’s willingness to bear the costs associated with changing the rules is the only limit on the nature and timing of doing so. Yet, significantly, the majority also retains the ability to eliminate the minority’s ability to impose costs on its members. In the end, the assumption implicit in this approach is that the majority will use the nuclear option to eliminate the filibuster once the minority’s obstruction reaches the point at which it is perceived as

excessive. It is not immediately clear that the majoritarian model explains the outcome in the 2005 case. At first glance, the minority prevented a determined majority from eliminating the judicial filibuster. However, a closer look suggests that the model may provide a better explanation of the Gang of 14’s formation than the path dependent approach. According to this perspective, the Republican majority’s threats to go nuclear could have precipitated the compromise that eventually resolved the conflict short of nuclear war. The fact that the Republicans did not go nuclear in this instance indicates that the minority’s obstruction had not yet reached the point at which the majority would be forced to unilaterally change the rules. In contrast, the Democratic majority successfully employed the nuclear option to eliminate the filibuster for most nominations in 2013. Presumably, the majority viewed the minority’s obstruction in the months leading up to November of that year as excessive. As a consequence, the majority went nuclear to eliminate the minority’s ability to obstruct President Barack Obama’s nominations. Despite the apparent applicability of the majoritarian model to both cases, a closer look is needed in order to determine whether or not these Page 81 →assessments are accurate. Had the Democrats’ obstruction in 2005 not yet reached a level that could be justifiably called excessive? Had the Republicans’ obstruction in 2013 exceeded what could be considered excessive? Put differently, was the level of minority obstruction the proximate cause of the outcome in both cases? If the question can be answered in the affirmative, then the majoritarian model offers a comprehensive theoretical framework that we can use to understand contested procedural change. If, on the other hand, the level of minority obstruction was not the precipitating factor in either case, we remain in need of a model of procedural change that can fully explain the outcomes in both. The fact that the predictions of the majoritarian model are consistent with the outcomes exhibited in both cases is not alone sufficient to fully explain the dynamics of parliamentary war that produced those outcomes. It must also explain how those outcomes were produced. Bargaining Model The relative levels of majority and minority determination to achieve their respective goals in the Senate explain the persistence of the institution’s rules. Each side’s expectations regarding the costs and benefits of its approach to waging parliamentary war is responsible for the outcomes of contested procedural change in both cases. The bargaining model explains why the Republican majority tolerated the continued existence of the filibuster in 2005 despite repeatedly threatening to go nuclear in order to eliminate it over the prior two years. It also explains the instance in 2013 when the Democratic majority used the nuclear option to eliminate the filibuster for most nominations. The general cause of the outcome in both cases was not the existence of minority obstruction but instead the extent to which the process of coercive diplomacy functioned properly. The proximate cause was the nature of the minority’s response when threated with the nuclear option. In 2005, the process of coercive diplomacy worked. That is, the Democrats and Republicans resolved their conflict via bargaining in a properly functioning parliamentary war. The majority signaled its willingness to change the Senate’s rules to lower the threshold to invoke cloture on judicial nominations in response to the minority’s persistent obstruction of several specific nominees. Its goal was to compel the minority to comply with its goal to stop blocking the nominations. Its threat was that it would go nuclear to eliminate the minority’s ability to filibuster all nominations Page 82 →in the future if it persisted in its obstruction. In response, the Democratic minority refused to comply and threatened to retaliate if the majority followed through on its threat. The minority’s deterrent threat was explicitly designed to increase pressure on rank-and-file Republicans so that they would refuse to support their party’s efforts to eliminate the filibuster. Clear communication between both parties allowed each side’s threats to be authenticated in this case. This allowed rank-and-file senators in both parties to rationally weigh the costs and benefits of an escalation in the conflict. Neither side was certain in its expectations of how the other would act in the future. This uncertainty created the space for bargaining. In the end, the costs of going nuclear for a subset of the majority party

outweighed the benefits. They joined with a subset of members of the minority to negotiate a compromise that resolved the conflict. The combination of clear minority threats coupled with direct engagement in the bargaining process ensured that the minority could back down on some of its threats without strengthening the majority’s expectation that its threat to go nuclear would work again in the future. In contrast, the breakdown in coercive diplomacy precipitated by the minority’s response to the nuclear threat was the proximate cause of the outcome in 2013. In this case, the majority repeatedly threatened to change the Senate’s rules in the two years leading up to the climax of the conflict. Its goal was to force the minority to comply with its demands to stop obstructing the president’s nominations. The step-by-step analysis of how the conflict played out demonstrates that the minority’s effort to deter the majority by making retaliatory threats was inconsistent. Its threats were repeatedly undermined by the concessions its members granted in response to the majority’s nuclear threats. A more detailed analysis of the bargaining process suggests that these concessions encouraged, rather than discouraged, the majority to more readily threaten to go nuclear again in the future. In the end, this breakdown in coercive diplomacy was exacerbated by a significant deterioration in communication. As a consequence, rank-and-file senators on both sides were unable to accurately assess each other’s willingness to fight. This exacerbated the uncertain information environment and distorted the process of coercive diplomacy, thereby increasing the likelihood that the majority would turn to the nuclear option to resolve the conflict in what it considered at the time to be the least costly manner possible.

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Five The Case of a Determined Minority Between 2003 and 2005, the Republican majority in the Senate utilized coercive threats in an effort to compel the Democratic minority to drop its filibusters of several of President George W. Bush’s judicial nominations. The fact that the majority was unable to carry out these threats despite continued obstruction suggests that the minority’s determination to block the nominees in question exceeded its willingness to bear the costs necessary to confirm them. The conflict ended once both sides gained a sufficient understanding of each other’s determination to prevail. In this particular instance, the relative mix of costs each party was willing to bear combined with the benefits expected to be gained by victory to facilitate resolution of the conflict short of nuclear war. In the end, while each party attempted to influence its opponent’s expectations of the costs it was willing to bear in order to achieve victory, the minority’s threats were ultimately more credible. The majority’s effort failed, in part, because its threats, particularly its threat to eliminate the filibuster, were not credible. Put simply, the minority did not expect the majority to carry out its threats in the face of continued obstruction because the costs of doing so for its members exceeded the benefits to be gained by confirming the disputed nominees. Yet these costs were not determined in isolation. Rather, they were determined by the nature of the minority’s threatened retaliation. The calculation of individual senators in the majority party was thus directly influenced by the minority’s threat to retaliate if the majority pulled the nuclear trigger. In contrast, the minority’s threats were credible. In this case, its threat Page 84 →to retaliate directly linked the majority’s effort to eliminate the filibuster with suboptimal outcomes for its members. The very real possibility of a significant breakdown in the decision-making process was sufficient to deter the majority from going nuclear because members expected that it would be more difficult to achieve their individual goals in a postnuclear Senate. In this sense, the minority’s deterrent threats were an important factor in creating a favorable environment in which negotiations could occur to resolve the conflict short of nuclear war. In short, the majority’s power to change the rules in this case was ultimately contingent on the minority’s behavior. A High-Stakes Showdown Conflict between the Democratic and Republican parties over judicial nominations had been simmering since the late 1990s. The controversial outcome of the 2000 presidential election and the narrow Senate majorities that followed exacerbated tensions that had persisted since the Clinton administration. This conflict was fueled by a partisan tug of war over the composition of the judiciary. When President Bush assumed office in 2001, there were four vacancies on the US Court of Appeals for the DC Circuit. Any effort to fill these vacancies would be particularly contentious given the fact that, at the time, the court was split evenly between judges appointed by Democratic and Republican presidents. Successfully confirming any nominee to the DC Circuit would thus have had the effect of tipping the balance of power on the powerful court one way or the other way. This would have had significant consequences for policy because the cases argued before the court routinely involve the United States government and speak to the scope of federal power on a variety of issues that typically divide Democrats from Republicans. In addition, presidents have regularly nominated judges serving on the DC Circuit (or other appellate courts) to fill vacancies on the Supreme Court. At the time, it was widely expected that there would be up to three vacancies on the Supreme Court during President Bush’s first term. Senate Democrats feared that failing to stop the confirmation of appellate judges who they considered objectionable would make it easier for them to be confirmed again in the future if nominated to serve on the Supreme Court. Senate Republicans viewed the conflict in similar terms. For example, Jon Kyl (R-Arizona) understood the Democrats’ goal in filibustering appellate nominees. He remarked at the time that their motivations were clear. Page 85 →“What they are doing is sending a message about a Supreme Court nomination” (Toobin 2003).

The Republican Party began the 107th Congress with a Senate majority. However, the decision by Republican Jim Jeffords (Vermont) to switch parties five months into the new Congress altered the partisan balance of power in the institution.1 As a consequence of Jeffords’s decision, the Democrats assumed the majority, but only by the narrowest of margins. They nevertheless used their new-found control of the Judiciary Committee to block some of President Bush’s appellate nominees. This effectively prevented their confirmation because under the Senate’s rules a nominee is only eligible for an up-or-down confirmation vote on the Senate floor if the committee of jurisdiction reports the nomination (i.e., the Judiciary Committee for judicial nominations) or if the nomination is forcibly discharged from the committee’s consideration by a majority of the Senate. The panel’s Democrats justified their action by claiming that the nominees in question held controversial views that were outside the mainstream of legal thought in the country. They also pointed to similar behavior by the Republican majority during the late 1990s when it prevented confirmation of some of President Clinton’s nominees using the same tactic. The Republicans regained the majority, and the upper hand in the conflict, after the 2002 midterm elections. President Bush renominated each of the thirty appellate and district court nominees that were still pending in the Senate at the end of the 107th Congress, including Charles W. Pickering Sr. and Priscilla R. Owen, both of whom were nominated to the US Court of Appeals for the Fifth Circuit. Senate Democrats interpreted the president’s actions as a confrontational move, particularly because the Judiciary Committee rejected both the Pickering and Owen nominations during the previous Congress. Senator Edward M. Kennedy (D-Massachusetts) warned Republicans that he and his colleagues would “use every tool in our arsenal to ensure that his [Pickering] nomination is rejected again this year” (Dlouhy and Palmer 2003). Yet in contrast to their prior position, the Democrats were in the minority in 2003. They could no longer block Pickering, or any other nominee they considered objectionable, simply by preventing the Judiciary Committee from reporting the nomination. Instead, the newly minted Democratic minority would have to filibuster the nominees it opposed on the Senate floor if it wanted to prevent their confirmation. To that end, the Democrats filibustered ten of President George W. Bush’s appellate nominees in the 108th Congress, including the nominations of Miguel A. Estrada and Janice Rogers Brown (DC Circuit), Owen Page 86 →and Pickering (Fifth Circuit), Carolyn Kuhl (Ninth Circuit), and William H. Pryor Jr. (Eleventh Circuit). The minority’s obstruction marked a significant escalation in the confirmation wars up to that point. At the time, openly filibustering so many judicial nominees was unprecedented. The Democrats successfully filibustered Estrada a record seven times in 2003 between March 6 and July 31. Only four members of the minority split with their party on the votes to end the Estrada filibuster: John Breaux (D-Louisiana), Zel Miller (D-Georgia), Ben Nelson (D-Nebraska), and Bill Nelson (D-Florida).2 In contrast, the Republican majority unanimously voted to end debate each time.3 Similarly, the minority successfully filibustered the Owen nomination four times between May 1 and November 14. Yet this time only Miller and Ben Nelson broke with their party and voted to end the filibuster. Again, every Republican voted for cloture.4 Pryor’s nomination was also successfully filibustered by the Democrats on July 31 and November 6. Once again, Miller and Ben Nelson were the only members of the minority who supported ending debate and moving to an up-or-down confirmation vote on the nominee. Every Republican voted to end the filibuster.5 These filibusters prompted an aggressive response from the Republicans. President Bush declared “a crisis in our Judiciary” and Senate Majority Leader Bill Frist (R-Tennessee) vowed to overcome the minority’s obstruction, by unilaterally changing the rules of the Senate if necessary. Republicans attempted to justify their threat by asserting that the Senate had a constitutional obligation to vote on the president’s judicial nominations (Wallner 2016). Trent Lott (R-Mississippi) asserted that the judicial filibuster “completely contradicts the intent, spirit, and language of the Constitution” (Stevens 2003). Despite such rhetorical maneuvers, Democratic opposition continued in the face of repeated cloture votes designed to portray the minority party as obstructionist, round-the-clock debates, and increasingly stark threats by the Republican majority to go nuclear to eliminate the filibuster. In the 2004 elections, President Bush was elected to a second term and the Republicans increased their majority in the Senate to fifty-five seats. Believing that it had momentum, the majority stepped up its threat to eliminate the

judicial filibuster by using the nuclear option. Yet the election results did not significantly alter the calculus of the Democratic minority. As a consequence, it was not clear at the time if the president’s nominees would face brighter prospects in the new Congress. The situation came to a head in May 2005 when Republicans filed cloture on the Owen nomination and warned Democrats that they would go Page 87 →nuclear if they continued to block an up-or-down vote on the nominee. A last-minute deal reached the day before the scheduled cloture vote ended the crisis by denying the Republican majority the votes it needed to successfully employ the nuclear option and ensuring sufficient Democratic support to invoke cloture on a smaller subset of the contested nominees. The deal, embodied in a “memorandum of understanding,” was negotiated by the Gang of 14, which was comprised of seven Republicans and seven Democrats.6 The seven Republicans senators pledged not to support the nuclear option to change the Senate’s rules. In return, the seven Democrats agreed to vote to invoke cloture on three of the contested nominations: Owen, Brown, and Pryor. The Democrats also agreed to only filibuster judicial nominees under “extraordinary circumstances” for the remainder of the 109th Congress. What explains the outcome in this particular case of parliamentary war? Its cause can be identified by tracing each step in the conflict as the bargaining process unfolded between the two parties. Doing so illustrates precisely how the majority’s ability to change the Senate’s rules was ultimately limited by the minority’s behavior. Initial Levels of Resolve The majority’s threats were ineffective in this case because it could not credibly commit to carrying them out. The repeated inability of Senate Republicans to follow through on their threats undermined their ability to persuade Democratic senators of their determination to prevail and willingness to bear the costs necessary to do so. In contrast, the minority’s deterrent threats were effective because the majority believed them to be credible. In short, the Republicans expected the Democrats to retaliate. Put differently, the ability of Democrats to publicly coalesce around a more aggressive retaliatory response and credibly commit to carrying it out persuaded a sufficient number of Republicans that they fully intended to follow through on their threats if the majority attempted to eliminate the filibuster. Moreover, maintaining their commitment to retaliate in the face of repeated efforts to intimidate them made the Democrats’ deterrent threats more credible in the eyes of Senate Republicans. The conflict was ultimately resolved short of outright minority capitulation or the elimination of the filibuster because the determination of each side was communicated to all senators. In the end, the conflict was resolved on terms considered more favorable to the minority because its commitment to retaliate Page 88 →persuaded enough Republican senators that the costs of going nuclear outweighed the benefits. Yet the conflict did not start out this way. At its beginning, the common perception was that the majority was most committed to prevailing. Nevertheless, the relative levels of resolve between the two parties gradually shifted as the process of coercive diplomacy played out over the course of 2003, 2004, and 2005. This process revealed information about each side’s determination, which dramatically altered expectations of how the conflict was likely to unfold. Had the majority’s threats instead been credible, and had the minority been unable to coalesce around an aggressive response, the latter would have likely been unable to successfully persuade the former to relent in its efforts to eliminate the filibuster. The desire of Senate Republicans to confirm President Bush’s judicial nominations at the beginning of the 108th Congress was clear. The new majority was determined to set a faster pace for reporting nominations out of the Judiciary Committee and scheduling confirmation votes for them on the Senate floor. For example, the committee favorably reported the nomination of Miguel A. Estrada (DC Circuit) less than a month into the new Congress.7 This all but ensured that the nomination would be the first point of contact in the conflict. In contrast to the majority’s determination to expeditiously confirm the president’s nominees, the minority was not initially unified in support of filibustering them, at least those it considered objectionable. While all nine Democrats serving on the Judiciary Committee opposed Estrada, they cited the panel’s rush to action and the fact that the truncated timeline did not allow for sufficient oversight in explaining their vote in opposition.

Their public justification for opposing Estrada in committee reflected an unwillingness among many Democrats to explicitly threaten to filibuster Estrada on the Senate floor. Even the Democrats who advocated such an aggressive approach were unsure if they had the necessary votes to successfully block his confirmation given the unease many of their colleagues felt about filibustering judicial nominations. For example, John Breaux (D-Louisiana) commented at the time, “To filibuster and prevent a vote is not the right thing to do” (Dlouhy 2003a). Ben Nelson expressed similar concerns. These comments suggest that those senators who favored a confrontational approach first had to address their colleagues’ concerns with filibustering judicial nominations in general before they could credibly commit to blocking Estrada in particular. The first step in unifying the minority was to frame the conflict in more principled terms that transcended a dispute over a particular nominee.Page 89 → Doing so would increase the credibility of the minority’s threat to filibuster Estrada. The minority was able to coalesce in support of a more confrontational approach after the conflict was defined in broader terms as a struggle over its future relevance in the Senate and the institution’s role vis-Г -vis the president in the confirmation process. Broadening the conflict beyond Estrada and basing it on principle buttressed the minority’s resolve in the face of the majority’s own principled position that a president’s judicial nominees were entitled to up-or-down confirmation votes on the Senate floor. One contemporaneous report framed the conflict in precisely these terms. The fight over Estrada is about much more than any one nominee. It has been turned into a test of wills between the parties; Republicans want to prove that they can protect the president’s nominees against what they perceive as unfair attacks, and Democrats want to demonstrate that they can—and will continue to—assert their authority to provide advice and consent, and not a rubber stamp, on judicial nominations. (Dlouhy 2003b) Taking a principled stand also increased the probability that the minority would be able to sustain internal support for a confrontational approach even as the costs of doing so increased. Illustrative of this is the fact that Democrats were discussing the conflict in the same principled terms two years later. For example, Senator Robert Byrd (DWest Virginia) asserted on the eve of the parliamentary showdown in 2005 that eliminating the filibuster would negatively impact the Senate because it would undermine the minority’s power to force the majority to agree to a more deliberative process in the institution. “Employing the nuclear option, engaging in a pernicious maneuver to serve immediate partisan goals, risks violating our nation’s core democratic values and poisoning the Senate’s deliberative process” (Perine 2005e). Byrd also observed that the nuclear option would ultimately impact more than just judicial filibusters. “The curbing of speech in the Senate on judicial nominations will most certainly evolve to an eventual elimination of the right of extended debateВ .В .В . and that will spur intimidation and the steady withering of dissent” (Perine 2005g). Similarly, a spokesman for thenMinority Leader Harry Reid (D-Nevada) warned, “As long as he [Frist] keeps the nuclear option on the table, Democrats will continue to fight to protect the historical power of the Senate to ensure a fair and independent judiciary” (Retter 2005b). Expectations shifted once the Democratic minority was able to coalesce Page 90 →around a more confrontational approach. After devoting two weeks of floor time to debating Estrada, the majority repeatedly attempted to schedule an up-or-down confirmation vote on his nomination. Yet doing so required the unanimous consent of all senators and the Democrats objected every time. Absent consent, the only way that Republicans could end the filibuster and schedule a confirmation vote was by filing a cloture. However, invoking cloture required an affirmative vote of three-fifths of the Senate (sixty at that time) and the Republicans believed that the minority had unified in support of the decision to block Estrada (i.e., to vote against cloture).8 Frist told his colleagues in a private lunch in February, “The issue is cloture. They say they have forty-four votes.”9 In short, the Republican majority did not believe it could secure the sufficient votes to overcome the minority’s filibuster. This is an instructive example of how expectations of an opponent’s determination and willingness to fight can influence a party’s internal decision-making process in parliamentary war, even when direct evidence is lacking that those expectations perfectly align with reality. In this instance, the Republicans chose not to force the issue by filing cloture on Estrada despite the fact that there were signs that the Democrats had not yet coalesced

around a more aggressive approach at that particular point in the conflict. There was a chance that filing cloture on Estrada would have increased the costs on reluctant Democrats by forcing them to openly filibuster a judicial nominee on the Senate floor. Put differently, a more aggressive campaign by the majority to make blocking Estrada costlier at the outset would have forced the pro-filibuster members of the minority to contend with these difficulties while attempting to persuade their more skeptical colleagues that the effort was worth it. Kyl acknowledged this dynamic during a Republican Conference luncheon at the time. “If we are going to get the Democrats to break, we need to create pressure. Force the vote many times on cloture, or compel attendance.”10 Don Nickels (R-Oklahoma) concurred, observing that forcing the issue made the cloture vote more significant in the public debate. By choosing instead not to file cloture, the Republicans gave the Democrats much needed time, and a more hospitable environment, with which to build support of a filibuster. In sum, the majority’s expectation that the minority would be able to easily filibuster Estrada made it possible for the latter to obstruct without bearing the costs associated with actually doing so. It should be noted that the majority had several reasons for not filing cloture at the time. First, its leadership did not believe that it had the sixty Page 91 →votes needed to invoke cloture. There was also no clear consensus on what the next steps should be once cloture failed. Republican senators also believed that keeping Estrada’s nomination on the Senate floor for debate focused the public’s attention on the conflict and provided more time to pressure rank-and-file Democrats to relent. Their hope was that doing so would compel a sufficient number of Democrats to break with their party and vote to end the filibuster. For example, Rick Santorum (R-Pennsylvania) believed that forcing debate on Estrada would increase the public’s awareness of the minority’s obstruction and would eventually make it more difficult to vote against cloture. In this context, Republicans believed that delaying a cloture vote in the near-term made it more likely that cloture would be successful in the long-term. Finally, the costs of continuing to debate Estrada for Republicans were negligible at the time. The majority was able to devote a significant amount of floor time to the nomination because there was not a lot of competition at that point in the new Congress. The switch in party control had only occurred one month before and the institution’s committees had not yet begun reporting the new majority’s legislative agenda. Yet notwithstanding these considerations, the fact remains that support for filibustering judicial nominations among rank-and-file Democrats remained tenuous at the time and that forcing the issue would have made it more difficult for their leadership to build support for its hardline position. By adopting instead a more cautious approach, the Republican majority signaled that it was not as determined to force confirmation votes on President Bush’s judicial nominations as originally expected by the minority. In addition, the Republicans’ decision gave the Democratic minority much needed time to coalesce around a more confrontational posture in the conflict. Once it did, the result was to recast expectations in the parliamentary war that would play out over the next two years. The Estrada nomination served as the initial skirmish, but the conflict would soon grow wider as the minority became more confident and expanded its obstruction to encompass more and more nominees. As the Democrats dug in, the Republicans utilized coercive threats in an effort to overcome the filibusters. These threats were initially political in nature. However, Republicans soon shifted their focus to changing the Senate’s rules as it became clear that the Democrats would not relent in their obstruction in response to political pressure alone. Their hope was that threats to restrict the Democrats’ ability to obstruct would compel them to stop filibustering the contested nominees. In response, the Democratic Page 92 →minority threatened to retaliate if the Republican majority tried to restrict its ability to filibuster. Its goal was to deter the majority without sacrificing its ability to obstruct. The process of coercive diplomacy that played out over Estrada and the other contested nominations in this case affirms the causal relationship hypothesized in the bargaining model of procedural change. A detailed analysis of each step in the process underscores the extent to which majority power is contingent on minority behavior. Coercive Threats, Expectations, and Bargaining

Why were the Republicans’ threats ineffective in compelling the Democrats to relent? Why was the Republican majority unable to sustain a united and determined front in the conflict? Analyzing each step in the bargaining process between 2003 and the summer of 2005 informs our understanding of how the conflict was eventually resolved on terms considered more favorable to the minority (i.e., the nonuse of the nuclear option and the preservation of the status quo). Both the majority and minority parties attempted to persuade each other throughout the conflict that it was in their members’ interest to adopt certain behavior, or to refrain from certain actions, and that failing to do so would result in costlier outcomes for them. To that end, Republicans and Democrats employed coercive threats that were designed to compel behavior or deter action, respectively. It is therefore appropriate to view the partisan conflict over judicial nominations in the 108th and 109th congresses as a form of bargaining between the majority and minority parties. That is, each side in the struggle made threats in an effort to persuade the other to relent and to resolve the conflict short of nuclear war. Success required convincing an opponent’s rank-and-file members that a disproportionate share of the conflict’s costs would fall on them. Doing so successfully would increase the amount of friction impeding an adversary’s strategy, and would thus make it more difficult for it to carry out any threatened action. Friction is defined here as the resistance of a party’s membership to adopting a more aggressive approach in the conflict. The Republican majority took the initiative in the conflict; it was the first to threaten action. However, subsequent events demonstrate that Republican senators were unprepared to follow through on their initial threats. The Democratic minority responded to the majority’s efforts to restrict its ability to obstruct by threatening to retaliate. The minority’s stated goal was to deter the majority from adopting a course of action that Page 93 →would be disadvantageous for its members. Its retaliatory threats had the effect of limiting the majority’s options moving forward. It is important to remember that in a properly functioning parliamentary war, neither threat is actually carried out. Rather, the revelation of information as the conflict unfolds serves to gradually align expectations of the majority and minority parties and one or the other, or a combination of both, prevails. Yet coercive threats must be credible if they are going to successfully alter an adversary’s expectations. Both Republicans and Democrats attempted to credibly signal their commitment throughout the conflict. Each side in the conflict tried to articulate clear and unambiguous threats grounded in a principled stand and worked to cultivate a reputation of consistent behavior to reinforce those threats. They also attempted to rationalize the times when they were forced to back down in order to turn a momentary defeat into a strategic retreat in those instances when they could not follow through. Coercive Threats: Majority

Consistent with the bargaining model, the Republican majority made the first move in an effort to overcome the Democratic minority’s obstruction. Its initial threats were designed to compel the minority to relent by increasing the political costs on rank-and-file Democrats for blocking Estrada. Majority Leader Frist believed that “there would be dramatic political fallout in the eyes of the American public” (Dlouhy 2003b) when voters realized that the minority was repeatedly blocking highly qualified nominees like Estrada. Republicans also believed that Estrada’s life story as a Honduran immigrant, who overcame significant challenges to be nominated to one of the nation’s top courts, would resonate with voters and would thus ultimately make the minority’s filibuster untenable. They believed that Democratic senators would be unable to explain to the Hispanic community their reasons for filibustering the first Hispanic nominated to serve on the DC Circuit.11 Given this, Republicans expected that this would translate into political costs for Democrats if they persisted in their obstruction. Republicans also tried to increase the costs of obstruction for rank-and-file Democrats by threatening to keep the Senate in session instead of breaking for the President’s Day recess if the minority continued its filibuster. The threat was initially seen as credible because the majority had already cancelled one planned recess in January in order to complete the Senate’s work on legislation to fund the government for the remainder of Page 94 →the fiscal year (i.e., the Consolidated Appropriations Resolution of 2003, Public Law 108–7). However, the

majority ultimately backed down from its threat once it became clear to its members that the minority would not relent. In the face of the minority’s determination, rank-and-file Republicans no longer supported following through on their leadership’s threat to cancel recess. According to Frist, If I thought that the Democrats, by keeping them here for three of four days, would allow an up-ordown vote, I would have kept everybody hereВ .В .В . but there is nothing to be gained.В .В .В . And therefore, since the recess is scheduled and trips scheduled all around the world and people have made plans, I’m going to respect the recess. I’ve got to respect the recess or my colleagues are not going to put up with me very much (Cochran 2003a; italics added for emphasis).12 Frist’s comments signaled that the majority was not prepared to bear the costs associated with carrying out its threat (i.e., remaining in Washington). Furthermore, the majority’s inability to rationalize backing down in this instance would have important consequences for the credibility of its threats moving forward. As a consequence, it likely impacted Democratic expectations of how the Republicans would behave in the future. Frist eventually filed cloture on the Estrada nomination in early March after four weeks of floor debate. Yet doing so sent contradictory signals. First, it suggested that the majority would have to abandon the effort to confirm Estrada if the cloture vote failed. In contrast to the situation in early February, Republican senators were increasingly worried that devoting additional floor time to Estrada would jeopardize other priorities on the majority’s legislative agenda that were beginning to be reported by the Senate’s committees. Alternatively, scheduling a cloture vote after so much time debating the nomination could also be interpreted as a signal that the majority simply wanted to see where the votes were on ending the filibuster so that it could consider its next steps in the parliamentary war. These conflicting signals underscore the importance of communication between the two parties in resolving conflict. The question of which signal more accurately reflected the majority’s position would have a significant impact on the minority’s countermove. The cloture vote failed on March 6 by a vote of fifty-five to forty-four. As previously noted, only four Democrats voted to end debate. Frist’s reaction to the defeat was intended to signal the majority’s determination to ultimately prevail. “We will not relentВ .В .В . until we have simple Page 95 →up-or-down vote.В .В .В . This is just the beginning of our fight for justice” (Cochran 2003b). In an effort to ratchet up the pressure on the Democratic senators who voted against cloture, Frist promised repeated cloture votes until the filibuster was broken. Yet despite clearly threatening to force vote after vote, the majority relented a few weeks later after having only two additional cloture votes (on March 13 and March 18). According to a Senate Republican aide, competing items on the majority’s agenda forced the Republicans to back down from their threat. “Because of the budget and because of the war it just seemed like we should ease off it for a week” (Dlouhy 2003c). The majority forced another cloture vote on April 2 (fourth attempt) after the Senate completed work on the annual budget resolution. Estrada’s nomination was not subsequently revisited until early May when the majority forced two more cloture votes (on May 5 and May 8). The majority did not force another cloture vote until July 30. This was its last attempt. While forcing so many unsuccessful cloture votes was unprecedented, the time that elapsed between each attempt allowed for the consideration of other business on the Senate floor. The fact that the majority turned to other business despite its stated determination to break the Estrada filibuster signaled that the minority should discount its threats in the future. In an effort to regain the initiative, the Republican majority pivoted to making coercive threats to eliminate the procedural tools (i.e., the filibuster) that the Democratic minority relied on to block President Bush’s judicial nominations in the first place. The Republicans hoped that threatening to restrict the minority’s procedural rights would compel it to relent. To that end, Majority Leader Frist announced in mid-May that Senate Republicans would consider using “every possible toolВ .В .В . until we’re successful” (Perine and Stevens 2003) in overcoming the minority’s filibusters. This shift was designed to compel the minority to relent in its obstruction by threatening to eliminate the filibuster, first by a formal rules change and ultimately by going nuclear if necessary. As part of this new approach, Frist introduced a proposal (S. Res. 138) on May 9, 2003. Among its provisions, the

proposal would have eliminated the minority’s ability to filibuster nominations. Specifically, the proposed rules change would have created a new cloture process governing nominations. Under the proposal, cloture could be filed on a nominee after only twelve hours of debate time on the Senate floor. The vote to end debate would then occur one hour after the Senate convened on the next calendar day. On the first cloture vote, the threshold required to end debate would be three-fifths of all senators duly chosen and sworn (typically sixty). If Page 96 →cloture failed, the required number on each successive cloture vote would be reduced by three votes until the threshold reached a simple-majority of senators duly chosen and sworn (fifty-one if one hundred senators serving in the chamber). The battle over Estrada suggested that it was highly unlikely that the proposal would secure the necessary support to pass. Under Rule XXII, cloture could only be invoked on proposals to change the Senate’s Standing Rules (e.g., S. Res. 138) by a vote of two-thirds of the senators present and voting (sixty-seven if all one hundred members voted). This was significantly higher than the three-fifths threshold required to end the filibuster (sixty if there were no vacancies). It was unlikely that the minority would acquiesce to a formal rules change, the effect of which would be to eliminate its ability to filibuster a nominee that it had repeatedly blocked up to that point. The minority grounded its opposition to the Frist proposal in the same principled position on which it originally based its filibusters of the president’s judicial nominations. During a Senate Rules Committee hearing on S. Res. 138, the panel’s ranking Democrat, Christopher J. Dodd (D-Connecticut), argued that the proposed reform would “fundamentally undermine the Senate’s role in our constitutional democracy, cede enormous powers to the Executive and upset the deliberate system of checks and balances intended by the Framers.”13 Kennedy similarly linked the Frist proposal with the minority’s effort to block Estrada and other nominees it considered objectionable. Our paramount and overriding concern should be to protect the role of the Senate under the Constitution.В .В .В . Under the proposalВ .В .В . the number of votes required to terminate debate on nominations would be reduced from 60 to 51. A simple majority of the Senate would be able to end debate, and the Senate would put itself on a course to destroy the very essence of our constitutional role.14 Despite these claims, the majority persisted in its attempt to compel the Democrats to relent by simultaneously increasing the political costs of obstruction and threatening to eliminate the tools the minority utilized to obstruct. Coercive Threats: Minority

In contrast to the conflicting signals sent by the Republicans, the Democrats’ response was clear. For example, Russ Feingold (D-Wisconsin) asserted during the early stages of the conflict, Page 97 →If we go down this road of trying to block this nomination [Estrada] and don’t do it, it sends a bad signal that this administration can get away with anything and send us more and more very silent, very conservative judges with no record.В .В .В . There shouldn’t be too many times like this. The goal here isn’t to block [everyone] by filibuster. The purpose of it is to demonstrate once or twice that senators are a part of this process (Dlouhy 2003b). Implicit in Feingold’s statement that the goal is not to block everyone is the belief that only blocking one or two judicial nominees would have the same effect. That is, it would give the Democratic minority leverage with which to ensure that candidates it supported were nominated in the first place. Put differently, the minority would not actually have to block everyone because the president’s expectations that it was willing to do so ensured that he would nominate acceptable candidates on the front end, thereby avoiding a parliamentary showdown. Minority Leader Tom Daschle (D-South Dakota) echoed these same points in a different way. “I think it’s important to put my colleagues on notice that the vote will not change regardless of how many votes may be cast. We feel strongly as a caucus” (Cochran 2003b). An unnamed Democratic aide communicated the significance of the fight over Estrada for the minority, observing that “any threats in the future would be meaningless if the

minority party relented and dropped its filibuster” (Cochran 2003b). The increased confidence that the Democratic minority gained after its successful filibuster of Estrada and the majority’s pivot to other priorities in the spring of 2003 is illustrative of the interdependence of threats in coercive diplomacy. Early success in taking a principled stand in opposition to the majority made it easier for rank-and-file Democrats to coalesce in opposition to additional nominees they considered objectionable as the conflict unfolded. For example, the minority successfully filibustered the Owen nomination in early May. At the time, Charles Schumer (D-New York) observed, If you had asked me, even as we moved toward Estrada, would we be able to do it again on Owen or someone elseВ .В .В . I would have said no.В .В .В . But I think people have a really strong belief here, and there is a general view that this is the right thing to do. And we’re going to do it as united as we can (Dlouhy 2003d). In other words, successfully filibustering Estrada and Owen made the Democrats’ threats to block nominees more credible moving forward. Page 98 →The course the conflict had taken thus far solidified the expectation that the Democratic minority would continue to block judicial nominees it considered objectionable and that the Republican majority was limited by the lack of public attention on the issue, the time it could devote to efforts to break the filibusters on the Senate floor, and the consequences of its past behavior for the minority’s expectations in the future. Regardless of the applicability of these conclusions to future scenarios, the reality was that it would now be less costly for the minority to obstruct moving forward. Its members expected to prevail and were thus more likely to bear the costs associated with doing so. Conversely, the costs of victory for the Republican majority were higher because its members expected the Democrats to easily filibuster President Bush’s judicial nominees in the future. As a consequence, the willingness of rank-and-file Republicans to devote the necessary resources and floor time to prevail in the conflict waned because many of them now believed the effort to be futile. The inability, or unwillingness, of the majority to follow through on its threats also emboldened the minority. As a consequence, the Democratic minority expanded its efforts to filibuster additional nominees. For example, it added another judicial nominee to the list of those it was blocking when it successfully filibustered the Pryor nomination (Eleventh Circuit) on July 31. The minority achieved an important tactical victory when President Bush withdrew the Estrada nomination at the end of the summer. The minority stared down the majority and the president over a controversial nominee and won. Viewed from this perspective, it becomes clear that Estrada’s withdrawal reinforced the expectation of rank-and-file Democrats that they would prevail in the broader conflict if they simply stayed the course. Withdrawal also helped to ameliorate any concern Democrats were feeling about the costs imposed by their strategy. Proponents of a more aggressive response now had direct evidence that these costs were outweighed by the benefits of success. Any pressure within the Democratic Conference against continuing to filibuster Owen and Pryor dissipated. Senator Schumer observed, “In the nominees that we’ve already blocked, I think it will be the same as Miguel Estrada.В .В .В . They could bring them up for votes two more times, three more times, five more times, they won’t succeed” (Dlouhy 2003f). Estrada’s withdrawal was initially seen as a catalyst that would push the majority to adopt a more aggressive approach. According to Lindsey Graham (R-South Carolina), “Estrada withdrawing was the straw that broke the camel’s back” (Cochran 2003e). But the fundamental dynamics driving the conflict up to that point remained unchanged. Altering these underlyingPage 99 → fundamentals required that the majority strengthen its willingness to fight and credibly signal to the minority its determination to prevail. Absent this, the Republicans’ threats would continue to lack coercive value because the Democrats would continue to expect them not to be carried out. As a consequence, the Republicans’ efforts would continue to be ineffective in compelling the Democrats to stop blocking the president’s judicial nominations. Limited Expectations

The Republicans’ initial strategy to compel the minority to stop filibustering Estrada, Owen, and Pryor had three limitations. First, the coercive value of their threat was dependent on bringing public pressure to bear on individual Democrats. Yet generating and sustaining public attention to the issue of judicial nominations was difficult, particularly at that time. During the conflict, a Democratic pollster observed, “We have never seen an issue that people are less concerned about than nominations to the federal bench” (Toobin 2003). For example, when asked in 2005 on the eve of the majority’s threatened use of the nuclear option whether or not they were following the conflict, more Americans consistently responded that they were not following the debate closely.15 Widespread concerns about national security in the aftermath of September 11, 2001, the looming war in Iraq, and a struggling economy made it considerably more difficult for Republicans to force judicial nominations higher on the public’s agenda. When the public was paying attention, it did not seem to care that the Democrats were filibustering the president’s nominees.16 As a consequence, it was unlikely that threats designed to increase the political costs of obstruction would impose prohibitive costs on rank-and-file Democrats for blocking confirmation votes on judicial nominees. Yet the majority persisted in its strategy to put political pressure on Democratic senators for blocking President Bush’s judicial nominees. It expected that public opinion on the issue, coupled with the related threat of losing in the 2004 elections, would compel a sufficient number of Democrats to vote with Republicans to end the judicial filibusters. Underlying Republican support for this approach was the fact that the majority appeared to have convinced itself that the repeated instances in which Democrats blocked Estrada would help it increase its support among Hispanic voters in the upcoming elections. To that end, the majority incorporated the filibusters into a larger narrative that the Democrats were obstructing popular issues on the Republican’s agenda. Senator George Page 100 →Allen (R-Virginia) called it yet “another example of the Democrats putting obstructionist, negative, partisan politics over the best interests of the American people” (Dlouhy 2003f). The Democratic minority remained unmoved by these threats. Its rank-and-file did not believe they would pay an electoral price for blocking nominees they considered to be out of the mainstream. Rather, Democratic senators believed that the effort could benefit them by mobilizing their base to turn out to vote in the upcoming elections. Additionally, the Republicans were having difficulty portraying opposition to Estrada as an anti-Hispanic position. The Congressional Hispanic Caucus, Puerto Rican Legal Defense and Education Fund, and Mexican American Legal Defense and Education Fund all supported the minority’s effort to block confirmation of Estrada.17 Democrats did not believe that the broader electorate was paying attention to the conflict. Instead, they believed that voters were more concerned with other items on the agenda like the economy and the war in Iraq. According to Kennedy, You have policy in Iraq that’s adrift, an economy that’s sputtering, you have an electric system that is crashing and you have a judicial nomination system which is failing.В .В .В . I think the administration is going to have a lot to account for besides this particular [issue]. (Dlouhy 2003f) Reflecting these realities, the Democratic minority easily filibustered the Pickering nomination (Fifth Circuit) on October 30. Second, and related, it was increasingly untenable for the Republican majority to devote the time necessary for a strategy based on increasing the political costs of obstruction to work. Its rank-and-file members were increasingly anxious to turn to their legislative agenda after two years in the minority. Even Orrin Hatch (R-Utah), the chairman of the Judiciary Committee and the Republican senator responsible for guiding President Bush’s judicial nominations through the confirmation process, acknowledged that the Senate would have to abandon Estrada at some point because “we have to do other business” (Cochran 2003b). Frist concurred, observing that it was unrealistic to expect the majority to keep Estrada’s nomination on the floor indefinitely and that at some point the majority would have no choice but to pivot to other business. Frist acknowledged that if the Democrats continued to filibuster Estrada “for weeks and weeks and weeksВ .В .В . we can’t address other important issues” Page 101 →(Dlouhy 2003b). Public statements like these from the majority leader and the chairman of the Judiciary Committee affirmed the expectations of the Democratic minority that the Republicans were unwilling to bear the costs of an aggressive effort to confirm the disputed nominees over their

objections. The majority’s decision to process the Senate’s legislative business alongside its effort to overcome the minority’s filibusters undermined the credibility of its threats to impose political and procedural costs on the minority. Continuing to consider important legislation on the Senate floor reinforced the Democrats’ belief that rank-and-file Republicans did not want to risk negatively impacting their priorities by pursuing confirmation of each nominee. Another unintended consequence of periodically interrupting the conflict over judges in order to turn to legislative business was that it became more difficult for Republicans to persuade voters that Democrats were unreasonably obstructing highly qualified nominees. By extension, the absence of public attention on the issue would make it that much more difficult to compel Democratic senators to relent in their obstruction by raising the political costs of such behavior. While dual-tracking legislative and executive business made it easier for the majority to maintain internal unity in support of a more aggressive response to the minority’s obstruction, it also signaled a lack of commitment on the part of Republican senators to bear the costs associated with carrying out their threats. It was apparent that Republican senators were not prepared to bear the costs associated with a sustained focus on judicial nominations to the exclusion of all other business. Instead, they would rather consider legislation related to tax cuts, the debt limit, and the fight against the AIDS pandemic in Africa. There may have been compelling reasons to consider each of these measures. However, the more fundamental point was that the majority collectively deemed these measures more important than its campaign to break the minority’s judicial filibuster and that publicly signaling this fact had important implications for its ability to compel the minority to relent in its obstruction. Third, the repeated inability of the Republican majority to carry out its threats undermined its credibility. In the future, the majority’s threats would be even less effective in compelling the minority to relent because its failure to follow through made its rank-and-file appear unwilling to invest the time and resources necessary to prevail. This lowered the cost and thus increased the relative utility of obstruction for the Democratic minority moving forward. As a consequence, a successful effort to compel the Democrats to relent became more and more costly. Page 102 → A New Approach to Bargaining

Given these limitations, the Republican majority needed to change its approach to the conflict if it was going to overcome the minority’s filibusters. Former majority leader and chairman of the Rules Committee Trent Lott (R-Mississippi) observed, “We’re running out of time, and we are running out of options. . . . Something more must be done and I believe it will” (Dlouhy 2003g). Similarly, Hatch observed that the Republican leadership was “trying everything [they] can possibly do, between now and the end of the session, to get the Democrats to wake up and realize that what they’re doing is extremely dangerous—partisan and dangerous” (Dlouhy 2003g). The implication of Hatch’s comment was that the minority would stop filibustering the president’s nominees once it realized that the majority was determined to prevail. All that was needed was the Republicans to convince the Democrats to take their threats seriously. As part of its new strategy, the Republican majority planned a series of public relations events designed to highlight the extent of the Democrats’ obstruction on the Senate floor. To that end, it devoted three days of floor time in November 2003 to debate several of the stalled nominations. The debate would culminate in an around-the-clock, thirty-hour, talk-a-thon during which Republican senators would repeatedly ask unanimous consent to schedule up-or-down confirmation votes on the nominees. Assuming the Democrats objected, Frist would then file cloture on each of the nominees in order to force the Democrats to sustain their filibusters. Following these cloture votes, Frist would then file cloture on his proposal to eliminate the judicial filibuster via a formal rules change (S. Res. 138) in order to force Democrats to filibuster it as well. Republicans dubbed the talka-thon the “Justice for Judges Marathon.” In addition to focusing outside attention on the minority’s obstruction, the majority hoped that the event would signal its commitment to confirm the nominees in question one way or the other and clearly demonstrate that its members were willing to bear the costs necessary to prevail

in the conflict. These costs were apparent from the outset. The talk-a-thon limited the majority’s ability to consider other priorities on its legislative agenda during the busy closing days of the first session of the 108th Congress. The time spent debating judges and the proposed rule change on the Senate floor could not simultaneously be used to consider other legislative business that rank-and-file Republicans wanted take up before the end of the year. Some Republicans also worried that tactics like the “Justice for Judges Marathon” would make minority cooperation less likely on those other Page 103 →legislative priorities; that it needlessly risked other important issues on the legislative agenda. For example, Susan Collins (R-Maine) remarked, “I understand and share the frustration that the nominees haven’t been able to have an up or down vote.В .В .В . I don’t know that I would have chosen this approach to make that point” (Perine and Jalonick 2003). The chief deputy whip, Robert F. Bennett (R-Utah), was more explicit about the majority’s internal divisions. “There are some in the conference who think it is a really dumb idea.В .В .В . There are some in the conference who think we’re not going far enough, that it ought to be 60 hours” (Cochran 2003e). These competing groups within the Republican Conference weakened the majority’s ability to present a united front in opposition to the minority’s filibusters. The simple fact that they existed reinforced the minority’s expectations that the majority would be unable to carry out its threat. In short, public disagreement over the talk-a-thon among Republicans undermined the majority’s commitment to follow through on its threats. For their part, Senate Democrats signaled before the talk-a-thon commenced that they would disrupt the staged event to discuss issues other than judicial nominations, issues that they believed were more important to voters. Daschle’s spokeswoman predicted that the minority was “prepared to match them person for person, voice for voice on the political stuff they’re pulling, and our message will resonate better” (Perine 2003). Daschle himself confidently summed up his plans for the talk-a-thon, “If we get 15 hours to debate the joblessness in this country and call attention to the utter failure of this administration to address employmentВ .В .В . I believe that’s a great victory” (Martinez and Perine 2003). In contrast to the majority, the minority remained united over both its goals in the conflict and the means of achieving them. During a filibuster of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Act of 2004 (HR 2799) Reid warned the majority about trying to be too heavy-handed in its treatment of the minority. “Don’t think we are unimportant. Don’t think we can be pushed around with no say in what goes on around here, because we have a say in what goes on around here.”18 Democrats were also frustrated that the Republicans had routinely excluded them from participating in conference deliberations. Reid clearly signaled the minority’s concern over such tactics, This isn’t to threaten, butВ .В .В . there is going to have to be some appropriate action taken if this is going to happen.В .В .В . You can’t be slapped around forever.В .В .В . We believe in turning our cheeks, and our cheeks have been turned and both sides slapped and we Page 104 →still move forward. We have taken as much as we’re going to take. (Dlouhy 2003h) Reid’s remarks suggested that Democratic senators were willing to endure significant costs in order to resist efforts to restrict the procedural rights on which their ability to participate in the decision-making process depended. In short, they viewed the conflict over judges as part of a larger campaign to maintain their relevance in the policy process more generally. Senator Patrick Leahy (D-Vermont) captured this dynamic in his description of the Democrats’ original rationale to filibuster Estrada until the Bush administration gave them access to the documents they were requesting.19 “We sort of reached the conclusion that if we rewarded stonewalling we’re just going to have more stonewalling.В .В .В . It wasn’t going to get easier, it was going to get more difficult” (Toobin 2003). Such concerns transcended the narrow confines of the conflict over judicial nominees and bolstered the minority’s determination to prevail. Up until this point in the conflict, the Democrats had signaled a determined opposition to the majority’s efforts to force up-or-down confirmation votes on Estrada, Owen, Pryor, and Pickering. In contrast, Republicans continued to send conflicting signals that undermined the credibility of their threats. For example, the concerns of

several Republican senators that were aired publicly about Frist’s proposed rules change undermined the credibility of the majority’s threats. At least eight Republicans had significant concerns about eliminating the judicial filibuster via the rules change. When asked if he supported lowering the cloture threshold to end debate on nominations to a simple-majority, Pete V. Domenici (R-New Mexico) responded, “I have to think it through.” Conrad Burns (R-Montana) openly acknowledged his hesitance, “I’m a little nervous when I think about changing the rules” (Stevens and Perine 2003). Similarly, Lincoln Chafee (R-Rhode Island), Mike DeWine (R-Ohio), and John McCain (R-Arizona) each worried that changing the rules in this manner would come back to haunt them when they were again in the minority. In contrast, the Democrats’ response was clear, consistent, and emphatic. Most rejected the majority’s proposal to eliminate the filibuster out of hand and warned Republicans against forcing it through unilaterally via the nuclear option. Richard J. Durbin (D-Illinois) predicted that going nuclear “would precipitate a confrontation in the Senate of historic proportions” (Stevens and Perine 2003). The chairman of the Democratic Policy Committee, Byron L. Dorgan (D-North Dakota), warned that tryingPage 105 → to force the rule change through the Senate using the nuclear option “would bring the Senate to a dead stop” (Stevens and Perine 2003). It was not expected that Frist’s proposal would get the two-thirds support needed to end a filibuster given the unanimous opposition of Democrats and the concerns expressed by several Republicans. Yet it was still expected to receive the support of at least a simple-majority of all senators. But by the summer of 2003 it was increasingly clear that the proposal would fail to secure even this minimal amount of support. That is, the Republican majority could not secure a simple-majority in support of its own proposal. Minority Leader Daschle optimistically predicted, “There is a real possibility that we have the votes to defeat it outright” (Cochran 2003d). This was significant because the majority could not credibly threaten to use the nuclear option to eliminate the filibuster if it could not first secure a simple-majority in support of Frist’s proposal to change the rules. The most immediate consequence was to embolden the Democrats. The fact that the Republicans could not get a simple-majority composed entirely of its own members to support a formal rules change to eliminate the filibuster reinforced their expectation that the majority would also be unable to secure the necessary votes to go nuclear. Nevertheless, Frist continued to publicly insist that all options remained on the table to overcome the minority’s obstruction. But an aggressive move to restrict the minority’s rights by utilizing the nuclear option was increasingly viewed by Republican senators as negatively impacting other priorities on their agenda. Indeed, the Democrats were threatening to delay or block Medicare reform, energy legislation, and the annual appropriations bills if the Republicans went nuclear. Even Breaux, a moderate Democrat who originally voted to end the Estrada filibuster, strongly opposed the Frist proposal as well as the majority’s efforts to force it through the Senate by utilizing the nuclear option. He predicted that doing so “would create grave chaos and disrupt the Senate for years to come” (Cochran 2003d). Gordon Smith (R-Oregon), a moderate Republican who was skeptical of the nuclear option, acknowledged the minority’s threat, suggesting that at the very least the maneuver should be employed in a way that minimized the impact of the expected retaliation on the majority’s agenda. Smith suggested that the majority should only consider going nuclear at the end of the Congress, advising “if we do it at all, to do it late, when most of our work is done” (Cochran 2003d). Yet Smith was also on record arguing that “the Senate needs to be empowered with a strong minority, and it could be Republicans one day” (Cochran 2003c). Page 106 →In contrast to the minority’s threats, the majority’s threats continued to be vague and ambiguous. For example, Graham warned Democrats about continuing their filibusters. If you don’t think down the road it will be answered in kind by the Republican Party, I think you are very naГЇve.В .В .В . The animosity being generated by this practice is red hot among both bases, and it will be almost impossible, in my opinion, for this not to become the norm. Payback is hell.20 Here Graham failed to specify what kind of payback the Democrats would receive. Nor did he specify who would be carrying out the threat in the future. Rather, he simply argued that retribution was unavoidable because the

minority was setting in motion events that could not be controlled. John Cornyn (R-Texas) similarly threatened, “It’s going to be hard to stop my colleagues, some of whom will insist that the same [60-vote] supermajority requirement will be required.В .В .В . What’s sauce for the goose is sauce for the gander” (Perine 2004e). Both implicitly signaled regret about this future state of affairs instead of explicitly committing to retaliate if the minority continued to filibuster. Aside from the vague implication that the Republicans would impose some unspecified costs on Democratic senators at some indeterminate period in the future, neither senator explicitly threatened action that would increase the costs on those members at that point in time. Given this, rankand-file Democrats were likely to remain unconvinced that the costs of continuing to filibuster the nominees in question would outweigh the benefits of victory in the conflict. In an ominous sign for the Republican majority, it was forced to back down from carrying out its threat to hold a cloture vote on the Frist rules proposal at the end of the talk-a-thon. The stated reason was that additional time was needed to accommodate more debate and that the proposed rule change would be revisited later in the Congress. The real reason was that the leadership was concerned that a majority of the Senate would vote against the proposal. Moreover, the stated reason did not ameliorate the long-term damage backing down did to the majority’s credibility vis-Г -vis the minority. Absent a better rationalization, there was no reason to believe that it would not back down again in the future. Similarly, President Bush was forced to back down by the response of Democratic senators from his decision to give recess appointments to Pickering and Pryor in early 2004 (Perine 2004a, 2004b, and 2004d). In response to the president’s maneuver, Senate Democrats vowed to block all Page 107 →judicial nominations moving forward, not just those they considered objectionable, unless Bush promised to not make any more recess appointments. The president eventually agreed and the Democrats subsequently allowed votes on twenty-five of his nominees that they had blocked in retaliation. It should be noted that the minority was able to deter the president from making recess appointments through the end of the Congress without having to cede any ground on the nominees it was blocking before this particular skirmish. The repeated inability of the majority to carry out its threats reflected the fact that its rank-and-file were not united in support of a particular strategy to overcome the minority’s obstruction. In addition, there was a point above which the Republican majority needed to keep the conflict from escalating. Because the Democrats’ threat to retaliate was viewed as credible, threatening the nuclear option would backfire in that it would diminish the support of members concerned that the tactic would be used to eliminate the legislative filibuster at some point in the future. Eliminating the filibuster entirely would be necessary to mitigate the damage minority retaliation would have on the Republicans’ broader agenda. That is, the majority would have no choice but to take this extra step if it wanted to salvage any of its legislative agenda in the aftermath of a nuclear strike. Yet this would undermine the majority’s ability to credibly threaten to go nuclear in the first place. Reflecting this concern, Frist stopped using the term nuclear option in November 2004 and instead began referring to the maneuver as the constitutional option. This new term was intended to assuage the concerns of some Republican senators by narrowing the maneuver’s applicability to judicial nominations only. Frist argued that the term constitutional option was more appropriate because the minority’s filibusters of the president’s judicial nominations were unconstitutional. Specifically, he asserted that Article II, section 2, clause 2 of the Constitution, which stipulates that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appointВ .В .В . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law,” created a constitutional obligation to give a president’s nomination an up-or-down confirmation vote on the Senate floor.21 Lott also argued that the filibuster prevented the Senate from performing its “constitutional responsibility to advice and consent on the president’s nominations.” Lott claimed that, as a consequence, the judicial filibuster “completely contradicts the intent, spirit, and language of the Constitution” (Dlouhy 2003e). By casting the debate in such terms, the Republicans hoped to portrayPage 108 → the minority’s filibusters as unconstitutional and thus illegitimate. More importantly, they hoped to clearly differentiate between judicial and legislative filibusters. Absent some way to distinguish between the two, it would be more difficult to reassure concerned senators that using the nuclear option to eliminate the judicial filibuster would not also be used to

eventually eliminate the legislative filibuster. To that end, Frist explicitly reiterated his support for a senator’s ability to filibuster legislation while simultaneously campaigning for the elimination of the judicial filibuster. “What it basically—it’s called the nuclear option. It’s really a constitutional option.В .В .В . It’s not we’re against all filibusters of every piece of legislation” (Cranford 2004). The fact that Frist felt the need to differentiate between the two while reiterating support for the legislative filibuster suggests that Republicans were increasingly concerned about where their efforts to overcome the Democrats’ filibusters would lead. This underscored the majority’s predicament. Its previous threats to date had not worked. The Democratic minority showed no signs of relenting in its obstruction. A different approach was thus needed in order to compel the minority to relent and drop its judicial filibusters. Yet simply stepping up its threats undermined the majority’s commitment to follow through in the end because some of its rank-and-file did not support going that far. As a consequence, the minority was emboldened in its obstruction. In short, its rank-and-file expected to prevail in the end. The fact that the minority believed that it would prevail made it more difficult for the majority to successfully compel it to relent in its obstruction of President Bush’s judicial nominations. Conflict Resolution The results of the 2004 election altered the political landscape. At first, the new balance of power in Washington suggested that the confirmation wars of the past four years would be brought to a close on terms more favorable to the majority. President Bush was reelected to a second term and Republicans increased their Senate majority to fifty-five seats. Significantly, Minority Leader Daschle was among the Democrats defeated in November. Daschle’s Republican opponent, John Thune, made the minority leader’s role in leading the filibusters of Bush’s judicial nominees a central issue in the campaign. The minority’s smaller size and anecdotal evidence of the electoral consequences of obstruction suggested that Senate Page 109 →Democrats would find it more difficult to maintain their obstruction of the president’s nominees. Seemingly reflecting this new reality, the incoming minority leader, Harry Reid (D-Nevada), suggested to President Bush shortly after the election that they “establish procedures for routine collaboration between the White House and Senate Democrats in the appointment of federal judges during the 109th Congress” (Perine 2005a). Yet the results of the 2004 election and Daschle’s loss had not significantly altered the minority’s calculus. While it may have initially appeared as an olive branch, Reid’s proposal was consistent with the position maintained by the Democratic minority throughout the conflict. Regardless of Reid’s intentions, the president ignored the minority leader’s suggestion and opted instead to take a more confrontational approach. On December 23, the president announced that he intended to renominate nearly all of the judges that the Democrats had filibustered over the preceding two years. Signaling that the minority had not adjusted its posture in light of the election results, Dorgan responded to the president’s move by stating that Senate Democrats would continue to block those nominees that they considered objectionable. “If they send us nominees that are so far out of the mainstream obviously we have an obligation to use whatever tools are available to us” (Perine 2003a). The immediate response of Senate Republicans was to explicitly threaten to use the nuclear option in order to eliminate the judicial filibuster if the minority persisted in its obstruction. Majority Leader Frist emphasized this posture on the Senate floor at the opening of the new Congress: If my Democratic colleagues exercise self-restraint and do not filibuster judicial nominees, Senate traditions will be restored. It will then be unnecessary to change Senate procedures. But if my Democratic colleagues continue to filibuster judicial nominees, the Senate will face this choice: Fail to do its constitutional duty or reform itself and restore its traditions and do what the Framers intended. Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate Rule XXII.22

Yet despite the clarity of Frist’s threat, the repeated inability of Senate Republicans to follow through on their threats in the previous Congress undermined its coercive value. Indeed, the expectation of Democrats Page 110 →remained that the Republicans would not pull the nuclear trigger because they could not marshal a simplemajority in support of the maneuver. While Republicans hoped that their larger majority would make it easier to secure the votes needed to eliminate the filibuster, the fact remained that a significant number of Republican senators were hesitant, if not outright opposed, to going nuclear in the new Congress. For example, McCain publicly opposed using the nuclear option, arguing, “I think there is a reason why we’re bicameralВ .В .В . the Senate should not be like the House” (Dlouhy and Perine 2005). When asked about changing the Senate’s rules, Chafee responded, “I like the rules as they are” (Perine 2005b). Similarly, Collins and John W. Warner (R-Virginia) both had reservations about the tactic even though neither had yet to take an official position on it. Lamar Alexander (RTennessee), Lisa Murkowski (R-Alaska), Chuck Hagel (R-Nebraska), George Voinovich (R-Ohio), Arlen Specter (R-Pennsylvania), Domenici, and Smith also remained publicly undecided. In early February, Olympia Snowe (RMaine) further weakened Frist’s leverage in the conflict when she joined McCain and Chafee in public opposition to the nuclear option. “I don’t think we should move in that direction.В .В .В . I don’t think it’ll be optimal for the environment” (Perine 2005c). In the end, the majority could only lose five members on a vote to eliminate the filibuster via the nuclear option. With a fifty-five seat majority, and three members already confirmed as voting no, Frist could lose only two additional votes. Complicating Frist’s task in securing the required votes was the fact that moderate Republicans remained concerned that the use of the nuclear option would negatively impact their priorities in the 109th Congress. Collins worried that using the nuclear option would “poison the well,” thereby making it more difficult to pass legislation in the Senate (Perine 2005b). She acknowledged in mid-April that the nuclear option would be a “mistake” (Retter 2005c). This fear of Democratic retaliation prompted concerned Republicans to begin searching for ways to resolve the conflict short of nuclear war. Among those working on a compromise was Specter, the new chairman of the Senate Judiciary Committee. Specter asserted that he would “exercise every last ounce of my energy” to reach a deal and avoid the nuclear option” (Perine 2005b). Such public eagerness to reach a deal reinforced the minority’s expectation that the majority would be unable to carry out its threats. Senate Democrats attempted to exacerbate internal divisions among Republicans by mobilizing traditionally Republican-friendly advocacy organizations in opposition to the nuclear option. They argued that going Page 111 →nuclear would jeopardize the prospects of legislation important to those groups. Specifically, Thomas R. Carper (D-Delaware) and Herb Kohl (D-Wisconsin), two pro-business Democrats, warned the US Chamber of Commerce, Business Roundtable, and National Association of Manufacturers in a letter that the Senate’s legislative agenda would grind to a halt if the Republicans went nuclear. This effort came in the aftermath of two conservative advocacy organizations, the National Right to Work Committee and Gun Owners of America, announcing their opposition to the nuclear option (Perine and Retter 2005a). In contrast to the resistance of moderate Republicans to the confrontational approach urged by most of their party, moderate Democrats representing states that President Bush won in 2004 signaled that they were supportive of their party’s efforts to block certain judicial nominees. For example, Mary Landrieu (D-Louisiana) asserted that the minority would not hesitate to “stop a judge if that judge doesn’t measure up to the standards that have been set for decades” (Perine 2005b). Even Democratic senators who would be up for reelection in 2006 and were likely Republican targets like Jeff Bingaman (D-New Mexico) and Bill Nelson (D-Florida) also publicly signaled that they would filibuster judicial nominees in the 109th Congress if they deemed those nominees unqualified. Nelson’s position reflected a partial reversal from the previous Congress when he voted to end the Estrada filibuster on all seven attempts. In preparation for a parliamentary showdown, the minority weighed the costs and benefits of various retaliatory responses if the majority actually went nuclear. Byrd, who was widely acknowledged as the Senate’s leading parliamentary expert at the time, convened a special meeting of the Senate Democratic Conference on February 17 to address any concerns among the rank-and-file about the minority’s strategy and how the subsequent floor

fight would be likely to unfold if the majority pulled the nuclear trigger. The Democratic consensus that emerged from the meeting was continued support for an aggressive response. Dorgan summed up the common view among Democrats after the meeting. “They better think very carefully about using that option.В .В .В . That would be like throwing a wrench in the crankcase. It stops everything” (Retter 2005a). Unlike the minority, the majority continued to wrestle with the challenge of forming a united front in the conflict. The inability of Republicans to coalesce around a common approach meant that Frist was not eager to test the minority’s resolve. Several important bills on the majority’s agenda were scheduled for consideration in late February and early March. These included legislation to reform the bankruptcy process, FederalPage 112 → Communications Commission indecency fines, and the annual budget resolution. While successfully using the nuclear option to eliminate the filibuster would facilitate the confirmation of the contested judicial nominees, Republicans expected that it would do so at the expense of other legislative priorities like these. Given this, it appeared that a sufficient number of Republicans were unwilling to take that risk. It thus remained unclear whether or not the majority had the votes to eliminate the filibuster. As a consequence, it put off forcing the issue. In the meantime, Republican leaders projected confidence publicly while privately continuing to lobby undecided senators to support the nuclear option. Lott predicted that Republicans had the votes to prevail. “You never know for sure, until you have the vote.В .В .В . But I’m comfortable in saying we have at least 50” (Ota 2005a). Domenici publicly came out in support of going nuclear at the end of March. Sensing momentum, Senate Republicans pressed the issue. A “senior Senate floor aide” for the majority predicted that the parliamentary showdown could come to a head as early as April after the Senate completed consideration of a supplemental spending bill (Ota 2005a). The Republicans hoped that such confident predictions would help pressure enough Democrats to stop filibustering the president’s judicial nominees. Yet the threat had the opposite effect. Instead of relenting, the minority reiterated its intention to retaliate if the majority went nuclear. The Democrats also publicly underscored their expectation that the Republicans were bluffing by dismissing the argument that the majority would follow through on its threat to use the nuclear option once it realized that the maneuver would be met with massive retaliation instead of acquiescence. When asked, Leahy playfully replied, “We’ll seeВ .В .В . it would make my life easier because nothing else would happen for the rest of the year” (Ota 2005a). Communication and Negotiation

In early March, the Republicans offered Democrats a compromise to resolve the conflict. Their proposal resembled the Frist rules change from the previous Congress. In short, it would have guaranteed an up-or-down vote on all nominees after a certain amount of time had elapsed. The Democrats rejected the offer because it failed to satisfy their underlying concerns about protecting the minority’s ability to meaningfully influence outcomes in the confirmation process. Since their influence was primarily dependent on the ability to filibuster, any proposal that guaranteed a simple-majority confirmation vote to all nominees at some point would be rejected. AccordingPage 113 → to a Senate Democratic aide, “There are serious constitutional issues at stake here that I don’t think lend themselves to negotiating agreements to bring up judges for an up-or-down vote” (Perine 2005f). In addition, the minority had no incentive to accept the deal because its members did not expect the Republicans to carry out their threat to eliminate the filibuster. Continued obstruction thus presented a less costly path forward for the minority than a negotiated solution on the majority’s terms. Given this, the majority would continue to find it difficult to compel the minority to agree to curb its obstruction in the absence of a credible threat to go nuclear. Democrats held a press conference on the Capitol steps in mid-March that reiterated their determination to oppose the Republicans’ efforts to overcome their filibusters. They explicitly threatened to obstruct the majority’s agenda if the latter followed through on its threat to go nuclear. In a subsequent letter to Frist, Reid asserted that the Democrats would not cooperate in facilitating the consideration of legislation on the Senate floor with the exception of bills “supporting our troops and other legislation needed to ensure the ongoing operations of the federal government” (Perine 2005h). Absent cooperation, the time-consuming cloture process would be required to end debate on nearly everything from controversial legislation to routine business.

Reid’s threat affirmed the fears of a number of Republicans that their legislative priorities would be jeopardized if the majority went nuclear. In contrast, Frist’s response stressed the need for cooperation in reaching a compromise. Specifically, the majority leader hoped that a compromise would “take account of complaints both parties have had with the confirmation process. It will protect the Constitution, validate our duties as senators, and restore fairness to a process gone awry” (Perine 2005i). Yet Frist failed to grasp the fundamental point that there was no way to resolve the conflict on terms acceptable to the majority while simultaneously taking account of the minority’s concerns unless the former was able to threaten consequences for the latter’s continued obstruction that were sufficiently credible and persuasive enough to compel a sufficient number of Democrats to stop filibustering the nominees in question. Put simply, the majority remained committed to an outcome that guaranteed all of President Bush’s nominees an up-or-down confirmation vote on the Senate floor. But absent a credible threat to force the minority to comply, Senate Democrats had no reason to concede that point. Instead, they refused to back down from their position because they believed that they had the upper hand. Reflecting this dynamic, Schumer immediately dismissed any compromise offer that would guarantee judicial nominations an up-or-downPage 114 → confirmation vote. “It’s not a compromise, it’s a fig leaf.В .В .В . It’s a slow death vs. a quick death” (Perine 2005j). Democrats were thus signaling that they would not agree to a compromise unless a solution could be found that resolved the conflict in a manner “consistent with constitutional checks and balances” (Perine 2005i). However, addressing the minority’s concerns required the majority to acknowledge that the minority had a legitimate right to obstruct judicial nominees and thus to preserve the filibuster, a point that many Republicans, including their leadership, were unwilling to concede. The majority’s compromise offer is evidence of the fact that it was not yet confident that it could successfully utilize the nuclear option to eliminate the filibuster. When asked if he had the votes in mid-April, Frist refused to answer, responding, “I’m just not going to go there” (Retter 2005c). The majority leader also acknowledged that he and his colleagues had not yet made the case for the nuclear option. In an effort to address this concern, Thune said Republicans would time their media campaign carefully to occur just before Frist was ready to deploy the controversial maneuver. “Yes, the Republicans are stepping it up.В .В .В . At the appropriate time, we will have a sufficient mechanism in place to do the education” (Retter 2005c). However, a Senate Republican leadership aide acknowledged that the majority was at least three weeks from executing the maneuver, which did not leave a lot of time to mount an aggressive media campaign given the consistent messaging from the Democratic minority and its allied organizations. In contrast to the Republicans, the Democrats had mounted a months-long coordinated campaign designed to solidify support among its base and to pressure Republican moderates and business friendly organizations, as well as conservative advocacy groups, to break with the majority leadership on the question of the nuclear option. Liberal advocacy groups opposed to the confirmation of President Bush’s judicial nominees launched an advertising campaign in opposition to the nuclear option. Perhaps intentionally, it did not distinguish between judicial and legislative filibusters. In response, Frist again attempted to reassure members that the legislative filibuster was not at risk: As more and more attention has focused in recent weeks on a partisan minority unfairly blocking simple up or down votes on judicial nominees in the Senate, some have claimed that any effort to restore precedent for up or down votes on judicial nominees would affect the rights of senators when it comes to legislation.В .В .В . I will not act Page 115 →in any way to impact the rights of colleagues when it comes to legislation. (CQ Staff 2005) The fact that the majority leader felt it necessary to again clarify his position on the legislative filibuster suggested that Republican senators remained sensitive to the claim and needed reassuring. Meanwhile, Frist and Reid continued daily talks in an effort to avoid escalating the conflict to a point at which the nuclear option would be triggered. Frist was also reported as preparing yet another compromise offer to the Democrats in order to “appear conciliatory” before going nuclear (Perine and Stern 2005). Yet such an

olive branch sent the opposite signal. It suggested that the majority was not as willing to fight, or to go nuclear, in private as it purported to be publicly.

Endgame

On April 21, the Judiciary Committee favorably reported the nomination of Priscilla Owen to the Fifth Circuit on a party-line vote. Schumer argued that the panel’s action was “a prelude to setting up the greatest constitutional crisis the Senate has faced” (Perine 2005k). The expectation was that Frist would utilize the nuclear option if the Democrats filibustered the nomination on the Senate floor. Vice President Dick Cheney announced shortly thereafter that he would preside over the Senate in order to rule in favor of a Frist point of order that the filibuster of the Owen nomination was not permitted. Around the same time, the minority floated for the first time that it was willing to agree to a compromise solution to the conflict. Reid stated, “There is a way to avoid the nuclear shutdown, and I’m working with my colleagues to put that plan in place” (Retter and Perine 2005). The Democrats insisted that any negotiated solution include a pledge by the Republicans not to utilize the nuclear option in the future. In exchange, they would allow up-or-down confirmation votes on a limited number of President Bush’s judicial nominees. Specifically, the Democrats would drop their filibusters of several nominees they had previously blocked, including David W. McKeague and Richard A. Griffin (both nominated to the Sixth Circuit). The minority would also allow a confirmation vote on Susan Bieke Neilson (Sixth Circuit). In return, the majority would have to take its threat to go nuclear off the table, withdraw the nomination of Henry W. Saad (Sixth Circuit), and return to the practice of honoring the blue slip Page 116 →process. Finally, Reid called for the establishment of a bipartisan commission consisting of six former senators (three of whom would be picked by Frist and three picked by Reid) that would be charged with making recommendations on how to improve the confirmation process moving forward (Perine and Retter 2005b). From the majority’s perspective, the minority’s offer did not represent much of a compromise. The Democrats did not previously filibuster the nominations on which they were willing to allow confirmation votes as part of the agreement because those nominees were too extreme. Rather, McKeague and Griffin were filibustered out of deference to Carl Levin (D-Michigan) and Debbie Stabenow (D-Michigan). The Michigan senators had previously refused to return their blue slips for the nominees to the Judiciary Committee. They did so in retaliation for the Republicans blocking two of President Clinton’s nominees for the Sixth Circuit during the 1990s. As a consequence, the concession did not signal weakness on the part of the Democratic minority. Instead, the deal required that Saad’s nomination be withdrawn and that the majority promise not to utilize the nuclear option in the future. The minority would continue to filibuster the judicial nominees at the center of the confirmation wars. Frist rejected the offer on the basis that those nominees would not be guaranteed an up-or-down confirmation vote on the Senate floor and instead made a counteroffer that would result in all appellate and Supreme Court nominations receiving a confirmation vote at some point. Reid described the proposal as “a big wet kiss to the far right” (Perine 2005l). After rejecting the minority’s proposal as insufficient, Frist announced that he would continue discussions with Reid on finding a solution to the conflict that avoided nuclear war. “I’ll keep talking to Harry Reid one on one.В .В .В . Discussions will continue” (Ota 2005b). Appearing on CBS’s Face the Nation, McConnell predicted that Frist had the votes. “There’s no doubt in my mind—and I’m a pretty good counter of votes—that we have the votes we need” (Retter and Perine 2005). In addition to the leadership effort, discussions continued to find a solution to the conflict among a group of rankand-file senators that would come to be known as the Gang of 14. For example, Mike DeWine (R-Ohio), one of the senators participating in the discussions, announced in late April that he was involved in bipartisan talks to resolve the conflict. “There’s a lot of talk going on among Republicans and Democrats across the aisle.В .В .В . There are serious discussions going on” (Ota 2005b).

The legislative schedule reduced the majority’s leverage in the conflict. The next items scheduled for floor consideration in the spring of 2005 were Page 117 →the fiscal year 2006 Budget Resolution (H. Con. Res. 95) and the 2005 Iraq War supplemental (HR 1268). Republican senators considered both must-pass measures and were thus unlikely to jeopardize the prospects of doing so by going nuclear. As a result, the Senate recessed for a state work period without resolving the impasse. Senators used the recess as an opportunity to win over public opinion to their position in the conflict. To that end, both parties distributed talking points to their members. The Democratic materials emphasized the filibuster, stressing that members should talk to editors of local newspapers and other opinion leaders in their communities about the importance of preserving it. In contrast, the Republican talking points touched on a broader range of issues in addition to the Democrats’ filibusters of President Bush’s judicial nominations. Santorum, the chairman of the Republican Conference and the party’s top messenger in leadership, stressed the need for a broader message beyond the confirmation wars. “Outside of these few square miles, there are a lot more people concerned about Social Security than judges” (Retter 2005d). Santorum’s admission reflected a shift from the majority’s thinking earlier in the conflict when it asserted that obstructing judicial nominations would negatively impact the Democrats’ public image. It also underscored the difficulties facing the majority’s public relations-focused strategy from the beginning. In contrast, the minority threatened to take retaliatory steps that would increase the political costs of going nuclear for individual Republicans. To that end, Reid announced that the Democrats were considering whether or not to force votes on proposals that the Republicans had repeatedly blocked up to that point. They could do so by moving to proceed to legislation Reid put on the calendar (e.g., S. 846, a bill to increase the federal minimum wage) and filing cloture on the motion in order to force a recorded vote. While the Senate has routinely deferred to the majority leader to make such motions since the mid-twentieth century, its rules technically permit any senator to move to proceed to a bill. The Democrats’ goal here was to increase the costs for going nuclear in a way that inoculated them against the Republicans’ criticism that they were simply obstructing its agenda. Polls taken at the time suggested that the American people were opposed to obstruction they considered to be excessive.23 Furthermore, the Democrats’ retaliatory threats served to broaden the conflict to include issues in which they believed the American people were interested. Forcing votes on these issues would increase the political costs for the majority’s rank-and-file members by getting them on the record in opposition to the policies. It would also further divert public attention from the battle over judicial nominations. Page 118 →Despite these threats, Frist announced in early May that he would file cloture on a contested nominee if a compromise was not reached that ended the minority’s filibusters. Moreover, Frist threatened that the majority would use the nuclear option to eliminate the filibuster if this cloture vote was unsuccessful. Regarding all of the nominees that had been blocked up to that point, Frist warned, “We will go straight through and deal with them one by one” (Perine and Retter 2005c). Yet despite this seemingly clear threat, the Democrats continued to expect the Republicans to back down or fail in their efforts to carry out Frist’s threat. Reid observed at the time, “I don’t think he’s got the votes” (Perine and Retter 2005c). A few days later, Frist indicated that the first test would be on either the Owen (Fifth Circuit) or Brown (DC Circuit) nomination and set the end of May as the deadline for the conflict’s resolution. Reid subsequently announced that he was ending his negotiations with Frist to find a compromise. “The negotiations are over.В .В .В . I’ve tried to compromise, and they want all or nothing and I can’t do that. So it will have to be decided on the Senate floor, hopefully this week” (Perine 2005m). Frist echoed Reid’s sentiment: “We have been unable to find a compromise position consistent with the principle of an up-or-down vote” (Perine 2005m). Both leaders appeared resigned to nuclear war. Yet, crucially, the channels of communication between the two sides in the conflict remained open. After the breakdown in the Frist-Reid talks, efforts to find a compromise shifted to the bipartisan discussions taking place between members in the Gang of 14. These negotiations focused on identifying which of the previously filibustered nominees should get confirmation votes. But much of the discussion centered on the Republicans’ concern that the agreement would leave the Democrats free to filibuster future nominations while they would have sworn off the nuclear option as part of the compromise. Republican senators participating in the talks worried that the agreement was thus binding only on their side. Yet this stipulation remained in the

final agreement in which the seven Republicans senators pledged not to support the nuclear option to change the Senate’s rules. In return, the seven Democrats agreed to vote for cloture on three of the contested nominations: Owen, Brown, and Pryor. The Democrats also agreed to filibuster judicial nominees only under “extraordinary circumstances” for the remainder of the 109th Congress. Some Republicans suggested that the Gang of 14 was only made possible by the majority’s hard line and that it would not have materialized had the threat to eliminate the filibuster not been credible. In short, the conflict was concluded on terms more favorable to the majority due to its threat Page 119 →to go nuclear. However, a closer reading suggests otherwise. First, it is not entirely clear that the majority had the votes for the nuclear option in the first place. Supporting this is the fact that a number of Republican senators remained publicly undecided up until the Gang of 14 unveiled its compromise agreement. The fact that most of these undecided members ended up supporting that agreement suggests that they were uncomfortable with the nuclear option all along. Moreover, two Republicans who were on record in support of the nuclear option, Domenici and Graham, were also part of the Gang of 14 and supported its final agreement. This suggests that some of the Republican support for the nuclear option was soft. Finally, and most significantly, the terms of the Gang of 14 agreement represented a step back from what the Republican leadership had insisted on throughout the conflict. Namely, it did not guarantee all of President Bush’s judicial nominations an up-or-down confirmation vote. As a consequence, Frist did not support the agreement. He clearly stated, “It doesn’t satisfy me.В .В .В . I’m less than satisfied with it” (Angle and Perine 2005). Frist continued, “I was not a party to that agreement, nor was our Republican leadership.В .В .В . It stops far short of guaranteeing up-or-down votes on all nominees. It falls far short of the principle on which this leadership stands” (Perine 2005o). Frist also announced that he wanted to keep judicial nominations at the top of the Senate’s agenda after the Gang of 14 reached its agreement. But many Republicans were anxious to move on to other issues. For example, McCain observed that the majority was weary of battle. “I get the impression that a majority of my Republican colleagues want to move forward on other issues” (Perine 2005n). In contrast, if the majority’s threats to go nuclear were responsible for producing the compromise agreement, then it did not make sense for it to move on to other business to the extent that continued threats to go nuclear would produce additional compromises that would result in the confirmation of even more judicial nominations. Another way to look at the outcome is to acknowledge that Frist had been dealt a bad hand (i.e., he lacked the votes to eliminate the filibuster all along) and was thus unable to pressure the minority to relent. However, such a perspective overlooks the fact that the Republican leadership could have bargained more effectively. That is, it could have bluffed. But the Republican majority’s moves throughout the conflict combined with the Democratic minority’s threats meant that only one outcome was likely. The most important point here is that the Democrats believed that Frist did not have the votes necessary to employ the nuclear option. As a consequence, his threats to go nuclear lacked coercive value. Page 120 → Evaluating Coercive Diplomacy There are three potential explanations for the outcome in this case, each of which aligns with the models of procedural change introduced in chapter 2 and reviewed in chapter 4. First, the majority’s threat to unilaterally eliminate the filibuster ultimately compelled a sufficient number of Democrats to stop obstructing some of the contested nominees. This explanation is consistent with the majoritarian model presented by Wawro and Schickler (2006, 271). They argue that the Gang of 14’s agreement should be interpreted as a victory for the majority in that it was only made possible by the threat to go nuclear. It also resulted in the confirmation of three of the more controversial nominees in question (i.e., Owen, Brown, and Pryor). Put differently, the minority was only able to preserve its ability to filibuster judicial nominees in the future by relenting in the present. The implication of this explanation is that the minority would have been unable to preserve its ability to filibuster had

it not relented in the face of an otherwise-determined majority. Second, the minority’s threat to retaliate deterred enough Republicans from supporting the nuclear option. This explanation is consistent with the path dependent model. In this instance, the minority utilized the Senate’s rules in order to threaten progress on the majority’s agenda in retaliation for going nuclear. To that end, Smith (2014) suggests that the Gang of 14’s agreement should be interpreted as a defeat for Majority Leader Frist and the Republican majority in that it prevented Senate Republicans from following through on their threat and thus made Frist look like a weak leader. Another consequence of the agreement was that some of the president’s nominees would not be confirmed. Lastly, the compromise agreement took the majority’s nuclear threat off the table but preserved the minority’s ability to filibuster the president’s nominees in the future, including those to the Supreme Court. To a certain extent, both explanations are correct. But simply acknowledging that the majority was prevented from going further by the minority’s threat to retaliate and the consequences of such retaliation for the goals of rank-and-file senators does not yield a sufficient understanding of the process that led to this particular outcome. Neither explanation details the steps linking particular causes with the observed outcome in this case. As a consequence, they do not provide specific information about the mechanics of procedural change in practice. Absent a better understanding of these mechanics, we cannot fully explain how Senate majorities exercise power over the institution’s rules. Page 121 →This brings us to the third explanation. The bargaining model tells us not just what happened and why it happened. It details how it happened. Specifically, it is the only explanation that explicitly defines, in detail, the causal relationship between partisan conflict and procedural change. Viewed from this perspective, the formation of the Gang of 14 and its subsequent agreement that resolved the conflict short of nuclear war represented the culmination of a bargaining process between Republicans and Democrats in the parliamentary war. That is, both parties engaged in coercive diplomacy over a two-year period in an effort to persuade each other’s members that it was in their interest to adopt certain behavior, or refrain from certain actions, and that failure to do so would result in consequences that would subject them to costs that exceeded those associated with maintaining the status quo. Analyzing the process of coercive diplomacy that played out between the two parties in this case thus sheds light on how these types of parliamentary showdowns can be resolved short of nuclear war. In this conflict, both the majority and minority parties practiced coercive diplomacy to achieve their goals. In short, they bargained. That is, they attempted to manipulate each other’s expectations of how they would likely behave if the conflict persisted. The majority attempted to alter the minority’s expectations of what it would do if the latter continued to obstruct President Bush’s judicial nominations. For its part, the minority attempted to alter the majority’s expectations of how it would respond if the latter took steps to unilaterally restrict its ability to obstruct those nominees. The majority made coercive threats designed to compel the minority to stop blocking the nominees in question. In contrast, the minority employed coercive threats in order to deter the majority from going nuclear without relenting in its obstruction. In addition, important questions remain unanswered by the existing models. For example, what exactly precipitated the Gang of 14’s agreement that ultimately resolved the conflict? Did the majority’s threats to go nuclear compel the Gang’s Democratic senators to drop their filibusters of several of President Bush’s judicial nominees? Or did the minority’s threats to retaliate deter enough members of the majority from supporting the nuclear option and instead pressure them to seek a compromise with the minority? While both considerations certainly played a role, one was more important than the other in resolving the conflict short of nuclear war. Put simply, the Gang of 14’s agreement can be interpreted as more of a victory for one side in the conflict and more of a defeat for the other. The majoritarian model suggests that the majority’s threats were the primary force responsible for resolving the conflict and that Senate Page 122 →Republicans were the primary victors. Comments made by Jeff Sessions (R-Alabama) at the time reflect this thinking about the role played by a determined majority in precipitating compromise. He argued that the Gang of 14’s agreement was only made possible by the hard line Frist

maintained throughout the conflict: We have seen Democrats take a step back from their attack on judges and their argument for legitimacy of the filibuster.В .В .В . There would have been no agreement had the Democrats not known that we had marshaled the votes to sustain the constitutional option. (Ota 2005c) Similarly, Collins suggested that the threat of the nuclear option helped to precipitate agreement among members of the Gang of 14. She recounted that the compromise only became possible when the Senate was on the brink of nuclear war. “The impetus was when the vote was scheduled.В .В .В . We realized it was now or never” (Perine 2005n). The majoritarian model claims that the majority’s threat to eliminate the filibuster was successful in extracting important concessions from the minority. Put differently, the minority was only able to preserve the filibuster in this case by relenting in its obstruction. Yet the model fails to account for the process of coercive diplomacy that played out between the two parties and that was ultimately responsible for resolving the conflict short of nuclear war. By neglecting the bargaining process, the majoritarian model overlooks the important ways in which the credibility of a threat impacts its efficacy in producing desired outcomes. It also devalues the role played by minority threats in limiting the options available to the majority. In contrast, the path dependent model concludes that the nuclear option was forestalled because “a Senate majority preferred to avoid the disruption that invoking the nuclear option may have caused” (Binder, Madonna, and Smith 2007, 735). Specifically, the minority’s retaliatory threats increased the costs associated with the nuclear option by a degree sufficient to cause a number of Republicans to reassess the utility of going nuclear in the first place. The maneuver was no longer in their perceived advantage once these increased costs were factored in to their calculation. As a result, the Republican majority was denied the votes it needed to successfully eliminate the filibuster. Combined with the traditional hesitance of senators to limit their own ability to debate and amend legislation, and debate nominations, on the Senate floor, increasing these costs further reduces the likelihood that a simple-majority coalition can be assembled to change the rules of the Senate by going nuclear. In short, the minority’sPage 123 → threat to retaliate combined with other factors such as the Senate’s crowded agenda to create a favorable environment in which to negotiate an agreement to resolve the conflict. It should be noted that the majoritarian perspective is not entirely inconsistent with the path dependent model of procedural change. It acknowledges that the Republicans were prevented from going nuclear by the Democrats’ threats to retaliate and the impact such a response would have on its members’ “personal power goals” (Wawro and Schickler 2006, 271) influenced the decision of the Republican majority not to go nuclear. In this sense, the minority’s behavior forced the majority to choose between confirming nominations and other priorities on its legislative agenda. Yet even with this acknowledgment of the interdependence of the two sides in the parliamentary war, the understanding of how the conflict was resolved offered by the majoritarian model is still limited because it takes both the majority and minority positions as a given. Instead, the preceding analysis suggests that we need to closely examine the process of coercive diplomacy in order to fully understand how parliamentary conflict is ultimately resolved. How the Republicans and Democrats coalesced around their respective positions in the conflict is important because it speaks to the credibility of the majority and minority threats in the bargaining process. If the minority’s threats deterred the majority by risking other priorities on the latter’s agenda, it was only able to prevail in the conflict because of the acquiescence of a sufficient number of Republican senators. The majoritarian model does not tell us how the members would be negatively impacted beyond simply filibustering other items on the agenda. It argues that if retaliation occurred in this case, the Republicans would have either had to accept gridlock or go further by eliminating the legislative filibuster. While the unwillingness of a number of Republican senators was sufficient to forestall the nuclear option in 2005, the question remains whether or not a minority can successfully deter a majority from eliminating the filibuster

when the latter is determined to prevail in the conflict. The majoritarian model suggests that it cannot. At first glance, the 2013 case examined in the next chapter seems to affirm this view. However, a closer look suggests that a different response by the minority when confronted with a nuclear threat may yield a different outcome.

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Six The Case of an Undetermined Minority One of the important insights reaffirmed in the previous examination of the 2005 case is that the Senate’s rules are buttressed by the personal power goals of individual senators. From a majoritarian perspective, the mere threat to eliminate the filibuster was successful in resolving the conflict short of nuclear war because carrying it out would have significantly diminished the ability of rank-and-file senators to influence outcomes more generally. To the extent that the minority’s behavior influenced the way in which the conflict was resolved, a path dependent perspective suggests that it did so because its threatened retaliation would have impacted the personal power goals of the majority’s members. Yet this implies that both models take the majority and minority threats as a given. That is, each assumes in its own way that the threats made by both sides are credible and that the parties are determined to prevail. Put differently, neither model focuses on the process of coercive diplomacy through which these competing threats are developed, articulated, and validated. This limits our understanding of the dynamics at play because it is the process that determines which threat is more credible and, by extension, which side is more likely to prevail in the conflict. In other words, understanding the bargaining process is critical to explaining how partisan conflict determines procedural change in the Senate today. By examining each step in the 2005 case, we can explain how the outcome was ultimately determined. In short, the Democratic minority signaled a greater determination to prevail and its threats were perceived to Page 125 →be more credible than the Republican majority’s. As a result, the conflict over President Bush’s judicial nominations was ultimately resolved on terms more favorable to the minority. This observation begs the question: why was a similar dynamic not exhibited in the 2013 case? There are two potential answers to this question. First, the personal power goals of individual senators no longer buttressed the institution’s rules to the extent that they did in 2005. As a consequence, the costs of eliminating the filibuster for members on both sides of the conflict were reduced. This is a plausible explanation. The procedures governing Senate decision-making have grown more restrictive over the past decade. As such, the ability of individual members to participate in the decision-making process has been significantly reduced. The elected leadership of the two political parties has filled the void created by this reduction in member participation and now plays the predominant role in structuring activity on the Senate floor. The result has been that the utility of a senator’s personal power goals relative to their partisan power goals has declined. Moreover, a large share of the Senate’s membership was elected post-2005 and has not experienced directly how the institution worked when members were able to participate more freely in the decision-making process on the Senate floor.1 As a consequence, members have been less likely to oppose changes to the rules that increased their collective power at the expense of their own individual rights. Second, the bargaining process by which the conflict was resolved in 2013 unfolded differently than it did in 2005. Specifically, a determined majority materialized that was willing to eliminate the filibuster if necessary to prevail in the conflict. But the primary reason was not because the utility of its members’ personal power goals had been diminished. Rather, the majority eventually employed the nuclear option because the process of coercive diplomacy had broken down. That is, it failed to reveal accurate information about the extent to which each side in the conflict was determined to stand its ground. Put simply, poor communication and conflicting signals prevented the majority and minority parties from resolving the conflict short of nuclear war. Using this second reason as our point of departure, we can better understand why the outcomes in 2005 and 2013 differ by distinguishing the behavior of the Republican minority in the latter from that of the Democratic minority in the former. Unlike 2005, the Republican minority’s behavior in 2013 did not effectively persuade a sufficient number of Democrats that victory was unlikely and that the costs of achieving it by way of the nuclear

option would be prohibitive. The minority’s threats were Page 126 →either not credible or did not sufficiently raise the costs of going nuclear for the majority. In short, the minority’s threats lacked deterrent value. For its part, the Democratic majority effectively employed coercive threats in 2013 to compel the minority to comply with its demands up until the very end of the conflict. Republicans believed that the Democrats’ threats to eliminate the filibuster were credible. This led a sufficient number of Republican senators to give in to the Democrats’ demands on a repeated basis, thereby forestalling the nuclear option temporarily. In each instance, the only way the minority was able to deter the majority from eliminating the filibuster was to give it everything it wanted. This encouraged the Democrats to threaten the nuclear option again after each showdown because they expected the Republicans to relent in the face of similar threats in the future. The credibility of the minority’s threats was thus undermined by the majority’s repeated efforts to test its commitment to follow through on retaliation. This effectively rendered the filibuster meaningless in that it sent the signal that Republicans would relent in their obstruction when faced with a credible threat to go nuclear. In theory, this process could have continued past November 2013, thereby forestalling the nuclear option indefinitely and allowing the majority to prevail in the conflict without actually eliminating the filibuster. That it did not underscores the importance of communication in preventing escalation in parliamentary wars. In this case, a decline in communication between the two belligerents led to a breakdown in the bargaining process. The majority’s expectation that the minority would relent when taken to the brink was ultimately proven inaccurate, even though the minority’s prior behavior signaled the exact opposite. In reality, the minority was determined not to relent on the eve of nuclear war in the Senate. Yet the majority continued to expect otherwise because the minority had not credibly communicated that its behavior in this particular case would be any different. It is important to understand how these expectations were formed in order to test the causal relationship theorized in the bargaining model. As with the previous case, each step in the process needs to be examined in detail. To that end, the examination needs to start at the beginning of the conflict and analyze a string of parliamentary showdowns in which the majority repeatedly tested the minority’s commitment to resist efforts to restrict its procedural rights. Doing so allows us to determine if the 2013 case conforms to the expectations of the bargaining model. In each engagement, the majority’s threats either produced substantial minority concessions or failed to prompt minority retaliation when ultimately carried out. Page 127 →This pattern reinforced the majority’s expectation that the minority would continue to relent when pressured in the future. Preliminary Skirmishes Parliamentary war returned to the Senate after the Democrats regained a majority in the institution in the 2006 midterm elections and the 2008 election of President Barack Obama. The proximate cause of the conflict was the frustration both sides felt with the deterioration in the institution’s decision-making process. Yet Democrats and Republicans differed considerably in their identification of the underlying cause driving this deterioration. The Democratic majority was frustrated with what it perceived as the illegitimate obstruction of its agenda by the Republican minority. Specifically, the majority felt that the minority needlessly forced it to file cloture on nearly every bill and major nomination considered on the Senate floor. Following the time-consuming cloture process made it more difficult, if not impossible, for the majority to consider other priorities on its agenda. In addition, Democrats worried that Republican attempts to offer amendments to legislation were designed to score political points and had little substantive relation to the subject matter of the legislation under consideration. This routinization of the filibuster led many Democrats, including their new majority leader, Harry Reid (D-Nevada), to eventually reverse their 2005 position on the nuclear option and to advocate for eliminating the filibuster. In contrast, the Republican minority protested what it viewed as the Democratic majority’s abuse of the Senate’s rules and practices in order to protect its members from casting difficult votes and to force its agenda through the Senate with little or no debate. Specifically, the minority opposed the frequency with which the

majority filled the amendment tree to block votes on its members’ proposals and the routine practice by which the majority preemptively filed cloture in order to expedite floor consideration of controversial legislation and nominations. In many respects, the positions of the two parties had switched. Yet the Republican response to the majority’s threats to go nuclear in 2013 differed from the Democratic response in 2005. Instead of seeking to replicate the successful minority effort to deter the majority exhibited in that case, the Republicans refrained from threatening meaningful retaliatory action. Rather than publicly communicating the retaliatory steps that they were prepared to take, Republican senators, including the party leadership,Page 128 → opted instead to negotiate a series of lastminute compromises to forestall the nuclear option. These negotiations occurred on every occasion that the majority threatened to go nuclear over a three-year period prior to its actual use in November 2013. This behavior signaled a lack of resolve to retaliate on the part of the minority if the nuclear option was ever employed by the majority. An Agreement between Gentlemen

Democratic discontent was particularly pronounced among members that were elected in the years since 2006. Senators like Amy Klobuchar (D-Minnesota), Jeff Merkley (D-Oregon), and Tom Udall (D-New Mexico) joined more senior pro-reformer members like Tom Harkin (D-Iowa) in advocating a broader effort to reduce the ability of Republicans to obstruct. These members were willing to use the nuclear option to change the Senate’s rules over the minority’s objections if necessary. They initially distinguished their efforts from the previous attempt by Republicans to eliminate the filibuster by limiting their proposed use of the nuclear option to the first day of the new Congress. Harkin explained the rationale. “We want to set a precedent that you can only change the rules on the first legislative day of a new Congress.В .В .В . I said at the time you shouldn’t be able to change the rules in the middle of the game. But at the beginning of Congress, I still believe in the constitutional option” (Friel and Lesniewski 2011a).2 Many Democrats believed that the nuclear option could be used legitimately on the first day of a new Congress in order to make changes to Rule XXII (i.e., the filibuster rule) without securing the necessary two-thirds support to end a filibuster of those changes. According to Merkley, Under the Constitution, this body is empowered to organize itself. That is not that those who spoke 100 years ago or 50 years ago get to tell us how to operate but that we today in this Chamber have the power of the Constitution to organize ourselves.3 To that end, the Democrats proposed several changes to the Senate’s Standing Rules on the first day of the 112th Congress. These included making the motion to proceed to legislation nondebatable, reducing the votes needed to invoke cloture, requiring senators to mount a so-called talking filibuster in order to obstruct, ending the practice of secret holds, effectively eliminating the ability of senators to force an amendment to be read on the Senate floor, and expediting the consideration of some executive branch nominations.4 Page 129 →Several leading Republicans, including Minority Leader Mitch McConnell (R-Kentucky) and Rules Committee Ranking Member Lamar Alexander (R-Tennessee), signaled a willingness to negotiate in light of the majority’s focus on rules reform and its increasingly bellicose rhetoric in support of going nuclear. For example, Alexander acknowledged a willingness to compromise on the various reform proposals despite his stated resistance to changing the Senate’s rules. “We need a change in behavior more than a change in rules.В .В .В . Maybe there’s something we need to do to the rules. So we’re talking” (Friel 2011). The negotiations to which Alexander was referring included himself; Chuck Schumer (D-New York), the Democratic chairman of the Rules and Administration Committee; Reid; and McConnell. The Democrats subsequently decided not to go nuclear on the first day of the new Congress in order to give the Reid-McConnell-Schumer-Alexander talks more time to reach an agreement. Yet they purposely kept the nuclear threat on the table by recessing the Senate instead of adjourning.5 By effectively suspending the first legislative day of the Congress, the majority preserved its ability to utilize the nuclear option legitimately, in its opinion, to enact some or all of its proposed reforms if the minority refused to cooperate. This signaled to the minority that

the majority reserved the right to invoke the nuclear option at a later date if the talks broke down. Preserving the option in this way increased the credibility of the majority’s threat and gave Reid and Schumer leverage to drive a harder bargain in their negotiations with McConnell and Alexander. Two of the four remaining Democratic members of the Gang of 14 still serving in the Senate at the time reinforced Republican expectations that the majority was prepared to go nuclear. Specifically, Joe Lieberman (I-Connecticut) and Mary Landrieu (D-Louisiana) announced that they were open to supporting the nuclear option, if necessary, to enact reforms over the minority’s objections. Lieberman observed, It’s probably hard to achieve, but my feeling is that it makes sense.В .В .В . The Constitution says that each chamber of Congress makes its own rules and each Congress is different. So, I think, that every Congress should have the opportunity to make its own rules by a majority—a simple majority. (Friel and Lesniewski 2011a) Such tacit support for going nuclear among those Democrats who were most concerned with the maneuver in 2005 reinforced the majority’s threat to eliminate the filibuster. In contrast, the Republicans did not visibly attempt to increase their Page 130 →leverage in the negotiations. Their initial response was simply to point out that the Democrats opposed the nuclear option in 2005. Furthermore, as the following analysis illustrates, they only threatened retaliation in general and vague ways. An illustrative example was Alexander’s observation that the Democrats “called it a nuclear option for a reason. They said it would blow the place up, and in fact it would” (Friel and Lesniewski 2011a). Notably, Alexander did not mention precisely how the minority would “blow the place up” nor did he specify how such retaliation would increase the costs of going nuclear for individual Democrats. The minority’s coercive threats lacked deterrent value absent the communication of such information. The Reid-McConnell-Schumer-Alexander negotiations were ultimately successful in reaching an agreement that forestalled a parliamentary showdown over the nuclear option at the beginning of the 112th Congress. The agreed upon changes to the Senate’s rules and practices eliminated a member’s ability to force amendments to be read on the Senate floor and ended the practice of secret holds. Additionally, it removed some executive nominations from the confirmation process and created an expedited process for considering other specified nominations. Significantly, Democrats had previously proposed all of the agreed upon reforms on the first day of the Congress.6 The compromise also included a so-called gentlemen’s agreement between the two leaders. In an exchange on the Senate floor that was intended to codify the shared understanding, McConnell pledged that the minority would not filibuster motions to proceed to the consideration of legislation and, in return, Reid pledged that he would not fill the amendment tree to block minority amendments once the Senate began consideration of a bill. Reid also acknowledged that he and McConnell “agreed that we should use these procedural options of filling the amendment tree and filibustering the motion to proceed infrequently. And we will do our best to ensure that other members of our caucuses respect this colloquy, as well.”7 McConnell concurred, adding that they “should endeavor to work together to follow the regular order where practicable and use our procedural options with discretion.”8 The gentlemen’s agreement included an additional pledge by both Reid and McConnell not to utilize the nuclear option in the 112th or 113th Congresses to eliminate the filibuster or otherwise “fundamentally change the Senate.”9 McConnell unambiguously stated that he “would oppose such an effort to change the rules with a simple majority in this Congress or the next Congress, regardless of which political party is in the majority.”10Page 131 → In contrast, Reid first acknowledged the desire of many Democrats to eliminate the filibuster before then agreeing to take the majority’s threat to do so off the table: I know that there is a strong interest in rules changes among many in my caucus. In fact, I would support many of these changes through regular order. But I agree that the proper way to change

Senate rules is through the procedures established in those rules, and I will oppose any effort in this Congress or the next to change the Senate’s rules other than through the regular order.11

Implicit in Reid’s floor remarks was the fact that not all Democrats agreed with the decision to take the nuclear threat off the table. Indeed, some thought that the threat was critical in compelling the minority to agree to other provisions included in the agreement. To that end, a few Democrats explicitly signaled that they reserved the right to go nuclear if the Republicans failed to comply with the terms of the gentlemen’s agreement. For example, Tom Udall (D-New Mexico) clearly signaled this position on the Senate floor: I strongly disagree with one thing announced here, the idea that the two leaders are taking off the table us utilizing our constitutional rights.В .В .В . I don’t think there is any doubt that he [Merkley] and I are giving up on our constitutional rights.12 Similarly, Minority Whip Richard J. Durbin (D-Illinois) implicitly threatened the nuclear option if the minority continued to obstruct: “There are some other things outside of the rules discussion which we’re contemplating if we get back into this obstruction” (Friel and Lesniewski 2011b). In the end, the gentlemen’s agreement proved unsuccessful in fixing the Senate’s dysfunction. Routine filibusters of the motion to proceed to legislation continued, as did the majority’s willingness to block minority proposals on the Senate floor by filling the amendment tree. An exchange on the Senate floor between Reid and McConnell in July 2012 offers a rare glimpse behind the partisan posturing over gridlock in the Senate that would eventually become routine only a few months later. Standing behind the majority leader’s desk in the well of the Senate, Reid expressed frustration with the contentious decision-making process that had characterized the chambers deliberations in the 112th Congress up to that point: “I would also say one of the other problems we have is we have to fight to Page 132 →get to anything—any legislation. We have to fight to get that done. As you know, we have wastedВ .В .В . months trying to get legislation on the floor.”13 Reid made it very clear that he believed this obstruction was a sign of a new norm of minority party behavior. Since the gentlemen’s agreement was reached, sixty votes, the number needed to end a filibuster by invoking cloture, were required to begin consideration of nearly every bill on the Senate floor. As evidence of this trend, Reid cited thirteen cloture petitions on motions to proceed to bills that he was forced to file during the first six months of 2012 alone.14 This routinization of filibustering the motion to begin consideration of legislation led Reid to reverse his past position and to advocate changing the Senate’s rules to overcome such obstruction via the nuclear option if necessary. “The rules have to be changed. I acknowledge that, and I don’t apologize for it for one second.”15 McConnell also expressed frustration with the Senate’s decision-making process, albeit for different reasons. Specifically, he argued that Reid’s management of the Senate agenda was responsible for the gridlock experienced up to that point. “The core problem here is that my good friend the majority leader as a practical matter is running the whole Senate because everything is centralized in his office, which diminishes the opportunity for senators of both parties to represent their constituents.”16 Put simply, McConnell was claiming that minority obstruction was not without reason. Rather than being endogenous to the minority party, McConnell’s contention was that obstruction was actually being precipitated by the majority leader and the behavior of the Senate Democrats more broadly. “Cloture is frequently used in order to advance a measure, but, as you can imagine, when senators have no opportunity to have any input, it tends to create the opposite reaction.”17 In effect, members who might otherwise support the underlying legislation were driven to obstruct the majority for procedural, not substantive, reasons. McConnell clearly articulated this sentiment from the well of the Senate: The reason it has been difficult to get on bills is we cannot have an agreement with the majority leader to let us have amendments once we do get on the bills. So the reaction on this side is, if the majority leader is not going to let us have amendments, if the only result of invoking cloture on a

motion to proceed is that he fills the tree and doesn’t allow us to offer any amendments, why would we want to do that?18

This exchange was not an isolated event and the frustration expressed by the two party leaders was widely shared both inside and outside the Senate.Page 133 → Indeed, gridlock seemed endemic to the 112th Congress. The Congressional Quarterly Weekly cover story on January 9, 2012, dubbed the 112th Congress “A Congress of Conflict.” An article in Roll Call on July 19, 2012, ran under the similar title: “Senate May Soon Grind to a Halt: Leadership Spars on Agenda and Procedure.” Politico’s “Welcome Back” issue at the beginning of the Congress’s second session posed the question: “A New Year of Dysfunction?” Suspending the Rules

An earlier interpretation of the rules by the Senate parliamentarian significantly undermined the majority leader’s ability to block votes on minority amendments. Specifically, the parliamentarian advised that motions to suspend the rules in order to offer a nongermane amendment, or motion to (re)commit after cloture has been invoked are permitted pursuant to Rule V of the Standing Rules of the Senate.19 The majority leader’s decision to fill the amendment tree more frequently in the 112th Congress led Republican senators, as well as some Democrats, to utilize this parliamentary maneuver more often. McConnell stated the rationale on the Senate floor: “the practical effect of where we are, not having been allowed to offer any amendments during the consideration of this bill, is we are left with motions to suspend.”20 As a consequence, Reid utilized a majoritarian maneuver on October 6, 2011, that was nearly identical to the mechanics of the nuclear option when he overturned the precedent created by the Senate’s adherence to the parliamentarian’s earlier advice. Specifically, Reid made a motion to suspend the rules and raised a point of order against his own motion that it was dilatory postcloture. The chair ruled that the motion to suspend the rules was in order pursuant to the Senate’s precedents. Despite the fact that Reid’s point of order was not applicable to the current situation and was thus inconsistent with the Senate’s precedents as interpreted by the parliamentarian and confirmed by the Senate in previous actions, a majority of the Senate voted to overturn the ruling of the chair on a party-line vote. This vote effectively established a new precedent that motions to suspend the rules to offer nongermane amendments were not in order during postcloture consideration of a bill.21 While not unprecedented, the majority’s maneuver represented a significant escalation in the parliamentary war between the two parties. McConnell responded by giving a fervent floor speech immediately after the incident in which he denounced the majority’s actions and demanded that it reverse the precedent to prevent any further erosion of the Senate’s institutional character. Page 134 →I think we made a big mistake tonight. As soon as we all kind of cool off and think about it over the weekend, I hope we will undo what we did tonight because it is not in the best interests of this institution or the American people.22 McConnell accused Reid of turning the Senate into the House with his point of order. Similarly, John Thune (RSouth Dakota) observed that “what Reid didВ .В .В . in terms of changing that precedent is something that might come back to bite them if they are ever in the minority again.” (Dennis 2011c) Yet the Republicans did not actually retaliate. Rather, they refrained from even threatening retaliation in response to the actual restriction of their procedural rights in this instance. As a consequence, the episode shifted expectations in the conflict. The lesson that Republicans learned was that the Democrats were willing to overturn the ruling of the chair, albeit in this instance to change precedent and not the Standing Rules, in order to limit their ability to participate in the decision-making process on the Senate floor. According to a senior Democratic aide, “This was not just about this bill.В .В .В . This was a shot across the bow to Republicans who have been emptying the toolbox to block even the most bipartisan, job-creating, common-sense pieces of legislation” (Dennis 2011a). This episode signaled to the minority how the majority could be expected to react on other matters if its members continued to obstruct.

In contrast, the lesson that Democrats learned was that the Republicans were less likely to retaliate in the future when their procedural rights were restricted. Perhaps because of this realization, the majority soon thereafter embraced a more aggressive approach to its conflict with the minority. According to a Democratic aide, McConnell “reached for the only tool he had to try and derail this bill. . . . We took it away from him” (Dennis 2011a). Another senior aide referenced impatience among Democrats with the constant obstruction and hinted that they were open to taking a tougher approach to combat minority obstruction in the future. “We’re not going to jump through these hoops anymore. We’re not going to compromise and compromise and compromise in order to get nothing” (Dennis 2012b). Reid subsequently declared that the gentlemen’s agreement between he and McConnell was no longer operative. Confirmation Wars

The Republican minority stepped up its filibusters of President Obama’s executive and judicial nominations in the months after Reid and McConnellPage 135 → reached their gentlemen’s agreement. It did so both to block those nominees it considered objectionable and in order to gain leverage vis-a-vis the administration and the Democratic majority in negotiations over underlying policy issues. For example, the Republicans blocked the confirmation of John Bryson, the president’s nominee for commerce secretary, in an effort to force action on several free trade agreements.23 Similarly, the Republicans announced that they would filibuster the nomination of Richard Cordray to be the director of the Consumer Financial Protection Bureau (CFPB) until the Democrats agreed to discuss several structural changes to the agency that they wanted to make. Forty-four Republican senators sent a letter to President Obama pledging to oppose the confirmation of any nominee for the position until these changes were made.24 Republicans were also threatening to filibuster the president’s nominees to serve on the National Labor Relations Board (NLRB) due to concerns that they would be unable to adjudicate disputes between labor and business in an impartial manner. Finally, the minority blocked a confirmation vote on the nomination of Caitlin Halligan (DC Circuit) in early December 2011. The Democrats interpreted this as a violation of the terms of the agreement reached by the Gang of 14 in the 109th Congress. Reid was “concerned that today the Senate is backing away from the 2005 agreement that the minority would only block judicial nominations in extraordinary circumstances” (Sanchez 2011a).25 Yet there were signs of division among rank-and-file Republicans despite the minority’s overall confrontational posture. Three developments in particular reinforced the majority’s expectation that the minority was not unified in its determination to obstruct. First, several Republicans were vocally opposed to the rate at which their colleagues were filibustering the president’s nominees. For example, John McCain (RArizona) openly acknowledged that he had called on his Republican colleagues to quit blocking the president’s nominees, arguing that “the president deserves to have his nominees unless there is a compelling reason not to” (CQ Today, October 22, 2011). Second, Alexander’s decision to resign his position in the Republican leadership signaled to Democrats that there were significant differences of opinion on this issue within the Republican Conference. At the time, Alexander also announced that he was suspending his campaign to succeed Jon Kyl (R-Arizona) as party whip. John Cornyn (R-Texas) was challenging Alexander in that contest and had made his willingness to filibuster President Obama’s nominations a central point in the race. This presented difficulties for Alexander given the support for Cornyn’s position by a number of RepublicanPage 136 → senators as well as Alexander’s past position that presidential nominees should only rarely, if ever, be filibustered (Drucker 2011 and 2012). Finally, the Senate’s passage of the Currency Exchange Rate Oversight Reform Act (S. 1619) on October 11, 2011, by a vote of sixty-three to thirty-five signaled to Democrats that some Republicans were hesitant to embrace a more hardline position in procedural conflicts more generally. Sixteen Republicans voted for final passage despite their leadership’s efforts to hold the line in protest of Reid’s maneuver five days earlier to eliminate the ability of senators to force votes in relation to their amendments by moving to suspend the Senate’s rules. This signaled to the majority that rank-and-file Republicans were unlikely to retaliate by obstructing legislation that they considered difficult to oppose politically.

Sensing this division, the Democrats’ immediate response to Republican obstruction of President Obama’s nominations was clear. The president signaled that he would not give up on the Cordray nomination immediately after the minority successfully filibustered it on December 8, 2011.26 “I just want to send a message to the Senate. We are not giving up on this.В .В .В . We’re going to keep pushing this” (Sanchez 2011b). Schumer echoed Obama’s resolve, signaling that Democrats in the Senate supported the president’s call to break the filibuster. “We are going to keep at it in whatever way we can.В .В .В . I hope the president uses whatever tools are legally at his disposal” (Sanchez 2011b). Schumer also implicitly recommended that President Obama bypass the minority’s blockade by giving Cordray a recess appointment. However, the president had few options. Presidents had traditionally been able to give their nominees recess appointments if confirmation was blocked in the Senate. For example, President Bush gave Pickering and Pryor recess appointments in 2003 in order to circumvent the Democrats’ filibusters. Part of the Democrats’ response at the time was to prevent the Senate from adjourning for more than three days by blocking the passage of an adjournment resolution. Doing so precluded the president from granting any recess appointments. The Republican minority embraced the tactic pioneered by the then-Democratic minority in order to block President Obama from making recess appointments in the 112th Congress. Absent an adjournment, it appeared that the president was prevented from giving Cordray and his three picks for the NLRB (Sharon Block, Terrence F. Flynn, and Richard Griffin) recess appointments. President Obama significantly escalated the conflict with his announcement in early January 2012 that he was giving Cordray and the three NLRB nominees recess appointments despite the fact that Congress had not adjourned for more than three days. Two of the NLRB nominations, Page 137 →Block and Griffin, were particularly egregious from the minority’s perspective because they were only formally nominated two days before the Senate recessed at the end of the previous month (Dennis 2012a). As such, their nominations had not had the customary hearings and were not yet eligible for floor consideration under the Senate’s rules. Senate Democrats supported the president’s move despite its unprecedented nature. According to Reid, “The president has made his play, and I think he did the right thing” (Sanchez 2012a). President Obama then called for the elimination of the filibuster in his State of the Union address to Congress a few weeks later. “A simple-majority is no longer enough to get anything—even routine business—passed through the Senate.В .В .В . Neither party has been blameless in these tactics. Now both parties should put an end to it.”27 Specifically, the president proposed requiring that “all judicial and public service nominations receive a simple up or down vote within 90 days.”28 The president’s decision to include filibuster reform in his State of the Union address signaled to Republicans the seriousness of the Democrat’s determination to overcome their filibusters. The minority framed its initial response to the president’s recess appointments in constitutional terms. Doing so gave it a principled foundation on which to base any threats it would subsequently make to deter the majority from going nuclear. However, the language used by Senate Republicans to describe the president’s actions did not reflect the actual degree to which they were willing to respond. This fact highlighted their failure to retaliate. For example, McConnell accused the president of “arrogantly circumvented [sic] the American people” and warned that there would be long-lasting consequences for violating long-standing precedent limiting recess appointments. “Breaking from this precedent lands the appointee [Cordray] in uncertain legal territory, threatens the confirmation process, and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive” (Dennis and Sanchez 2012). McConnell made similar comments in response to the president’s announcement that he was giving Block, Flynn, and Griffin recess appointments as well. What the president did today sets a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress. (Dennis 2012a) But the Republicans failed to retaliate despite the significance of the issues they themselves claimed were at stake. There were two potential Page 138 →options under discussion at the time (Sanchez 2012a). First, they could object to the consideration of any new nominations until the recess appointments were withdrawn. Senate

Democrats utilized this tactic in 2003 in order to force President Bush to agree not to make any more recess appointments for the remainder of the Congress. This would also increase the leverage of the Republican minority in its parliamentary war with the Democratic majority. Retaliating in this way would demonstrate its determination to protect its procedural rights and would make its threats more credible in the future. Second, the minority could confront the president by challenging the constitutionality of his recess appointments in court.29 Yet from the perspective of the bargaining model, even a successful lawsuit that ultimately reversed the president’s actions would do nothing to rebalance the leverage between the majority and minority parties in the Senate. That is, a successful court challenge would not signal to the majority that the minority was determined to defend its procedural rights. As a result, victory in the courts would paradoxically do nothing to deter further majority aggression inside the Senate. Reflecting this dynamic, Senate Democrats were largely unconcerned with the lawsuit. When asked about it, Reid responded, “You say: вЂHow do I feel about that? ’ .В .В . How do I describe: вЂI don’t care.’ Because I don’t” (Harrison 2012). Rank-and-file Republicans were divided over which approach to take (Sanchez 2012a). As a consequence, they were unable to coalesce around a united response. Comments by Ron Johnson (R-Wisconsin) were illustrative of the sense of powerlessness many members felt: “What can we really do? We are probably not going to reverse these things” (Harrison 2012). Republican senators worried that a more aggressive response would give Democrats ammunition with which to attack them in the 2012 elections. Johnson stated, “I don’t want to walk into any type of trap and playing into the president’s hand about a вЂdo-nothing Congress.’ I don’t think that serves our interest well” (Sanchez 2012a). Not all Republicans were resigned to defeat. For example, Jim Risch (R-Idaho) observed, “When you get an imperialistic attack on the Constitution, you can’t look the other way” (Ota 2012a). Mike Lee (R-Utah) similarly urged a more aggressive response: Given this president’s blatant and egregious disregard both for proper constitutional procedures and the Senate’s unquestioned role in such appointments, I find myself duty-bound to resist the consideration and approval of additional nominations until the president Page 139 →takes steps to remedy the situation.В .В .В . Regardless of the precise course I choose to pursue, the president certainly will not continue to enjoy my nearly complete cooperation, unless and until he rescinds his unconstitutional recess appointments. (Sanchez 2012a) Republicans who supported a more aggressive response threatened to object to scheduling confirmation votes on all nominations by unanimous consent until Cordray and the three NLRB recess appointments were withdrawn. Such objections would force the majority to use the time-consuming cloture process in order to schedule confirmation votes and would significantly limit the total number of presidential nominations that the Senate could confirm. Republicans also protested the recess appointments in other ways. For example, Roger Wicker (RMississippi) joined several other Republicans on the Banking, Housing, and Urban Affairs Committee in announcing that he would boycott an upcoming hearing at which Cordray was scheduled to testify in order to avoid giving the recess appointee the “appearance of legitimacy” with his presence (Sanchez 2012a). Yet division among Republicans undermined both responses. The threat to prevent the scheduling of votes on all nominees would not signal the minority’s collective determination to retaliate if the broader Republican Conference did not embrace the tactic. Additionally, the attendance of other Republicans at the Banking hearing would undermine Wicker’s efforts to deny the hearing legitimacy. Richard Shelby (R-Alabama), the top Republican on the panel; Mike Crapo (R-Idaho); and Mike Johanns (R-Nebraska) ultimately attended the hearing. Further complicating efforts to clearly signal the minority’s determination was the fact that McConnell was working with Reid to avoid an escalation of the conflict. Specifically, the two leaders focused on getting individual agreements that would allow a particular nominee to move forward (Ota 2012a). Testing Commitment

In March, the Democratic majority began testing the commitment of individual Republican senators to filibustering the president’s nominees. Reid moved to force votes on seventeen district court nominations. These nominees had been reported by the Judiciary Committee with some Republican support. However, they had since languished on the Senate calendar up until that point as a result of the difficulty getting unanimous consent to schedule confirmation votes on them in the aftermath of the recess Page 140 →appointment controversy. Specifically, Reid filed cloture motions on each of the nominees, setting up separate recorded votes on each one. Doing so signaled that the majority was determined to prevail despite the time costs associated with utilizing the cloture process to confirm each nominee. Absent unanimous consent (i.e., the minority relenting), processing each cloture vote through regular order would have forced the majority to devote the rest of the month to confirming the seventeen nominees at the expense of other priorities on its agenda. Yet despite possessing this leverage, the Republican minority eventually relented in its obstruction and negotiated a deal with the majority to schedule confirmation votes on fourteen of the seventeen nominees without forcing the majority to use all of the time required under the cloture process. The skirmish was designed to test the commitment of rank-and-file Republicans to bearing the costs associated with continuing to obstruct the president’s nominees. According to a Democratic leadership aide, “our hope all along was that filing cloture was going to precipitate a deal and it did” (Sanchez 2012b). If the minority did not resist the move, the majority would step up its aggressive behavior. This behavior undermined the minority’s credibility and, if continued, would deprive its threats of any deterrent value. For their part, Republicans claimed that they had not conceded anything in the agreement to facilitate confirmation of fourteen of the seventeen judges. Their attempted rationalization for backing down was that the agreement simply returned to the previous pace of confirmation votes. Yet this was precisely what the Democrats wanted, and it was the pace from which the Republicans had deviated since the president made his controversial recess appointments. That is, some Republicans were slowing the process down on nominations prior to this particular skirmish. Even absent a general slowdown, returning to the previous pace of confirming judges reflected a status quo treatment of nominations in the aftermath of the president’s actions, which would mean that President Obama’s decision to circumvent the Senate triggered absolutely no retaliation from the Republican minority. In this context, no response is functionally equivalent to making a threat and backing down in that both would be likely to encourage more aggressive behavior in the future. Democrats stepped up their threats in order to coerce the Republicans into complying with their demands in the aftermath of this episode. In mid-July, Reid announced that he supported eliminating the filibuster on motions to proceed to legislation. Reid also warned that he would employ the nuclear option at the beginning of the next Congress if Democrats retained the majority after the upcoming November elections. “The rules Page 141 →have to change. I acknowledge that, and I don’t apologize for it for one second” (Ota 2012b). Such comments signaled to Republicans that the Democrats were coalescing in support of going nuclear. Reinforcing this message was Daniel Inouye’s (D-Hawaii) announcement at the end of July that he too was reversing his position and would support the nuclear option in the future (Lesniewski 2012a). Inouye’s support was particularly instructive because he was a senior Democratic senator who had long resisted efforts to eliminate the filibuster via the nuclear option. Yet the minority still did not attempt to deter the majority by threatening immediate retaliation in order to raise the costs of going nuclear for individual senators. Instead, it merely pointed to the future consequences of such behavior for Democrats. McConnell’s comments on the Senate floor at the time are a particularly illustrative example of what would become one of the most common Republican threats. Let’s assume we have a new president and I am the majority leader next time and we are operating at 51. I wonder how comforting that is to my friends on the other side. How does it make you feel about the security of Obamacare, for example?30 There were two problems with McConnell’s threat. First, it was counterproductive. At that point, Reid had only proposed using the nuclear option to eliminate the filibuster for motions to proceed to legislation, not for legislation itself. As a consequence, the effort to repeal Obamacare alluded to by McConnell could still be filibustered. Given this, it must be assumed that McConnell’s threat implied a willingness to eliminate the

legislative filibuster altogether. Otherwise, the threat would have no deterrent value because the future majority leader would be unable to carry it out. McConnell’s threat thus paradoxically diminished the utility of preserving the filibuster for Democrats by signaling that they could expect Republicans to get rid of it entirely in the future. Second, McConnell’s threat was undermined by very public discussions among Republicans about how they would run the Senate in the next Congress if they were in the majority. For example, Kelly Ayotte (R-New Hampshire) acknowledged, I’ve heard from Leader McConnell that if he is blessed to be the Majority Leader of the Senate, that he intends to let the Senate operate in the way it was intended to operate. He has been very clear with our Conference about that. (Dennis 2012b) Page 142 →But allowing the Senate to “operate in the way it was intended to operate” was inconsistent with utilizing the nuclear option to eliminate the filibuster on legislation in retaliation for the Democrats doing so on motions to proceed to legislation. In that sense, public discussion of restoring the Senate under a Republican majority undermined the credibility of McConnell’s threat to retaliate against the Democrats if they went nuclear. In conjunction with the minority’s failure to threaten any adverse or concrete retaliation to increase the costs of going nuclear, such discussions deprived the minority’s threats of their intended value and thus did not deter the majority from eventually eliminating the filibuster for most nominations. The Bipartisan Proposal to Reform Senate Procedures

In the 2012 elections, Obama won a second term and Democrats increased their Senate majority to fifty-five seats. After the election, the Democrats quickly reiterated their threat to eliminate the filibuster if the Republicans persisted in their obstruction. In response, McConnell called on the majority to take the nuclear option off the table and threatened to block their priorities in the upcoming lame duck session if they refused (Lesniewski 2012b). The vice chairman of the Republican Conference, Roy Blunt (R-Missouri), echoed McConnell’s threat. “If our minority rights are taken away, we’re not going to go along with unanimous consent” (Lesniewski 2012d). Reid’s response was characteristically dismissive. “To paraphrase Shakespeare, which I don’t do often, I think the Republican leader protests far too much” (Sanchez 2012c). The majority leader simply did not take the minority’s threats seriously. As a consequence, Reid refused to rule out using the nuclear option in the new Congress. In the end, the Republicans did not follow through on McConnell’s threat. In lieu of blocking the Democrats’ priorities, McConnell instead called on Reid to help him identify potential reforms to the Senate’s rules that both leaders could support. He argued, “What we ought to be doing is talking to each other about what adjustments in the rules we could advocate together” (Sanchez 2012c). The decision by Senate Republicans to again cooperate instead of retaliating prevented them from exploiting lingering concerns among Democratic senators about the aggressive approach their leadership was advocating. Up to that point, the majority had been able to repeatedly test the minority’s commitment in a cost-free environment because the Republicans either did not follow through on threats they made or failed to make threats in the first place. However, some Democrats continued to harbor Page 143 →concerns about using the nuclear option to eliminate the filibuster despite the expectation that the Republicans would be unlikely to respond. Durbin acknowledged this concern. There is still concern among some of our members, and I understand it.В .В .В . It is my hope that there is a way to avoid this, to change the rules the traditional way rather than by the constitutional option. But there has been limited indication so far of interest on the Republican side. (Lesniewski 2012c) Durbin’s comments also point to the Democrats’ motivation for repeatedly threatening to change the

rules in the conflict. The intended implication of Durbin’s comment is that the nuclear option would not be needed if a sufficient number of Republicans began voting for cloture or supported efforts to change the Senate’s Standing Rules in a manner consistent with those rules (i.e., two-thirds vote to invoke cloture on proposals to change the rules). However, Durbin’s acknowledgment that there was still concern among rankand-file Democrats signaled to Republicans that the majority was not yet unified in its determination to go nuclear. Republican retaliation at this point would thus have increased the costs on those Democrats in such a way that could have potentially validated their concerns. This would have made it more difficult for the majority to unify in support of going nuclear at the beginning of the next Congress, thereby reducing the coercive value of its threat to do so. A compromise agreement was negotiated at the last minute by a bipartisan group of eight members.31 The goal of the so-called Group of 8 was to avoid the nuclear option. The effort was led by Carl Levin (D-Michigan) and McCain. The group announced its agreement on December 28, 2012, just a few days before the beginning of the 113th Congress and the nuclear deadline set by the majority. The agreement, dubbed the Bipartisan Proposal to Reform Senate Procedures, created two new motions to proceed to legislation that could not be filibustered per se.32 It also combined the three debatable motions required to go to conference with the House into one nondivisible motion, thereby reducing significantly the amount of time a senator could delay a conference committee from meeting.33 The agreement also reduced postcloture time on some executive and judicial nominations from thirty hours to eight hours.34 Finally, the agreement called on the majority and minority leaders to identify several changes to current Senate practices that would make the institution operate more efficiently. There are four reasons why it is reasonable to conclude that the Democrats’Page 144 → threats compelled the Republicans involved in the negotiations to agree to these reforms. First, the reforms addressed almost all of the majority’s concerns. Levin observed that the agreement tracked very closely with what the majority had called for throughout the conflict. “The key here is what we are giving to the majority leader: the discretion to move a bill” (Sanchez 2012d). To that end, the agreement would make it more difficult for the minority to filibuster and gave the majority important new tools to overcome such obstruction when it did. Specifically, it created two new motions to proceed to legislation, one of which would be completely protected from a filibuster. The other new motion to proceed significantly reduced the time required to invoke cloture on it when supported by both the majority and minority leaders along with at least five additional senators from each party. Similarly, significantly reducing the time required to go to conference weakened the minority’s ability to use the threat of blocking a conference as leverage in those negotiations. Reducing the postcloture time for most nominations from thirty hours to eight hours would also undermine the minority’s ability to prolong consideration of a nomination in an effort to delay it or to block other items on the majority’s agenda. In addition, the agreement’s proposed changes to the Senate’s practices significantly empowered the majority at the expense of individual members. For example, it called on the two leaders to no longer object on behalf of other members on the Senate floor. It also called on the two leaders to strictly enforce the restrictions on debate time during postcloture consideration of a bill or nomination. Most significantly, it called on the presiding officer to put the question (i.e., call for a vote) on any amendment, bill, resolution, or nomination after a reasonable period of time if no other senator sought recognition. While all of these proposed changes were technically consistent with the Senate’s rules and precedents, they were only rarely enforced. As a consequence, calling for their regular enforcement represented a major departure from how the Senate had operated up until that point. Second, the Republicans who negotiated the agreement were convinced that doing so was necessary to avert the nuclear option. That is, they expected the Democrats to eliminate the filibuster altogether absent a last-minute deal. For example, McCain suggested that the nuclear option would have been much worse for the minority. He portrayed it as a disaster that would lead “to the destruction of the unique aspect of the United States Senate as envisioned by our founding fathers” (Sanchez 2012d). As a consequence, the agreement can be interpreted as the product of the Democrats’ threats to go nuclear, which successfully compelled a sufficient Page 145 →number of Republicans to comply with the majority’s demands in order to preserve the filibuster. Third, unlike the Gang of 14’s agreement, the Group of 8’s agreement did not initially include a pledge by the group’s Democratic members to oppose the nuclear option. Rather, other Democrats explicitly

affirmed their commitment to revisit the nuclear option if the Republicans did not adhere to the terms of the agreement. For example, Merkley warned, There is going to be more conversation within the caucus, which the majority leader has promised, so that we can get everybody’s questions answered with the expectation that he will be able to put together a final package and have 51 senators standing by. (Sanchez 2012d) The majority refused to take the nuclear option off the table because most of its members believed that the threat helped to facilitate the agreement. That is, the Republican members in the Group of 8 (and Republicans who would end up supporting the final agreement) were compelled to agree to terms more favorable to the Democrats because they believed that the costs of the majority of carrying out its nuclear threat would be greater for them. Put differently, a sufficient number of Republicans expected the majority to unilaterally eliminate the filibuster if it did not agree to a negotiated solution. In short, the majority’s threat was credible. According to Merkley, Most serious reforms of the rules occur because a leader has 51 votes behind them, and that is where Harry [Reid] is now.В .В .В . That is what enables him to negotiate. On the other hand, if the negotiations succeedВ .В .В . that’s great. It would be wonderful to have a bipartisan agreement. (Lesniewski 2013a) Debbie Stabenow (D-Michigan) was blunter: “Sen. Reid has the full backing of our caucus for whatever option he chooses” (Lesniewski 2013b). Finally, the bipartisan agreement served as a template for the subsequent negotiation between Reid and McConnell over what would ultimately be included in the package of reforms. As previously noted, Reid leveraged the threat of going nuclear in order to compel the minority to negotiate. To that end, Reid kept the Senate in the same legislation day for most of January in order to give his talks with McConnell time to play Page 146 →out. Doing so preserved the majority’s ability to more credibly threaten the nuclear option (i.e., the constitutional option) if the minority refused to compromise. Reid clearly stated his rationale on the Senate floor. We will reserve the right of all Senators to propose changes to the Senate rules, and we will explicitly not acquiesce in the carrying over of all the rules from the last Congress. It is my intention that the Senate will recess today rather than adjourn to continue the same legislative day and allow this important rules discussion to continue later this month.35 The agreement reached between Reid and McConnell was nearly identical to the bipartisan agreement negotiated by the Group of 8. It also included another gentlemen’s agreement between Reid and McConnell. The agreement was designed to signal the leaders’ support for implementing the changes to Senate practices called for by the Group of 8. Specifically, Reid and McConnell agreed to force members to use postcloture debate time and to prevent constant quorum calls by calling on the presiding officer to put the question if no senator was seeking recognition. The new gentlemen’s agreement also addressed how the Senate would process nominations moving forward. According to McConnell, “Senate Republicans will continue to work with the majority to process nominations, consistent with the norms and traditions of the Senate.”36 Reid responded that “the two leaders will continue to work together to schedule votes on nominees in a timely manner by unanimous consent, except in extraordinary circumstances.”37 Reid pledged not to use the nuclear option in the future. Nevertheless, there was little reason to expect Reid to hold himself to that pledge if he perceived that the minority had failed to carry out its terms of the deal. That is, the Democratic leader would be likely to again threaten the nuclear option if the latest agreement proved unsuccessful in curbing minority obstruction. From Reid’s perspective, there would be no reason to go nuclear it if the Republicans adhered to the terms of the deal and he would no longer be bound by the terms of the deal if the Republicans were the first to violate them. Return of the Confirmation Wars

Immediately after adoption of the Bipartisan Proposal to Reform Senate Procedures, the US Court of Appeals for the District of Columbia ruled that the president’s decision to give Block, Flynn, and Griffin recess Page 147 →appointments to the NLRB was unconstitutional. The ruling rekindled the conflict over nominations by underscoring the importance of the DC Circuit. The administration subsequently appealed the decision to the Supreme Court. Republicans applauded the decision and were quick to draw a comparison between the NLRB recess appointments and Cordray’s installation as director of the CFPB under identical circumstances. Yet despite this controversy, Obama renominated Cordray for a full term. In response, forty-two Senate Republicans sent another letter to the president reiterating their commitment to block any person nominated for the position until structural changes were made to the CFPB. The president also renominated Block and Griffin for full five-year terms at the NLRB. Some key members of the minority signaled cooperation in processing the nominees despite the minority’s opposition to their controversial installation and the DC Circuit’s ruling that their recess appointments were unconstitutional. For example, Alexander, the top Republican on the Health, Education, Labor, and Pensions (HELP) Committee, which had jurisdiction over the NLRB, commented at the time, I think they deserve a hearing and a careful examination of their views which is the purpose of “advise and consent,” and then we’ll make a decision about what to do. (L. Smith 2013) Johnny Isakson (R-Georgia), the ranking member of the HELP Subcommittee on Employment and Workplace Safety, agreed. When asked how he would handle the process if he were the panel’s chairman, Isakson replied, “I would expedite the process and have a hearing” (L. Smith 2013). Comments like these signaled to the majority that not all Republicans were irreconcilably opposed to the president’s nominees. Alexander, in particular, had long opposed filibustering presidential nominations. He also had a track record of negotiating agreements to end parliamentary conflicts when threatened with the nuclear option. Notwithstanding such comments, there remained considerable opposition among rank-and-file Republicans to several of President Obama’s executive and judicial nominations. While the minority successfully filibustered Halligan again in early February (leading the president to withdraw her nomination shortly thereafter),38 this was the exception rather than the rule. The pattern exhibited on other contested nominees differed considerably. For example, the minority successfully filibustered the nomination of Chuck Hagel to be secretary of defense on February 14. Only four Senate Republicans initially voted with the Democrats to end the filibuster.39 Reid Page 148 →then announced that he would force another vote on Hagel when the Senate returned following an upcoming recess. This, along with the president’s decision to provide additional information on the Benghazi attacks that had been requested by several Republican senators, led three members to announce that they would change their votes and support cloture.40 Cloture was subsequently invoked on Hagel. Frustrated by the filibusters of Hagel and Halligan, the Democratic majority again threatened the nuclear option. Citing these instances, Durbin spoke after Rand Paul (R-Kentucky) mounted a talking filibuster of the nomination of John O. Brennan to be the director of the Central Intelligence Agency. I hate to suggest this, but if this is an indication of where we’re headed, we need to revisit the rules again.В .В .В . We need to go back to it again. I’m sorry to say it because I was hopeful that a bipartisan approach to dealing with these issues would work. (Lesniewski 2013c) The discussion among Democrats at this point only focused on eliminating the filibuster for executive nominations. Pro-choice Democrats in particular were concerned about the consequences of eliminating the filibuster for judicial nominations. This was consistent with their opposition to the nuclear option in 2005 when the Republicans last proposed using the maneuver to overcome the minority’s filibusters of President Bush’s judicial nominations. At the time, pro-choice senators were concerned about the impact that they expected the contested nominees would have if confirmed on the status of the precedent established by Roe v. Wade. Nevertheless, the Democratic majority soon began threatening to go nuclear, if necessary, to confirm President Obama’s judicial nominees.

Reid explicitly threatened the nuclear option again in early April. His threats marked a significant escalation in the conflict. Up until that point, the Democratic majority had only threatened to use the maneuver at the beginning of a new Congress. Reid’s threat, coming in the middle of the Congress, was a sign that the majority no longer limited its ability to go nuclear to the first day of a new Congress. Instead, it reserved the right to go nuclear at any point. Reid signaled this new approach in an interview on Nevada Public Radio: All within the sound of my voice, including my Democratic senators and the Republican senators who I serve with, should understand Page 149 →that we as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary. (Lesniewski 2013d) As in the past, Reid tied his threat to specific behavior that he wanted to compel the minority to adopt. “If the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done, then we’re going to have to take more action” (Lesniewski 2013d). Here, the Democratic majority was intentionally pursuing a confrontational approach in the hope that it would compel a sufficient number of Republicans to relent and support its efforts to invoke cloture on the contested nominations. In the event that the threat was unsuccessful, Reid signaled his determination to follow through on eliminating the filibuster. Schumer clearly laid out the plan as it related to the DC Circuit: Our strategy will be to nominate four more people, for each of those vacancies, and if they filibuster all of them, it will give those of us who want to change the rules and not allow 60 votes to dominate the Senate—but require a talking filibuster—to prevail. So we will fill up the D.C. Circuit, one way or the other. (Lesniewski 2013e) Reid threatened to go nuclear again in early May after Republicans on the HELP Committee and the Committee on Environment and Public Works (EPW) signaled that they would unanimously oppose the nominations of Thomas E. Perez to be secretary of labor and Gina McCarthy to be administrator of the Environmental Protection Agency, respectively. At the time, Reid warned, “While my Republican colleagues can try every trick in the bookВ .В .В . I assure you that Mr. Perez will have his day in the Senate.В .В .В . I assure everyone that Ms. McCarthy will have her day in the Senate” (Sanchez 2013a). Despite Reid’s warnings, all HELP and EPW committee Republicans voted against advancing the two nominations to the Senate floor. Reid threatened yet again in mid-May to go nuclear if Republicans filibustered the nomination of Richard Cordray to the CFPB. Republican opposition stemmed from Cordray’s controversial recess appointment in early 2012 and their near-unanimous objection to the powers and structure of the CFPB. Senate Republicans pledged to filibuster Cordray until the administration agreed to legislative changes addressing their concerns. As with Perez and McCarthy, Reid asserted, “We’re going to fill that job. Cordray is there now. He’s going to get a vote” (Pierce 2013). Page 150 →The Democrats’ repeated threats to eliminate the filibuster in order to overcome obstruction of Perez, McCarthy, and Cordray concerned several Republicans. On May 21, McCain acknowledged that the majority’s threats were having some impact on getting senators to reconsider their willingness to sustain filibusters of these nominees. “The Democrats are telling me if this keeps up that they are going to revisit it [the nuclear option] and they can and I am deeply concerned about it” (Sanchez 2013b). McCain’s comments on the Senate floor a few days later reflected his understanding of the situation. If we continue toВ .В .В . block what is the regular order, then the majority will be tempted to change the rules of the Senate. That would be the most disastrous outcome I could ever imagine.41 Reflecting similar concerns, Senator Rob Portman (R-Ohio) began negotiations to facilitate Cordray’s confirmation in order to avert the nuclear option. Meanwhile, Senate Democrats hinted that a nuclear showdown would occur by mid-summer if the anticipated obstruction was not avoided. Members like McCain and Portman interpreted the dynamics of the situation from a majoritarian perspective. That is, they expected continued minority obstruction to push the majority to go nuclear. For example, McCain opposed

the efforts of conservative Republicans to block a conference committee from convening to resolve House-Senate differences on the fiscal year 2014 budget resolution. He predicted that doing so would “give more momentum to those who want to go to 51 votes, there’s no doubt about that” (Lesniewski 2013f). The Republicans’ initial response to the majority’s escalating threats was to threaten retaliation if the Democrats ultimately went nuclear. Yet their threats were implied in a larger critique of the Democratic majority and its leadership. For example, McConnell argued that Reid would be breaking his word not to go nuclear if he moved to eliminate the filibuster. We have important issues coming down the pike. We want to finish the farm bill. We have been working hard to develop a broad bipartisan support for an immigration bill. We know what is going on here. What I fear is that the majority leader is working his way toward breaking his word to the Senate and to the American people, blowing up this institution, and making it extremely difficult for us to operate on the collegial basis we have operated on for over 200 years.42 Page 151 →This line of attack would be a prominent feature of the minority’s response up until the end of the conflict. Significantly, it failed to articulate the specific costs of going nuclear for rank-and-file Democrats. This was possibly due to the fact that continued division within the Republican minority impeded its efforts to respond forcefully to the Democrats’ threats. For example, McConnell’s implicit threat to retaliate was contradicted on the Senate floor later on the same day by fellow Republican McCain. If we continue to block things such as this [the budget resolution] and block what is the regular order, then the majority will be tempted to change the rules of the Senate. That would be the most disastrous outcome I could ever imagine.43 Public comments like these from members who had previously negotiated last-minute agreements under duress undermined the credibility of McConnell’s threat to block “important issues coming down the pike.” McCain’s effectively signaled to Democrats that continued threats to go nuclear would compel a sufficient number of Republicans to break with their colleagues and vote to end the minority’s filibusters. Other Republicans echoed McConnell’s threats by suggesting that going nuclear would make it more difficult for the majority to secure minority support for its legislative agenda. Alexander warned his Democratic colleagues that Reid’s threats were reducing “any capacity he’s going to have for Republican support for important issuesВ .В .В . and that includes me” (Sanchez 2013c). Republican senators also threatened to use the nuclear option in the future when they were in the majority to pass legislative priorities opposed by Democrats. Alexander warned his colleagues, If the Democrats change the rules so that they can do anything they want with 51 votes, that will be the way the Senate will operate when the Republicans are in charge, and one of the first things we’ll do is complete Yucca Mountain, and then one of the second things we’ll do is to repeal the death tax, and one of the next things we’ll do is to drill in ANWR. So Democrats need to think about that if they think this is an improvement. (Lesniewksi 2013g) Yet in contrast to 2005, the minority did not threaten immediate retaliation that would impact rank-and-file Democrats if they supported going nuclear beyond vaguely suggesting that doing so could theoretically cost its Page 152 →support on legislation moving forward. Admittedly, this unspecified threat seems to have had some effect in getting Reid to delay a showdown over the nominees in question until after the Senate completed consideration of immigration reform legislation that summer (Sargent 2013). However, it is important to note that such general retaliatory threats were not ultimately successful in stopping majoritarian agitation for the nuclear option; they provided a temporary respite at best. The remaining minority threats consisted of listing examples of things that Republicans would do with the nuclear option to the Democrats’ presumed disadvantage if they were in the majority at some unspecified point in the

future. For example, Cornyn warned, “What comes around goes around, and someday the shoe will always end up on the other foot.В .В .В . Majorities are fleeting and that fact should counsel caution and prudence” (Hawkings 2013). These threats were counterproductive to the extent that they led Democrats to discount the utility of adhering to the rules in the near term because they signaled that a Republican majority would be likely to go nuclear in the mid- or long-term. According to Merkley, If anyone thinks a future President Perry or a future President Palin and a future Majority Leader McConnell are not going to work together and if necessary change the rules as they proposed in 2005 to get nominations considered, I think you’re probably in anВ .В .В . imaginary world. (Lesniewski 2013h) As a consequence, the minority’s coercive threats lacked deterrent value. They paradoxically facilitated the formation of a consensus position within the majority in support of using the nuclear option to eliminate the filibuster. Beyond such threats, the minority did not plan its response in the same way that Democrats did in 2005. McCain acknowledged that the Republican minority had not spent a lot of time discussing its response because “most of us think we can still get an agreement” (Sanchez 2013d). However, Reid maintained that there was no way around the nuclear option other than giving each of the contested nominations an up-or-down confirmation vote on the Senate floor at a simple-majority threshold. In this context, the continued belief that a deal could be reached and the communication of that belief to the majority undermined the coercive value of the minority’s deterrent threats. Also unlike 2005, the minority’s threats did not ultimately persuade a sufficient number of majority party members to heed its call for caution and prudence. To the contrary, Senate Democrats escalated their warnings, Page 153 →making more explicit threats to utilize the nuclear option if Republicans continued to obstruct the president’s nominations. These threats increased until yet another last-minute bipartisan negotiation defused the crisis, resulting in the confirmation of several nominees as originally demanded by the majority. On July 16, 2013, cloture was invoked on Richard Cordray by a vote of seventy-one to twenty-nine. Seventeen Republicans voted to end debate on the nomination, despite their previous opposition to his recess appointment the previous year and even though legislative changes had not yet been made to the CFPB’s structure as they originally demanded. Similarly, filibusters were averted on the Perez and McCarthy nominations in the following days. Six Republicans voted to end debate on the Perez nomination, including Alexander, Mark Kirk (R-Illinois), and Lisa Murkowski (R-Alaska). These three senators served on the HELP Committee and had previously opposed the nomination in May. Conflict Resolution The Democrats’ repeated threats to go nuclear compelled a significant number of Republicans to vote for cloture on the Cordray, Perez, and McCarthy nominations (Sanchez and Lesniewski 2013). Reid’s reaction underscored the sense that the majority got everything it wanted in their latest brinksmanship. “We have a new start for this body.В .В .В . I don’t know how I could be happier” (Sanchez and Lesniewski 2013). While McConnell also reacted positively in the press, there were other indications that the terms of the deal did not favor the Republicans. Under the terms of the agreement, McCain, Alexander, Ayotte, Graham, Collins, Bob Corker (R-Tennessee), and John Hoeven (R-North Dakota) committed to confirm two new NLRB nominations submitted by the president in lieu of Block and Griffin. The agreement placed no conditions on who the president could nominate to replace them. Moreover, the administration and Senate Democrats indicated at the time that the president would nominate persons as equally pro-labor as the original nominees. In sum, this particular skirmish was concluded in such a way that the president and Senate Democrats would get a fully functioning, labor-friendly NLRB without incurring the costs of going nuclear to confirm the president’s nominees.

Unlike in other last-minute compromises that resolved previous skirmishes in the conflict, the Democrats did not commit to taking the nuclear Page 154 →option off the table in exchange for the concessions they extracted from Republican senators in this instance. Instead, Reid emphasized that he retained the ability to go nuclear. “We damn sure aren’t sacrificing our right to change the rules if necessary, which I am confident it won’t be” (Sanchez 2013e). A Democratic aide underscored the majority’s commitment to eliminating the filibuster if the minority resumed its obstruction, observing that “this has to be the new normal and we reserve our right to change the rules if the change doesn’t stick” (Klein 2013). According to reports, McConnell privately offered to stop filibustering all of the contested nominees if Reid would once again agree to take the nuclear option off the table (Sanchez and Lesniewski 2013). But Reid rejected the offer. He did not want to give up his leverage, particularly since McConnell had been unable to ensure that his fellow Republicans would adhere to the terms of the previous agreements. The minority’s right to filibuster was irrelevant in Reid’s eyes. As long as the threat of the nuclear option remained credible, Republicans would not exercise that right in practice. To that end, the Democrats explicitly kept the threat of the nuclear option on the table. According to Merkley, “If the minority decides to continue to engage in a systematic obstruction strategy, we will yet again need to revisit the rules discussion” (Sanchez and Lesniewski 2013). A separate side deal negotiated by Portman, McCain, and Corker resolved the conflict over Cordray in a similar manner. None of the Republicans’ original conditions were met. Instead, Cordray simply assured them that he would cooperate on implementing some unspecified accountability measures in the future. He also agreed to testify before the Senate Appropriations Committee. Yet notwithstanding this minor concession, CFPB would still be funded by the Federal Reserve System. Cordray also agreed to implement a cost-benefit analysis of CFPB regulations. Significantly, this was not an original condition and did not provide any meaningful oversight of the agency’s regulatory activities as originally demanded by the Republican minority. In a stark example of backing down, nearly all of the seventeen Republicans who voted to end the filibuster of Cordray also signed the original letter pledging to block any nominee until their concerns were met. For example, Graham signed the letter and voted for Cordray. He attempted to rationalize his reversal, arguing, The law is the law, and you know, if you don’t like the law, repeal it.В .В .В . You know, that’s my view. I just think using an appointment to change a law is not the right use of an appointment. (Lesniewski 2013i) Page 155 →Yet the letter Graham signed stated, “We will continue to oppose the consideration of any nominee, regardless of party affiliation, to be the CFPB director until key structural changes are made to ensure accountability and transparency” at the Bureau. The letter then listed three specific changes that were not agreed to prior to Cordray’s confirmation. Further evidence that the minority’s behavior encouraged the majority to continue its more confrontational approach was the fact Reid hinted in early August that the Democrats would push additional DC Circuit nominations and would again consider going nuclear, if necessary, to overcome a Republican filibuster of them. We don’t want the House and the Senate to be exactly the same, but unless the- these characters who are filibustering literally everything, unless they change, I think that’s where we are headed. (Lesniewski 2014j) The majority’s quick return to the familiar pattern of threatening to go nuclear in order to secure minority concessions supports the claim that the latter’s repeated cooperation in the face of such threats in the past served only to encourage such behavior on the part of the former in the future. Contrary to the wishes of Republicans, the latest compromise was not sufficient to satisfy the majority. Their willingness to compromise over and over again in order to avert the nuclear option signaled to Democrats that they could realistically expect the threat to continue to work again in the future. Despite previous assurances that their willingness to change the rules via the nuclear option only pertained to filibusters of executive nominations like Perez, McCarthy, and Cordray, the Democrats immediately hinted at their willingness to use the nuclear

option to eliminate the judicial filibuster if Republicans blocked the president’s nominations of Patricia Ann Millett, Cornelia Thayer Livingston Pillard, and Robert Leon Wilkins to be circuit judges for the US Court of Appeals for the DC Circuit, as well as the executive nomination of Melvin L. Watt to be director of the Federal Housing Finance Agency. By late October, these threats were explicit. The chairman of the Senate Judiciary Committee, Senator Patrick Leahy (D-Vermont), ominously warned that if these nominees “were successfully filibustered I think the pressure to change the rules would be almost insurmountable” (Sanchez 2013f). Chris Murphy concurred. “I think we demonstrated that the votes are there to change the rules and it’s not going to take a lot of arm twisting from the majority leader to unite our caucus again” (Sanchez 2013f). Page 156 →Yet this time there was not a last-minute compromise to avert the nuclear option. Republicans were unwilling to make additional concessions beyond those already made the previous summer. Unlike 2005, the minority had not threatened significant retaliatory action if the Democrats followed through on their threats. There was relatively little public effort to deter the majority from going nuclear by signaling to its members the costs such action would pose for their agenda. Republicans instead signaled that they did not take the threat seriously. Put simply, they suggested that the Democrats were bluffing. For example, a senior member of the Republican leadership remarked during a weekly conference luncheon at the end of October, “They may saber rattle again on the nuclear option. I think we should ignore it.”44 Such assertions were based on two assumptions. First, Republicans simply assumed that the nuclear threat was a bluff since Democrats would be in the minority at some point in the future and would thus be disadvantaged by the rule change. Second, Republicans believed that the majority was bluffing because this time it was threatening to eliminate the filibuster for judicial nominations. Specifically, they expected pro-choice Democrats to oppose such a move. For example, the Republican leadership informed the rank-and-file that it did not expect the Democrats to go nuclear and suggested that the members not take their threats to do so too seriously because “if they did, we would have a Supreme Court with lots of Scalia’s and Clarence Thomas’s.”45 Yet this assertion ignored signs from pro-choice Democrats like Barbara Boxer (D-California), who publicly signaled a new openness to the nuclear option in early November. Boxer stated at the time, “I don’t want to change the rules, but I am open to it if Republicans keep obstructing” (Lesniewski 2013k). In this latest standoff, the minority did not attempt to deter the majority from going nuclear by threatening retaliation that would increase the costs of doing so for rank-and-file Democrats, in part because it did not take the threat seriously. There was remarkably little communication between the two sides as the Senate headed into this latest nuclear standoff. The lack of bargaining between the two sides exacerbated the distortion caused by the breakdown in coercive diplomacy. In short, both sides expected the other to blink first. Yet the Democrats’ repeated use of the nuclear threat, itself premised on the assumption that it produced results, appeared to unite the Republicans around the position of standing firm this time around. One reason for this new found resolve was that the stakes were higher for Republicans in the fight over the DC Circuit nominations. The DC Circuit had taken on added significance in President Obama’s second term because it heard cases involving executive actions taken by the presidentPage 157 → to implement his agenda in the face of a gridlocked Congress. The top Republican on the Judiciary Committee, Chuck Grassley (R-Iowa), acknowledged the significance of the DC Circuit. “We have all heard the president pledge that if Congress doesn’t act, then he will simply go around it through executive order.В .В .В . But of course, that strategy works only if the DC Circuit rubber stamps those executive actions” (Gramlich 2013). From the perspective of Senate Republicans, eliminating the filibuster for judicial nominations would enable the president to ensure that a compliant DC Circuit would approve his controversial executive actions. The increased brinksmanship practiced by the Democratic majority also seems to have played a role in the breakdown of the bargaining process. Republicans were frustrated with the fact that their repeated concessions had so far failed to produce a change in the majority’s behavior. McConnell reflected the frustration of Senate Republicans: “This rules change charade has gone from being a biennial threat, to an annual threat, to now a quarterly threat. It’s become a threat every time Senate Democrats don’t get their way” (Lesniewski 2013l). Indeed, the Republican senators who had played a pivotal role in ending earlier standoffs had had enough. Alexander referenced the absence of last-minute negotiations to avert the crisis this time:

This is my third opportunity to respond to these nuclear threats, and I am not going to do it again. The president said during the government shutdown that he was not going to negotiate with a gun to his head. Neither am I. Democrats have had their finger on the nuclear button for two years. I hope they will reconsider.46 The Democrats did not reconsider. Instead, they employed the nuclear option in November 2013 to eliminate the filibuster for all executive branch and some judicial nominations. Reid rejected calls for a last-minute compromise to reduce the size of the DC Circuit in exchange for the minority allowing a vote on one of the president’s nominees for the court. His response captured well the mindset of Senate Democrats heading into the parliamentary showdown: “I insist on getting all three. Why should we agree to something less?” (Sanchez 2013g) The Post-Nuclear Senate The way in which conflicts are concluded is important. It shapes future conflict between the two parties. While the strategy adopted by the RepublicanPage 158 → minority in 2013 failed to deter the majority from eliminating the filibuster for most nominations, its response to the decision of Senate Democrats to actually go nuclear could have made it less likely that the majority would further restrict its rights in the future. At best, the minority’s postnuclear response could have forced the majority to restore the filibuster or to negotiate with the minority over an agreement that left it in a better position than the postnuclear status quo. This is what happened in 1975 when a minority’s retaliation forced the majority to reverse the precedent establishing majority cloture on motions to proceed to proposals to change the Senate’s Standing Rules on the first day of a new Congress. This insight assumes that a Senate minority may deter future aggression even after the anticipated act has occurred and that failure to do so encourages the majority to attempt to further restrict its rights. For example, Schelling’s “California principle” (discussed in chapter 2) suggests that the failure to defend California from Soviet aggression during the Cold War would call into question the willingness of the US government to defend other states (1966, 58). Failure to respond would thus alter Soviet expectations about the United States’ commitment to defend itself. In short, the absence of a proportionate retaliatory strike would make further Soviet aggression more likely. Similarly, Senate majorities may reevaluate the costs and benefits of using the nuclear option if they encounter significant resistance that they did not expect or if the retaliation was costlier than originally anticipated. Carrying out such threats may lead those majorities to reverse their behavior, negotiate with the minority to conclude the conflict in a different manner, or to at least refrain from using the nuclear option in the future to further restrict the minority’s ability to obstruct. From the perspective of a Senate minority, it is thus important to carry out its retaliatory threat after the action to be deterred has occurred. Failure to do so will negatively impact the majority’s expectation of how that minority will behave in similar circumstances in the future. This will increase the likelihood of further limits on the minority’s ability to obstruct. Reflecting this thinking, one Republican senator remarked in early December 2013 that “the worst outcome here is that Democrats conclude that going nuclear doesn’t have a price.”47 The 2013 conflict ended in nuclear war. That is, the Democratic majority used the nuclear option to eliminate the filibuster for most nominations. Was the response of the Republican minority consistent with Schelling’s “California principle”? According to the bargaining model, carrying out a retaliatory threat after the fact sends an important signal. Doing so reduces Page 159 →the majority’s expected utility of further restricting the minority’s remaining rights. Specifically, following through on retaliatory threats demonstrates the minority’s commitment and reinforces the credibility of any future threats. An aggressive response alters the majority’s expectations of how the minority is likely to behave moving forward. It also reduces the utility of the nuclear option for individual Democrats by increasing the costs associated with eliminating the filibuster. This makes it less likely that the majority will exploit the procedural change in the near-term and makes it more likely that it will refrain from further changes in the medium to long-term. The Republicans’ immediate response to the Democrats’ use of the nuclear option reflected the

disproportionate levels of determination between the two sides in the conflict. While the minority may have been unwilling to comply with the Democrats’ demands to stop filibustering President Obama’s DC Circuit nominations, its initial response to the actual use of the nuclear option suggests that it was not sufficiently determined to successfully deter the majority because rank-and-file Republicans were unwilling to assume the costs associated with doing so. This is significant because the Republican response in a postnuclear Senate became even more important in the absence of a prenuclear effort to deter Democrats. In this instance, the minority’s postnuclear response would be the only signal to the majority that its expectations were incorrect and that its members really were determined to resist further efforts to restrict their rights. A robust response that increased the costs of going nuclear for individual Democrats was the only way to make it less likely that the Democratic majority would attempt to go nuclear again in the future to eliminate the filibuster altogether. The best defense at the time of the minority’s remaining procedural rights was to make an example out of the Democrats’ use of the nuclear option in such a way that their decision to utilize it would serve as a cautionary tale for future majorities. Put simply, the Republican minority needed to demonstrate that changing the rules in this manner carried a significant cost. Failure to do so would increase the likelihood of future attempts to change the rules via the nuclear option.

Immediate Response

Immediately after the Democratic majority went nuclear, McConnell raised a point of order that a three-fifths vote was required to invoke cloture on all nominations. The presiding officer ruled against the point of order pursuant to the precedent just established by the nuclear option. McConnellPage 160 → subsequently appealed the ruling of the chair and the Senate sustained its decision (i.e., a majority voted against the McConnell appeal).48 The minority did not take any subsequent retaliatory actions after that. Instead, the Senate took a lunch break. McConnell had previously informed his colleagues what to expect if the Democrats went nuclear during a Senate Republican luncheon. “We have negotiated enough. There is nothing left to negotiate. If we are being reasonable, advice and consent means nothing. It means nothing if consent is always given. If they decide to do it tomorrow, there will be chaos on the floor, and don’t plan on flying home.”49 Yet the public behavior of the Republican minority off the Senate floor after the majority went nuclear also deemphasized the need for retaliation. When asked at a press conference immediately after Senate Democrats pulled the nuclear trigger, McConnell responded, “I don’t think this is the time to be talking about reprisals.В .В .В . I think it’s a time to be sad about what’s been done to the United States Senate” (Sanchez 2013h). Alexander, perhaps unintentionally, underscored the significance of the minority’s lack of a response when he characterized what had just happened as “a raw exercise of political power to permit the majority to do anything it wants, whenever it wants to do it” (Sanchez 2013h). According to the bargaining model, it was the minority’s lack of an effective deterrent that permitted the majority to do anything it wanted, whenever it wanted to do it. Instead of signaling to Democrats that their expectations were incorrect and that the Republican minority was actually determined to resist their efforts to restrict its procedural rights, the minority’s postnuclear strategy was premised on a desire to make the Democrats feel the consequences of going nuclear but to do so only in a way that did not reinforce the majority’s narrative about minority obstruction. The result was that the minority failed to clearly signal its determination to defend the filibuster and that its response did not substantially increase the costs of going nuclear for rank-and-file Democrats. As a consequence, the majority was not deterred from quickly exploiting the new procedural status quo to confirm as many of President Obama’s nominees as possible over the minority’s objections. As noted, the immediate response of Senate Republicans to Reid’s unprecedented maneuver was quite limited. It forced two votes and then agreed to break for lunch. Senators were told during the Republican lunch to expect additional votes that afternoon and that a previously scheduled cloture vote on the National Defense Authorization Act (NDAA; S. 1197) for Friday would go ahead as planned. It appeared that the Republicans were in no mood to be cooperative with regard to the schedule after the Page 161 →Democrats went nuclear. Yet the exact opposite occurred later that afternoon. After lunch, the Senate agreed by unanimous consent to move the NDAA vote up to Thursday afternoon in order to spare members having to vote during a rare Friday session of the

Senate. The Republicans also refrained from forcing additional procedural votes in protest of the Democrats earlier use of the nuclear option. The Senate subsequently passed an adjournment resolution that closed the institution until December 9, eighteen days later.50 While the minority temporarily prevented the Senate from finishing its work on the defense bill before adjourning for the Thanksgiving holiday, it was widely expected that it would relent and allow its passage once the Senate returned in December.51 Once the Senate returned to work a few weeks later, Republicans objected to scheduling confirmation votes on the president’s nominations. This forced the majority to use the time-consuming cloture process to confirm each one. While cloture did not require as much time for most nominations under the terms of the Bipartisan Proposal to Reform Senate Procedure, it still consumed scarce floor time to confirm each nominee in the absence of the minority’s cooperation.52 As a consequence, Reid warned senators that they would be forced to work nights and weekends if the minority continued to obstruct each nominee. In response, McConnell tried to link the consequences of Reid’s threat to the choice made by rank-and-file Democrats to support the nuclear option. “Every single Democrat Senator voted to enable the majority leader’s power grab last month. Those senators are responsible for its consequences” (Sanchez 2013i). But McConnell’s gambit failed because rank-and-file Democrats did not view those consequences as costly. The Republicans’ early retaliation failed to substantially increase the costs on the Democrats. Instead, the Republican minority consistently refrained from retaliating in a way that imposed significant costs on rank-andfile Democrats. This fact is evident in its retaliatory efforts regarding nominations and its protest of the lack of amendment opportunities on the Senate floor. Nominations

While the Republican minority continued to retaliate throughout December and over the course of the following year, the actions it took fell short of imposing the highest costs possible on rank-and-file Democrats. This is particularly evident with regard to nominations. It should be noted that this conclusion is inconsistent with the conventional wisdom. For example, Binder (2014) observes that “after forcing Democrats to secure cloture, Republicans Page 162 →then typically furtherВ punish the Democrats by refusing to yield post-cloture consideration time for the nominees (two hours for trial judges, 30 for appellate).” Yet the Republican response failed to impose significant costs on the Democrats, contrary to the claim implicit in Binder’s observation. At this point, it helps to consider the data on how the Senate processed nominations in the aftermath of the nuclear option. Throughout the remainder of the 113th Congress, the Senate confirmed 379 civilian, nonlist nominations. Of these, 121 were confirmed by recorded vote and 258 were confirmed by voice vote. Binder looks only at nominations on which cloture was required. Examining this more limited category, we find that since November 22, 2013, cloture was filed on 150 nominations. Of these, cloture was invoked on 126. The president withdrew one nomination (Debo P. Adegbile to be assistant attorney general) after failing to get the simple-majority needed to invoke cloture in the aftermath of the nuclear option. Three conclusions can be drawn from this data. First, insisting on more recorded votes and insisting on cloture on these nominations seems to have convinced enough rank-and-file Democrats to refrain from going further by utilizing the nuclear option to eliminate postcloture debate time. Second, the fact that only 47 percent of the nominations confirmed by the Senate since the nuclear option was invoked have had recorded votes highlights the fact that there remains a significant number of nominations on which Republicans could have demanded recorded votes in order to raise the costs even further. Finally, while Republicans insisted on running postcloture time, they did so in a way that minimized the costs on all senators, including Democrats. Specifically, the Republicans repeatedly agreed to reschedule cloture and confirmation votes for a more convenient time when they were otherwise slated to occur late at night or on the weekends. The evidence suggests that the costs imposed by the minority’s response were not prohibitive for Democratic senators. Patty (2014) similarly contends, “the nuclear option through which Reid and the Democrats achieved the 2013 rules change was once considered untoward and potentially risky, but after the dust settled, it seems that

the brutally majoritarian procedure fell short of causing a nuclear winter in the Senate.” Undermining the Republican effort was the fact that they repeatedly modified their response in ways that decreased the costs it imposed on Democrats. Illustrative of this is that the minority missed another opportunity to retaliate for going nuclear when the Senate reconvened on December 9. The “come-back” vote was to confirm Millet, the very nominee on whom the majority utilized the nuclear option. However, Reid requested Page 163 →that the Senate postpone the vote because a winter storm had prevented many members from returning to the Capitol that evening. Reid’s request gave the Republicans leverage because unanimous consent was needed to reschedule the vote. If they objected, it is likely that the confirmation vote would have been defeated. While Reid could have moved to reconsider the vote, doing so would have consumed even more time (moving to reconsider the failed vote would have required two additional recorded votes to confirm the nominee).53 Millet’s nomination was also symbolic because her cloture vote was the question on which Reid employed the nuclear option to eliminate the filibuster. Nevertheless, the Republican minority agreed to reschedule the vote for the next day despite its symbolic nature and the additional time it would likely take to confirm Millet if the vote was held as originally planned.54 After obtaining consent to move the Millet confirmation vote, Reid then asked unanimous consent to call up and confirm sixty-two nominees. Alexander objected, citing the nuclear option as the reason. Reid then asked unanimous consent to call up and confirm fourteen different nominations. Alexander objected again. Reid then moved to proceed to ten nominees and filed cloture on each one.55 Under the Senate’s rules and practices, the motion to proceed to executive session to consider a particular nomination is nondebatable, as is the motion to proceed back to legislative session. This allowed Reid to move to each of the ten nominees and file cloture on them ad seriatim. Specifically, he moved to the first nomination, filed cloture on it, and then moved back to legislative session. Reid then moved back to executive session to consider the next nomination, filed cloture on it, and so on until he had filed cloture on all ten nominations. Those cloture votes would occur automatically pursuant to Rule XXII. While the Republicans could not have prevented Reid from doing this per se, they could have forced the Senate to have a recorded vote every time Reid moved to proceed to executive session and back to legislative session. Had they done so, Reid’s maneuver would have required twenty recorded votes to achieve the same thing (i.e., cloture motions filed on all ten nominations). This would have added at least six to seven hours to the process. More importantly, it would have significantly inconvenienced Democratic senators who had become accustomed to having only one recorded vote on Monday evenings. Finally, it is not clear that Reid had the votes necessary to successfully carry out the maneuver at the time, given that he had just been forced to ask unanimous consent to move the Millet confirmation vote to the following day due to attendance problems. It is unlikely that Reid would have been able to muster the simple-majority needed to Page 164 →successfully move to executive session and back to legislative session if he believed that he could not do so to confirm Millet. Similarly, the Democrats’ decision to confirm as many nominees as possible before the end of the year when the nominations remaining on the calendar would be automatically returned to the president forced Republicans to consider whether or not to allow postcloture time to run overnight on each nominee when the Senate was not in session. This was routinely done by unanimous consent in the prenuclear Senate in order to make the process more convenient for its members. If Republicans decided not to grant consent (i.e., allow postcloture debate time to run overnight), the Democrats would be forced to choose between keeping the Senate in session (i.e., maintaining a quorum) twenty-four hours a day in order to confirm as many nominees as possible or allowing the Senate to recess at the end of each day, which would reduce the number of nominations that could be confirmed before the end of the year. Republicans had two concerns with requiring the Senate to remain in session in order for postcloture time to run. First, some opposed requiring the Senate to remain in session around-the-clock because it would impose costs on Republicans as well as Democrats. Instead, they believed that allowing postcloture time to run when the Senate was not in session was a better approach because it would consume as much time as possible with little effort on their part to confirm the president’s nominees. Specifically, they were concerned that the majority would force procedural votes in the middle of the night in order to inconvenience rank-and-file Republicans. However,

this calculation was based on a flawed understanding of the dynamics at play in the bargaining situation. For the majority, the additional time required to confirm each nominee was not costly per se. Rather, it was the combination of time and effort required of rank-and-file Democrats to confirm each nominee that was costly. Forcing the Senate to remain in session twenty-four hours a day to confirm the same number of nominees would impose substantial costs on the Democrats. Moreover, those costs would fall primarily on the majority even though they would also inconvenience Republican senators. The Democrats would have to maintain a quorum to keep the Senate in session. If they could not produce fifty-one senators to do so, the Republicans could successful move to adjourn the Senate. This would have had the effect of requiring even more time to confirm each nominee because postcloture time stops running when the Senate is adjourned (absent unanimous consent). As a consequence, Democratic senators would have to sleep in their offices night after night and remain in Washington, DC, over the weekends in the days Page 165 →before Christmas in order to confirm as many midlevel nominees, like the deputy director of the Office of Management and Budget, as possible before the end of the year. This would be significantly costlier for rank-and-file Democrats than using a similar amount of time to comfortably confirm the same nominees by allowing postcloture time to run when the Senate was not in session (i.e., overnight and on the weekends). Second, Republicans also feared that the majority would use their refusal to allow postcloture time to run when the Senate was not in session as an excuse to eliminate postcloture time for nominations altogether. Cornyn remarked at the time, I think it would be a mistake for us to make ourselves the issue, which is likely to happen if we would be tempted to do that.В .В .В . I think there is a normal human inclination to want to retaliate, but I think we need to try to contrast ourselves by showing that we are responsible and are worthy of the public’s confidence if we are successful in winning the majority. (Sanchez 2014) According to contemporaneous reports, the Democrats discussed doing so at their caucus lunch on December 20 (Sanchez 2013j). However, the majority was unwilling to make this change, as it was when it previously went nuclear. The fact that it did not suggests that there were limits to what rank-and-file Democrats would support. While the majoritarian model claims that the additional obstruction could have pushed the majority to restrict the minority’s rights even more, the bargaining model posits that the unexpected response from Republicans would have caused the Democrats to readjust their expectations about how the minority would be likely to react if they went nuclear again. The Republican minority eventually embraced both options. That is, it granted consent to allow postcloture time to run overnight when the Senate was not in session. However, it also forced the Senate to remain in session aroundthe-clock on several occasions. Yet when it did so, Republican senators behaved in a way that reduced the intended costs of their retaliatory acts for the Democrats. Specifically, Republicans assumed the burden of keeping the Senate in session by speaking all night instead of moving to adjourn or otherwise forcing procedural votes in order to make the majority produce a quorum to keep the postcloture clock running. If they had done so, rank-andfile Democrats would have had to show up to vote in the middle of the night in order to prevent the Senate from adjourning. This would have increased the physical costs on Democrats while signaling the Page 166 →determination of Republicans to resist the restriction of their right to filibuster. In the event the majority could not produce a quorum, the Senate would adjourn and even more time would be required to confirm the same number of nominees. This was particularly significant in mid-December because under Rule XXXI, any nominee left on calendar at the end of the session (December 31) would be automatically sent back to the president. The Democratic majority clearly signaled that it preferred to allow postcloture time to run when the Senate was not in session and that it did not want to vote in the middle of the night. At the beginning of one around-the-clock session, Reid tried to obtain consent to allow postcloture time to run when the Senate was in recess. The Republicans objected. Reid then negotiated a nonaggression pact with McConnell to ensure that neither side would force procedural votes during the overnight session (Lesniewski 2013m). Additionally, the Democrats did not always yield back their half of postcloture time for each nomination in order to have the votes earlier. Under the terms of the Bipartisan Agreement to Reform Senate Procedures, postcloture debate time on most nominations

was divided equally between the majority and minority. As such, the Democrats could yield back their four hours of the eight-hour time (or one hour in the case of a district court nominee) in order to shorten the time required to confirm each nominee. Doing so would have allowed the majority to confirm more nominees before the end of the year. And indeed, they did so when the votes occurred in the middle of the day. However, yielding back time during an overnight session would have triggered recorded votes at an inconvenient time, and this was something that the majority wanted to avoid. This fact supports the claim that rank-and-file Democrats were more concerned about late-night voting than they were about the clock and the total number of nominees they could confirm before the end of the year. Republicans again agreed to a similar process right before Christmas. At the time, Democrats were threatening to keep the Senate in session until the end of the year in order to confirm a list of nominees. Instead of trying to call their bluff, the Republicans calculated the amount of time left remaining in the session before the Senate rules required that those nominations still on the Senate’s Executive Calendar be returned to the president. They then calculated how many nominations the majority could confirm if the Senate remained in session as it had threatened. The Republicans subsequently agreed by unanimous consent to schedule back-to-back confirmation and cloture votes on these nominees. The Senate then adjourned for the year. The costlier approach would have been to call the Democrats’ bluff and Page 167 →to force them to remain in session over Christmas voting on nominations in retaliation for going nuclear. The fact that Republicans were willing to make the process convenient for all senators signaled to the Democrats that they were not determined to retaliate for going nuclear. Amendments and the Motion to Table

The response of Senate Republicans discussed thus far was primarily focused on increasing the agenda costs of going nuclear for Democratic senators by prolonging the time required to confirm President Obama’s judicial and executive nominations. The Republicans also retaliated by attempting to increase the political costs of going nuclear for individual Democrats. This was part retaliation for going nuclear and part protest of the majority’s routine practice of filling the amendment tree to block votes on minority amendments. Specifically, a Republican senator would move to table one of the perfunctory amendments used by the majority leader to fill the amendment tree with the stated purpose of offering another, substantive, amendment. Any senator can make the motion to table and doing so triggers an immediate vote at a simple-majority threshold (i.e., it is nondebatable; it cannot be filibustered). If the motion is successful, the pending question is defeated and, in this case, any member can then offer an amendment to the underlying legislation at the spot on the amendment tree previously occupied by the majority leader’s blocker amendment. This tactic is permitted under the Senate’s rules and precedents and represents a guaranteed way to force a recorded vote. Republicans employed the tactic ten times over the remainder of the 113th Congress. It was first used in protest of the nuclear option on December 17. The Democrats easily defeated all but the last attempt to table the tree. On September 18, 2014, Ted Cruz (R-Texas) moved to table the blocker amendment on the tree. His effort failed on a fifty-fifty tie vote. Five Democrats voted with all of the Republicans for the Cruz motion.56 Nevertheless, the tactic does not impose significant costs on the majority. First, the recorded vote associated with this tactic is on a procedural motion in relation to a different amendment (i.e., the blocker amendment offered by the majority leader to fill the amendment tree). The minority attempts to link the vote on the motion to table to a different issue by speaking before moving to table. For example, Jeff Sessions (R-Alabama) linked his motion to table the tree on December 17, 2013, with the subject matter of the amendment he was being blocked from offering. Page 168 →Again, summarizing for my colleagues, the Presiding Officer is telling this Senate that if there can be 51 votes to table the current amendment tree to the House-passed spending bill, then there will be an opportunity for me or other senators to offer by motion a motion to concur with the amendment that strikes the military pay cut. So, Madam President, in order to make a motion to concur with amendment No. 2572, I move to table the pending motion to concur with an amendment

offered by the majority leader, and I ask for the yeas and nays.57

Characterizing a motion to table a specific amendment pending to legislation on the Senate floor as a substantive vote on a separate amendment not then pending is difficult. This is because it requires linking the roll call vote with a statement made by a member in the Congressional Record. Significantly, the costs of losing a vote on a motion to table the amendment tree are not prohibitive for the majority. Should the minority successfully table the tree, the majority leader can simply get recognized immediately after the vote to offer another blocker amendment in the newly vacant branch on the amendment tree. This is because the tactic requires two steps to be successful. First, a senator must table the blocker amendment in the tree. If successful, the senator must then get recognized again to offer an amendment at the branch on the tree just vacated by the motion to table. However, the majority’ leader’s priority of recognition makes it unlikely that a senator can get recognized in this scenario. Finally, a successful motion to table does not create a new precedent that would limit the ability of Senate majorities to restrict the minority’s rights in the future. Evaluating Coercive Diplomacy Was the minority in a worse position in November 2013 despite having cooperated in the past to avert the nuclear option? Did this cooperation encourage the majority to make ever-increasing threats in order to get its way? Would public threats to retaliate have been more effective than, or at least coupled with, repeated bipartisan compromises in forestalling the nuclear option? The predictions of the bargaining model of procedural change are affirmed by the preceding analysis of the 2013 conflict. First, the model claims that the effectiveness of a coercive threat is dependent on the credibility of a party’s commitment to carrying it out. The implication is that a Page 169 →credible minority threat to retaliate will deter the majority from unilaterally changing the rules. In contrast to the Democrats in 2005, the Republican minority consistently failed to make credible threats (or in some cases any threats) to retaliate if the Democratic majority went nuclear. The result was that rank-and-file Democrats did not fear the consequences of going nuclear. Second, the bargaining model suggests that the credibility of future commitments is either reinforced or undermined by a party’s past behavior. As a consequence, minority cooperation in response to the majority’s brinksmanship increases the likelihood that the latter would continue such behavior in the future, thereby increasing the odds that the nuclear option would be used at some point absent complete minority capitulation or a dramatic reversal in the minority’s behavior. The behavior of Senate Republicans in each of the preliminary skirmishes leading up to the fall of 2013 led the Democrats to expect the minority to back down in the face of similar threats in the future. This made it more likely that the majority would more readily threaten to go nuclear in order to overcome a minority filibuster. Third, the bargaining model views the effectiveness of a coercive threat and the credibility of any commitments to carrying it out as being dependent on communication between the two parties. That is, the breakdown in communication between the two sides increased the likelihood that the nuclear option would be used. The consequence was that no new information was available for either side to update its expectations about how its adversary would be likely to react if the conflict continued. Republican assumptions that the Democrats were bluffing were based on outdated information and did not consider the impact of their past willingness to negotiate in the face of nuclear threats on the majority’s expectation that it would continue to get its way. Similarly, the Democrats incorrectly concluded that a sufficient number of Republican senators would relent at the last minute in the face of a nuclear threat as they had done in the past.

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Part III Deterrence in Parliamentary War If the enemy is to be coerced, you must put him in a situation that is even more unpleasant than the sacrifice you call on him to make. —Carl von Clausewitz (1984, 77)

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Seven In Search of a More Effective Deterrent The cases examined in the previous two chapters affirm the central claim of the bargaining model that the majority’s ability to coalesce in support of going nuclear is contingent on the minority’s behavior in response to threats to restrict its rights. This is an important insight in that the key then to avoiding nuclear war in the Senate lies with the minority. In the aftermath of the successful use of the nuclear option in 2013, do Senate minorities possess tools that they can use to deter the majority from further restricting their procedural rights? As noted, deterrence requires that members of the majority party perceive the costs of going nuclear as outweighing the benefits to be gained from limiting the filibuster. Senate majorities will be more likely to resort to the nuclear option in the future to confirm a Supreme Court nominee and/or to eliminate the filibuster on legislation if they perceive the costs of doing so to be low or nonexistent. Yet the minority’s threatened retaliation cannot be susceptible to restriction via the nuclear option for it to truly impose costs on the majority’s rank-and-file. As a consequence, its retaliatory tactics cannot be reliant on the filibuster. Identifying these tactics is necessary in building a more effective deterrent. Doing so first requires us to determine what the majority’s members value. To that end, I review in this chapter the increased tendency of Senate majorities to utilize the institution’s existing rules and practices in unorthodox ways in order to combat minority obstruction. This represents an important line of inquiry because it underscores the type of minority Page 174 →behavior that majorities consider costly. By extension, it informs our understanding of what kind of retaliatory threats will be most effective in deterring the majority. Finally, it illuminates the limited extent to which Senate majorities are willing to bear higher costs in order to overcome minority obstruction. Namely, majorities today do not utilize all of the existing rules and practices available to limit the minority’s ability to obstruct. This is significant because it reveals something important about the willingness of Senate majorities to engage in behavior that may be costly for their rank-and-file members. That is, the procedures utilized by Senate majorities to combat minority obstruction can be distinguished from those that are not utilized by the costs each would impose. Senate majorities regularly eschew costly parliamentary procedures even though they may provide ways to overcome minority obstruction short of going nuclear. The implication is that the nuclear option is preferred by senators in the current environment because it is perceived as being less costly. Highlighting an example of the procedures that have not been regularly utilized by the majority underscores the fact that its members are less likely to support confrontational strategies to parliamentary war if such approaches would impose significant costs on them. Absent a less costly alternative, the majority is likely to instead opt for a continuation of the status quo, even though doing so may yield suboptimal outcomes. This suggests that Senate minorities may successfully deter the majority from going nuclear if they can credibly threaten to retaliate in a way that sufficiently increases the costs of such action for its members. Unorthodox Use of Parliamentary Procedures In recent years, Senate majorities have utilized unorthodox rules and practices with greater frequency to combat what they perceive to be an illegitimate increase in minority obstruction. The fact that they have done so has only recently been fully appreciated (Sinclair 2007). According to the way in which we have traditionally viewed the Senate, individual members possess considerable procedural rights with which to obstruct the majority as it seeks to pass its agenda. These range from the filibuster to delay its agenda, to offering poison pill amendments on the Senate floor in an effort to score political points, or to change legislation in such a way that the majority abandons it. This perspective has informed most of the leading scholarship on the Senate (e.g., Sinclair 1989; Smith 1989). To the extent that such treatments acknowledge party effects, they share a common focus on the negative consequencesPage 175 → of rising partisanship and typically argue that Senate majorities are limited in their ability to overcome minority obstruction. More recent scholarship acknowledges that parties do matter in the Senate and several studies have shifted the

focus from the efforts of individual members to achieve their goals in the Senate to the behavior of the majority and minority parties in the institution more generally (e.g., Binder 1997; Binder 2003; Koger 2010; Lee 2009; Smith 2007; Theriault 2008). These works share the common assumption that political parties structure the decision-making process in the institution and influence the behavior of its members. According to this approach, the Senate will become more partisan as majority party cohesion increases and it seeks to exert more control over the legislative process in an effort to enact its agenda over the objections of the minority party. The scholarly treatments developing this theoretical perspective have primarily sought to adapt approaches originally developed to explain party effects in the House of Representatives (e.g., Rohde 1991; Cox and McCubbins 1993 and 2005). In general, these efforts hold that an increasingly partisan and ideologically polarized Senate membership (minority and majority) is more likely to utilize its procedural rights to pursue more partisan and ideologically polarized goals. The minority will seek to obstruct the majority for perceived policy and electoral gain. In response, the majority will avail itself of all of its procedural tools to enact a more partisan and ideologically polarized agenda. This minority obstruction, so the argument goes, leads to gridlock and dysfunction precisely because the Senate is unable to overcome its super-majority requirements to end debate and pass legislation in such a polarized environment. More recently, Den Hartog and Monroe’s (2011) theory of costly consideration represents an effort to bridge the theoretical gap between the traditional and partisan approaches in a way that accounts for minority and majority party influence in the Senate. They argue that both Senate majorities and minorities exercise some ability to influence the agenda. Minority parties exercise negative agenda control through their reliance on Senate rules to obstruct the majority. In contrast, Senate majorities exercise positive agenda control by being the first to propose a measure in a bargaining environment. While not directly examining such an approach here, the fact remains that Senate majorities also exercise negative agenda control to successfully determine legislative outcomes by limiting the minority’s ability to obstruct. Specifically, the majority today commonly utilizes the institution’s existing rules and practices to limit the minority’s ability to debate legislation and offer amendments on the Senate floor. It does so Page 176 →because it would like to avoid the costs associated with the minority’s ability to obstruct via filibuster and amendment. As a consequence, it is important to briefly consider the majority’s innovative utilization of existing rules and practices to negatively control the agenda and to explore the relationship of such behavior to increased minority obstruction. Surprisingly little attention has been given to documenting the ways in which Senate majorities successfully block the consideration of unwanted minority proposals on the Senate floor and to tracking their use in the face of the super-majoritarian constraints of the institution (Beth et al. 2009; Koger 2010; Sinclair 2007; Smith 2014 are notable exceptions). As a result, we have, at best, only a limited understanding of how Senate majorities pass their agenda over the objections of the minority party without having to change the Senate’s rules via the nuclear option. This is an important line of inquiry because it documents the willingness of Senate majorities to resort to parliamentary maneuvering in order to pass their agenda over the minority’s objections. It also demonstrates the sensitivity of the majority to the costs imposed by minority retaliation. In sum, we gain an appreciation of the best places for minorities to attack when we identify the areas majorities try to defend. Low-Cost Parliamentary Weapons Evidence shows that the number of incidents in which Senate majorities successfully employ negative agenda control on major legislation has increased. This is consistent with an increase in cloture motions filed and cloture votes (see fig. 7.1). It is also consistent with a general decline in the number of minority amendments offered to legislation on the Senate floor (see fig. 7.2). The increased use of cloture to end debate, and the decline in the number of minority proposals offered on the floor in particular, reflect the extent to which the majority would like to limit the filibuster and the consideration of unwanted amendments. In this context, negative agenda control enables Senate majorities to control the legislative process and ensure that policies it favors are advantaged and those it opposes are blocked. The principal means by which majorities do this are cloture and the ability of the majority leader to fill the amendment tree. Both of these tools are authorized by the Senate’s existing rules and practices and provide majorities with a limited means to overcome minority obstruction. Fig. 7.1. Cloture motions Fig. 7.2. Minority amendments Page 177 →

Cloture

The gridlock that results from negative agenda control is often mistaken as the result of minority obstruction because members of the minority party typically resort to procedural maneuvering in response to the legislative tactics of the majority. However, the majority party, acting through the majority leader, resorts to such procedures in order to resolve conflict that results from the combination of the Senate’s permissive procedural atmosphere and the polarized political environment in which it deliberates.Page 178 → In short, the majority attempts to structure the legislative process to its advantage. Viewed in this context, the evolution of the cloture rule is helpful in tracking the increase in the influence of the majority leader and, by extension, the majority party in the Senate. This procedure is the principal means by which unified and ideologically cohesive majority parties seek to maintain the Senate’s productivity while also passing their policy agenda. This inevitably entails reducing opportunities for Senate minorities to participate in the decision-making process. Minority party members are limited in the amendments they can offer and are often forced to resort to obstructionist tactics in order to make substantive policy arguments. It is certainly not incorrect to view cloture motions and filibusters as related. However, such a narrow focus overlooks the many advantages that the cloture rule offers Senate majorities. Majority Leader Harry Reid (DNevada) acknowledged these benefits in an exchange with Minority Leader Mitch McConnell (R-Kentucky) on the Senate floor in July 2012. “The filibuster was originallyВ .В .В . to help legislation get passed. That is the reason they changed the rules here to do that.”1 The evolution in the use of cloture during the second half of the twentieth century increased the influence of the majority leader. Specifically, cloture is utilized preemptively to speed consideration of legislation regardless of time spent on the floor. In this process, the majority limits the minority’s ability to freely debate measures and offer amendments pursuant to the Senate rules. Such behavior may simply result from the anticipation of expected obstruction by the minority party. It could also represent a genuine effort to push the majority’s agenda through the Senate unchanged in a timely manner. The restrictive process could also be utilized to defend carefully negotiated legislation from killer amendments or to protect majority party members from having to take tough votes. The majority leader uses cloture as a scheduling tool in the Senate today. While filing cloture is a time-intensive process, it provides the only clearly established procedure for the resolution of debatable questions in the Senate. Thus, the cloture rule provides a small degree of certainty in an otherwise uncertain environment. The majority leader can use such certainty to his advantage by scheduling votes at the end of the week and immediately prior to a long recess in an effort to force an issue. Obstructing senators are less likely to risk the ire of their colleagues by forcing a rare weekend session. The cloture rule also gives the majority leader the ability to impose a germaneness requirement on amendments to legislation postcloture. Such a requirement may spare majority party members from having to take Page 179 →tough votes on nongermane amendments. It also protects carefully crafted legislation from poison-pill amendments unrelated to the underlying issue. Fig. 7.3. Share of cloture motions filed, by day of floor consideration Finally, cloture is often utilized by the majority leader for symbolic purposes. By triggering an up-or-down vote on legislation, cloture establishes a clearly defined line of demarcation between the majority and minority parties on controversial issues. Such votes can be presented as take-it-or-leave-it propositions. The proponents of such measures can often portray the senators who vote against them as not supporting the underling legislation. Without the cloture process, the majority leader would not have these important, albeit limited, tools at his or her disposal, and would thus be unable to structure the legislative process to the majority’s advantage using existing Senate rules. When combined with the practice of filling the amendment tree, the cloture process further allows the majority leader to limit the ability of individual senators to participate in the legislative process without having to change the Senate’s rules to reduce their procedural prerogatives.

As evidence of the majority’s desire to proactively combat anticipated minority obstruction, the majority leader increasingly files cloture early in the process before any actual obstruction can be said to have occurred. As figure 7.3 demonstrates, the instances in which cloture has been utilized during the early stages of a bill’s consideration on the Senate floor have increased dramatically since 2001. This dynamic can be isolated and the majority’s increased use of cloture to preemptively limit the minority’s ability to obstruct can be more readily discerned by comparing the total number of cloture motions filed in a particular Congress to the number filed Page 180 →when omitting those motions filed on the first day of a bill’s consideration or very early in the legislative process.2 As the majority sought to expand its control over Senate decision-making by structuring the legislative process to its advantage, the minority increasingly resorted to the filibuster and the right to offer amendments to legislation in an effort to protest the newfound limitations on their participation in the consideration of legislation on the Senate floor (Sinclair 2006 and 2007). Filling the Amendment Tree

There are very few limits to the nature and total number of amendments members can offer when considering legislation on the Senate floor.3 The ability to offer amendments on the floor is particularly useful for senators in the minority party, especially if the majority-controlled committees resist reporting minority-sponsored measures. As a result, minority party senators have a potentially powerful way to achieve their individual policy and political goals by virtue of their ability to offer amendments. They can also use the ability to offer amendments to obstruct the majority’s agenda. According to Thomas Jefferson’s Manual of Parliamentary Practice, Amendments may be made so as to totally alter the nature of the proposition; and it is a way of getting rid of a proposition, by making it bear a sense different from what was intended by the movers so that they vote against it themselves. (1993, 61) This tactic leads the majority to limit the minority’s ability to offer amendments to legislation once it reaches the Senate floor and to ensure that any amendments that are offered do not jeopardize passage of the underlying bill. It does so by setting up the floor process in such a way that makes it more likely than not that such amendments fail. Various procedures have developed over the years that serve to constrain the ability of individual senators to offer amendments under certain circumstances. For example, the amendment tree refers to various precedents that govern the consideration of amendments in the Senate. An amendment tree is filled when all of the amendments permitted by the precedents have been offered and are pending. By virtue of the majority leader’s priority of recognition in the Senate, he is able to continuously hold the floor while offering substantive and nonsubstantive amendments to legislation in order to fill the amendment tree, thereby limiting the ability of individual members to freely offer their own amendments. AdditionalPage 181 → amendments cannot be offered to legislation on which the amendment tree has been filled (Riddick and Frumin 1992, 24–26). The instances in which the majority leader has filled the amendment tree have increased significantly in recent congresses (see fig. 7.4). Fig. 7.4. Filling the amendment tree Reasons the majority leader resorts to filling the amendment tree include: to prevent unwanted amendments from receiving votes on the Senate floor; to expedite floor consideration; to increase the leadership’s leverage in negotiations over unanimous consent agreements; to secure the first recorded vote on legislation prior to the possibility of it being amended; and to exert leadership control over the nature and timing of floor consideration. Yet filling the amendment tree does have limitations. The tactic cannot be used to pass legislation on the Senate floor unless the majority leader has the sixty votes necessary to invoke cloture on the underlying legislation over the objections of the minority. Additionally, the very act of filling the amendment tree itself may alienate minority party members, thus further reducing the likelihood that sixty votes can be found to end debate. Nevertheless, unified minority opposition is difficult to sustain. The majority leader often isolates select members of the minority who are predisposed to support the underlying legislation and negotiates directly with them in order to build a sufficient coalition. Former Senate parliamentarian Robert Dove observes that the practice of filling the

amendment tree “has been used repeatedly in conjunction with cloture votes to, in effect, put the minority party in the position of either voting for cloture, in which Page 182 →case they have lost their right to amend, or voting against it” (Dove 2010). This can represent a difficult choice for many members depending on the nature of the legislation under consideration. Fig. 7.5. Amendment 60-vote thresholds The majority’s desire to limit the minority’s ability to attach what it considers poison-pill amendments to legislation it supports on the Senate floor is also reflected in the dramatic increase in the use of unanimous consent agreements to set sixty-vote thresholds for passing amendments (see fig. 7.5). The majority will often use the threat of filling the amendment tree to block amendments altogether in order to compel the minority to agree to higher vote thresholds.4 The earliest documented use of such a consent agreement occurred in the 102nd Congress. However, this was a relatively rare procedural tool until the 109th and 110th Congresses, when majority leaders Bill Frist (R-Tennessee) and Harry Reid (D-Nevada) began utilizing them on an increasing scale. In the 109th Congress, consent agreements were used in this manner in six instances. However, in the 110th Congress, their use increased significantly, totaling thirty-seven instances. The use of this tactic remained relatively level in the 111th Congress at thirty-eight. In the 112th Congress, sixty-vote thresholds were set for amendments on a staggering 111 occasions. The tactic was utilized thirty-five times in the 113th Congress. The trend in the tactic’s use is more easily discerned when depicted as the percentage of the total number of amendments offered in a particular Congress (see fig. 7.6). The decline in amendments subject to a sixty-vote threshold from the 112th to the 113th Congress is not as abrupt when viewed as a percentage of all amendments offered. This is because only 542 amendments were offered to legislation on the Senate floor during the 113th Congress (compared to 974 in the 112th Congress). Fig. 7.6. Percentage of amendments subject to 60-vote thresholds Page 183 →Pursuant to such agreements, the amendment is withdrawn if it does not get the requisite number of votes. The practice allows an amendment’s supporters to demonstrate support for cloture without going through the time-consuming process of invoking it. However, they are seldom successful. In the 109th and 110th Congresses, amendments considered in this manner failed 100 percent and 78 percent of the time, respectively. In the 111th and 112th Congresses, the percentage of amendments considered in this manner that failed was 61 percent and 87 percent, respectively. Most recently, 77 percent of the amendments considered pursuant to this tactic failed in the 113th Congress. As a result, their use can be interpreted as allowing the majority to facilitate the passage of legislation by allowing the minority to offer amendments without risking the adoption of a poison pill. This process does not present a problem for majority party members because they oppose the amendment in question, and a sixty-vote threshold means that it is unlikely to pass. Minority party members support this process because it provides an opportunity to offer the amendment in question and get a vote on it, all without having to expend the necessary resources to actually filibuster the underlying legislation. High-Cost Parliamentary Weapons Notwithstanding the tendency of Senate majorities to turn to existing rules and practices to combat minority obstruction, the fact remains that they do not utilize every tool at their disposal. One of the primary factors in determining which procedures to use are the costs they impose on the majority’sPage 184 → members. The two-speech rule provides one example of a procedural weapon that is rarely utilized by Senate majorities to limit the minority’s ability to obstruct, even though it offers a way to overcome filibusters in some instances. Its disuse thus suggests that senators are unwilling to bear the costs necessary to utilize the two-speech rule successfully. In the current postnuclear environment, the majority may even prefer the nuclear option if it is perceived as being a less costly way to achieve their goals. The Two-Speech Rule

A common concern of Senate majorities representing both parties in recent years has been the increased frequency

with which the minority filibusters the motion to proceed to legislation. Figure 7.7 depicts the increase in cloture filings to end debate on such motions. This has prompted the majority to call for changing the rules to make the motion to proceed nondebatable (i.e., not subject to a filibuster). Doing so would prohibit senators from blocking a vote on the question of whether or not the Senate should consider a particular bill. For example, Democrats proposed making the motion to proceed nondebatable in 2011 and 2013. Most recently, some Republicans have called for similar changes despite having previously opposed the reform. Specifically, members like Steve Daines (R-Montana), James Lankford (R-Oklahoma), and Thom Tillis (R-North Carolina) have suggested making the motion to proceed to appropriations bills nondebatable (Kim 2015). Yet existing Senate rules currently provide the majority with the means to overcome minority obstruction of the motion to proceed to legislation. That it chooses not to utilize this option suggests that its rank-and-file members are unwilling to bear the costs associated with using the parliamentary weapon to overcome a minority filibuster. The implication is that the costs of utilizing existing rules and practices to limit the minority’s ability to obstruct and the likelihood that the majority will utilize them to do so are inversely related. As a consequence, it is reasonable to expect that majority support for employing the nuclear option can be tempered by linking such support to the imposition of significant costs on its members. For example, the majority can limit the minority’s ability to indefinitely filibuster the motion to proceed to a bill by strictly enforcing the so-called two-speech rule on such motions.5 Overcoming a minority filibuster of a motion to proceed requires the Senate to remain in the same legislative day until the filibustering members have exhausted their ability to speak on the motion to proceed.6 This is reached when those members who are committedPage 185 → to blocking the Senate’s consideration of a particular bill have given the two speeches allotted to them on the motion under the Senate’s rules. At that point, the presiding officer may put the question (i.e., call for a vote) on adoption of the motion to proceed.7 Adoption of the motion to proceed is a simple-majority vote. In sum, each senator may only speak twice in the same legislative day on any one question. Once a senator has given two speeches, that member may not speak again. The Senate votes when there are no senators on the floor who wish to, and may, speak.8 Fig. 7.7. Cloture on motions to proceed Notwithstanding the near-inevitability of victory, overcoming minority obstruction of motions to proceed using the two-speech rule imposes some costs on the majority. Recognition of these costs necessitates a closer look at how the strategy would work in practice. First, the majority would move to proceed to a bill. It would then keep the Senate in the same legislative day by recessing instead of adjourning in order to break the filibuster. The majority would strictly enforce the two-speech rule on filibustering senators. Its members would refrain from speaking on the floor, putting added pressure on the minority to sustain the filibuster. The minority could make repeated procedural motions in an effort to increase the burden on the majority for keeping the Senate in session. If the Senate were to adjourn, a new legislative day would be created and each member’s allotment of two speeches under Rule XIX would be refreshed. Yet making procedural motions would terminate the filibustering senator’s speech, thus hastening the moment at which the minority will have exhausted its ability to delay adoption of the motion to proceed by filibustering via debate. While such motions can be made even when a senatorPage 186 → has exhausted both speeches, the majority can easily dispose of them using a nondebatable motion to table. The minority may also suggest the absence of a quorum in order to get a reprieve from speaking. However, the majority can prevent the filibustering senators from delaying adoption of the motion to proceed by immediately producing a quorum. Finally, the majority can further shorten the time filibustering senators can delay adoption of a motion to proceed and increase the burden associated with doing so by utilizing an additional tool provided in the existing Senate rules in conjunction with the two-speech rule. Specifically, the majority may file cloture on the motion to proceed at the end of each day. Doing so guarantees that a minimum of two speeches will be used each calendar day. The filibustering senator is interrupted when cloture ripens one hour after the Senate convenes.9 This tactic effectively limits the first speech of the day to one hour and requires filibustering senators to use another speech after the

cloture vote. Filing cloture each day thus reduces the time needed for a strategy based on the two-speech rule to work. For example, assume there are ten senators who are willing to filibuster the motion to proceed and that each senator is physically capable of giving two five-hour speeches. The time needed to overcome the filibuster in this example totals 100 hours (ten senators at ten hours each). Now assume there are ten senators who are willing to filibuster the motion to proceed, that each senator is capable of giving two five-hour speeches, and cloture is filed on the motion at the end of each day. The time now needed to overcome the filibuster is sixty hours (ten senators at six hours each). Strictly enforcing the two-speech rule is likely to overcome minority obstruction before every member uses the maximum number of speeches allotted to them under the rules (or resorts to the strategy of making motions ad infinitum). This is because continuing to filibuster the adoption of the motion to proceed imposes significant costs on the minority. The strategy forces its members to demonstrate their commitment to filibustering the motion to proceed to a bill. To have even the chance of success requires each member to hold the Senate floor for a prolonged period of time in an effort to wait out the majority. The only way for the minority to prevail in the parliamentary showdown is for the majority to relent and cease its efforts to overcome the filibuster. As a consequence, the minority leadership will be forced to turn to less-interested or disinterested senators to sustain the filibuster once its most committed obstructionists have used their allotment of speeches. Such calls from the leadership for active participation in the filibuster by rank-and-file members will be likely to precipitate internal dissent Page 187 →within the minority for two reasons. First, the majority’s determination to prevail will become increasingly clear as the minority’s committed obstructionists begin losing their ability to speak on the Senate floor. The near-inevitability of defeat is likely to diminish the willingness of less-interested or disinterested senators to sustain the filibuster due to the futility of the effort. Second, the novelty of the parliamentary showdown will attract considerable media attention. This attention will increase as the committed obstructionists lose their ability to filibuster and less-interested or disinterested senators are called upon to sustain the effort. Increased media scrutiny is thus likely to increase the costs of filibustering for the rank-and-file members least willing to bear them. Yet a strategy based on strictly enforcing the two-speech rule in the manner outlined here also imposes costs on the majority. Specifically, it requires its members to quickly produce a quorum in order to shorten the time necessary to wait out the minority. Additionally, the majority must ensure that it can produce fifty-one senators when the Senate is in session in order to table any procedural motions the minority may make. Yet these costs can be managed in order to reduce the extent to which they would disrupt senators’ schedules. While recorded votes technically last for fifteen minutes, majority leaders from both parties have routinely kept a vote open for longer when extra time was needed to allow a member to vote. Given this, the majority should be able to produce a simple-majority on the floor to table any superfluous motions made by the minority with only minor inconveniences. It should be noted that forcing votes on superfluous procedural motions also inconveniences members of the minority who are not participating in the filibuster at that particular moment. As a consequence, any effort to exhaust the majority by making such motions will also impose costs on the minority. These costs are likely to exacerbate tensions within the minority between senators who are committed obstructionists and those members who are less interested. Finally, the majority can determine how long the Senate will remain in session each day. Late-night and weekend sessions are not required. Motions to recess are amendable and the minority could thus keep offering amendments in order to keep the Senate in session. Yet offering such amendments ad infinitum imposes several costs on the minority as well. First, each amendment terminates the filibustering senator’s speech, thereby hastening the point at which the minority will have exhausted its ability to delay adoption of the motion to proceed by speaking. Second, forcing endless recorded votes on superfluous amendments to a motion to recess also imposes physical and agenda costs on rank-and-file members. Page 188 →The physical costs rise during overnight and weekend sessions, thus making it less likely that the minority can sustain an effort to prevent the Senate from recessing. The costs of these requirements for rank-and-file members of the majority should be weighed against the nearinevitability of victory if the majority is determined to prevail. In short, the only way the minority may prevent

adoption of the motion to proceed by a simple-majority vote is for it to force superfluous recorded votes until such time as the majority breaks. However, the minority is unlikely to be able to sustain the practice of forcing superfluous votes ad infinitum in the face of a majority determined not to break. Moreover, it is likely that the strategy will only need to be implemented once. The minority is unlikely to bear the costs associated with filibustering the motion to proceed once it realizes that the majority is determined to prevail and that, as a consequence, defeat is almost inevitable. Yet despite these advantages, no Senate majority has utilized the two-speech rule to overcome a minority filibuster of the motion to proceed. This is particularly interesting given the fact that filibusters of such motions have increased dramatically in recent years and that both Democratic and Republican majorities have called for eliminating the minority’s ability to block proceeding to a bill. The Democratic majority even considered employing the nuclear option to eliminate the minority’s ability to filibuster the motion to proceed in the case examined in chapter 6. Similarly, the Republican majority did not attempt to strictly enforce the two-speech rule in order to overcome the filibusters of President Bush’s judicial nominations in the 2005 case. Both clearly perceived the costs of doing so as being less than the costs of strictly enforcing the two-speech rule. The implication is that Senate majorities are hesitant to utilize procedures to limit the minority’s ability to obstruct if they entail the imposition of substantial costs on their members. This overview of the unorthodox use of Senate procedures yields several important insights about contested procedural change in the institution today. First, Senate majorities have increasingly utilized existing rules and practices in what had previously been unorthodox ways in order to combat minority obstruction. Specifically, the majority attempts to limit the minority’s ability to impose time costs on its members by filibustering its agenda and political costs by offering what it considers poison-pill amendments to legislation on the floor. The preemptive use of the cloture process and the practice of filling the amendment tree are the parliamentary weapons Page 189 →most often used by the majority. Such procedures make it more difficult for the minority to block, or otherwise delay, passage of the majority’s agenda. Second, the majority’s willingness to utilize existing parliamentary procedures to limit minority obstruction is tempered by the costs such procedures impose on its members. Put simply, the majority is more likely to embrace low-cost over high-cost parliamentary weapons. The expectation of significant costs makes it more likely that the majority will consider continuation of the status quo less objectionable. The fact that Senate majorities have refrained from strictly enforcing the two-speech rule to overcome minority obstruction of the motion to proceed provides just one example that their members will be less likely to support restricting minority rights when doing so requires considerable effort on their part. Moreover, this decision is not related to the fact that they might be in the minority in the future. The two-speech rule will be available to future majorities regardless of whether or not the current majority chooses to utilize as it is authorized under the existing rules. The preceding analysis suggests that the ability of Senate majorities to overcome a determined minority may not be as great as a technical assessment of the institution’s procedural architecture would otherwise suggest. This then begs the question: how can Senate minorities increase the costs of going nuclear for rank-and-file members of the majority so that they prefer a negotiated outcome or a continuation of the status quo?

Page 190 →

Eight Preventing Nuclear War The bargaining model of procedural change suggests that the outcomes in the 2005 and 2013 cases were not inevitable. Rather, the nature of the minority’s response when threatened with the nuclear option impacted whether or not a majority ultimately materialized that was determined to bear the costs necessary to eliminate the filibuster. According to the model, the majority can overcome obstruction in one of two ways. It can eliminate the minority’s ability to obstruct or it can make coercive threats to compel the minority not to obstruct. Similarly, the minority can defend its ability to obstruct in two ways. It can use the Senate’s rules to prevent the majority from restricting its right to obstruct or it can make coercive threats to deter the majority from restricting its rights. Admittedly, the 2013 case study demonstrated that the minority is unable to use the Senate’s rules to prevent a determined majority from restricting its procedural rights. Confronted with such a majority, the minority really has only one tool to defend its rights: deterrent threats. In 2005, the Democratic minority successfully deterred the Republican majority from using the nuclear option to restrict its ability to filibuster. In 2013, the Democratic majority’s initial efforts to compel the Republican minority to relent were successful. However, it eventually went nuclear in order to overcome the minority’s filibusters. In the end, the Republican minority’s threats were not successful in deterring the majority. Could a different response by the minority have deterred the majority? The answer to this question underscores the primary difference between the bargaining model and other approaches to explaining partisan conflictPage 191 → over procedural change. If the answer is no, then an approach like the majoritarian model is the best way to think about contested procedural change in the institution today. That is, the most important factor in predicting change is the presence of a Senate majority determined to prevail. If, however, the answer is yes, then the bargaining model provides a more complete explanation of contested procedural change because it captures the role played by a determined minority in conjunction with the majority’s relative level of resolve in maintaining the procedural status quo or precipitating nuclear war. This chapter makes the case that another outcome was possible in 2013 had the minority behaved differently in the battles leading up to the majority’s decision to go nuclear. It suggests that Republicans could have more effectively engaged in coercive diplomacy to persuade rank-and-file Democrats that the costs of a nuclear detonation would fall disproportionately on them. That is, the Republican minority needed to threaten behavior that would increase the friction experienced by the Democratic majority. The bargaining model highlights three criteria that the minority’s threats must meet in order to successfully deter the majority. First, the minority’s threat must impose significant costs on the majority. Clausewitz stipulates (1984, 77), “If the enemy is to be coerced you must put him in a situation that is even more unpleasant than the sacrifice you call on him to make.” That is, the specific nature of the threat must be such that the costs of going nuclear outweigh the benefits to be gained by eliminating the filibuster for rank-and-file senators. These costs can be in the form of less time available to consider other priorities on the majority’s agenda or they can be physical or political in nature (i.e., things that senators believe would make their reelection more difficult). By increasing the costs of going nuclear for individual members, the minority’s threats increase the friction facing the majority’s strategy. Threats that increase the suffering of the majority, that exhaust its members physically and mentally, as well as endanger their prospects for reelection, all impact the majority’s collective perception of the costs of victory. The goal then of a deterrent threat is to fracture the majority’s coalition in support of going nuclear by reducing the willingness of a subset of its members to fight. Second, the minority’s threat must be sustainable. Clausewitz (1984, 77) notes, “the hardships of that situation must not of course be merely transient.В .В .В . Otherwise the enemy would not give in but would wait

for things to improve.” The majority typically makes coercive threats to compel the minority and the minority makes coercive threats to deter the majority. Yet in the latter case, once the action to be deterred has occurred, the minority’sPage 192 → threat becomes a threat to compel the majority to relent in its efforts to further restrict its rights or, at best, to compel it to reverse the action the minority originally attempted to deter. A threat that is not sustainable in a postnuclear Senate lacks credibility and will not be taken seriously by the majority. This is an important distinction because threats to compel have slightly different characteristics than deterrent threats. Specifically, the minority must take the initiative (i.e., it must act) and the threatened action must be administered until a sufficient number of the majority’s rank-and-file adopt the behavior the minority wishes to compel. This means that the costs of the threatened actions for members of the minority party must be tolerable. Its coercive threat will be successful when the majority believes that the costs of the threat for members of the minority do not exceed the benefits the minority hopes to gain. The minority’s response should thus reflect the criticisms of its members of how the majority party runs the Senate (i.e., the erosion of regular order and lack of amendment and debate opportunities). At a minimum, it should not reinforce the majority’s narrative of minority obstruction. Third, the minority’s threat itself cannot be susceptible to restriction via the nuclear option. Even if a minority’s response poses significant costs for the majority, it is unlikely to have much coercive value if the procedural rights on which it depends are also susceptible to restriction via the nuclear option. Therefore, it is safe to assume that resistance to the nuclear option is a necessary condition that any threatened tactical response must meet in order to be effective. Otherwise, minority retaliation would be likely to precipitate further restriction by the majority, thereby exacerbating the cycle of obstruction begetting restriction diagnosed by the Senate Syndrome (Smith 2014). The tactical options outlined in this chapter meet each of these criteria. A credible threat to utilize them on a consistent basis will deter the majority from going nuclear in order to eliminate the filibuster. At the very least, these tactics make a negotiated outcome to parliamentary war more likely. Moreover, a more robust minority will lead to stable outcomes because it is better able to negotiate balanced agreements to end conflict when it occurs.

Measuring Costs Counterfactual analysis enables us to approximate the costs associated with these retaliatory tactics in the contemporary environment. Such a methodologicalPage 193 → approach makes it possible to consider whether or not a different outcome was possible had the minority behaved differently in the 2013 case (Beach and Pedersen 2016, 260). The costs imposed must be significant in order to support the claim here that different minority behavior than that observed in 2013 would have had deterrent value. This approach assumes that individual senators are rational actors and that they will be sensitive to higher costs associated with going nuclear. This assumption makes it possible to draw a credible inference from the counterfactual proposition. In short, members of the majority party will be deterred from going nuclear if they perceive the costs of doing so as outweighing the benefits they would otherwise gain. The counterfactual thought experiment employed here allows us to use the premise of Binder, Madonna, and Smith (2007) and Smith (2014) that the threatened response of Senate Democrats contributed to the nonoccurrence of the nuclear option in 2005 to assess, on counterfactual grounds, the extent to which the lack of a similar response by Senate Republicans precipitated the occurrence of the nuclear option in 2013. Calculating the costs associated with the 2005 episode in the context of recent congresses also enables us to assess the extent to which these costs would be considered prohibitive in the contemporary environment. Any methodological difficulties presented by such an approach can be overcome by grounding the counterfactual proposition in a solid theoretical foundation (Fearon 1991, 194). Given the centrality of the relationship between costs and the Senate’s agenda assumed in both the path dependent and majoritarian models discussed in chapter 2, it is a safe assumption that a counterfactual proposition based on costs does not run the risk of violating any principle associated with either theory. Thus, the comparison is defensible. The causal inference made in this

chapter is consistent with the theoretical claims underpinning both models.

A Question of Tactics What made the minority’s threats credible in the 2005 case? Binder, Madonna, and Smith mention general “opportunity costs” that are determinative in the calculation by a majority to go nuclear. They argue that the minority may increase these costs by filibustering other business important to the majority or objecting to routine unanimous consent requests. Yet aside from these general ways, existing scholarship does not describe in detail the specific tactics Senate minorities could utilize to deter a majorityPage 194 → from going nuclear. Nor does it explain the ways in which these tactics are themselves resistant to further restrictions by the nuclear option. Such detail is critical because the minority’s leverage to retaliate would disappear if the procedures on which such retaliation depends were also susceptible to restriction by a simple-majority vote. Put simply, if the tactics with which the minority threatens to retaliate are vulnerable to restriction via the nuclear option, it seems unlikely that the mere threat of utilizing them would deter a majority willing to go nuclear in the first place. Finally, existing work on this subject does not capture the incremental dynamic inherent in the bargaining process, and is thus unable to make generalizations regarding how different forms of minority behavior may be causally linked to different outcomes. The retaliation threated by Democrats in 2005 provides one example of the procedural tactics that are available to Senate minorities to increase the costs of going nuclear for the majority. According to an observation made by the former Democratic leader Tom Daschle (D-South Dakota), It takes unanimous consent to stop the reading of bills, the reading of every amendment. On any given day, there are fifteen or twenty nominations and a half-dozen bills that have been signed off for unanimous consent. The vast work of the Senate is done that way. But any individual senator can insist that every bill be read, every vote be taken, and bring the whole place to a stop. (Toobin 2005) Similarly, a December 2004 article in the National Journal observed, “By insisting on time consuming debates on usually routine business, Democrats would prevent Republicans from taking up their legislative priorities” (Victor 2004). Senator Patrick Leahy (D-Vermont) was quoted in the article: We have at least twenty-three Deputy Assistant Secretaries of State that need to be confirmed. When we consent to take them all en bloc and confirm them on a voice vote, it takes two minutes, .В .В .В Suppose we say that we are not going to block them, but we are willing to talk for an hour or so on each one of them, and then have a roll-call vote. There goes a week. And there are probably a dozen similar examples every single week. (Victor 2004) These contemporaneous observations highlight one way in which Senate minorities may retaliate if the majority goes nuclear: they may withhold their consent for processing routine Senate business. Yet this is not significant per se because the majority would be left with no choice but to Page 195 →resort to the time-consuming process of filing cloture if it wanted to pass its agenda in the absence of consent. As noted, such dilatory behavior on the part of the minority could drive the majority to place further restrictions on the cloture process, thereby reducing the value of this retaliatory tactic. Rather, it is the recorded vote that is inevitably triggered in the absence of consent that has the greatest potential to increase the costs of doing business for the majority in a manner that is itself resistant to the nuclear option. As Leahy observed, the simple act of voting on routine business can consume significant portions of scare floor time. It should be noted that Smith also juxtaposes the 2005 and 2013 cases analyzed in chapters 5 and 6. However, he draws very different conclusions from the exercise suggest that the tactics successfully threatened by minorityparty Democrats in 2005 were not available to minority-party Republicans in 2013 due to the broader political environment. Specifically, he asserts that the broader political environment made retaliation costlier for the Republican minority in the latter case. These costs included weakening their party’s reputation and distracting from other themes Republican senators preferred to raise in advance of the 2014 midterm elections. Furthermore,

Smith argues that these costs led Republicans to filibuster measures only on a case-by-case basis in order to avoid obstructing popular measures. Yet the costs identified by Smith either implicitly or explicitly assume that the minority’s retaliatory tactics would be centered on, if not limited to, cloture and the ability to filibuster. In contrast, I identify in the sections that follow specific procedural tactics that the Republican minority could have threatened in 2013 in order to increase the costs of going nuclear for rank-and-file Democrats. The three criteria that these tactics must meet mitigate the political costs identified by Smith above. Specifically, the tactics identified here are unrelated to filibustering legislation (i.e., blocking cloture) and budgetary brinksmanship. Moreover, they offer minority party senators a procedural means to raise issues and emphasize themes, which they otherwise could not do at the time due to the majority’s routine practice of preventing minority amendments from being offered to legislation on the Senate floor. Perhaps most important, my analysis here goes beyond the existing literature by identifying tactics that are resistant to further restriction via the nuclear option.

Voting on Nominations and Legislation Minorities may increase the costs of processing nominations and considering routine legislation for the majority, even in a postnuclear Senate, Page 196 →by requiring a recorded vote for confirmation and passage, respectively. Doing so would increase the physical costs for senators and negatively impact other priorities on the majority’s legislative agenda due to the time required to conduct recorded votes. Requiring Recorded Votes for Confirmation The minority may object to routine unanimous consent requests to confirm, or schedule a voice vote to confirm, civilian (nonlist) nominations.1 This does not require forcing the majority to file cloture on each nomination in order to overcome a filibuster. Rather, the minority could grant consent to set up recorded votes on each nomination. In the event the majority objects to a recorded vote, the minority could proffer repeated unanimous consent requests on the Senate floor. Doing so places the majority in the position of objecting to votes on their preferred nominations, thereby filibustering them. It also forces members of the majority to negotiate amongst themselves over which nominations will receive floor consideration and which posts will remain unfilled. This tactic raises the costs for the majority to process routine nominations by significantly increasing the Senate’s workload in terms of time spent conducting recorded votes. The tactic also preserves some of the minority’s leverage in dealing with executive agencies and departments because consent will still be needed to schedule nominations for recorded votes on the floor. The Senate has historically confirmed a small number of nominations by recorded vote (see fig. 8.1).2 Even the significant increase in recorded confirmation votes beginning in the 107th Congress represents a relatively small portion of overall confirmation votes. This is illustrated by comparing the number of nominations confirmed by recorded vote with those confirmed by unanimous consent and voice vote. Figure 8.2 demonstrates that the Senate has historically confirmed the vast majority of nominations by unanimous consent and voice vote.3 Figure 8.2 also illustrates the significant increase in workload that would inevitably occur if the minority forced recorded votes on all of the nominations previously confirmed by voice vote or unanimous consent. This threat seems to have been at least partially responsible for deterring seven Republicans from supporting the nuclear option in 2005. Figure 8.3 illustrates the time spent conducting recorded votes on nominations and all other matters in the 112th Congress. Overall, the Senate conducted 486 recorded votes in the 112th Congress for an approximate Page 197 →total time of 121.5 hours.4 Of these recorded votes, 82 were confirmation votes on nominations, for an approximate total time of 20.5 hours. Fig. 8.1. Civilian nominations confirmed by recorded vote Fig. 8.2. Civilian nominations by method of confirmation The Senate confirmed 492 nominations by voice vote in the 112th Congress. If these nominations were instead confirmed by recorded vote, the time spent conducting recorded votes would have increased by approximately 123

hours and the share of votes devoted to processing nominations would have increased significantly (see fig. 8.3). Simply forcing recorded votes on nominations previously confirmed by voice vote would have increased the share of time spent in recorded votes on nominations by 594 percent in the 112th Congress.5 It would have increased the overall amount Page 198 →of time the Senate spent conducting recorded votes by 100 percent.6 This represents a significant, and unsustainable, increase in the Senate’s overall workload given current trends. Fig. 8.3. Time spent on nomination votes Figure 8.3 also illustrates the time spent conducting recorded votes on nominations and all other matters in the 113th Congress. Overall, the Senate conducted 657 recorded votes in the 113th Congress for an approximate total time of 164.25 hours.7 Of these recorded votes, 187 were confirmation votes on nominations, for an approximate total time of 46.75 hours. The Senate confirmed 423 nominations by voice vote in the 113th Congress. If these nominations were instead confirmed by recorded vote, the time spent conducting recorded votes would have increased by approximately 106 hours and the share of votes devoted to processing nominations would have increased significantly (see fig. 8.3). Requiring Recorded Votes for Passage of Routine Legislation Members of the minority may object to routine unanimous consent requests to pass, or schedule a voice vote to pass, noncontroversial bills and resolutions. As with nominations, this does not require forcing the majority to file cloture on each measure in order to overcome a filibuster. The minority could grant consent to set up a recorded vote on each bill and resolution. In the event the majority objects to recorded votes, the minority could proffer unanimous consent requests on the Senate floor. Doing so places the majority in the position of objecting to votes on their own Page 199 →measures, thereby filibustering them. It also forces majority party members to negotiate among themselves over which measures will receive floor consideration. As with nominations, this tactic raises the costs for the majority to process routine legislation by significantly increasing the Senate’s workload in terms of time spent conducting recorded votes. In contrast to nominations, where senators are supporting people nominated by the president for administration and judicial positions, members are likely to have a more direct interest in passing simple resolutions and noncontroversial bills that benefit their constituencies directly. The Senate has historically passed a small number of measures by recorded vote. Moreover, the trend has been declining over the past several Congresses (see fig. 8.4).8 Yet this obscures the Senate’s total workload in terms of measures that ultimately pass. Figure 8.5 illustrates that the Senate has historically passed most measures by voice vote and unanimous consent. Figure 8.6 illustrates the increase in workload that would occur if the minority forced recorded votes on measures previously passed by voice vote or unanimous consent. Sustainability Forcing recorded votes on nominations and legislation is sustainable to the extent that requiring a recorded vote on a nomination or legislation is not obstruction per se. It is difficult to characterize a minority’s calls for a vote on a presidential nomination or the majority’s legislative agenda as obstruction because the tactic is not dependent on forcing the majority to go through the cloture process to end debate and the minority is not technically filibustering. Instead, the minority is signaling a willingness to vote on the nominee or legislation in question. The minority could offer to schedule votes by unanimous consent. It is not sustainable for the majority to repeatedly object to consent requests to schedule votes on its agenda only to then accuse the minority of obstructing that agenda. Finally, it is a widely accepted idea that congressional business is conducted by voting and that members have a right to vote no. After all, nominees cannot be confirmed and legislation cannot be passed absent some sort of vote. Resistance to the Nuclear Option

The ability to request a recorded vote is resistant to the nuclear option. Article I, section 5, clause 3 of the Constitution states: “The Yeas and Nays Page 200 →[a recorded vote] of the Members of either House on any question shall, at the Desire of one fifth of those present, be entered on the Journal.”9 As a consequence, any member may request a recorded vote on any question before the Senate, including confirmation of nominations and passage of routine legislation. According to the Senate’s precedents: “A demand for the yeas and nays is a constitutional privilege.” However, this privilege has one important limitation for our purposes here: a demand for the yeas and nays must be seconded by at least one-fifth of a “presumptive quorum.” The presiding officer will not order a recorded vote if the member requestingPage 201 → it does not have a “sufficient second.” The number of members constituting a sufficient second fluctuates depending on the size of the quorum. As a result of this limitation, any effort to systematically force recorded votes on nominations and legislation would need at least eleven and not more than twenty members to be successful if the presiding officer, and by extension the majority party, interprets and enforces the rule literally (Riddick and Frumin 1992, 1416–17).10 Fig. 8.4. Measures passed by recorded vote Fig. 8.5. Measures by method of passage Fig. 8.6. Differences in recorded vote times Theoretically, the presiding officer could refuse to recognize a sufficient second for such purposes, even if one was present. However, doing so repeatedly is unsustainable because it is unconstitutional as well as inconsistent with one of the more fundamental principles in a democratic legislature: the requirement that business should be conducted by voting. In all likelihood, the majority will experience member defections and will thus seek some accommodation with the minority before the situation reaches this point.

Offering Amendments The retaliatory response detailed above regarding nominations and routine legislation increase the costs of going nuclear for the majority by increasing the Senate’s workload and thereby negatively impacting the majority’s agenda and the physical well-being of individual senators. However, the tactic does not directly raise the political costs for members of the Page 202 →majority party. Nor does it address the underlying grievances articulated by the Republican minority in 2013: the lack of amendment opportunities. Moreover, a response largely limited to the Executive Calendar and noncontroversial legislation does little to deter future majorities from utilizing the nuclear option to eliminate the filibuster for legislation if future minorities continue to vote against cloture on controversial legislation in order to protest their lack of amendment opportunities. This consideration is particularly salient given the dramatic increase in filling the amendment tree to block minority amendments in recent years. Given this, the minority may threaten retaliatory measures related to forcing politically difficult votes on amendments in order to deter the majority from using the nuclear option to eliminate the filibuster for legislation. Third Degree Amendments11 The minority could increase the political costs for members of the majority party by offering a so-called third degree amendment despite the amendment tree being filled and then appeal the subsequent ruling of the chair that the amendment is not in order to force a recorded vote in relation to the amendment and/or the majority to filibuster the appeal. As noted in chapter 3, the Senate’s precedents give the majority leader the right of first recognition. This allows the leader to fill the amendment tree, or offer the maximum allowable number of amendments to legislation, and file cloture on a bill before other senators have a chance to debate the measure and offer amendments. The Senate’s precedents also stipulate: “Any senator recognized is entitled to offer an amendment when such amendment is otherwise in order, but he cannot offer an amendment unless he has been recognized or has the floor” (Riddick and Frumin 1992, 45). The process of filling the amendment tree follows precedent to block members from offering their own amendments. However, any senator may attempt to offer an amendment even though the tree has been filled. In such a situation, the chair would rule that the amendment is

not in order pursuant to the Senate’s precedents. At that point, the member could appeal the ruling of the chair and request a recorded vote.12 The appeal represents an adjudication of the italicized portion of the precedent quoted above; namely, that an amendment is in order despite the fact that the amendment tree has been filled. Offering a third degree amendment has a number of advantages for Senate minorities. First, it is permitted under the Senate’s Standing Rules (but not the current precedents). Second, it reinforces a common minorityPage 203 → narrative that the majority is unwilling to vote on its amendments and therefore blocks them. Third, offering amendments despite the filled tree and appealing the ruling of the chair that they are not in order forces the majority to cast potentially tough votes on procedural questions directly related to the amendment being offered. Procedural votes have been viewed as substantive votes when the question is directly related to the underlying policy and the tactic is utilized on a regular basis. For example, the perception of cloture has evolved from being simply a procedural vote to the point that it is viewed by many as a substantive vote today (Sinclair 2006, 150, 164). Votes on third degree amendments could thus be characterized as substantive votes. Developments in the Senate support this claim. For example, Senator Pat Toomey (R-Pennsylvania) offered a third degree amendment to legislation extending emergency unemployment benefits (S. 1845) on January 15, 2014. The tree had been filled and, as a result, members were not allowed to offer amendments on the Senate floor. Kelly Ayotte (R-New Hampshire) had previously moved to table the blocker amendment in the amendment tree so that senators could then offer their own proposals to the legislation. However, the Democrats easily defeated Ayotte’s effort on a forty-two to fifty-four vote. Toomey then subsequently ignored the blocker amendment and offered an amendment directly to the legislation instead of moving to table the tree. His amendment would have prohibited people with annual incomes greater than $1 million from receiving unemployment benefits. In contrast to how it handled the Ayotte motion to table, the majority pulled the legislation from the Senate floor before adjudicating the Toomey appeal of the chair’s ruling that his amendment was not in order under the Senate’s precedents. Despite their previous unwillingness to allow a vote on the amendment, the majority ultimately included the text of the amendment in the Emergency Unemployment Compensation Act of 2014 (HR 3979), which eventually passed the Senate in April 2014. Similarly, Senator David Vitter (R-Louisiana) offered an amendment during subsequent consideration of HR 3979 even though the majority leader had again filled the tree in an effort to block amendments. While Vitter’s appeal of the chair’s ruling that the amendment was not in order was tabled sixty-seven to twenty-nine, the vote illustrated the tactic’s utility in imposing costs on rank-and-file senators when used in conjunction with efforts by outside advocacy groups to publicize it. The potential that these procedural votes may be characterized as substantive votes if utilized on a regular basis was demonstrated after the vote when several conservative advocacy groups sent Vitter a letter thanking him for utilizing the tactic. Page 204 →In the letter, these groups observed that offering third degree amendments “put senators on record for their willingness to allow legislative deliberation in the Senate.” Significantly, the letter stated that of the organization signatories, those with scorecards “intend to treat these procedural votes as policy votes” moving forward.13 Threatening to ignore a filled amendment tree by simply offering an amendment and appealing the ruling the chair that it is not in order also encourages the majority to return to an open process by giving the minority leverage with which to negotiate for amendment opportunities on legislation in the future (or deter other behavior). Finally, and most consequentially, the threat to offer a third degree amendment could impose significant costs on the majority’s ability to exercise negative agenda control and substantially alters the balance-of-power between the majority and minority parties in the institution, as well as between individual senators and the party leadership. Had the Toomey or Vitter appeals been successful, they would have created another branch on the amendment tree and their amendments would have been pending to the legislation without any subsequent action required on their part. At that point, the Senate would have to dispose of the amendments, which effectively guarantees a recorded vote on them. Instituting a new norm that a filled amendment tree need not be followed in this manner would thus gradually undermine the ability of the majority leader to block amendments in the first place. In practice, the only time the amendment trees are utilized in the contemporary Senate is when the majority leader would like to block other senators from offering amendments. Without this ability, it would be very difficult for

the majority leader to block senators from offering amendments on the Senate floor. As a consequence, the majority’s ability to protect its members from voting on amendments would be compromised. Sustainability The threat to offer third degree amendments is sustainable for four reasons. First, it is a difficult tactic to defend against because any senator may threaten to offer one. Second, the Senate’s past prohibition on third degree amendments is inconsistent with the way in which they are utilized here. That is, senators offering third degree amendments can credibly argue that they are acting in a manner consistent with Senate tradition when challenging the majority’s efforts to block amendments altogether. Third, the tactic reinforces a common minority critique of how Senate majorities run the institution. These last two reasons are important factors reinforcing Page 205 →the minority’s efforts in the court of public opinion. This matters in that public approval makes it more or less likely that a threatened response can be sustained. Finally, the tactic does not make the nuclear option more likely in the future by desensitizing members to the maneuver even though it utilizes the same mechanism (i.e., appealing the ruling of the chair). Indeed, forcing a vote on a third degree amendment by appealing the ruling of the chair is consistent with how the procedural architecture of the Senate evolved and is qualitatively different from going nuclear to change, circumvent, or otherwise ignore the clear text of the institution’s Standing Rules. This is a particularly important consideration in that rank-and-file members of the minority are likely to oppose the utilization of any tactic that they view as analogous to the nuclear option. First, any member may offer an amendment and appeal the ruling of the chair in an effort to force a recorded vote.14 The chair may refuse to recognize members suspected of offering a prohibited amendment. However, it is difficult to refuse to allow members to speak on the Senate floor for a prolonged period of time. Moreover, any effort to block one minority party member from the floor could result in another member offering the prohibited amendment. In such a scenario, the only recourse the chair would have would be to block all minority members suspected of offering prohibited amendments from the floor in perpetuity. Yet doing so is unsustainable in a democratic legislature and is inconsistent with current rules and practices in the Senate as well as its constitutional structure. According to Senate precedents, “Every senator, in due time, has a right to recognition before the Senate acts on an issue unless by unanimous consent a limitation of debate is entered into which precludes him from such right” (Riddick and Frumin 1992, 1094). Senate Rule XXII also stipulates that members be recognized for ten minutes during postcloture consideration of legislation prior to a final vote. Second, the current precedential prohibition on third degree amendments comes from general parliamentary law. Its original purpose was to reduce confusion and instill order in the amendment process. According to Jefferson’s Manual: If an amendment be moved to an amendment, it is admitted. But it would not be admitted in another degree: to wit, to amend an amendment to an amendment, of a main question. This would lead to too much embarrassment. The line must be drawn somewhere, and usage has drawn it after the amendment to the amendment. (Jefferson 1993, 56) Page 206 →Jefferson compiled the Manual during his service as vice president and president of the Senate (1797–1801) in an effort to offer additional procedural guidance for senators in situations for which the Senate’s twenty-four rules did not provide explicit direction. In the absence of such guidance, Jefferson feared that the Senate’s deliberations would fluctuate between chaos and heavy-handed majority rule. He discerned “general parliamentary law” by consulting the Constitution, the Senate’s rules, “and where these are silentВ .В .В . the rules of Parliament” (Jefferson 1993, xxviii).15 Members had little need to resort to Jefferson’s prohibition on amendments to an amendment to an amendment of a main question (i.e., third degree amendments) for much of the Senate’s early history. However, maintaining order in the Senate became more important as the size of its membership increased and the institution considered more controversial legislation. The presiding officer did not rule some of the first third degree amendments out of order until the 1840s and 1850s.16

Third degree amendments were not routinely offered (and subsequently ruled out of order) until the 1870s.17 A cursory review of these debates conveys the general sense of confusion and disorder that could characterize floor consideration of legislation in the Senate without televised proceedings, computers, and staff to assist members. Yet offering amendments in the same form as some of the third degree amendments that were considered out of order at the time has since become an acceptable way of doing business in the contemporary Senate. For example, only two amendments were allowed to be pending before the Senate at the same time under most parliamentary situations as recently as the beginning of the twentieth century. According to a 1914 ruling of the presiding officer: The amendment submittedВ .В .В . is a third proposition, which would leave three amendments pending before the Senate for consideration at the same time to the main question. The Chair is satisfied that under general parliamentary law, which prevails in this body, on this question an amendment in the third degree is not permissible. Consequently the Chair must sustain the point of order and declare that at this time the amendment is not in order.18 In this case, the presiding officer ruled out of order an amendment that would be in order today (Riddick and Frumin 1992, 74, 84). Thus, contemporary practice has departed from what the presiding officer deemed “general parliamentary law” in 1914 in allowing more than two amendments to Page 207 →be pending at once.19 Indeed, these precedents governing the amendment process were reinterpreted only a few short years later. In 1917, in a similar parliamentary situation, the vice president ruled: There never has been any difference in the rulings since the present occupant of the Chair has been here; at least, that any senator may offer an amendment to the original House bill if he wants to; a senator may offer to amend the amendment; a senator may offer to amend the substitute; or a senator may offer to amend the amendment offered to the substitute.В .В .В .20 We observe above a change in the precedents governing the amendment process in three short years. In 1914, the chair ruled that only two amendments could be pending at one time. However, the chair departed from the prior interpretation in 1917 by ruling that up to four amendments could be pending at one time. This further supports the earlier claim that the amendment trees are not rigid and unchanging. Rather, they are continually evolving as the Senate adjusts the application of its rules and practices to specific parliamentary situations. Third, the tactic of offering third degree amendments is consistent with a common minority’s critique of how the Senate majorities increasingly run the institution. It is also consistent with the variable nature of precedent (as opposed to codified rules). The practice of filling the amendment tree to block amendments has become routine. William Blackstone argues in the Commentaries on the Laws of England that precedents should be given extreme deference and the Senate has more often than not heeded his admonition throughout its 225-year history. Yet Blackstone (1893, 71) also provides exceptions to such deference, arguing that “the doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust.” Chief Justice John Roberts echoed Blackstone in his confirmation hearing before the Senate Judiciary Committee. Roberts argued that a precedent could be proven unworkable when its doctrinal basis was “eroded by subsequent developments.”21 The tactic of filling the amendment tree for the purposes of blocking members from offering amendments to legislation represents a perversion of the general parliamentary law barring so-called third degree amendments as recorded in Jefferson’s Manual and affirmed by two centuries of Senate custom. It is useful here to quote in full the original passage from the Manual: Page 208 →In like manner, if an amendment be moved to an amendment, it is admitted. But it would not be admitted in another degree: to wit to amend an amendment to an amendment, of a main question. This would lead to much embarrassment. The line must be drawn somewhere, and usage has drawn it after the amendment to the amendment. The same result must be sought by deciding against the amendment to the amendment, and then moving it again as it was wished to be amended. In this

form it becomes only an amendment to an amendment. (Jefferson 1993, 56)

Jefferson’s prohibition on third degree amendments was designed to instill order in the amendment process. It was not designed to block members from offering amendments entirely. This claim is supported by the last two sentences in the paragraph above. According to Jefferson’s interpretation of general parliamentary law, third degree amendments were unnecessary because members would have an opportunity to offer an amendment after the pending question was dispensed with. For Jefferson, the logic of order was the sole motivation behind this prohibition. The Senate has affirmed this logic. Members subsequently offered their amendment once the pending business was dispensed with in many of the instances in which their third degree amendment was originally ruled out of order. The vice president’s ruling in 1934 regarding a third degree amendment is illustrative of this dynamic: The Senator offers an amendment to the amendment of the Senator from Washington, which in itself is an amendment to an amendment, and, being in the third degree, the amendment of the Senator from New Jersey is not in order at the present time. If the Senator has an amendment to offer after the amendment of the Senator from Washington shall have been disposed of, the Chair will recognize him for that purpose.22 Here, the vice president rules a third degree amendment out of order. But the vice president also acknowledges clearly that his ruling is not intended to block the amendment from being considered. Rather, he explicitly states that the amendment shall be in order and that he will recognize the Senator from New Jersey for the purposes of offering it once the pending amendment is disposed of. In summary, the nature of the underlying precedent matters. In this case, the amendment tree and its prohibition on third degree amendments Page 209 →evolved to facilitate the consideration of the Senate’s business. It was not intended to block members from offering amendments. Most of the precedents established when the presiding officer ruled such amendments out of order concerned amendments that were subsequently offered. In contrast, the contemporary practice of filling the amendment tree for the purposes of blocking amendments and filing cloture on the underlying legislation represents an abuse of past practice because its explicit purpose is to block all amendments. As such, it uses Senate precedents designed to facilitate the orderly consideration of amendments to block the consideration of amendments altogether. Finally, appealing the ruling of the chair that an amendment is not in order when the amendment tree has been filled is not synonymous with the nuclear option as employed by Senate Democrats in 2013 to reduce the threshold for invoking cloture on all nominations, other than for the Supreme Court, from three-fifths of senators duly chosen and sworn to a majority vote. Specifically, appealing the ruling of the chair that a third degree amendment is out of order does not violate the Standing Rules of the Senate, whereas Majority Leader Reid explicitly violated the Standing Rules when he utilized the nuclear option to eliminate the filibuster for most nominations.23 Senate Rule XXII clearly states that a motion to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the Senate” requires an affirmative vote of “threefifths of the senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.В .В .В .”24 Yet Senate Democrats explicitly violated Rule XXII by exempting “all nominations other than for the Supreme Court” from the super-majority requirements to end debate under cloture without following the procedures established by the rule.25 As a result, the nuclear option created a new precedent that is inconsistent with Rule XXII’s requirement for an “affirmative vote of two-thirds of the senators present and voting” to end debate on a proposal to change the Senate’s Standing Rules. Rule XXII has not been changed. It still requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to end debate on executive and judicial nominations. In contrast, appealing the ruling of the chair for the purposes of offering a third degree amendment despite the amendment tree being full would, if successful, simply create a new precedent governing the amendment process.

It would not, however, violate any specific rule. For example, the requirements of Senate Rule XV (Amendments and Motions) are very general. The rule requires that “amendments shall be reduced to writing,” Page 210 →allows the member proposing an amendment to modify it or withdraw it prior to the ordering of the yeas and nays, and stipulates that motions to table an amendment “shall not carry with it, or prejudice,” the underlying measure.26 Rule XV leaves the interpretation of these general provisions up to the Senate to apply in specific parliamentary situations. Suggesting that precedents and the Senate’s Standing Rules are functionally equivalent would affirm the rationale presented by Senate Democrats in justifying their utilization of the nuclear option. Specifically, Reid equated the nuclear option with the process of creating new precedents when he suggested that the “nuclear option had been utilized 18 times in the last 36 yearsВ .В .В .” in a November 2013 memo explaining his actions.27 Yet in 2013 the nuclear option was utilized to explicitly contradict Rule XXII over the objections of the minority party and in violation of the Standing Rule’s provisions governing such changes. Employing the nuclear option in this manner explicitly broke Rule XXII’s requirement that debate on proposals to change the Senate’s rules can only be brought to a close by a vote of two-thirds of senators present and voting. In contrast, creating a new precedent by appealing the ruling of the chair would only be functionally equivalent with the nuclear option if the new precedent explicitly violated an existing provision of the Standing Rules. Otherwise, the creation of a new precedent on appeal is entirely consistent with Senate rules and past practices. Equating precedents that simply seek to “fill in the gaps” where the rules are silent with the Standing Rules would effectively bind the Senate to how it operated in the past regardless of the development of new circumstances, the manner in which the original precedent was established (i.e., unchallenged ruling of the chair or a series of parliamentary inquiries combined with unchallenged Senate action in specific situations), or the merits of the original precedent and whether or not it violated the Standing Rules in the first place. For example, Minority Leader McConnell raised a point of order on November 21, 2013, that a three-fifths majority vote is required to end debate on all nominations (see chapter 6). The chair correctly ruled against the point of order (based on the precedent just established by the nuclear option) and McConnell appealed the ruling of the chair. Every Senate Republican voted to overturn the ruling of the chair on the basis that the precedent just established was inconsistent with the Standing Rules of the Senate. Appealing the chair, while a similar mechanism to the nuclear option, is also not destructive of the norms that constrain the majority from going nuclear. Indeed, there does not appear to have been such a norm by 2013. Page 211 →Nevertheless, the fact remains that appealing the ruling of the chair to adjudicate precedent is not inherently destructive of the Senate’s rules. The Senate has historically challenged precedent with much greater frequency than in the contemporary environment. Yet these challenges did not make Senate majorities more likely to employ the nuclear option. For example, as noted in chapter 3, the Senate conducted 238 recorded votes in relation to 213 appeals of the chair’s rulings between 1965 and 1986. These votes represent 2.4 percent of all recorded votes during this twenty-two-year period. During seven of the eleven congresses observed, a question of order was adjudicated by a recorded vote for every 5.9 amendments the Senate adopted by recorded vote. On average, a senator appealed the ruling of the chair and requested a recorded vote at a rate of 1 for every 113 hours or 1 for every 17 days of session. Of these appeals, 159 (74.6 percent) involved questions as to whether particular amendments were in order for floor consideration (Bach 1989b, 14). Of the 213 questions of order adjudicated by the Senate during this period, 159 (74.6 percent) involved determinations as to whether particular amendments were in order for floor consideration. Of these, 31.9 percent determined whether the amendment in question satisfied the germaneness requirements of Rule XVI or the Congressional Budget Act of 1974. 15.5 percent determined the germaneness of amendments proposed postcloture or under a unanimous consent agreement requiring that all amendments be germane. 13 percent determined whether amendments offered to appropriations bills violated Rule XVI’s prohibition on legislating on appropriations bills and proposing unauthorized appropriations. Finally, the remaining appeals involved challenges based on cloture and Budget Act requirements separate from germaneness determinations and

constitutional requirements (Bach 1989, 14, 15). The presiding officer submitted 77 (36.1 percent) of the 213 questions of order directly to the Senate without first ruling on them. Of these, the Senate overruled the original point of order eleven times and accepted the “defense of germaneness,” where applicable, in twenty-five instances. As a consequence, the Senate voted to allow the challenged amendment/business to proceed in 46.7 percent of the cases (Bach 1989, 17). More often, the Senate decided questions of order on an appeal after the presiding officer ruled. During this period, the Senate adjudicated 127 appeals by a recorded vote. The decision of the chair was upheld 82.7 percent of the time. Of these 127 appeals, 86 challenged ruling that decided whether or not particular amendments were in order. The Senate upheld the decision of the chair 81.4 percent of the time. Put another way, the Page 212 →Senate has rejected the ruling of the chair and instead decided that amendments should be allowed, contrary to past precedent, approximately 20 percent of the time from the 89th through the 99th Congresses (Bach 1989, 17). Resistance to the Nuclear Option The tactic of offering third degree amendments is resistant to restriction via the nuclear option. As noted, the only way to prevent individual senators from offering prohibited amendments and then appealing the ruling of the chair to force a recorded vote is to have the presiding officer not call on senators seeking recognition. Setting aside the impracticality of barring some members, or all members, of the minority party from speaking on the Senate floor in perpetuity, the institution’s constitutional structure effectively precludes chamber majorities from delegating such authority to the presiding officer. Article I, section 3, clause 4 of the Constitution stipulates: “The Vice President of the United States shall be President of the Senate.”28 The Constitution only allows the Senate to select its presiding officer in the absence of the vice president. The “arrangement of dual presiding officers”29 means that any authority senators choose to delegate to the president pro tempore will also be bestowed on the vice president as the presiding officer of the Senate (Gamm and Smith 2000, 129). As the constitutionally designated presiding officer, the vice president is thus charged with administering the Senate’s rules and ensuring order. Yet because the vice president is not directly accountable to the Senate, its members have been unwilling historically to delegate significant authority to the president pro tempore, who the Senate may select, because they cannot prevent the vice president from assuming the chair and exercising that authority in such a way that would be harmful to their interests. While the result has been a more inefficient Senate, such inefficiency is the price the Senate pays to protect itself from the vice president (Lynch and Madonna 2010; Bach 1991). While obstruction and the value of the Senate’s time have both increased significantly in recent years, it is unlikely that senators would reevaluate delegating significant authority to the presiding officer in the face of minority retaliation for going nuclear given the polarization and partisan conflict in the contemporary environment. Imagine a Democratic majority allowing vice president Dick Cheney or Mike Pence, or a Republican majority allowing vice president Joe Biden a significant voice in how the Senate sets its agenda and conducts its business! In the absence of a Page 213 →strong presiding officer, the tactic of appealing the ruling of the chair cannot be restricted because members will always have recourse to the floor. The chair may rule such appeals dilatory, and thus out of order. But that ruling may be appealed. The previous literature has acknowledged that the role played by the vice president as presiding officer ensures that the Senate will continue to be a distinctive institution vis-Г -vis the House, along with other constitutional features such as state constituencies and six-year terms, regardless of what happens to the cloture rule and the ability of a minority to filibuster. Yet the findings here suggest that this institutional feature of the Senate’s architecture gives the minority a nuclear-resistant means with which to deter the majority from restricting its procedural rights. Apart from briefly acknowledging the effect on the Senate’s procedural development of its inability to select, and control, its presiding officer, previous treatments do not describe how this constitutional feature limits the majority’s ability to restrict the minority’s retaliatory tactics.

A More Effective Deterrent The procedural tactics outlined in this chapter provide two ways that Senate minorities may deter an otherwise willing majority from going nuclear to eliminate the filibuster. This suggests that an alternative outcome was possible in 2013 had the Republican minority behaved differently in the skirmishes leading up to the Democrats’ decision to employ the nuclear option. The utilization of the tactics outlined here could have provided Republicans the procedural means to persuade rank-and-file Democrats that it was not in their interest to support going nuclear in order to eliminate the filibuster for most nominations. The bargaining model of procedural change underscores three characteristics of both tactics that make them particularly effective weapons for the minority in parliamentary war. First, they have the potential to impose significant costs on rank-and-file senators in the majority. That is, the tactics are consistent with the types of minority behavior that the majority considers costly as evidenced by its unorthodox use of existing rules and practices documented in chapter 7. The implication is that Senate majorities will consider these tactics costly because they either reduce the available time to pass their agenda or circumvent their ability to prevent minority amendments from getting votes on the Senate floor. If utilized strategically, forcing recorded votes on routine business and offering third Page 214 →degree amendments increase the costs of going nuclear for the majority relative to a continuation of the status quo or a negotiated settlement in which the minority retains the filibuster without sacrificing its ability to obstruct in practice (e.g., the Gang of 14 agreement in 2005). Second, the utilization of each tactic is sustainable. This fact makes their threatened use credible more often than not. Sustainability also makes it easier to maintain minority support for waging parliamentary war. Rank-and-file members of the minority will be more likely to support tactics that they believe are consistent with the Senate’s rules and past practices. They also reinforce the minority’s narrative in the conflict. Finally, they make it difficult for the majority to portray minority retaliation as obstruction in the court of public opinion. Third, the tactics are nuclear resistant. That is, their use is not capable of being restricted via the nuclear option. This leaves the majority with no way to avoid the costs imposed by these tactics. As a consequence, the tactics give the minority leverage in negotiations with the majority to resolve the conflict short of nuclear war. The result is more stable outcomes and a reduction in destabilizing conflict more generally. Given these considerations, the majority’s recognition of the capability and determination of Senate minorities to protect their procedural rights will limit its use of nuclear threats to compel minorities to relent in their obstruction.

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Nine Conclusion Democrats and Republicans are engaged in a parliamentary war in the Senate. At stake is the ability of the numerically inferior side to influence the future direction of the country. How this conflict is resolved is particularly important because the Senate is the only major institution in the federal government where the majority is tempered in any meaningful sense. The effects of ideological polarization increase the salience of this conflict for our politics more generally. In such an environment, the ability of Senate minorities to use the filibuster to block the majority’s priorities has a significant impact on policy outcomes. But a majority has always had the ability to determine the institution’s rules. These rules are ultimately majoritarian in nature in that their prescriptive influence depends on the continued acquiescence of the majority. In other words, Senate majorities have the ability to limit the filibuster by going nuclear. Yet while technically possible, changing the Senate’s rules via the nuclear option has rarely been utilized in the past. My goal in this book was to reconcile this discrepancy. Specifically, I wanted to provide a better explanation for the existence of Senate rules that permit the filibuster than those offered by the existing literature. To do so, I needed to account for why Senate majorities tolerated such rules prior to 2013 as well as identify what happened to alter the calculus for Democrats in that year to get them to support eliminating the filibuster for most nominations. Page 216 →

A Strategic Perspective Existing explanations are incomplete to the extent that they limit our ability to fully understand the complex relationship between partisan conflict and procedural change in the contemporary Senate. This is because they overlook the minority’s ability to influence the majority’s power to determine the Senate’s rules beyond a simple model of ever-more obstruction yielding ever-greater restriction. Notwithstanding the interdependence of the two parties, contested procedural change is not inevitably unidirectional in the institution. In reality, minority obstruction may also prevent majority restriction in addition to precipitating it. Alternatively, minority cooperation in the face of threatened restriction may precipitate the more frequent use of such threats in the future. In this book, I accounted for contested procedural change in the Senate by examining it in the context of the parliamentary war currently being waged in the institution. Adopting a strategic perspective drew our focus to the underlying dynamics of parliamentary conflict that explain the persistence of the filibuster in the current polarized environment. These dynamics are also responsible for the nature and direction of contested procedural change when it does occur. My approach thus explains why Senate majorities have tolerated the filibuster in the past (as exhibited in the 2005 case) and identifies the conditions in which they are likely to depart from this past practice to limit or eliminate the filibuster in the future (as exhibited in the 2013 case). Specifically, I argued that the power of Senate majorities is contingent on minority behavior. That is, procedural change in the Senate via the nuclear option is dependent on the nature of the minority’s response, or threatened response, to majoritarian efforts to change the Senate’s rules over its objections by a simplemajority vote. The key then to avoiding prolonged periods of instability associated with the repeated use of the nuclear option by a majority determined to enact its agenda lies with the minority.

The Bargaining Model of Procedural Change Building on this insight, I developed an alternative model to account for the factors surrounding the

majority’s decision to go nuclear in 2013. Specifically, I outlined a new theory, the bargaining model of procedural change, to better explain partisan conflict in the contemporary Senate. In short, Page 217 →the model accounts for the filibuster’s persistence in a way that provides important insights into this conflict, why it occurs, how it is conducted, and the manner in which it is resolved. My approach allows us to identify the preconditions necessary to reduce some of the most significant partisan conflict in the Senate and avoid the gridlock that inevitably results. Understanding the terms of parliamentary war is thus an important step in addressing the dysfunction in the institution today. Notwithstanding the majoritarian nature of the institution, otherwise willing Senate majorities may be deterred from doing what they otherwise want by the institution’s inherited rules of procedure. This is because Senate minorities may utilize the institution’s existing rules to increase the costs of particular majoritarian actions for members in the majority party. The effective utilization of such procedural tactics links the majority’s efforts to change the rules with less palatable policy and parliamentary outcomes for individual senators in the majority party. This finding, in and of itself, is not new. Existing treatments have thoroughly captured the extent to which the super-majoritarian provisions of Rule XXII and the filibuster limit the ability of Senate majorities to restrict the parliamentary rights of the minority party. However, a significant shortcoming of the political science literature on this question is that it fails to identify the specific nuclear-resistant tactics minorities may utilize to retaliate against majorities determined to restrict their ability to obstruct. The narrow focus such treatments place on the inability of Senate majorities to end debate, thereby overcoming minority filibusters, falls short in that it does not fully explain how Senate minorities limit the majority party’s ability to overcome this hurdle by changing the institution’s rules to preclude the filibuster in the first place. This is because the filibuster is subject to limitation via majoritarian action. Thus, this procedural feature itself cannot serve as the sole basis for the stickiness of the Senate’s inherited rules of procedure. In contrast, the bargaining model of procedural change goes further than previous treatments by drawing our focus to the truly sticky features of the Senate’s institutional structure that empower a minority to utilize the supermajoritarian features of Rule XXII to obstruct the majority without risking majoritarian action to preclude such obstruction in the first place. Specifically, these features give Senate minorities various tools that they can use to increase the costs of going nuclear for the majority’s rank-and-file members. Additional work is needed to consider the applicability of the bargaining model to the policy process more generally. The dynamics driving Page 218 →negotiations between majority and minority parties over controversial “must-pass” legislation like government appropriations and measures to increase the debt ceiling represent one potential avenue of future research. The brinksmanship exhibited in such situations is analogous to parliamentary standoffs over the filibuster. As a consequence, the bargaining model developed in the foregoing chapters may also improve our understanding of significant policy change in the Senate. That is, it may broaden our thinking on the way in which such showdowns will transpire as well as the terms on which they will be concluded.

Findings The bargaining model of procedural change has four important implications for our understanding of the Senate, as well as the relationship between majority and minority parties in legislatures more generally. First, it sharpens our understanding of the interplay between endogenous rules and member behavior. The effective utilization of procedural tactics to deter members of the majority party from supporting the nuclear option explicitly links the majority’s collective efforts to change the rules with less palatable policy and parliamentary outcomes for its members. Because these tactics are rooted in the Senate’s rules, precedents, and ultimately its constitutional structure, they provide support for a path dependent understanding of the constraints these institutional features impose on majority parties. As a consequence, a bargaining model of procedural change suggests important qualifications for a majoritarian approach to understanding the constraints these institutional features may impose on Senate majorities.

A greater understanding of how these constraints operate in practice enables us to reconcile the majoritarian and path dependent models of procedural change in practice. Taken individually, these existing treatments fail to fully explain how the legislative process works in the contemporary Senate on a daily basis. While conceding that Senate rules reflect majoritarian choices on a fundamental level, such a theoretical approach reveals remarkably little about the impact they have on Senate decision-making in practice. Similarly, the path dependent nature of the Senate’s inherited rules of procedure may constrain the goal-driven behavior of senators acting individually or collectively. Yet such an observation does not explain precisely how such rules are able to persist in a majoritarian institution when they persistently prevent determined majorities from enacting their agenda. Given these limitations, a more nuanced approach is needed to explain how Page 219 →path dependent procedures that empower Senate minorities persist in a majoritarian institution in a polarized environment. Incorporating the concept of path dependence into a majoritarian framework thus offers a richer explanation for what drives procedural change in the Senate today. Second, identifying the underlying dynamics driving procedural change in the Senate enables us to better recognize minority behavior that is more likely to push the majority to utilize the nuclear option and thus lead to periods of procedural instability in the institution more generally. Such insights emphasize the fact that minority cooperation to forestall the nuclear option plays a role in precipitating majoritarian actions in addition to the more conventional view of the role played by minority obstruction. The extent to which the nature of the minority’s threatened response reinforces the procedural status quo suggests that bipartisan efforts to negotiate last-minute compromises to forestall the nuclear option may paradoxically embolden the majority to press for more concessions in the future if it believes that doing so will precipitate further last-minute negotiations and even more minority concessions. Such negotiated settlements signal minority ambivalence and encourage the majority to more readily threaten to go nuclear in order to achieve its goals. This dynamic reflects the “adaptive expectations” of a path dependent process characterized by increasing returns (Arthur 1994; Pierson 2000, 254). That is, repeated capitulation in the face of such threats reinforces the expectation that threats to go nuclear will continue to be effective in the future because they worked in the past. Repeated success may even lead the majority to more readily eschew negotiation and compromise in favor of threatening to go nuclear because doing so is viewed as a less costly way to enact its agenda. With this understanding of the role played by minority obstruction in maintaining procedural stability in the Senate, I depart from the most recent literature on the subject that contends that “minority-motivated obstruction” triggers “majority-imposed restrictions” (Smith 2014, 3). That is, obstruction begets restriction. Viewed from this perspective, the successful use of the nuclear option in November 2013 is best understood as yet another example of majority-imposed restriction in response to incessant minority obstruction. Yet in contrast to the existing literature, the foregoing analysis suggests that it was the repeated willingness to compromise at the last minute in response to majoritarian threats to go nuclear, coupled with a dysfunctional decision-making process that impaired communication between senators, that ultimately led to the successful utilization of the nuclear option. Furthermore, where the conventional wisdom suggests that Senate Democrats believed Republicans were already obstructing as Page 220 →much as they possibly could and that the minority could not realistically increase the costs for the majority, I identify specific procedural tactics that the minority could have used to increase the costs for the majority. Most importantly, I argue that a credible threat to use these tactics in retaliation would have potentially deterred the majority from going nuclear by persuading a sufficient number of Senate Democrats not to support the nuclear option. This is a subtle, yet important, distinction because the way in which one views the role played by minority obstruction in maintaining procedural stability directly impacts the conclusions one reaches on how to reverse the instability and dysfunction in the contemporary Senate. For example, approaching the events of November 2013 through the lens of conventional wisdom suggests that the solution to avoiding further nuclear options is fundamentally inseparable from ending, or at least significantly reducing, minority obstruction. Yet such a perspective suggests that this will not happen until the broader environment changes, which is unlikely to occur given current trends in our politics. As a consequence, super-majoritarian rules like cloture are unlikely to persist in a majoritarian institution given the current polarized environment so long as the minority party insists on obstructing the majority for partisan gain. Obstruction will continue to beget restriction. In contrast, the bargaining

model of procedural change provides an explanation for how the filibuster can persist in the current polarized environment. Third, and related, this book emphasizes the importance of communication between the majority and minority parties. Absent clear signals, the majority may incorrectly interpret prior acquiescence on the part of members of the minority to majoritarian threats as reflecting a deeper unwillingness to retaliate for going nuclear. This leads to confusion as to the level of resolve among the minority and may lead to greater instability. For example, many of the Democratic senators involved in the 2005 case were also in the Senate in 2013, and thus were aware of the actions that the minority could threaten in retaliation for going nuclear. However, the stark differences in the threatened responses of both parties in 2005 and 2013 and the repeated willingness of the members of the minority party to negotiate in 2013 led these Democrats to discount the possibility that the Republicans would actually respond to the nuclear option in a way that increased the costs of achieving their goals in the Senate. The importance of signaling between the two parties highlights the role played by the legislative process as an information revelation mechanism. When this function of Senate decision-making is truncated, as it Page 221 →has been by any measure in recent years, procedural instability is likely to increase. This is not, in itself, inconsistent with how we have thought about procedural change recently (e.g., Wawro and Schickler 2006). The deterioration in communication between the majority and minority in the period leading up to the successful use of the nuclear option in 2013 has been acknowledged (e.g., Smith 2014). Yet it has not been suggested that a breakdown in communication between the two sides precipitated the use of the nuclear option. By extension, it has also not been suggested that improved communication itself would have prevented the cycle of obstruction and restriction that led to the nuclear option because that obstruction is driven by exogenous forces and will thus persist so long as the environment remains polarized and the Senate’s rules permit it. Instead, the conventional wisdom suggests that better communication about the minority’s determination to retaliate would have only increased Reid’s resolve and solidified support in the Democratic Conference for going nuclear. In short, majority-imposed restriction is inescapable so long as the current polarized environment persists. In contrast, I suggested in the preceding chapters that better communication between the two sides in the months leading up to November 2013 would have signaled either the majority’s determination to go nuclear or the minority’s determination to retaliate, thereby most likely resolving the impasse in question and thus preventing things from coming to a head before the nuclear option was used to limit the filibuster. Such information would have facilitated negotiations to end the conflict by inducing in either the majority or the minority a greater willingness to compromise. Finally, the bargaining model draws our attention to the extent to which the unique constitutional design of the Senate continues to shape the institution and its decision-making process today. Specifically, it demonstrates how the role of the vice president as the Senate’s presiding officer effectively precludes the institution from developing into a majoritarian body like the House of Representatives. This claim is consistent with previous scholarship that attributes the Senate’s unique institutional character to other constitutional and institutional factors such as its small size, term lengths, and state constituencies. However, I go beyond this literature. Apart from briefly acknowledging the effect on the Senate’s procedural development of its inability to select, and control, its presiding officer, it does not describe in any specific detail how this constitutional feature actually limits the majority’s power to restrict the minority’s procedural rights. This fact should lead legislative scholars to reevaluate the importance they place on the cloture rule in preserving the unique nature of the Page 222 →Senate as a legislative institution. Indeed, the findings here suggest that the persistence of super-majoritarian rules in a polarized era characterized by majorities willing to go nuclear may be attributed to deeper, and more fundamental, constitutional differences between the Senate and the House. While the filibuster certainly increases the power of the minority, the distinctness of the Senate vis-Г -vis the House, as well as the ability of the minority to protect its procedural prerogatives (e.g., the ability to filibuster), is reflective of more fundamental institutional and constitutional structures. This suggests that popular concerns that the Senate is on a slippery slope to becoming the House may be misguided. First, there is little evidence that suggests senators in either party desire such an outcome. Second, and more fundamentally, such an institutional

transformation is not completely within the majority’s power to effect.

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Notes Chapter One

1. The nominee was Patricia Ann Millett, nominated to be United States Circuit Judge for the District of Columbia Circuit. Millett was eventually confirmed on December 10, 2013, by a vote of fifty-six to thirtyeight. 2. The terms majority and minority parties and Senate majorities and minorities are used interchangeably throughout this book unless otherwise noted. While obstruction is typically thought of as a formal minority party opposing a formal majority party, the procedural tactics outlined in this book can be utilized by a subset of a formal minority party, do not require minority party leadership support, and are not dependent on securing the support of almost all minority party members to block cloture. 3. Rule XXII states that a motion to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the Senate” requires an affirmative vote of “three-fifths of the senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.” “Rule XXII: Precedence of Motions,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 16. 4. Note: The minimum number of senators required to end debate and confirm nominees (the Supreme Court excepted) under the new precedent is twenty-six (a majority of a quorum, which is fifty-one members). See: Cong. Rec. S8,417 (2013) (statement of Senator Reid). 5. Majority Leader Harry Reid (D-Nevada) flatly asserted “that the vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.” The presiding officer ruled against Reid’s point of order. “Under the rules, the point of order is not sustained.” Reid subsequently appealed the ruling of the chair. The vote was on whether the decision of the chair Page 224 →shall stand as the judgment of the Senate. The Senate voted fifty-two to forty-eight to overturn the decision of the chair, and thus in support of Reid’s appeal. Three Democrats joined every Republican in voting to sustain the ruling of the chair. They were Carl Levin (D-Michigan), Joe Manchin (D-West Virginia), and Mark Pryor (D-Arkansas). 6. The seven Republicans joined with seven Democrats to form the Gang of 14, which negotiated the compromise ending the crisis in 2005. These events will be discussed in greater detail in chapter 5. 7. Italics added for emphasis. 8. Italics added for emphasis. 9. Wawro and Schickler (2006, 37) argue that while the minority may use some retaliatory tactics to increase the costs of going nuclear for the majority, “a committed majority of bill supporters could use the creation of new precedents to curb these minority tactics, resulting in a fundamental asymmetry in the strategic context.” Chapter Two

1. It should be noted, however, that this approach does not entirely dismiss the relevance of the Senate’s inherited rules. Rather, Wawro and Schickler argue that the stickiness of these rules does not prevent, in and of itself, a committed majority from exerting more control over the legislative process. 2. Italics added for emphasis. 3. Italics added for emphasis. 4. Note: References to “Party” in figure 2.3 and throughout the Claims subsection apply to both majority and minority parties. Chapter Three

1. U.S. Const. art. I, § 3, cl. 1, 3. 2. Ibid. art. I, § 3, cl. 4–5.

3. Ibid., art. I, В§ 7, cl. 2. 4. Ibid., at art. I, В§ 5, cl. 2. 5. United States v. Ballin, 144 U.S. 1 (1892). 6. Ibid. 7. Ibid. 8. “Rule V: Suspension and Amendment of the Rules,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 4. 9. “Rule XXII: Precedence of Motions,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 16. 10. Wawro and Schickler (2006, 263) describe the rise of relatively costless obstruction in the decades after the adoption of the cloture rule as a “great irony” in Senate history. 11. The list of current standing orders is compiled each Congress in the Senate Manual under the heading, “Nonstatutory Standing Orders Not Embraced In The Rules, And Resolutions Affecting The Business Of The Senate.” Page 225 →12. “Rule XXII: Precedence of Motions,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 16. 13. The Senate majority leader was first granted priority of recognition in 1937 as a result of a ruling made by Vice President John (“Cactus Jack”) Nance Garner while presiding over the Senate (Frumin and Riddick 1992, 1098). 14. “Rule XXII: Precedence of Motions,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 16. 15. Majority Leader Trent Lott (R-Mississippi) introduced a resolution (S. Res. 160) to reverse this precedent in the 106th Congress. The Senate passed S. Res. 160 on July 22, 1999, by a vote of fifty-three to forty-five. This action brought Senate practice back into compliance with its Standing Rules. 16. Cong. Rec. S12,232 (1996) (vote to reverse the chair following the Lott appeal of the chair’s ruling that section 1223 of the Federal Aviation Administration Reauthorization Act of 1996 did not exceed the scope of conference). 17. The Senate restored Rule XXVIII during the 106th Congress. Specifically, the Department of Commerce and Related Agencies Appropriations Act of 2001 (HR 5548) included the following provision reversing the precedent established during the 104th Congress. See: Rybicki (2006, 1–11). This provision was eventually included in the Conference Report to accompany the District of Columbia Appropriations Act for fiscal year 2001 (Public Law 106–553) that was signed into law on December 21, 2000. Additionally, an identical provision was included in the Consolidated Appropriations Act of 2001 (Public Law 106–554), which passed the Senate on December 15, 2000, and was also signed into law by the president on December 21.17 These actions brought Senate practice back into compliance with the Standing Rules. 18. The word see in Riddick’s Senate Procedure designates precedents resulting from parliamentary inquiries. 19. Technically, a simple-majority is required to approve any new rule in the Senate. However, the controversial nature of rules reform coupled with the ability to filibuster such proposals creates in practice a super-majority threshold to approve any new rule. 20. Note: the number of senators required to change the rules could be as low as twenty-six, which is a simple-majority of the number needed to produce a quorum in a chamber of one hundred members. 21. Cong. Rec. S122 (1953). (Motion made by Senator Anderson.) 22. The Anderson motion was tabled by a vote of seventy to twenty-one. 23. At the time, filibuster reform was a proxy for the struggle over civil rights legislation and Nixon believed that ruling in favor of Anderson’s motion would help him win the African American vote when he ran for president three years later. See: Caro (2002, 856). 24. The Anderson motion was tabled by a vote of fifty-five to thirty-eight. 25. Paragraph 2 of Rule V states: “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in those rules.” This was perceived to make it more difficult to limit the use of the filibuster because Rule XXII required a super-majority vote to end debate on measures to change the Senate’s rules. See: “Rule V: Suspension and Amendment of Page 226

→the Rules,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 4. 26. S. Res. 5 was adopted by a vote of seventy-two to twenty-two. 27. The motion to proceed to the Anderson-Morton resolution (S. Res. 4) was tabled by a vote of fortyseven to thirty-five. 28. Cloture in the 88th Congress attempt failed by a vote of fifty-four to forty-two. Cloture was not invoked in the 90th Congress by a vote of fifty-three to forty-six. 29. Humphrey could preside over the Senate until the incoming president (Richard Nixon) and vice president (Spiro Agnew) were sworn into office a few weeks later on January 21. 30. Cong. Rec. S994 (1974) (statement of Senator Holland). 31. The tiebreaking role of the vice president as presiding officer of the Senate cannot be reversed by the Senate. See: U.S. CONST. art. I, В§ 3, cl. 4. 32. On February 18, the Senate failed to invoke cloture by a vote of forty-eight to thirty-seven. On February 23, the Senate failed to invoke cloture on a vote of fifty to thirty-six. On March 2, the Senate failed to invoke cloture on a vote of forty-eight to thirty-six. And on March 9, the Senate failed to invoke cloture on a vote of fifty-five to thirty-nine. 33. Senate voted fifty-five to thirty-seven to table the Javits appeal. 34. Cong. Rec. S4114 (1975) (statement of Senator Byrd of Virginia). 35. Cong. Rec. S4370 (1975) (statement of Senator Long). 36. Ibid. 37. Cong. Rec. (1975) (S3928) (statement of Senator Byrd of West Virginia). The legislation in question was related to providing financial assistance for the railroads. See: Oleszek (2016, 57) at note 216. 38. Ibid. 39. Cloture was invoked on the compromise agreement by a vote of seventy-three to twenty-one. The agreement was subsequently adopted by a vote of fifty-six to twenty-seven. 40. Cong. Rec. S5644 (1975) (statement of Senator Allen). 41. Cong. Rec. S5650 (1975) (statement of Senator Clark). 42. Ibid.

Chapter Five

1. Jeffords switched parties on May 24, 2001. 2. Miller did not vote on the fifth attempt to end debate on May 5, 2003. He was necessarily absent. 3. Lisa Murkowski (R-Alaska) did not vote on the sixth attempt on July 30, 2003. She was necessarily absent. 4. Jim Inhofe (R-Oklahoma) did not vote on the first cloture attempt on May 1, 2003. He was necessarily absent. Murkowski did not vote on the second cloture attempt on May 8, 2003. She was necessarily absent. 5. Ben Nighthorse Campbell (R-Colorado) and John E. Sununu (R-New Hampshire) did not vote on the second attempt on November 6, 2003. Both were necessarily absent. Page 227 →6. Members of the Gang of 14 were: John McCain (R-Arizona); John W. Warner (R-Virginia); Mike DeWine (R-Ohio); Olympia J. Snowe (R-Maine); Susan Collins (R-Maine); Lindsey Graham (RSouth Carolina); Lincoln Chafee (R-Rhode Island); Ben Nelson (D-Nebraska); Mark Pryor (D-Arkansas); Robert C. Byrd (D-West Virginia); Joseph I. Lieberman (D-Connecticut); Mary Landrieu (D-Louisiana); Ken Salazar (D-Colorado); Daniel K. Inouye (D-Hawaii). 7. The Senate Judiciary Committee reported Estrada on January 30 on a party-line vote. 8. Breaux, Miller, and Nelson (Nebraska) were the only members who had publicly committed to voting for cloture at this point. That left the Republicans six votes short of the sixty needed to end the filibuster. 9. Italics added for emphasis. “Minutes,” Senate Steering Committee (108th Cong. 1st sess.) 10. Ibid. 11. Briefing materials circulated by the Republican Policy Committee described Estrada’s life story as “inspirational.” According to the materials, Estrada spoke “very little English” when he moved to the United States at the age of seventeen. However, he overcame this and other challenges, excelled academically, and eventually graduated magna cum laude from Harvard Law School.

12. Italics added for emphasis. 13. Senate Rule XXII and Proposals to Amend This Rule, Hearing Before the Senate Committee on Rules and Administration, 108th Cong., 1st sess. (2003) (Statement of Senator Dodd). 14. Ibid., (Statement of Senator Kennedy). 15. According to a Pew News Interest Index Poll conducted May 11 to May 15, 2005, 65 percent of respondents answered that they were not following the conflict over judicial nominations closely (26 percent “Not too closely” and 39 percent “Not at all closely”). In contrast, 34 percent of respondents answered that they were following the conflict closely (14 percent “Very closely” and 20 percent “Fairly closely”). The results from other polls conducted at the time are consistent with the Pew poll above. For example, a Gallup/CNN/USA Today Poll conducted in April 29 to May 1, 2005, found that 65 percent of respondents were either not closely following the debate or were not following it at all (28 percent and 37 percent, respectively). Only 35 percent of respondents reported following the debate “very closely” (12 percent) or “somewhat closely” (23 percent). A CBS News Poll conducted May 20–22, 2005, found that 66 percent of respondents were following the debate “not very closely” (28 percent) or “not at all closely” (38 percent) compared to 34 percent of respondents who were following the debate “very closely” (10 percent) or “somewhat closely” (24 percent). 16. According to a Quinnipiac University Poll conducted May 18–23, 2005, 55 percent believed that the filibuster “should be used” to keep unfit judges off the bench (compared to 36 percent who believed that it “should not be used, because nominees deserve a vote by the full Senate”). According to a Gallup/CNN/USA Today Poll conducted May 20–22, 2005, 58 percent of respondents believed that the “Republican leaders in the Senate” were acting like “spoiled children” in the conflict. Only 31 percent believed that “Republican leaders in the Senate” were acting like “responsible adults.” Similarly, 54 percent of respondents also believed that Page 228 →the “Democratic leaders in the Senate” were acting like “spoiled children” compared to 36 percent who believed that they were acting like “responsible adults.” When asked in the poll, “Whose side do you generally favor—the Republicans in the Senate or the Democrats in the Senate?” 40 percent responded that they favored the Republicans compared to 48 percent who responded that they favored the Democrats. 17. See: Cong. Rec. S2668 (2003) (statement of Senator Kennedy). 18. Cong. Rec. S14,303 (2003) (statement of Senator Reid). 19. Senate Democrats asked President Bush for documents from Estrada’s time in the Office of the Solicitor General during the Clinton administration. 20. Cong. Rec. S14,573 (2003) (statement of Senator Graham of South Carolina). 21. U.S. Const. art. II, В§ 2, cl. 2. 22. Cong. Rec. S14 (2005) (statement of Senator Frist). 23. For example, a Princeton Survey Research Associates International/Newsweek Poll conducted March 17–March 18, 2005, asked respondents if they approved or disapproved of the threat by Senate Democratic leaders to “slow down or stop almost all but the most essential legislative business if Republicans take away their ability to use the filibuster to stop judicial nominees they consider to be conservative extremists.” Only 40 percent approved, while 48 percent disapproved.

Chapter Six

1. Fifty-five percent of the Senate’s membership at the time of the nuclear option in November 2013 was first elected in 2006 or later. 2. In contrast, Frist dubbed his intended use of the controversial maneuver the constitutional option in 2005 because he believed the minority’s filibusters of President Bush’s judicial nominations to be unconstitutional. 3. Cong. Rec. S303 (2011) (statement of Senator Merkley). 4. Specifically, Harkin introduced a resolution (S. Res. 8) that would have made it easier to invoke cloture. Merkley introduced a resolution (S. Res. 21) that would have required senators to mount a talking filibuster in order to obstruct. Ron Wyden (D-Oregon) introduced a resolution (S. Res. 28) that ended the practice of

secret holds by requiring senators to object on the Senate floor to unanimous consent requests. Mark Udall (D-Colorado) introduced a resolution (S. Res. 29) that permitted the reading of amendments on the Senate floor to be dispensed with by nondebatable motion. Finally, Tom Udall (D-New Mexico) introduced a resolution (S. Res. 10) that packaged many of these proposed changes into a single comprehensive proposal. 5. According to Riddick’s Senate Procedure, “A legislative dayВ .В .В . continues from the beginning of a day’s session following an adjournment until another adjournment, [it] is not affected in any way by a recess of the Senate” (Riddick and Frumin 1992, 714). 6. The compromise agreement was introduced as two separate measures (S. Res. 28 and S. Res. 29). The Senate passed S. Res. 28 on January 27, 2011, by a vote of ninety-two to four. S. Res. 29 passed by a vote of eighty-one to fifteen. 7. Cong. Rec. S325 (2011) (statement of Senator Reid). Page 229 →8. Cong. Rec. S325 (2011) (statement of Senator McConnell). 9. Cong. Rec. S299 (2011) (statement of Senator Reid). 10. Cong. Rec. S325 (2011) (statement of Senator McConnell). 11. Cong. Rec. S325 (2011) (statement of Senator Reid). 12. Cong. Rec. S302-S303 (2011) (statement of Senator T. Udall). 13. Cong. Rec. S5,094 (2012) (statement of Senator Reid). 14. Ibid., S5,097. 15. Ibid., S5,096. 16. Cong. Rec. S5,095 (2012) (statement of Senator McConnell). 17. Ibid., S5,096. 18. Ibid., S5,097. 19. A motion to suspend any rule of the Senate is only in order one day after notice has been given in writing. Motions to suspend require a two-thirds vote of those present and voting (typically sixty-seven senators if all members are present and voting) for passage, as opposed to the three-fifths vote (typically sixty) required to invoke cloture (Riddick and Frumin 1992, 1271). 20. Cong. Rec. S6,284 (2011) (statement of Senator McConnell). 21. The precedent created on October 6, 2011, overturned a previous precedent and did not impact the Standing Rules of the Senate. The nuclear option refers to the use of precedent to ignore, circumvent, or change the Standing Rules of the Senate with a simple-majority vote in direct violation of those rules. The chair’s ruling was reversed by a vote of fifty-one to forty-eight. Barbara Boxer (D-California) was necessarily absent and did not vote. Ben Nelson (D-Nebraska) was the only Democrat to vote to sustain the chair’s original ruling (i.e., to vote against Reid). 22. Cong. Rec. S6,317 (2011) (statement of Senator McConnell). 23. The free trade agreements in question were with Colombia, Panama, and South Korea. The Senate eventually passed each of the agreements on October 12, 2011. The Colombia free trade agreement passed by a vote of sixty-six to thirty-three. The Panama free trade agreement passed seventy-seven to twenty-two. The South Korea free trade agreement passed eighty-three to fifteen. The Senate subsequently confirmed Bryson on October 20, 2011, by a vote of seventy-four to twenty-six. 24. The structural changes included replacing the single director with a board to oversee the CFPB, subjecting the bureau’s funding to the appropriations process and requiring greater oversight of CFPB regulations before they could be implemented. 25. Murkowski was the only Republican member of the Gang of 14 still serving in the Senate who voted to end debate on the Halligan nomination. All others opposed. Cloture was not invoked on a fifty-four to fortyfive vote. 26. The Senate failed to invoke cloture on the Cordray nomination by a vote of fifty-three to forty-five. Scott Brown (R-Massachusetts) was the only Republican to vote to end the filibuster. Olympia Snowe (RMaine) voted present due to a conflict of interest (her husband then worked for an industry regulated by the CFPB). 27. Remarks by the president in his State of the Union Address, January 24, 2012. Available at: https://www.whitehouse.gov/the-press-office/2012/01/24/remarks-president-state-union-address 28. Ibid. Page 230 →29. Senate Republicans eventually filed amicus briefs in lawsuits challenging the

constitutionality of President Obama’s January recess appointments. In an ironic twist, McConnell announced that Miguel Estrada would represent the Republicans in the cases (Harrison 2012). Estrada’s nomination to serve on the DC Circuit was successfully filibustered by Democrats in 2003. 30. Cong. Rec. S5,095 (2012) (statement of Senator McConnell). 31. Members in the Group of 8 included John McCain (R-Arizona), Carl Levin (D-Michigan), Charles E. Schumer (D-New York), Lamar Alexander (R-Tennessee), Benjamin L. Cardin (D-Maryland), Jon Kyl (RArizona), Mark Pryor (D-Arkansas), and John Barrasso (R-Wyoming). 32. The agreement created two new methods for the majority leader to proceed to a bill’s consideration on the Senate floor. First, the agreement created a “limited debate” motion to proceed. Debate on this new motion would be limited to four hours. The majority leader would be prohibited from filling the amendment tree on bills proceeded to with this motion. The utilization of the new motion would also guarantee an amendment at the beginning of the bill’s consideration on the Senate floor for the minority manager, majority manager, minority leader, and majority leader, in that order. Second, the agreement created an expedited cloture process for motions to proceed to legislation when the cloture motion was signed by the majority and minority leaders along with five additional senators from each party. The cloture vote would occur after only two hours of debate (as opposed to a minimum of twenty-five hours under the Senate’s existing rules). Invoking cloture on this second motion to proceed created by the agreement would still require a three-fifths affirmative vote of the entire Senate. However, there would be no postcloture debate time (as opposed to up to thirty hours of postcloture debate time under existing rules). The first motion to proceed would be created by a temporary standing order and would expire at the end of the 113th Congress. The second cloture motion would be a rules change and would be permanent. 33. The three debatable motions to go to conference are a motion to insist on the Senate’s amendments, a motion to request a conference, and a motion to appoint conferees (Riddick and Frumin 1992, 464–69). Under the agreement, these motions would be replaced by one motion that would encompass all three. The cloture vote on the new comprehensive motion to go to conference would occur after a maximum of two hours of debate and no postcloture debate time would be in order if a three-fifths majority of the entire Senate voted to invoke cloture. 34. The agreement called for expanding the list of nominees subject to the expedited process of putting nominees directly on the Executive Calendar. This would leave only 448 nominations that would be subject to the traditional committee review process. Cloture on these nominations would ripen after a maximum of two hours of debate. There would be no postcloture debate time on the nominee if cloture was invoked. The nominees made eligible for the expedited process would not include cabinet officers, cabinet-level officers, or Article III judges. However, the agreement would reduce postcloture debate time for district court judicial nominations to a maximum of two hours. The Senate created this expedited process in 2011 when it passed S. Res. 116. 35. Cong. Rec. S26 (2013) (statement of Senator Reid). 36. Cong. Rec. S272 (2013) (statement of Senator McConnell). 37. Cong. Rec. S272 (2013) (statement of Senator Reid). Page 231 →38. On March 6, 2013, the Senate failed to invoke cloture on the Halligan nomination on a fiftyone to forty-one vote. Murkowski was again the only Republican to vote to end the filibuster. 39. The Senate failed to invoke cloture on the Hagel nomination by two votes. The vote was fifty-eight to forty. Susan Collins (R-Maine), Thad Cochran (R-Mississippi), Mike Johanns (R-Nebraska), and Murkowski were the only Republicans to vote for cloture. 40. The three members who announced after cloture failed that they would switch their vote were Alexander, Lindsey Graham (R-South Carolina), and McCain. 41. Cong. Rec. S3,799 (2013) (statement of Senator McCain). 42. Cong. Rec. S3,793 (2013) (statement of Senator McConnell). 43. Cong. Rec. S3,799 (20113) (statement of Senator McCain). 44. “Minutes,” Senate Steering Committee (113th Cong. 1st sess). 45. Ibid. 46. Cong. Rec. S8,318 (2013) (statement of Senator Alexander). 47. “Minutes,” Senate Steering Committee (113th Cong. 1st sess). 48. See Cong. Rec. S8,418 (2013). The Senate sustained the decision of the chair that McConnell’s

point of order was not well taken by a vote of fifty-two to forty-eight. 49. “Minutes,” Senate Steering Committee (113th Cong. 1st sess). 50. The Senate passed the adjournment resolution (S. Con. Res. 28) by a vote of fifty-one to forty-two. All Republicans voted against adjourning. 51. The Senate failed to invoke cloture on the NDAA by a vote of fifty-one to forty-four. The NDAA passed the Senate on December 19, 2013, by a vote of eighty-four to fifteen. 52. The Bipartisan Proposal to Reform Senate Procedures reduced postcloture debate time on nominations from thirty hours to eight hours. Cabinet-level officers and Article III Circuit Court and Supreme Court judges/justices were not impacted. The agreement further reduced postcloture debate time on district court nominees from thirty hours to two hours. 53. The three votes required to reconsider the failed vote are the motion to proceed to the motion to reconsider, the motion to reconsider, then reconsideration of the failed vote. 54. The Senate confirmed Millet on Tuesday, December 10, by a vote of fifty-six to thirty-eight. 55. See: Cong. Rec. S8,558-S8,561 (2013). 56. See Cong. Rec. S5,764 (2014). Cruz moved to table the tree for the stated purpose of offering an amendment to bar the use of federal funds to issue new work authorizations to illegal aliens or to allow those in the country illegally to remain in the United States under President Obama’s Deferred Action for Childhood Arrivals program. The underlying bill was the fiscal year 2015 continuing resolution (H.J. Res. 124). 57. Cong. Rec. S8,897 (2013) (statement of Senator Sessions). The motion failed by a vote of forty-six to fifty-four.

Chapter Seven

1. Cong. Rec. S5,094 (2012) (statement of Senator Reid). 2. Cloture motions on motions to proceed are not excluded in this figure because Page 232 →Senate minorities frequently filibuster motions to proceed in order to obstruct the underlying legislation. 3. Nongermane amendments are limited by Senate rules and statute. Specifically, they are not in order when cloture has been invoked. In addition, they are not in order on general appropriations bills and budget measures. The full Senate may also place limitations on both germane and nongermane amendments by unanimous consent. Rule XXII stipulates that during postcloture consideration of legislation, “No senator shall call up more than two amendments until every other senator shall have had the opportunity to do likewise” (Standing Rules of the Senate 2007, 16). 4. See Smith (2014, 221–27) and Beth et al. (2009) for two examples of the few treatments of sixty-vote thresholds on amendments in the existing literature. 5. “Rule XIX: Debate,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 14. Paragraph 1(a) of Rule XIX states, “No Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.” 6. Senate precedent defines legislative day as a “day, which continues from the beginning of a day’s session following an adjournment until another adjournment.” A legislative day “is not effected in any way by a recess of the Senate.” A legislative day only ends with the Senate’s adjournment (Riddick and Frumin 1992, 714–15). 7. Ibid., 782. According to Senate precedent, “A Senator is not entitled to speak more than twice in the same legislative day on the same question and when called to order during his third speech will lose his right to the floor.” 8. Ibid., 783. According to Senate precedents, “The two speech rule requires not a mechanical test, but the application of the rule of reason.” See Ibid., 782–83. Precedents define floor actions that do not constitute speeches for the purposes of the two-speech rule. Specifically, the Senate determined by vote in 1986 that the following procedural motions and requests do not constitute speeches for the purposes of enforcing the two-speech rule: parliamentary inquiries, appeals from rulings of the chair, points of order, suggesting the absence of a quorum, withdrawal of appeals, requests for the yeas and nays, requests for a

division vote, requests for the reading of amendments, and requests for division of amendments. The Senate has also determined by precedent that the two-speech rule does not apply when the Senate is operating under cloture. 9. According to Senate precedents, “When the time arrives for a cloture vote, a Senator who has the floor will lose the floor and that Senator is not entitled to the floor after the cloture vote” (Riddick and Frumin 1992, 329).

Chapter Eight

1. Civilian “nonlist” nominations do not include the following: Army; Navy; Marines; Air Force; Coast Guard; NOAA; Public Health Service; Foreign Service Officers. These “list” nominations could continue to be processed by unanimous consent and/or voice vote. 2. Figure depicts civilian nonlist nominations only. The only recorded votes depicted are confirmation votes. Cloture votes are excluded. 3. Figure depicts civilian nonlist nominations only. Cloture votes are excluded. 4. This assumes each recorded vote has a duration of fifteen minutes. In practice, Page 233 →recorded votes typically take longer than fifteen minutes, even when their time is shortened by unanimous consent because the Senate does not utilize electronic voting. 5. The 111th Congress exhibits a similar pattern. 6. In the 112th Congress, the Senate spent 6 percent of its time in session conducting recorded votes. If voice votes are converted to recorded votes, this increases to 12 percent. 7. This assumes each recorded vote has a duration of fifteen minutes. In practice, recorded votes typically take longer than fifteen minutes, even when their time is shortened by unanimous consent because the Senate does not utilize electronic voting. 8. This figure depicts measures. Measure is the broadest definition of the Senate’s workload because it includes bills (“H.R.,” “H.J.Res.,” “S.,” and “S.J.Res.” numbered) and simple and concurrent resolutions (“H.Res.,” “H.Con.Res.,” “S.Res.,” and S.Con.Res.”). 9. U.S. Const. art. I, В§ 5, cl. 3. 10. Eleven senators constitute one-fifth of fifty-one. Twenty senators constitute one-fifth of one hundred. 11. Third degree amendments are defined here broadly as any amendment that is not allowed to be offered under the Senate’s precedents when the amendment tree has been filled. There are two types of third degree amendments. First, the Senate’s first precedents prohibited an amendment pending beyond the second degree (i.e., an amendment to an amendment to an amendment). This is referred to as a prohibition against vertical third degrees. Second, third degree amendments can also be described as competing first or second degree amendments that are currently not in order under the Senate’s precedents because the amendment tree has been filled. Early precedents originally prohibited more than two amendments from pending before the Senate at the same time. This is referred to as a prohibition against horizontal third degrees and is consistent with the broader definition utilized in the nineteenth century. According to Senator Henry Cabot Lodge (R-Massachusetts), a former president pro tempore and Senate majority leader, “The number of amendments pending is the test of the degree of the amendment.” Cong. Rec. S10,128 (1914) (statement of Senator Lodge). The term is most often used in this book to describe a horizontal third degree amendment. That is, a first degree amendment that has been blocked by the routine practice of filling the amendment tree in the contemporary Senate. 12. According to the Senate’s precedents, “Decisions of the Chair are subject to appeal and by a majority vote the Senate may reverse or overrule any decision by the Chair” (Riddick and Frumin 1992, 146). 13. Letter to Senator David Vitter, April 10, 2014. The leaders of several advocacy groups signed the letter, including: American Conservative Union, Americans for Prosperity, Concerned Women for America, Family Research Council, and Heritage Action for America. 14. However, in the extreme, a sufficient second may be necessary to request a recorded vote. See discussion of sufficient seconds in the discussion on forcing votes on nominations and legislation. 15. It is interesting to note that Jefferson does not cite a specific parliamentary authority in support of his

prohibition against third degree amendments. In contrast, other references to past parliamentary practice are properly cited. Page 234 →16. For example, See: 30th Cong., 2nd sess., Congressional Globe (March 3, 1849): 682–83; 35th Cong., 1st sess., Congressional Globe (March 31, 1858): 1417–18. 17. For example, See: 41st Cong., 2nd sess., Congressional Globe (June 7, 1870): 4166; 41st Cong., 2nd sess., Congressional Globe (July 14, 1870): 5574; 43rd Cong., 1st sess., Congressional Record (January 6, 1874): 392–94; U.S. Congress, Journal of the Senate of the United States, 43rd Cong., 1st sess., March 30, 1874, 395; U.S. Congress, Journal of the Senate of the United States, 43rd Cong., 1st sess., March 31, 1874, 398. 18. Statement of the presiding officer, 63rd Cong., 2nd sess., Congressional Record (June 10, 1914): 10132. For a transcript of the entire debate over the amendment in question, See: 63rd Cong., 2nd sess., Congressional Record, (June 10, 1914): 10128–32. 19. Interestingly, the House of Representatives allowed up to four amendments to be pending at once in 1914. Unlike the Senate, the House codified its amendment tree in its formal rules in 1880. See: Rybicki and Bach (1997). 20. Statement of the vice president, 65th Cong., 1st sess., Congressional Record (May 9, 1917): 2014. For a transcript of the entire debate, see: 65th Cong., 1st sess., Congressional Record (May 9, 1917): S2013–S2015. 21. Hearing on the nomination of John Roberts to be Chief Justice of the Supreme Court. Hearing Before the Committee on the Judiciary. 109th Cong. (2005) (testimony of John Roberts). 22. Statement of the Vice President, 73rd Cong., 2nd sess., Congressional Record (February 27, 1934): 3306. For other typical examples, See: 74th Cong., 1st sess., Congressional Record (March 14, 1935): 3605–6; 77th Cong., 2nd sess., Congressional Record (September 23, 1942): 7325; 77th Cong., 2nd sess., Congressional Record (September 30, 1942): 7619–22; 80th Cong., 2nd sess., Congressional Record (March 25, 1947): 2520; 86th Cong., 1st sess., Congressional Record (September 11, 1959): 19089–92; 86th Cong., 2nd sess., Congressional Record (January 21, 1960): 1008. 23. Note: the point of order establishing the new precedent was phrased as follows: “I raise a point of order that the vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.” See: Cong. Rec. S8417 (2013) (statement of Senator Reid). 24. “Rule XXII: Precedence of Motions,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 16. 25. Cong. Rec. S8,417 (2013) (statement of Senator Reid). 26. “Rule XV: Amendments and Motions,” Standing Rules of the Senate (Washington, DC: Government Printing Office, 2007), 10–11. 27. Memo from Senate Majority Leader Reid Regarding Senate Rules Change (November 21, 2013). 28. U.S. Const. art. I, В§ 3, cl. 4. 29. Ibid., art. I, В§ 3, cl. 5.

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Index 83rd Congress, 66 85th Congress, 66 87th Congress, 67 88th Congress, 67, 226n28 90th Congress, 67, 226n28 91st Congress, 68 92nd Congress, 68 94th Congress, 69 104th Congress, 63, 225n17 106th Congress, 63, 225n15, 225n17 107th Congress, 85, 196 108th Congress, 85, 88, 92, 102, 227n9, 227n13 109th Congress, 87, 92, 109–11, 118, 135, 182–83 110th Congress, 182–83 111th Congress, 182–83, 233n5 112th Congress, 128, 130–31, 133, 136, 182–83, 196–97, 233n6 113th Congress, 130, 153, 162, 167, 182–83, 198, 230n32 adjournment, 136, 161, 228n5, 231n50, 232n6 Agnew, Spiro, 226n29 Alexander, Lamar, 3, 110, 129–30, 135, 136, 147, 151, 153, 157, 160, 163, 230n31 Allen, George, 99–100 Allen, James, 68, 70–71 amendments: ability of minority to offer, 2, 16, 26, 132, 161, 167–68, 175–76, 178, 180–82, 187, 192, 201–7, 209, 213, 231n56; filling the tree, 61–62, 127, 131, 133, 167–68, 176, 179–81, 202–4, 207, 209, 230n32, 233n11; first degree, 62, 233n11; germaneness, 61, 63, 133, 178–79, 211, 232n3; governing precedents, 61, 205–10; obstruction, 176; perfecting, 62; poison pills, 174, 178–179, 181–82, 188; practice in House, 234n19; reading of, 128, 130, 194, 228n4, 232n8; second degree, 62; 60-vote thresholds, 182–83, 232n4; sponsored by majority, 33; substitute, 62; third degree, 202–9, 212, 214, 233n11, 234n15; unanimous consent, 59; voting on, 144 American Conservative Union, 233n13

Americans for Prosperity, 234n13 Anderson, Clinton, 65–67, 225n22, 225n23, 225n24, 226n27 ANWR, 151 appeal, 25, 49, 61–64, 68, 160, 202–5, 209–13, 223n5, 225n16, 226n33, 232n8, 233n12 Appropriations Committee, 154 attrition, 8, 34, 36 Ayotte, Kelly, 141, 153, 203 Page 246 →Banking, Housing, and Urban Affairs Committee, 139 bargaining model of procedural change: 2005 case, 81, 92–93, 121, 169, 190; 2013 case, 78, 126, 138, 158, 160, 165, 168–69, 190; applicability to policy process, 217–18; assumptions of, 15, 31; claims, 52–54, 173, 191; effective parliamentary tactics, 213, 191; explanation of contested procedural change, 14, 15–16, 44, 75, 216–18; implications, 17, 218–22; inter-party communication, 18, 169; predictions, 15, 52–55, 168; relation to other models, 15, 44, 46, 217; and Senate’s constitutional design, 221–22; strategic context, 45, 50, 77 Barrasso, John, 230n31 Benghazi, 148 Bennett, Robert F., 103 Biden, Joe, 212 Binder, Sarah, 9, 25–29, 161–62, 193 Bingaman, Jeff, 111 Bipartisan Congressional Trade Priorities and Accountability Act of 2015, 60 Bipartisan Proposal to Reform Senate Procedures, 142–46, 231n52 Blackstone, William [Commentaries on the Laws of England], 207 Block, Sharon, 136–37, 146–47, 153 blue slips, 115–16 Blunt, Roy, 142 Boxer, Barbara, 156, 229n21 Breaux, John, 86, 88, 105, 227n8 Brennan, John O., 148 Brewer, David, 57 Brown, Janice Rogers, 85, 87, 118, 120 Brown, Scott, 229n26

Bryson, John, 135, 229n23 Budget Control Act, 60 Budget Enforcement Act, 60 Burns, Conrad, 104 Bush, George W., 77, 79, 83–86, 88, 91, 95, 98–100, 104, 106–9, 111, 113–15, 117, 119, 121, 125, 136, 138, 148, 188, 228n19 Business Roundtable, 111 Byrd, Harry Jr., 70 Byrd, Robert C., 60, 71, 89, 111, 227n6 Byrd Rule, 60 Campbell, Ben Nighthorse, 226n5 Cardin, Benjamin L., 230n31 Carper, Thomas R., 111 CBS, 116 Central Intelligence Agency, 148 Chafee, Lincoln, 104, 110, 227n6 Chamber of Commerce, 111 Cheney, Dick, 115, 212 Church, Frank, 68 Clark, Dick, 72 Clausewitz, Carl von, 10–12, 19, 21, 23, 32, 34, 36, 39, 43, 73, 171, 191; On War, 21 Clinton, Bill, 85, 116, 228n19 cloture: empowers majority, 34, 176–81; germaneness requirement, 211; invoke, 3, 5, 86, 90–91, 128, 132, 143–44, 149, 153, 159, 162, 181, 209, 228n4, 229n19, 229n25, 229n26, 231n38, 231n39, 231n51; 231n52, 232n3; majority cloture, 4, 62–64, 68, 71–72, 81, 158; on motion to proceed, 232n2; petition, 132; postcloture consideration, 61, 133, 146, 162, 164–66, 205; precloture Senate, 5, 8; reform of, 66–70, 104; as a scheduling tool, 90, 94; Senate minorities, 11, 195, 223n2; process, 50, 58–59, 90, 94, 102, 113, 117–18, 127, 139–40, 161, 163, 176, 183–84, 186, 188, 195–96, 198–99, 202, 209, 220n43, 230n32, 230n33, 231n40, 232n9; rule, 2, 27, 36, 58, 62, 213, 220–21, 224n10, 232n3; as a substantive vote, 203; votes on, 86–87, 95–96, 102, 106, 118, 140, 143, 148, 153, 160, 161, 163, 181, 186, 202, 226n28, 226n32, 226n39, 226n4, 227n8 Cochran, Thad, 231n39 coercive threats, 11, 38–43, 46, 51–54, 81–83, 88, 91–99, 109, 119–26, 130, 143, 152, 156, 168–69, 190–92

Collins, Susan, 103, 110, 122, 153, 227n6, 231n39 Commentaries on the Laws of England [Blackstone], 207 Page 247 →Concerned Women for America, 234n13 Congressional Budget Act, 60, 211 Congressional Hispanic Caucus, 100 Congressional Record, 168 Consolidated Appropriations Act of 2001, 225n17 Consolidated Appropriations Resolution of 2003, 94 Constitution: Article I, section 3, clause 4, 205, 212–13, 218, 226n31; Article I, section 5, clause 2, 65, 70, 128–29, 131, 221; Article I, section 5, clause 3, 199–200; Article II, section 2, clause 2, 107; House-Senate differences, 222; and judicial filibuster, 86, 108–9, 113–14, 228n2; recess appointments, 137–39, 147, 230n29; supermajority provisions of, 51; as source of minority rights, 50–51, 213, 221; as source of Senate’s rules, 56–58, 60–61, 96, 205–6 constitutional option, 3, 66–67, 107–8, 122, 128, 143, 146, 228n2 Consumer Financial Protection Bureau, 135, 147, 149, 153–55, 229n24, 229n26 Cordray, Richard, 135, 136, 139, 147, 149, 150, 153–55, 229n26 Corker, Bob, 153–54 Cornyn, John, 106, 135, 152, 165 costs: of changing Senate rules, 27, 79–80; of cloture process, 140; and coercive diplomacy, 38–40, 42; create space where bargaining occurs, 10; determination of, 35–36, 81, 83; of escalation in conflict, 13; of going nuclear, 4, 6, 125–26, 130, 141–42, 145, 151, 153, 159–60, 167–68, 190–91, 194, 201, 224n9; imposed by parliamentary war, 10, 13, 34, 40, 49, 51, 92, 164; for majority, 15–17, 28–29, 34, 45, 50–51, 72, 77, 80, 82, 87, 91, 94, 101, 117, 122, 143, 156, 161–62, 165, 168, 173–74, 176, 183, 189, 192, 195–96, 199, 213, 217, 220; and majority’s agenda, 26–30; measuring, 192–93; for minority, 14, 15, 89, 90, 93, 98–100, 102, 104, 106, 140, 159, 192; of obstruction, 184–88; outweighs benefits, 11, 13, 35, 37–38, 53, 83, 88, 98, 121, 173; of potential courses of action, 10; and stability of Senate rules, 25; of third degree amendments, 202–4, 214; of two-speech rule, 184–88; weigh costs and benefits, 12, 13, 42, 82, 111, 158 Court of Appeals for the 5th Circuit, 85–86, 100, 115, 118 Court of Appeals for the 6th Circuit, 115–16 Court of Appeals for the 9th Circuit, 86 Court of Appeals for the 11th Circuit, 86, 98 Court of Appeals for the DC Circuit: Brown nominated to serve on, 85, 118; Estrada nominated to serve on, 85, 88, 93, 230n29; Halligan nominated to serve on, 135; importance of, 84, 156–57; Millett nominated to serve on, 155, 223n1; NLRB nominees, 147; and nuclear option, 149, 155; Pillard nominated to serve on, 155; proposal to reduce size, 157; Obama’s nominations to serve on, 159; Wilkins nominated to serve on, 155 Crapo, Mike, 139

Cruz, Ted, 167, 231n56 Currency Exchange Rate Oversight Reform Act, 136 Daines, Steve, 184 Daschle, Tom, 97, 103, 105, 108–9, 194 death tax, 151 Deferred Action for Childhood Arrivals Program, 231n56 Den Hartog, Chris, 175 Department of Commerce and Related Agencies Appropriations Act of 2001, 225n17 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Act of 2004, 103 DeWine, Mike, 104, 116, 227n6 District of Columbia Appropriations Act for fiscal year 2001, 225n17 Dodd, Christopher J., 96 Domenici, Pete V., 104, 110, 112, 119 Dorgan, Byron L., 104, 109, 111 Page 248 →Dove, Robert, 181 Durbin, Richard J., 104, 131, 143, 148 DW-NOMINATE, 48 Emergency Supplemental Appropriations and Recissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, 63 Emergency Unemployment Compensation Act of 2014, 203 Environment and Public Works Committee, 149 Environmental Protection Agency, 149 Estrada, Miguel A., 85–100, 104–5, 111, 227n7, 227n11, 228n19, 230n29 Evans, Lawrence C., 48 extraordinary circumstances, 87, 146 Face the Nation, 116 Family Research Council, 233n13 farm bill, 150 Federal Aviation Reauthorization Act of 1996, 63, 225n16 Federal Express, 63–64

Federal Housing Finance Agency, 155 Federal Reserve, 154 Feingold, Russ, 96–97 fiscal year 2006 Budget Resolution, 117 Flynn, Terrence F., 136–37, 146 friction, 34, 36, 39, 42, 92, 191 Frist, Bill, 86, 89–90, 93–96, 100, 102, 104–16, 118–20, 122, 182 game theory, 1, 9–12, 34 Gang of 14, 79–80, 87, 116, 118–22, 129, 135, 145, 214, 224n6, 227n6 Garner, John Nance, 225n13 general parliamentary law, 205–8 gentlemen’s agreement, 130–32, 134–35, 146 Gingrich Senators: The Roots of Partisan Warfare in Congress, The (Theriault), 7 Graham, Lindsey, 98, 106, 119, 154–55, 227n6, 231n40 Grassley, Chuck, 157 Green, Matt, 47 gridlock, 23, 30, 49, 53, 123, 131–33, 157, 175, 177, 217 Griffin, Richard, 136–37, 146–47, 153 Griffin, Richard A., 115 Griffin, Robert, 71 Gun Owners of America, 111 Hagel, Chuck, 110, 147–48, 231n39 Halligan, Caitlin, 135, 147–48, 229n25, 231n38 Harkin, Tom, 3, 128, 228n4 Hatch, Orrin, 100, 102 Health, Education, Labor, and Pensions Committee, 147, 153 Heritage Action for America, 233n13 Hobson’s choice, 32 Hoeven, John, 153

House of Representatives, 2–3, 6, 11–12, 14, 18, 23, 46–47, 60, 63–64, 77, 78, 110, 134, 143, 150, 155, 168, 175, 207, 213, 221, 222, 234n19 Humphrey, Hubert, 68–69, 226n29 Hutchison, Kay Bailey, 63 immigration reform, 150, 152 Inhofe, Jim, 226n4 Inouye, Daniel, 141, 227n6 Iraq, 99–100 Iraq War supplemental, 117 Isakson, Johnny, 147 Javits, Jacob, 68, 226n33 Jefferson, Thomas [Manual of Parliamentary Practice], 180, 205–208, 234n15 Jeffords, Jim, 85, 226n1 Johanns, Mike, 139, 231n39 Johnson, Lyndon, 66–67 Johnson, Ron, 138 Judiciary Committee, 85, 88, 100–101, 110, 115–16, 139, 155, 157, 207, 227n7 Justice for Judges Marathon, 102–3, 106 Kennedy, Edward M., 85, 96, 100 Kirk, Mark, 153 Klobuchar, Amy, 128 Koger, Gregory, 33 Kohl, Herb, 111 Krasno, Jonathan, 28 Krehbiel, Keith, 24 Page 249 →Kuhl, Carolyn, 86 Kyl, Jon, 84, 90, 135, 230n31 Landrieu, Mary, 111, 129, 227n6 Lankford, James, 3, 184 Leahy, Patrick, 104, 112, 155, 194–95

Lee, Frances, 8, 29, 47–48 Lee, Mike, 138 Levin, Carl, 116, 143–44, 224n5, 230n31 Lieberman, Joe, 129, 227n6 Lodge, Henry Cabot, 233n11 Long, Russell, 70 Lott, Trent, 63–64, 86, 102, 107, 112, 225n15 Madonna, Anthony J., 9, 28–29, 193 majoritarian model of procedural change, 15, 17, 26, 31, 34, 44–46, 79–81, 120–24, 165, 191, 193, 218 Manchin, Joe, 224n5 Mansfield, Mike, 67, 70–71 Manual of Parliamentary Practice (Jefferson), 180, 205–8, 234n15 McCain, John, 3, 104, 110, 119, 135, 143–44, 150–54, 227n6, 230n31, 231n40 McCarthy, Gina, 149–50, 153, 155 McConnell, Mitch, 116, 129–34, 137, 139, 141–42, 145–46, 150–52, 154, 157, 159–61, 166, 178, 210, 230n29, 231n48 McKeague, David W., 115 Merkley, Jeff, 3, 128, 131, 145, 152, 154, 228n4 Mexican American Legal Defense and Education Fund, 100 Mill, John Stuart, 76 Miller, Zel, 86, 226n2, 227n8 Millett, Patricia Ann, 155, 162–64, 223n1, 231n54 Mondale, Walter, 69–70 Monroe, Nathan W., 47, 175 Morton, Thruston, 67, 226n27 motion to proceed, 66, 68–71, 117, 128, 130–32, 140–44, 158, 163, 184–89, 211, 226n27, 230n32, 232n2 motion to suspend the rules, 133–34, 136, 229n19 motion to table, 25, 49, 62, 66, 68, 70, 167–68, 186–87, 203, 210, 225n22, 225n24, 226n27, 226n33, 231n56 Murkowski, Lisa, 110, 153, 226n3, 226n4, 229n25, 231n38, 231n39

Murphy, Chris, 155 National Association of Manufacturers, 111 National Defense Authorization Act, 160–61, 231n54 National Journal, 194 National Labor Relations Board, 135–36, 139, 147, 153 National Right to Work Committee, 111 negative agenda control, 175–77 Neilson, Susan Bieke, 115 Nelson, Ben, 86, 88, 227n6, 227n8, 229n21 Nelson, Bill, 86, 111 Nickles, Don, 90 Nixon, Richard, 66, 69, 225n23, 226n29 Obama, Barack, 1, 5, 77, 80, 127, 134–37, 140, 142, 147–48, 156, 159–60, 167, 230n29, 231n56 Office of Management and Budget, 165 Oleszek, Walter, 48 Omnibus Reconciliation Act of 1990, 60 On War (Clausewitz), 21 Owen, Priscilla R., 85–87, 97–99, 104, 115, 118, 120 Palin, Sarah, 152 parliamentarian, 60, 133, 181 parliamentary inquiry, 64 Party Wars: Polarization and the Politics of National Policy-Making (Sinclair), 7 path dependent model of procedural change, 17, 25–28, 30–31, 44–46, 79–180, 120, 122–24, 193, 218 Paul, Rand, 148 Pearson, James, 68–70 Pearson, Kathryn, 47 Pence, Mike, 212 Perez, Thomas E., 149–50, 153, 155 Perry, Rick, 152

Pickering, Charles W., Sr., 85–86, 100, 104, 106, 136 Pillard, Cornelia Thayer Livingston, 155 Page 250 →Polarization: external, 23–24, 30, 37, 212; ideological, 215; impact of, 23; internal, 32, 34, 77; and obstruction, 30–31, 35; partisan, 12, 29, 31, 48–49; underlying causes of, 7 Poole, Keith T., 48 Portman, Rob, 150, 154 positive agenda control, 175 precedents, 29, 33, 41, 57, 60–66, 133, 144, 167, 180, 200, 202–3, 205, 207, 209–10, 218, 224n9, 22518, 232n9, 232n9, 233n11, 233n12 president pro tempore, 57, 212, 233n11 Pryor, Mark, 224n5, 227n6, 230n31 Pryor, William H., Jr., 86–87, 98–99, 104, 106, 118, 120, 136 Puerto Rican Legal Defense and Education Fund, 100 quorum: absence of, 166, 186, 232n8; call of, 146; maintaining, 164–65; producing, 186–87; size of, 200–201, 223n4, 225n20 recess: motions to, 187; in lieu of adjourning, 129, 137, 146, 164, 185, 188, 228n5, 232n6; time off, 93–94, 117, 148, 166, 178 recess appointments, 106–7, 136–40, 147, 230n29 regular order, 1, 130–31, 140, 150–51, 174, 192 Reid, Harry: as majority leader, 127, 129–42, 145–55, 157, 160–63, 166, 178, 182, 209–10, 221, 223n5, 229n21; as minority leader, 89, 109, 113, 115–18; as minority whip, 103–4 Rhode, David W., 47 Riddick, Floyd M., 60 Riddick’s Senate Procedure, 228n5 Risch, Jim, 138 Roberts, Jason M., 14, 47 Roberts, John, 207 Robinson, Gregory, 28 Rockefeller, Nelson, 69–71 Roe v. Wade, 148 Rosenthal, Howard, 48 Rules Committee, 96, 102, 129

Russell, Richard, 66 Saad, Henry W., 115–16 Salazar, Ken, 227n6 Santorum, Rick, 91, 117 Schelling, Thomas C., 9, 12, 37, 41–42, 158 Schickler, Eric, 8, 27–28, 31, 33–34, 36, 50, 224n9, 224n1 Schumer, Charles, 97–98, 113, 115, 129, 130, 136, 149, 230n31 Scott, Hugh, 71 Sean Theriault [The Gingrich Senators: The Roots of Partisan Warfare in Congress], 7 Senate Select Committee on Ethics, 59 Senate Select Committee on Intelligence, 59 Senate: becoming more like the House, 6, 18, 23, 221–22; chair, 61–64, 70–71, 133–34, 160, 202–13, 223n5, 229n21, 231n48, 232n9, 234n12; as a continuing body, 58, 67; dysfunction of, 2, 9, 23, 30–32, 53, 131, 133, 175, 217, 219–20; executive calendar, 77, 164, 166, 202, 230n34; institutional design of, 18, 22, 221; lawmaking capacity, 78–79; legislative calendar, 117; postnuclear, 26, 45, 84, 158–60, 184, 192, 195; precloture, 5, 8; prenuclear, 72, 159, 164; presiding officer, 18, 33, 51, 57, 61–64, 68, 69–70, 144, 159, 168, 185, 200–201, 206, 209, 211–13, 221, 223n5, 225n13, 226n31; relational nature of, 27 Senate Syndrome: The Evolution of Procedural Warfare in the Modern U.S. Senate, The (Smith): 7–8, 33 September 11, 99 sequestration, 60 Sessions, Jeff, 122, 167 Shelby, Richard, 139 Sinclair, Barbara [Party Wars Polarization and the Politics of National Policy-Making], 7 Smith, Gordon, 105, 110 Smith, Steven S. [The Senate Syndrome: The Evolution of Procedural Warfare in the Modern U.S. Senate], 7 Snowe, Olympia, 110, 227n6, 229n26 Specter, Arlen, 110 Page 251 →Stabenow, Debbie, 116, 145 standing orders, 59, 65, 224n11 Standing Rules of the Senate: component parts, 56–64; majoritarian nature of, 4, 24, 28, 33, 44, 50, 215, 217; mutability of, 24; path dependent nature of, 25–28, 44, 49–50, 218; Rule III, 58; Rule V; Rule XV, 209–10; Rule XVI, 63, 211; Rule XIX, 185, 232n5; Rule XXII, 2–4, 27–28, 49–50, 56, 58, 61–64, 68, 72, 76, 96, 109, 128, 163, 205, 209–10, 217, 223n3, 223n5, 227n13, 232n3, 234n23; Rule XXVII, 58; Rule

XXVIII, 64, 225n17; Rule XXXI, 166; stickiness, 14–15; 25, 37, 51, 217, 224n1; super-majoritarian, 2, 16, 27, 36, 49–51, 176, 217, 220, 222 Statutory Pay-As-You-Go Act of 2010, 60 statutory rules, 57, 59–60, 65 sufficient second, 201, 234n14 Sununu, John E., 226n5 Supreme Court: and Bipartisan Proposal to Reform Senate Procedures, 231n52; confirmation wars, 107, 116, 120, 156, 173; constitutionality of NLRB recess appointments, 147; nominations for, 84–85; and the nuclear option, 62–63, 209, 234n23; and Senate’s rules, 57, 223n4, 223n5 Taylor, Andrew, 48 Thune, John, 108, 114, 134 Tillis, Thom, 184 Toomey, Pat, 203–204 Trade Promotion Authority, 60 two-speech rule, 184–89, 232n8 Udall, Mark, 228n4 Udall, Tom, 3, 128, 131, 228n4 unanimous consent agreements: amendment process, 61, 182, 211, 232n3; debate time, 164, 166; increase costs, 193; majority tool, 34, 181; nominations, 232n1; to process routine business, 6; and retaliatory threats, 142, 194, 196, 198–99; recorded vote times, 233n4, 233n7; and right of recognition, 205; scheduling votes, 90, 139, 140, 146, 161, 163; and secret holds, 228n4; standing orders, 59 United States v. Ballin, 57 vice president: Agnew, 226n29; Biden, 212; Cheney, 115, 212; frustration with, 70–71; Garner, 225n13; Humphrey, 68; Jefferson, 206; Nixon, 66, 225n23; parliamentary rulings, 207–8; nuclear option, 115; Pence, 212; Rockefeller, 70; Senate’s presiding officer, 18, 51, 57, 69, 212–13, 221; tiebreaking vote of, 226n31 Vitter, David, 203–4, 233n13 voice votes, 162, 194, 196–99, 232n1, 233n6 Voinovich, George, 110 war: absolute, 31, 32–35; as form of conflict resolution; limited, 31, 35–36 Warner, John W., 110, 227n6 Watt, Melvin L., 155 Wawro, Gregory J., 8, 27–28, 31, 33–34, 36, 50, 224n9, 224n1 Wicker, Roger, 139

Wilkins, Robert Leon, 155 Wyden, Ron, 228n4 Yucca Mountain, 151