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Immigration Legislation: Veto Players in Action

noVia CNN (Border bills stall in House, Senate):

House Republican leaders called off a vote Thursday on their $659 million emergency response to the border influx from Central America overwhelming immigration resources, unable to agree among themselves about what to do.*

[...]

The Senate measure fell short of the 60 votes needed to advance after Republicans opposed the measure because it didn’t include any policy changes to make it easier to deport children back to Central America. Two moderate Democrats voted with Republicans to block the bill.

And so goes the US Congress of late:  the House majority cannot effectively agree on action and the Senate is stymied by a unified minority.

As my colleagues and I note in our forthcoming book  A Different Democracy, a key way to understand a given political system is to look out how many veto gates exist in that system (i.e., points at which policy creation can be stopped) as well as to look at how many veto actors influence those gates (i.e., does it take one or more veto actors to open a given gate and what is the process for opening it?).  The United States is in the distinct minority, in terms of global democracy, in terms of the number of veto gates that exist in our policy-making process (we have three:  the House, the Senate, and the President).**

In terms of veto actors, the easiest to understand is the president, as he is a unitary actor who can, without negotiation or consultation with anyone, veto legislation.  Legislative chambers are more complicated, as they potentially have multiple veto actors within them (this is especially true in multiparty systems, such as in Israel, where no party controls a majority of seats in the chamber by itself).  In the US case, we have but two parties (at least, we only have two that have the votes that could ever lead to majority control of a given chamber of congress),  so on the surface this suggests (and many people assume, even if they do not use the terms in question) that this means whichever party holds the most seats controls the chamber and is, therefore, the sole veto player in question.  However, this is often not the case.

Historically, the majority party in the House acted mostly in this fashion.  As long as the majority party is unified (more or less) it gets what it wants.  The rules of the chamber give leadership control over which bills make it to the floor for a vote.  However, such actions (via the Rules Committee) requires a mostly unified majority caucus.  If that caucus is significantly factionalized, as is currently the case in the GOP, then it means that the party has to negotiate with itself to even get legislation to the floor.  As such, there is currently not a unified veto actor in the House, but rather a bifurcated majority party that has to negotiate with itself to do anything.  In other words, the veto gate that is the House of Representatives can only be opened if both the Tea Party faction and the mainline faction agree to put their keys in the lock.  Even if (as we saw in recent budget and debt ceiling debates) a majority made up of Democrats and Republicans might be willing to work together to vote legislation out of the chamber, the opportunity for such a vote is highly unlikely to happen if the majority itself is divided over whether the bill in question should be allowed to go to the floor in the first place.

Likewise, while the Democratic Party “controls” (please note the scare quotes) the Senate, all regular legislation requires 60 votes to make it to the floor.  The minority in the Senate, therefore, is a veto actor and if 41 of its members is unwilling to let their key be used in the gate, then legislation will not pass.  If the majority party holds 60 seats (and if the party is reasonably unified) then this changes the nature of the Senate.  It should be noted that this almost never happens.

As such, proactive policy action can be blocked by minority actors in our system who function as veto players.  On the House side we see that  a faction of the majority party (e.g., the Tea Party faction) can stop action and force negotiation within that caucus (or paralyze it) and since the rules of the House place the ability to move legislation to the floor firmly in the hands of the majority party, the inability of that majority to agree on what should be debate means nothing is often debated.

Likewise, the rules of the Senate empower the minority to block a bill from making it to the floor even if there is majority support in the chamber to pass the bill in question.

And, of course, the fact that the two chambers eventually have to agree on an identical bill makes this all the more complicated (amongst other factors, like the president’s veto pen).

All in all the system itself makes it easy for specific groups of politicians to block policy solutions even to extremely pressing problems.  (And the electoral system will not punish them for not crafting solutions, even in the face of majority support for such solutions, but that is another discussion entirely).

Now, many will note that this is fine by them:  it means that government moves very slowly (and is frequently paralyzed) while other will find it problematic.  Regardless of the normative implications of these arrangements, it is important to understand how the institutional dynamics in place lead to the outcomes that we get from our constitutional order.

__________________

*The House did eventually pass a bill, but it was too late to matter (as the Senate was already in recess), and was almost certainly done to provide political cover for the party as its candidates head into campaign season, as opposed to being done to provide a policy solution to the current situation.

**Most countries have one veto gate (just parliament) or two (a bicameral parliament, or a president and unicameral legislature).  Also worth noting: policy implementation in the US gets even more complex, as state governments and courts are also key actors.

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About Steven L. Taylor
Steven L. Taylor is Professor and Chair of Political Science at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. He is the author of Voting Amid Violence: Electoral Democracy in Colombia and is currently working on a comparative study of the US to 29 other democracies. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging at PoliBlog since 2003. Follow Steven on Twitter

Comments

  1. michael reynolds says:

    Is it time yet to admit the obvious, that the sainted Founders, while brilliant for the 18th century are getting way long-in-the-tooth as we progress into the 21st? This quasi-religious reverence we have for our system ignores the obvious fact that these folks saddled us with what is now a mess.

    Like or Dislike: Thumb up 15 Thumb down 3

  2. @michael reynolds: It is time to recognize that the system was not perfectly designed by perfect people, to be sure. It is also time to acknowledge that many of the design features that were created don’t even work as intended (more evidence of the lack of perfection).

    Like or Dislike: Thumb up 14 Thumb down 0

  3. trumwill says:

    The veto point argument has, over the years, changed my views on (most) filibusters.

    If drawing a system from scratch I would probably support a bicameral parliamentary federal republic. Though other than things like filibusters and holds and maybe the electoral college, we’re pretty much stuck with the system we have in must respects (independent executive, Senate, etc).

    Like or Dislike: Thumb up 1 Thumb down 0

  4. superdestroyer says:

    Maybe one of the problems with so many veto points is how much of the system runs on automatic. Congress members can get in more trouble by doing something than by not doing something. If you want to end so much gridlock, do away with the automatic parts of government. The government has been operating for years under continuing resolution. So the continuing resolution process has just become the budget process and that allows congress to pass budgets without actually having to vote for a specific budget.

    If one wants to design a system that punishes gridlock, turn off all of the automatic parts of government and let politicians know that the result of gridlock is the government comes to a halt. If people go without their retirement, payroll, or welfare checks for a month, they will vote everyone out of office who is responsible.

    Like or Dislike: Thumb up 2 Thumb down 1

  5. Matt Bernius says:

    First, another excellent and truly informative essay Steven!

    @Steven L. Taylor & @michael reynolds (et al):
    Based on the last four-plus years of following political blogs, one of the things I’ve found most fascinating about these discussions are the amount of people who think that the founders actually *wanted* the current levels of gridlock.Which gets to @Steven’s point about *intention.*

    Said people, who tend to be reactionary conservatives firmly believe that it was the founder’s intent to prevent government from legislating (because, of course, all federal legislation is akin to tyranny).

    I’m just curious, beyond their personal ideology, is there any historical basis (in the anti-federalist papers, perhaps) for such an opinion?

    Like or Dislike: Thumb up 10 Thumb down 0

  6. Hal_10000 says:

    I don’t have a problem with all these veto points per se. In fact, I wish some of them were used more often (on the Iraq War, for example). But those veto points have existed for 200 years. The problem we’re having, which we haven’t had before, is the inability to get through even the most basic of laws through those veto points.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. @Hal_10000: Well, yes and no.

    The fragmentation of the majority party in the House is relatively new phenomenon (which may resolve itself over time). Also the situation in the Senate has shifted over the last decade or so. The minority has always had a great deal of power, but we are in a new era of obstruction.

    A lot of this is linked to the realignment of the south in the 1990s–it moved conservative Democrats into the GOP. There are less reasons for compromise than their used to be for a variety reasons and also more reasons for these veto gates to be kept shut.

    This situation is unlikely to change any time soon.

    Other factors are in play, such as the way we nominate our candidates and the fact that most districts are not competitive. This means, for example that people like Eric Cantor can be considered too liberal by a small slice of voters, and then the victor is guaranteed a win because the district is mostly Republican. Such a situation is not producing legislators who want to legislate. It is more likely producing legislators who want to keep the veto gates closed.

    Like or Dislike: Thumb up 4 Thumb down 0

  8. @Matt Bernius: I can think of not evidence that the Framers wanted gridlock.

    And the anti-federalists thought the new federal government was going to be way too powerful.

    Like or Dislike: Thumb up 1 Thumb down 0

  9. James in Silverdale, WA says:

    Speaking of automation, it’s going to be very interesting to see what happens when the social media generation arrives at the levers of power. They will most assuredly be insisting on more automation, and social media tends to be a field-leveler. I credit social media with, for example, denying marriage equality opponents even a single victory in court since Windsor. The insults began to be heard by friends, families, co-workers and fellow worshipers and my didn’t they say N-O?

    They are coming.

    Like or Dislike: Thumb up 1 Thumb down 0

  10. Matt Bernius says:

    @Steven L. Taylor:

    And the anti-federalists thought the new federal government was going to be way too powerful.

    Right. Somehow that seems to be extrapolated into the idea that these veto checks were installed in order to prevent the federal government from gaining said power (through legislating).

    The irony is that one can argue that the recent application of these vetoes has led to a growth in the overall level of federal executive power within the government as Presidents find themselves having to reinterpret existing laws and practices to get things done.

    Like or Dislike: Thumb up 2 Thumb down 0

  11. superdestroyer says:

    @James in Silverdale, WA:

    Are you really arguing that diversity in political views will fade away because people will be so scared for the jobs, families, and children that they will learn to ape the politically correct view points that the masses will mandate.

    If anything predicts the coming one party state, it is that point of view. As others have written, people crave political power. If there is only one way to gain political power, then the U.S. will have only one political party and elections will be about personality because non-confirming views will not be tolerated. Of course, it such situations, there will not be any veto gates because no one will risk their career or the careers of their family members to say no.

    Like or Dislike: Thumb up 0 Thumb down 4

  12. Chuck K says:

    What an one-sided analysis. Harry Reid has blocked many, many bills and amendments from coming to a vote that could obtain 51 votes. The Senate’s political dynamics are similar to that of the House, but this liberal “analyst” is blind to them.

    Like or Dislike: Thumb up 0 Thumb down 7

  13. ernieyeball says:

    The Senate’s political dynamics are similar to that of the House, but this liberal “analyst” is blind to them.

    Dr. Taylor is a liberal analyst and Popeye is in the Air Force.

    Like or Dislike: Thumb up 5 Thumb down 0

  14. Figs says:

    Don’t forget the (usually) veto by another name available in the senate, available to any lone senator: making a vote take about a week to finish. If a senator wants to force the regular rules, even if cloture is assured, the vote can drag out for a long time, during most of which no other business can be done. It may be that the particular issue has more than enough support to pass, but the senate can’t spare the massive amount of time it would take to push through the lone senator’s objection.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. @Chuck K: You are correct: the majority party in the Senate is also a veto player. It is typically the case that if a party holds a majority of seats in a legislative chamber that it can refuse to open the veto gate, and that is certainly true of the Democrats in the Senate at the moment.

    The unusual thing about the Senate (indeed, unique in the world to my knowledge) is that the minority party is likewise a veto player in that chamber in almost everything that the chamber does.

    You will note that what I am describing, however, is not blame, per se. It is an attempt to explain how the process actually works.

    To wit, the following is simply not true, at least if you mean the way the chambers operate:

    The Senate’s political dynamics are similar to that of the House

    Regardless of which party controls the given chambers, the bottom line is this: the House majority, if unified, can get whatever it wants out of the chamber. The Senate majority, however, can only get whatever it wants out of the chamber if it has 60 votes (and is unified). The majority party almost never has 60 votes. Ergo, the Senate majority can scuttle legislation (refuse to open the veto gate) but it cannot open it by itself. The House majority, on the other hand, can open the gate whenever it pleases without worrying about what the minority party wants.

    This is a very, very important distinction. (And it has nothing to do with partisan preferences, credit, or blame and everything to do with understanding how congress works, or does work, as the case may be).

    Like or Dislike: Thumb up 10 Thumb down 0

  16. ernieyeball says:

    @trumwill: If drawing a system from scratch I would probably support a bicameral parliamentary federal republic.

    That’s just for the national government right? Will there still be 50 sovereign states? How will they be represented in a United States Parliament?
    Will the States be able to keep governments with three independent branches?
    Who will be the civilian (hopefully) Commander-in-Chief? The Prime Minister? And who will succeed C in C when the Prime Minister resigns? The Vice Prime Minister?
    As I understand it when the PM resigns there is no government until a new one is formed and nothing gets done…Wait!…What does that remind me of????

    Like or Dislike: Thumb up 0 Thumb down 0

  17. @ernieyeball: It is possible to have a federal system and a parliament with a bicameral structure. Two examples: Germany and Australia.

    Like or Dislike: Thumb up 1 Thumb down 0

  18. ernieyeball says:

    @Steven L. Taylor:..I’m pretty sure I took a comparative government course in college but it was so long ago…

    Like or Dislike: Thumb up 0 Thumb down 0

  19. James in Silverdale, WA says:

    @superdestroyer: “Are you really arguing that diversity in political views will fade away because people will be so scared for the jobs, families, and children that they will learn to ape the politically correct view points that the masses will mandate.”

    No, I am not arguing that at all. Social media has no force of law. In the case of marriage equality, it provided a forum for people to discuss the issue in a safe manner, and once this happened the engine shifted into high gear. Turns out most people do not want to hurl unspeakable things at gay people.

    The court cases all followed that.

    You are free to call that “politically correct” all you like. A gay person would call it relief from your need to be nasty about it.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. Trumwill says:

    @ernieyeball: The parliamentary model is not exactly untested. When a PM resigns, the ruling party names a new one until a new election is called. There may be brief intervals* of non-governance, but the system more-or-less rolls on.

    The federal system would look a lot like our current one. Or it could change, the same way our current arrangement shifts back and forth. The military is among the unlikeliest to change. Once you’re talking about separate militaries, you’re more likely in confederation territory.

    As Taylor says, this isn’t exactly unexplored territory.

    * – Unless you’re Belgium. Which if we were to run into that, it might be time to start talking about reform or partition depending on where the schisms and breaks are.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. ernieyeball says:

    @Trumwill:..The parliamentary model is not exactly untested.

    Thanks for the input. As I mentioned above I probably knew some of this at one time.
    “Starting from scratch” will not be easy. I guess the 1787 Constitutional Convention did that when they scrapped the Articles of Confederation. (I’m not sure where they got the authority.)
    But George Washington Esqr. and Docr. Franklin et. al. still had the States to deal with.
    I doubt delegates to a 21st Century Constitutional Convention would be allowed the secrecy available to the Philadelphia assembly.
    This entry from Madison’s Notes illustrates another issue. (Mon. May 28, 1787)

    Mr. KING objected to one of the rules in the Report authorising any member to call for the yeas & nays and have them entered on the minutes. He urged that as the acts of the Convention were not to bind the Constituents, it was unnecessary to exhibit this evidence of the votes; and improper as changes of opinion would be frequent in the course of the business & would fill the minutes with contradictions.

    Col. MASON seconded the objection; adding that such a record of the opinions of members would be an obstacle to a change of them on conviction; and in case of its being hereafter promulged must furnish handles to the adversaries of the Result of the Meeting. The proposed rule was rejected nem. contradicente.

    such a record of the opinions of members would be an obstacle to a change of them on conviction;

    Of course conviction would be reported as waffling and flip floping today by the news outlets.

    So what to do? Stick to the formula provided by the current document?

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;..

    Or have a gathering cloaked in secrecy that could actually approve of rules like this:

    That no copy be taken of any entry on the journal during the sitting of the House without leave of the House.
    That members only be permitted to inspect the journal.
    That nothing spoken in the House be printed, or otherwise published or communicated without leave.

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  22. @ernieyeball: While I am under no illusions that we will be rewriting the constitution (or even engaging in large reforms), it is still worth noting that other countries have done so, even in an age of modern media, and been able to successfully pull off the process.

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  23. ernieyeball says:

    @Steven L. Taylor:..While I am under no illusions…

    I think you have a grip on reality that many citizens (myself included) would be wise to emulate.
    The several states of our Union have written and ratified multiple Charters over the years. Most recently Georgia implementing it’s 9th in 1983.
    http://en.wikipedia.org/wiki/State_constitution_(United_States)#List_of_constitutions
    Not that these documents address all the issues of a national document, providing for defense, coining money, regulating interstate commerce etc. We might take a lesson as to how the conventions that wrote the new documents were convened and if they met expectations.

    Like or Dislike: Thumb up 1 Thumb down 0

  24. Trumwill says:

    @ernieyeball: That’s why I’m pretty sure that we’re stuck with the Constitution we have. Whether by amendment or by second convention, an extraordinary degree of consensus would be required. If such consensus were possible, it’s pretty unlikely that we would need a new one to begin with.

    The most likely ways of reform are either from within the system or by amendments that would be limited by would change the way our government currently operates. Anything more than a nip and a tuck just seems completely out of reach.

    Other than the formal methods, which are likely out of reach, you would basically need a wave of secessions and then one by one the states join the new union. There’s a good chance some wouldn’t and we’d be left with two or more republics. That is if the government would allow states to secede. Which, of course, has its own history (but which I don’t actually consider outside the realm of possibility, as long as they’re not leaving to preserve slavery).

    All of which brings us back to a significant point, which is that as flawed as the current system is, it’s nowhere close to being bad enough to warrant a wholesale change. Which is the biggest obstacle to change. If the change comes, it will be because things have gotten much, much worse than they are.

    I’m still working on my Western States of America proposal, wherein I write a series of suggestions for what a constitution of the Western 11 (Colorado on westward, minus AK & HI) nation might look like. Therein, I will probably suggest the sort of federal parliamentary system I mentioned. My guess, though? They would want to form a government that closely resembles the current one (minus the EC, and maybe with something to confront the California Problem). It’s the devil we know.

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  25. Trumwill says:

    @ernieyeball: A lot of the state constitutions make me shudder. Our current one is too hard to amend, but I’d much rather that problem than one that is too easy to amend.

    Like or Dislike: Thumb up 0 Thumb down 0

  26. Chuck K says:

    @Steven L. Taylor:

    My point that has many current examples is that the will of a majority in the Senate can be frustrated as easily. If 10-20 Democrats would side with the Republican minority, on a particular issue, Harry Reid just refuses to bring the amendment bill to a vote. That is also true in reverse when Republicans controlled the Senate. As long as both parties insist on a majority of the majority must approve of legislation, then a veto of that chamber’s will exists.

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  27. @Chuck K: You are missing my point: there is an important difference between a majority party being able to block legislative action and a minority party being able to do so.

    The Senate is effectively governed by a minority in the sense that that minority can almost always stop legislative action.

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