Dear Members of the Senate,

As you know, the Senate has debated the merits of the filibuster and related procedural rules for over two centuries. Recently, several senators who are advocating changes to Senate Rule XXII have renewed this discussion. We write this letter today to clarify some of the common historical and constitutional misperceptions about the filibuster and Rule XXII that all too often surface during debates about Senate rules.

First, many argue that senators have a constitutional right to extended debate. However, there is no explicit constitutional right to filibuster.^[1] In fact, there is ample evidence that the framers preferred majority rather than supermajority voting rules. The framers knew full well the difficulties posed by supermajority rules, given their experiences in the Confederation Congress under the Articles of Confederation (which required a supermajority vote to pass measures on the most important matters). A common result was stalemate; legislators frequently found themselves unable to muster support from a supermajority of the states for essential matters of governing. In the Constitution, the framers specified that supermajority votes would be necessary in seven, extraordinary situations -which they specifically listed (including overriding a presidential veto, expelling a member of the Senate, and ratifying a treaty). These, of course, are all voting requirements for passing measures, rather than rules for bringing debate to a close.

Second, although historical lore says that the filibuster was part of the original design of the Senate, there is no empirical basis for that view. There is no question that the framers intended the Senate to be a deliberative body. But they sought to achieve that goal through structural features of the chamber intended to facilitate deliberation -such as the Senate's smaller size, longer and staggered terms, and older members. There is no historical evidence that the framers anticipated that the Senate would adopt rules allowing for a filibuster. In fact, the first House and the first Senate had nearly identical rule books, both of which included a motion to move the previous question. The House converted that rule into a simple majority cloture rule early in its history. The Senate did not.

What happened to the Senate's previous question motion? In 1805, as presiding officer of the Senate, Vice President Aaron Burr recommended a pruning of the Senate's rules. He singled out the previous question motion as unnecessary (keeping in mind that the rule had not yet routinely been used in either chamber as a simple majority cloture motion). When senators met in 1806 to re-codify the rules, they deleted the previous question motion from the Senate rulebook. Senators did so not because they sought to create the opportunity to filibuster; they abandoned the motion as a matter of procedural housekeeping. Deletion of the motion took away one of the possible avenues for cutting off debate by majority vote, but did not constitute a deliberate choice to allow obstruction. The first documented filibusters did not occur until the 1830s, and for the next century they were rare (but often effective) occurrences in a chamber in which majorities generally reigned.

Finally, the adoption of Rule XXII in 1917 did not reflect a broad-based Senate preference for a supermajority cloture rule. At that time, a substantial portion of the majority party favored a simple majority rule. But many minority party members preferred a supermajority cloture rule, while others preferred no cloture rule at all. A bargain was struck: Opponents of reform promised not to block the rule change and proponents of reform promised not to push for a simple majority cloture rule. The two-thirds threshold, in other words, was the product of bargaining and compromise with the minority. As has been typical of the Senate's past episodes of procedural change, pragmatic politics largely shaped reform of the Senate's rules.

We hope this historical perspective on the origins of the filibuster and Rule XXII will be helpful to you as matters of reform are raised and debated. Please do not hesitate to contact us if we can provide additional clarification.

Very truly yours,

Sarah Binder
Senior Fellow, Governance Studies, The Brookings Institution
Professor of Political Science, George Washington University

Gregory Koger
Associate Professor of Political Science, University of Miami

Thomas E. Mann
W. Averell Harriman Chair & Senior Fellow, Governance Studies, The Brookings Institution

Norman Ornstein
Resident Scholar, American Enterprise Institute for Public Policy Research

Eric Schickler
Jeffrey & Ashley McDermott Endowed Chair & Professor of Political Science, University of California, Berkeley

Barbara Sinclair
Marvin Hoffenberg Professor of American Politics Emerita, University of California, Los Angeles

Steven S. Smith
Kate M. Gregg Distinguished Professor of Social Sciences & Professor of Political Science, Washington University

Gregory J. Wawro
Deputy Chair & Associate Professor of Political Science, Columbia University

Downloads

• Download the Original Letter

Suzy Khimm reports on a proposal from the Bipartisan Policy Center that would establish a framework for reaching a grand bargain on deficit reduction in 2013. In short, the BPC proposes that Congress and the president in the lame duck session would agree to a procedural framework for guiding enactment of major spending and tax reforms in 2013. In enacting the framework, Congress and the president would also avert going over the fiscal cliff. In exchange, Congress and the president would make a small down payment on deficit reduction in the lame duck, and would authorize a legislative “backstop” of entitlement cuts and elimination of tax expenditures that would become law if Congress and the president failed in 2013 to enact tax and spending reforms.

The procedural elements of the BPC’s proposal bear some attention. The BPC’s not-quite-yet-a-catchphrase is “accelerated regular order.” Although it sounds like a nasty procedural disease, it’s akin to the fast-track procedures established in the Congressional Budget Act and in several other statutes. In short, the framework proposed by the BPC would instruct the relevant standing committees in 2013 to suggest to the chamber budget committees entitlement and tax reforms that would sum to $4 trillion dollars in spending cuts and new revenues (assuming extension of the Bush tax cuts). The House and Senate budget panels would each report a grand bargain bill for their chamber’s consideration that would be considered (without amendment) by simple majority vote after twenty hours of debate. Failure to meet the framework’s legislated deadlines would empower the executive branch to impose entitlement savings and to eliminate tax expenditures to meet the framework’s target.

Loyal Monkey Cage readers will recognize that the BPC proposal resembles in many ways the procedural solution adopted in the Deficit Control Act in August of 2011. But there are at least two procedural differences from the 2011 deficit deal. First, rather than a super committee, the BPC envisions “regular order,” meaning that the standing committees—not a special panel hand-selected by party-leaders—would devise the legislative package. Like the August deficit deal, the BPC proposal then offers procedural protection for the package by banning the Senate filibuster and preventing changes on the chamber floors (hence, an accelerated regular order). Second, rather than a meat-axe of sequestration that imposes only spending cuts, the BPC offers a “backstop,” giving what I take to be statutory authority to the executive branch to determine which tax expenditures to eliminate and which entitlement programs to cut back.

These differences from 2011 are subtle, but the BPC believes that they would improve the odds of success compared to the failed Super-committee plus sequestration plan. As a BPC staffer noted:

"One of the reasons the Joint Select Committee on Deficit Reduction failed, in our view, was because only 12 lawmakers were setting policy for the entire Congress,” said Steve Bell, Senior Director of BPC’s Economic Policy Project. “The framework we propose today would both ensure an acceleration of regular budget order in the House and Senate, and it would involve all committees of relevant jurisdiction.”

This is an interesting argument worth considering. Still, I’m not so sure that accelerated regular order would improve the prospects for an agreement.

First, it strikes me that the real barrier to a grand bargain hasn’t been the Senate’s filibuster rule. The super committee was guaranteed a fast-track to passage, but that still didn’t motivate the parties to reach an agreement. The more relevant obstacle in 2011 and 2012 has been the bicameral chasm between a Republican House and a Democratic Senate. To be sure, eliminating the need for a sixty-vote cloture margin would smooth the way towards Senate passage. But we could easily imagine that the 60th senator (in 2013, perhaps a GOP senator like Lisa Murkowski) might be willing to sign onto a deal that would still be too moderate to secure the votes of House Republicans (assuming no change in party control of the two chambers). As we saw over the course of the 112th Congress, House passage required more than the consent of the House median (an ideologically moderate Republican) and more than the support of a majority of the GOP conference. The big deals in the 112th Congress only passed if they could attract the votes of roughly 90% of the House GOP conference. Expedited procedures can protect hard-fought compromises from being unraveled on the chamber floors but by themselves don’t seem sufficient to generate compromise in the first place.

Second, and related, I’m somewhat skeptical that the small size of the super committee precluded a viable agreement. By balancing parties and chambers, the group was (in theory) a microcosm of the full Congress. If true, then delegating to the super committee was more akin to delegating to a mini-Congress. Perhaps the BPC’s idea of allowing the standing committees to generate proposals would broaden legislators’ willingness to buy-in to a final agreement. More likely, I suspect that the framework would produce a House bill perched on the right and a Senate bill left of center (since the filibuster ban would reduce Democrats’ incentives to produce a bipartisan bill). That leaves the bicameral chasm still to be bridged, suggesting that accelerated regular order might not bring Congress all that much closer to a bipartisan agreement in 2013. Consent of party leaders remains critical for an agreement.

Third, the BPC proposal is unclear on the precise nature of the legislative backstop. But would either party agree in advance to the framework if they didn’t know whose ox would be gored by the administration when it exercised its power to reform entitlements and eliminate tax expenditures? Perhaps delegating such authority to the executive branch would allow legislators to avoid voters’ blame, making them more likely to vote for the framework. (That said, it’s somewhat ironic that the BPC’s embrace of accelerated regular order flows from its desire to broaden the set of legislators whose fingerprints are visible on the grand bargain.) Regardless, the prospects for cuts in entitlement programs could lead both parties to favor kicking the can down the road again before it actually explodes.

Fast-track procedures have a decent track record in facilitating congressional action. (Steve Smith and I have extolled their virtues elsewhere.) But the most successful of these episodes involve narrow policy areas (such as closing obsolete military bases) on which substantial bipartisan agreement on a preferred policy outcome is already in place. Expecting a procedural device to do the hard work of securing bipartisan agreement may be asking too much of Congress’s procedural tool kit in a period of divided and split party control.

"We are now locked in a rolling filibuster on every issue, which is totally gridlocking the U.S. Senate. That is wrong. It is wrong for America."

Who said that? Democrat Harry Reid, majority leader of the Senate? Guess again. Try former Republican leader Trent Lott, bemoaning the troubled state of the Senate in the late 1990s.

No recent majority leader of either party has been saved the headache of trying to lead a Senate in which minorities can exploit the rules and stymie the chamber. This is not a new problem. Harry Reid may face a particularly unrestrained minority. But generations of Senate leaders from Henry Clay to Bill Frist have felt compelled to seek changes in Senate rules to make the chamber a more governable place.

Some things never change.

Twice this week, the Senate has opened debate with its party leaders engaged in a caustic battle over Reid's plans to seek changes to Senate rules in January.

Read the full piece at CNN.com »

As the clock runs out on the dysfunctional 112th Congress, few have been impressed by its paltry record and balky performance. But pardon my glee: December has been a great month for students of Congress. First, the House leadership was handed a blistering defeat on its “Plan B” to resolve the fiscal cliff. Next, while their leaders were meeting to negotiate an 11th hour of the 12th month fiscal cliff deal, eight senators unveiled a bipartisan proposal to head off a Democratic threat to change the rules by majority vote. When it rains, it pours!

The reform package—addressing “talking filibusters” and filibusters on procedural motions – deserves a bit more attention. And it deserves an appropriate historical illustration: To the right, a 1928 Chicago Tribune cartoon that features not the talking filibuster…but a sleeping one. Seems that talking filibusters might have been few and far between even back then.

Ezra Klein and Jon Bernstein have detailed the proposed changes and weighed in here and here, as has Steve Smith by tweet here and here. Since then, a coalition of nearly fifty liberal groups has rejected the proposal out of hand as watered down reform. To these several perspectives on the McCain-Levin plan, I would add the following thoughts:

First, these are at best incremental reforms. The majority leader would essentially gain the right to set the Senate’s agenda by majority vote, as a four-hour debate limit would be imposed on the motion to proceed. But the majority leader would pay a price for that new power: He would lose his power to block amendments (by “filling the tree”) and the minority bill manager and leader would be newly guaranteed an amendment each upon consideration of a legislative measure. (The majority leader, it seems, might still be able to fill the tree after the guaranteed amendments are dispensed with.) This change leaves untouched the sixty-vote threshold for invoking cloture on the measure or other amendments, similar to the plans of Democratic reformers. In short, the change tries to address the grievances of both the majority (by circumventing filibusters of the motion to proceed) and the minority (by creating and guaranteeing amendment opportunities).

Second, the incremental nature of the reforms is not accidental. Ezra has a point when he argues that this is “filibuster reform for people who don’t want to reform the filibuster.” Still, the incremental nature of the proposal strikes me as the price of negotiating procedural change in a legislative body whose rules already advantage the minority party: The majority gets a little only by giving a little. The barrier to reform is entrenched in the Senate’s cloture rule, given the supermajority required for ending filibusters of proposals that curtail minority rights. A Senate majority could circumvent that barrier by going nuclear with 51 votes, but that strategy is not cost-free. To be sure, reformers claim to have 51 votes for a reform-by-ruling move. But it’s not clear to me yet that the majority would be willing to pay the accompanying costs of weathering the minority’s response to going nuclear.

Third, the rules address leaders’ interests more so than those of the rank and file. Some of the proposed changes are aimed at time management. For example, with the consent of the majority and minority leaders and a bipartisan handful of senators , the cloture process is sped up markedly. Similarly, the three debatable steps required to get to conference are condensed to a single motion (albeit one still subject to sixty votes if the minority objects). Other proposed changes alleviate the minority leader from objecting on his colleagues’ behalf, undermining individual senators’ ability to threaten to filibuster without actually showing up. Then again, there’s no enforcement mechanism in the proposal: Senators would be counting on the minority leader to play by the new rules and to abandon his practice of lodging objections on behalf of his absent colleagues. It’s fair to be skeptical that such informal reforms would ever stick.

Fourth, I think there’s promise in the proposal’s directive to the presiding officer to put questions to a (majority) vote when opponents no longer seek to debate a bill. I share skeptics’ views that majorities might rarely want to hold the minority’s feet to the fire to wear down the opposition and that minorities might at times relish the spotlight while holding the floor. But the proposal strikes me as a potentially valuable chance to see if the change would make a difference. If approved, the McCain-Levin proposal would be adopted as a standing order of the Senate for just the upcoming Congress, providing a testing ground for this version of the talking filibuster. (Standing orders are typically approved opening day by unanimous consent; would there be such consent for McCain-Levin or another negotiated proposal?)

Finally, it may be that incremental procedural change is all that a polarized Senate can agree on—especially if some Democrats are skittish about changing the rules by majority vote. Granted, majority senators won’t agree to the plan if it’s perceived as empowering the minority, not the majority, as Senator Harkin has suggested. Nor should they. In that case, an incremental package may be more than a polarized Senate can agree on—leaving the nuclear option as the only avenue for Democrats seeking to rein in the excesses of the Senate minority’s parliamentary rights.

Today could have been the day when Senate Democrats went nuclear – reining in minority party abuse of the filibuster with a simple majority vote.  That would have been my Super Bowl.  Instead, the Senate is poised to adopt a bipartisan set of modest (many say, meager) changes to the Senate’s cloture rule.   More like the Famous Idaho Potato Bowl, I say.

As many have noted (for starters, Ezra Klein here and Jonathan Bernstein here), the proposed changes to the Senate’s Rule 22 fall far short of what reformers had hoped for.  Much blame has been heaped on Harry Reid, the Democratic leader, and on a few senior Democrats, highlighting their resistance to abandoning the Senate’s sixty-vote threshold for bringing the chamber to a vote.  The reforms are modest, largely finding ways of speeding up the Senate once both parties have agreed on the matter at hand (for instance on the way to advancing a measure to the floor or after cutting off debate on a nomination).  Even if the changes may seem to many like small potatoes, I think there’s more to be gleaned from the Senate’s brush with reform.

First, take a little, give a little.  Today’s rule changes remind us that there is no free lunch when it comes to Senate reform.  That hurdle is built into Rule 22, given its requirement that 67 senators consent to a vote on efforts to reform Rule 22.  In the absence of majority willing to bear the costs of asserting the majority’s right to change its rules, Senate reform is necessarily bipartisan and incremental.  Reforms must secure the consent of the minority, or be packaged with changes judged equally important to the opposition.  (Recall that even when reformers reduced cloture to 60 votes in 1975, they paid a price: 67 votes would still be required to end debate on changing Rule 22.)  Today’s reforms allow a majority to circumvent filibusters of motions to proceed to legislative measures.  In return, the majority pays a price each time: The minority is guaranteed votes on two amendments, whereas previously recent leaders might have precluded all amendments by immediately “filling the tree.”  To be sure, this potentially dilutes the value of the rule change for the majority.   But concessions are dictated by the Senate’s inherited rules.  (And, of course, nothing is that simple when it comes to Senate rules; the majority may yet fill the tree, at least after the disposition of the minority’s amendments.)

Second, I suspect we might be underestimating the importance of a non-debatable motion to proceed for the majority party in a period of partisan polarization.  Judging from the increase in filibusters on the motions to proceed in recent years, minority parties have fought hard to keep bills off the floor that they oppose on policy or political grounds.   So long as the motion to proceed could be filibustered, majority and minority parties shared agenda-setting powers.  Today’s change grants the majority a slightly stronger hand in choosing the chamber agenda.  To be sure, the minority can still filibuster the bill and amendments beyond those newly guaranteed, but the reform undermines the minority’s ability to throw the majority off course.  Take immigration policy, for example.  Filibusters of the motion to proceed have kept the DREAM Act off the Senate floor in recent years.  Minority influence over the Senate’s agenda is diminished with today’s reform.

Third, these are leader-driven reforms, shaped by the unique burdens carried by the majority and (sometimes) minority leaders.  For example, the reforms speed up post-cloture debate on some judicial and executive branch nominations, and allow the chamber to hurry onto cloture votes on motions to proceed to legislative business when the minority offers a modicum of support.  No surprise that these housekeeping changes elicit little enthusiasm.   These changes don’t make it any easier for a majority to break sizable minority opposition.  And they potentially make it harder for rank and file senators to exploit the rules in pursuit of their own policy goals.  But from leaders’ perspectives, the reforms rein in the excesses of rank and file dissent when a bipartisan group is ready to move ahead.  As one Senate Democrat aide confided, “that’s all Reid ever really wanted.”

Finally, this episode highlights the limitation of the Constitutional option and other “reform-by-ruling” strategies.  There appears to have been a majority or near-majority support for securing only very limited reform of Rule 22.  Senators seem unwilling to use the tactic for a major overhaul of the Senate’s cloture rule—in part because of the fear of minority retaliation, in part because the filibuster rule likely serves as the foundation of senators’ power.   To be sure, Harry Reid aggressively used reform-by-ruling in the fall of 2011 to secure smaller changes to Rule 22 (as did Robert Byrd in the 1980s).  But we have to reach back nearly forty years to the 1975 reforms to find a Senate majority willing to go nuclear to impose major changes to Rule 22.  (Even then, reformers proceeded without the support of the majority leader, Mike Mansfield.)  Perhaps senators see the consequences of weakening Rule 22 in a different light when the parties polarize over policy problems and solutions, with senators nervous about curtailing extended debate when the tables turn on their majority.  Regardless, so long as majorities will only form to impose  minor reform by majority vote, those majorities will be forced to live under supermajority rules that daily frustrate their policy and political agendas.

And in the Senate’s world, those frustrating days can last for weeks!

I’m late to the conversation about whether or not Republican efforts to insist on sixty votes for cloture on Chuck Hagel’s nomination as Secretary of Defense constitutes a filibuster. Bernstein’s earlier piece ("This is what a filibuster looks like") and Fallows’ recent contribution provide good, nuanced accounts of why Republican tactics amount to a filibuster, even if some GOP senators insist otherwise. In short, the duck test applies: If it looks like a duck, swims like a duck and quacks like a duck, then …. it’s a filibuster!

Still, I think there’s more to be said about the politics and implications of the Hagel nomination. A few brief thoughts:

First, let’s put to rest the debate about whether insisting on sixty votes to cut off debate on a nomination is a filibuster or, at a minimum, a threatened filibuster. It is. Even if both parties have moved over the past decade(s) to more regularly insist on sixty votes to secure passage of major (and often minor) legislative measures and confirmation of Courts of Appeals nominees, we shouldn’t be fooled by the institutionalization—and the apparent normalization—of the 60-vote Senate. Refusing to consent to a majority’s effort to take a vote means (by definition) that a minority of the Senate has flexed its parliamentary muscles to block Senate action. I think it’s fair to characterize such behavior as evidence of at least a threatened filibuster—even if senators insist that they are holding up a nomination only until their informational demands are met.

Second, there’s been a bit of confusion in the reporting about whether filibusters of Cabinet appointees are unprecedented. There appears to have been no successful filibusters of Cabinet appointees, even if there have been at least two unsuccessful filibusters against such nominees. (On two occasions, Cabinet appointees faced cloture votes when minority party senators placed holds on their nominations—William Verity in 1987 and Kempthorne in 2006. An EPA appointee has also faced cloture, but EPA is not technically cabinet-level, even if it is now Cabinet-status). Of course, there have been other Cabinet nominees who have withdrawn; presumably they withdrew, though, because they lacked even majority support for confirmation. Hagel’s situation will be unprecedented only if the filibuster succeeds in keeping him from securing a confirmation vote.

Third, using cloture votes as an indicator of a filibuster underestimates the Senate’s seeping super-majoritarianism. (Seeping super-majoritarianism?! Egads.) At least two other recent Cabinet nominations have been subjected to 60-vote requirements: Kathleen Sebelius in 2009 (HHS) and John Bryson (Commerce) in 2011. Both nominees faced threatened filibusters by Republican senators, preventing majority leader Reid from securing the chamber’s consent to schedule a confirmation vote—until Reid agreed to require sixty votes for confirmation. The Bryson unanimous consent agreement (UCA) appears on the right, an agreement that circumvented the need for cloture. Embedding a 60-vote requirement in a UCA counts as evidence of an attempted filibuster, albeit an unsuccessful one. After all, other Obama nominees (such as Tim Geithner) were confirmed after Reid negotiated UCAs that required only 51 votes for confirmation, an agreement secured because no Republicans were threatening to filibuster.

Finally, what are the implications for the Hagel nomination? If Republicans were insisting on sixty votes on Senator Cornyn’s grounds that “There is a 60-vote threshold for every nomination,” then I bet Reid would have been able to negotiate a UCA similar to Sebelius’s and Bryson’s. But Hagel’s opponents see the time delay imposed by cloture as instrumental to their efforts to sow colleagues’ doubts about whether Hagel can be confirmed (or at a minimum to turn this afternoon’s cloture vote into a party stand to make their point about Benghazi). Of course, it’s possible that the time delay will work to Democrats’ benefit if they can make headlines that GOP obstruction puts national security at risk. (Maybe Leon Panetta should have jetted to his walnut farm to make the point before the cloture vote.) Whatever the outcome, the Hagel case reminds us that little of the Senate’s business is protected from the intense ideological and partisan polarization that permeates the chamber and is amplified by the chamber’s lax rules of debate and senators’ lack of restraint. Filibustering of controversial Cabinet nominees seems to be on the road to normalization—even if Hagel is ultimately confirmed.

It seems the Senate could have a really hot summer. Majority leader Harry Reid (D-NV) has reportedly threatened to “go nuclear” this July—meaning that Senate Democrats would move by majority vote to ban filibusters of executive and judicial branch nominees. According to these reports, if Senate Republicans block three key nominations (Richard Cordray to head the Consumer Financial Protection Bureau, Thomas Perez at Labor, and Gina McCarthy at EPA), Reid will call on the Democrats to invoke the nuclear option as a means of eliminating filibusters over nominees.

Jon Bernstein offered a thoughtful reaction to Reid’s gambit, noting that Reid’s challenge is to “find a way to ratchet up the threat of reform in order to push Republicans as far away from that line as possible.” Jon’s emphasis on Reid’s threat is important (and is worth reading in full).  Still, I think it’s helpful to dig a little deeper on the role of both majority and minority party threats that arise over the nuclear option.

Before getting to Reid’s threat, two brief detours. First, a parliamentary detour to make plain two reasons why Reid’s procedural gambit is deemed “nuclear.” First, Democrats envision using a set of parliamentary moves that would allow the Senate to cut off debate on nominations by majority vote (rather than by sixty votes). Republicans (at least when they are in the minority) call this “changing the rules by breaking the rules,” because Senate rules formally require a 2/3rds vote to break a filibuster of a measure to change Senate rules. The nuclear option would avoid the formal process of securing a 2/3rds vote to cut off debate; instead, the Senate would set a new precedent by simple majority vote to exempt nominations from the reach of Rule 22. If Democrats circumvent formal rules, Republicans would deem the move nuclear. Second, Reid’s potential gambit would be considered nuclear because of the anticipated GOP reaction: As Sen. Schumer argued in 2005 when the GOP tried to go nuclear over judges, minority party senators would “blow up every bridge in sight.” The nuclear option is so-called on account of the minority’s anticipated parliamentary reaction (which would ramp up obstruction on everything else).

A second detour notes simply that the exact procedural steps that would have to be taken to set a new precedent to exempt nominations from Rule 22 have not yet been precisely spelled out.  Over the years, several scenarios have been floated that give us a general outline of how the Senate could reform its cloture rule by majority vote. But a CRS report written in the heat of the failed GOP effort to go nuclear in 2005 points to the complications and uncertainties entailed in using a reform-by-ruling strategy to empower simple majorities to cut off debate on nominations. My sense is that using a nuclear option to restrict the reach of Rule 22 might not be as straight forward as many assume.

That gets us to the place of threats in reform-by-ruling strategies. The coverage of Reid’s intentions last week emphasized the importance of Reid’s threat to Republicans: Dare to cross the line by filibustering three particular executive branch nominees, and Democrats will go nuclear. But for Reid’s threat to be effective in convincing GOP senators to back down on these nominees, Republicans have to deem Reid’s threat credible. Republicans know that Reid refused by go nuclear last winter (and previously in January 2009), not least because a set of longer-serving Democrats opposed the strategy earlier this year. It would be reasonable for the GOP today to question whether Reid has 51 Democrats willing to ban judicial and executive branch nomination filibusters. If Republicans doubt Reid’s ability to detonate a nuclear device, then the threat won’t be much help in getting the GOP to back down. Of course, if Republicans don’t block all three nominees, observers will likely interpret the GOP’s behavior as a rational response to Reid’s threat. Eric Schickler and Greg Wawro in Filibuster suggest that the absence of reform on such occasions demonstrates that the nuclear option can “tame the minority.”  Reid’s threat would have done the trick.

As a potentially nuclear Senate summer approaches, I would keep handy an alternative interpretation.  Reid isn’t the only actor with a threat: given Republicans’ aggressive use of Rule 22, Republicans can credibly threaten to retaliate procedurally if the Democrats go nuclear.  And that might be a far more credible threat than Reid’s. We know from the report on Reid’s nuclear thinking that “senior Democratic Senators have privately expressed worry to the Majority Leader that revisiting the rules could imperil the immigration push, and have asked him to delay it until after immigration reform is done (or is killed).” That tidbit suggests that Democrats consider the GOP threat to retaliate as a near certainty. In other words, if Republicans decide not to block all three nominees and Democrats don’t go nuclear, we might reasonably conclude that the minority’s threat to retaliate was pivotal to the outcome. As Steve Smith, Tony Madonna and I argued some time ago, the nuclear option might be technically feasible but not necessarily politically feasible.

To be sure, it’s hard to arbitrate between these two competing mechanisms that might underlie Senate politics this summer.  In either scenario—the majority tames the minority or the minority scares the bejeezus out of the majority—the same outcome ensues: Nothing. Still, I think it’s important to keep these alternative interpretations at hand as Democrats call up these and other nominations this spring. The Senate is a tough nut to crack, not least when challenges to supermajority rule are in play.

UPDATE 4: Sarah Binder explores the questions, "Why did the Senate go nuclear now, and what will be the consequences for future majorities eager to further curtail the filibuster?"

UPDATE 2: Sarah Binder writes that "this is big" in another new post on Monkey Cage blog, "Boom! What the Senate will be like when the nuclear dust settles." 

UPDATE: Sarah Binder has a new post on Monkey Cage blog, in which she explains why GOP targeting of the D.C. circuit may not be as unprecedented as some think and why it would be difficult to parse out "acceptable" filibusters from those that aren't. "We'll learn soon enough," Binder writes, "if Democrats have the guts to go [nuclear] and, if so, whether that compels any Republicans to stand down."

Over the past few weeks, Senate Republicans have filibustered President Obama's three nominees to the Court of Appeals for the D.C. Circuit, claiming alternatively that Obama was trying to pack the court and characterizing the court's caseload as lighter than other circuits. News reports now say that Senate Majority Leader Harry Reid is considering changing the filibuster rule for some executive and judicial nominees, the so-called "nuclear option.

In 2010, Brookings Senior Fellow Sarah Binder, an expert on Congress and congressional history, testified to the Senate that "the filibuster was created by mistake."

We have many received wisdoms about the filibuster. However, most of them are not true. The most persistent myth is that the filibuster was part of the founding fathers’ constitutional vision for the Senate: It is said that the upper chamber was designed to be a slow-moving, deliberative body that cherished minority rights. In this version of history, the filibuster was a critical part of the framers’ Senate.

However, when we dig into the history of Congress, it seems that the filibuster was created by mistake. Let me explain.

The House and Senate rulebooks in 1789 were nearly identical. Both rulebooks included what is known as the “previous question” motion. The House kept their motion, and today it empowers a simple majority to cut off debate. The Senate no longer has that rule on its books.

What happened to the Senate’s rule? In 1805, Vice President Aaron Burr was presiding over the Senate (freshly indicted for the murder of Alexander Hamilton), and he offered this advice. He said something like this. You are a great deliberative body. But a truly great Senate would have a cleaner rule book. Yours is a mess. You have lots of rules that do the same thing. And he singles out the previous question motion. Now, today, we know that a simple majority in the House can use the rule to cut off debate. But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, get rid of the previous question motion, the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book.

Why? Not because senators in 1806 sought to protect minority rights and extended debate. They got rid of the rule by mistake: Because Aaron Burr told them to.

Once the rule was gone, senators still did not filibuster. Deletion of the rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate. It took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837.

Binder makes additional insightful points about the origin and historical uses of the Senate filibuster in that testimony to the Senate Rules and Administration Committee.

She also calls attention to another of Obama's recent judicial nominees: Ronnie White for the U.S. District Court for the Eastern District of Missouri, which is yet another window, she says, on the "evolving wars of advice and consent."

Binder also has data on whether Senate Minority Leader Mitch McConnell and the Senate GOP have "played fair" on President Obama's nominees.

For additional analysis about the filibuster, see Binder's "What Senate cloture votes tell us about obstruction," in which she wrote:

Ultimately, the rise of the 60-vote Senate in a period of polarized parties signals that the minority party has mastered the art of blocking the majority. Sometimes, the minority leader drives the opposition in his conference; other times, he follows it. Regardless, what’s true of the tango is also true of the Senate: It takes two parties to make it look good. The minority party no doubt often feels that the majority leader is too quick to call for a vote, and its members might reasonably oppose cloture on that ground. However, my sense is that far more often, majority leaders resort to cloture when they find themselves unable to cajole the minority party to cooperate. As the Senate GOP conference fractures between pragmatists and ideologues, securing GOP consent will likely become even harder. Counting cloture votes remains an imperfect — but still valid — method of capturing minority efforts to block the Senate.

Get all of Sarah Binder's research and commentary about the Senate filibuster on her bio page.

Sen. Harry Reid has gone ahead with the so-called "nuclear option" to attempt to change Senate filibuster rules on some executive branch nominations, passing the rule change with a 52-48 vote. In their Vital Statistics on Congress report, Brookings Senior Fellow Thomas Mann and AEI Resident Scholar Norman Ornstein provide data on the number of attempted Senate cloture votes taken from 1979 to 2012, the 96th to 112th Congresses. The chart below demonstrates the average attempted cloture vote taken by party when that party was in the minority.

For more data on both attempted and successful cloture votes sine 1919, look up table 6-7 in Vital Stats (PDF).

Senior Fellow Sarah Binder, a leading expert on Congress and congressional history who called, in 2010, the Senate filibuster a "mistake," offered a recent analysis of Senate cloture votes, writing that "Counting cloture votes remains an imperfect — but still valid — method of capturing minority efforts to block the Senate."

More recently, Binder wondered whether "Democrats have the guts to go there and, if so, whether that compels any Republicans to stand down."

In this podcast, congressional expert Sarah Binder explains why the Senate filibuster is a historical mistake. She talks about her research on Congress’s relationship with the Federal Reserve and addresses whether Congress is more polarized today than it has been in the past. Binder, a senior fellow in Governance Studies, is also a professor of political science at George Washington University and contributor to the Monkey Cage blog.

SUBSCRIBE TO THE PODCAST ON ITUNES »

Show notes:

• The Federal Reserve: Balancing Multiple Mandates (testimony by Alice Rivlin)
• Boom! What the Senate Will Be Like When the Nuclear Dust Settles
• Beyond the Horse Race to Lead the Fed
• Droning on: Thoughts on the Rand Paul “Talking Filibuster”
• Advice and Dissent: The Struggle to Shape the Federal Judiciary
• The History of the Filibuster

* In the image, Senator Henry Clay speaks about the Compromise of 1850 in the Old Senate Chamber. Daniel Webster is seated to the left of Clay and John C. Calhoun to the left of the Speaker's chair. (engraving by Robert Whitechurch, ca. 1880, Library of Congress)

The July 4th congressional recess’s pause in 2014’s record pace of judicial confirmations is a good time to explore the reason for the upsurge.

The 54 confirmations at 2014’s half-way point compare to 43 in all of 2013. What’s behind the increase? Some have said that the Senate’s November 2013 rules change—to allow a simple majority to end filibusters on most nominees—“has resulted in [the] sharp increase.” There is a lot of appeal (and even a little truth) to the claim, but beware the “post hoc ergo propter hoc” fallacy that if “B” follows “A”, “A” necessarily caused “B”.

There have been 61 confirmations since November 21. The rules change clearly enabled three of them. Late October and mid-November filibusters of three D.C. circuit appellate nominees were the immediate cause of the change, which in turn allowed their post-November confirmations.

Saying how many of the other post-November confirmations would have failed without the rules change is an exercise in informed speculation. Here’s one way to look at it: how many of those confirmations had enough negative votes to have sustained a filibuster under the old rule?

Invoking cloture—i.e., cutting off debate—under the old rule required 60 votes. Filibuster proponents were often able to prevent that by peeling off, if not 41 Nay votes, at least votes in the 30s, assuming not all 100 senators were present to vote. For this analysis, let’s set the bar at 34—the fewest number of votes that prevented a 60 vote cloture-invocation against any Obama nominee (most filibuster-sustaining votes were in the high 30’s and low 40’s).

Forty five of the 51 post-November district confirmations quite probably would have happened without the rules change. They had fewer than 34 Nays. And it’s hardly automatic that the six with at least 34 Nays would have been filibustered under the old rule. Senators can and do oppose a nominee but oppose filibustering her as well. Prior to the rules change, 12 district judges were confirmed even though they had at least 34 Nays. Only one of those needed a cloture vote to move to confirmation—33 voted against cloture and 44 voted against confirmation. (Cloture votes, a rarity before the rules change, have been routine since then, and they generally get around 30-40 negative notes. But these appear to be protest votes against the rules change, inasmuch as 27 of the 51 district confirmation had no Nays and another 14 had 20 or fewer Nays.)

So it’s reasonable speculation, but still speculation, that the rules change had no direct effect on district confirmations.

Circuit confirmations are a different story. The three D.C. nominees clearly owe their confirmations to the rules change. Three of the seven other circuit confirmations since November had well over 34 Nays (40, 43, and 45, in fact). One nominee had represented challengers to California’s since-overturned same-sex marriage ban; another, also a Californian, was nominated to a long-vacant seat that Republican senators claimed belonged in Idaho. The third, with 45 Nays, had authored Justice Department memos providing legal justifications for drone strikes against U.S. citizens. Successful filibusters against all three, under the old rule, seem quite plausible. (The other four post-rules-change nominees were confirmed with either no, or in one case, three negative votes.)

Bottom line: The rules change likely enabled at most twelve of the 61 post-rules change confirmations, and it more likely enabled only six.

The frenetic pace of 2014 confirmations is due mainly to Senate Democrats’ desire to secure as many as they can before the November elections and the possibility of losing control of the confirmation process.

Editors’ Note: We need to do better with the long-term instruments of counterterrorism, write Raymond Odierno and Michael O’Hanlon. That includes efforts within our own societies to promote social cohesion. This article originally appeared on USA Today.

In the aftermath of the Brussels tragedy, many good ideas are being floated to improve defenses against terrorists who are poised to strike. Belgium needs more resources for police work, including staking out suspects. Europe needs terrorist watch lists that are better automated and integrated. Police forces and national intelligence agencies need to work together more effectively, readjusting the point at which traditional police work ends and counterterrorism raids begin. We need to use technology such as closed-circuit TV, as well as simpler but time-tested methods like bomb-smelling dogs, more effectively in unhardened public places like subway stops and the external lobbies of airports.

The above are immediate and short-term measures. They are crucial. They are also insufficient. We need to continue to go after Islamic State's finances, too, leading a worldwide effort to restrict its sources of revenue and ability to store and move funds around. Beyond these actions, we need to do better with the long-term instruments of counterterrorism. These include the use of social media and other counter-messaging against the so-called caliphate. But they also include efforts within our own societies and especially those in Europe to promote social cohesion. Within many countries the inability to develop programs encouraging assimilation of immigrants, and of the home-born disaffected, has led to substantial pockets of disenfranchised citizens, a large majority being Muslim.

At least on issues concerning Muslim-majority communities, the United States can help point the way. We are fortunate, largely to the credit of our nation's Muslims who join our society in full and pursue the American dream, to have relatively few problems with Islamist extremism. Of course, there are exceptions, but on the whole, Muslim-American communities are our single greatest domestic allies in the struggle against extremism at home. They help provide information on would-be terrorists in their midst; they do not typically shelter, aid or condone the thinking of such extremists. Most of all, acting as loyal citizens, they provide role models and hopeful visions to their young, reducing the odds that the 20-somethings who seem to wind up the main culprits in most attacks abroad will feel the same urge within the United States. Because our own terror watch lists have gotten better since 9/11, and because of the hard work of border and immigration agencies, we are also often able to limit the movements of suspected terrorists to the United States from abroad.

None of this is to sound complacent. More than 70 individuals were arrested on American soil last year on suspicion of interest in supporting Islamic State or otherwise conducting extremist activity, and we suffered the San Bernardino tragedy.

Beyond matters of culture and assimilation, specific programs here contribute as well. In Montgomery County, Maryland, a coalition of faith leaders, school officials and law enforcement officers collaborate to try to identify and help would-be radicals before they turn to dangerous ways. In Ohio, fire departments try to reach into difficult neighborhoods and recruit workers. They recognize that their role in society can be less polarizing to some disaffected than would, say, certain types of police outreach, but that by extending the presence of the government into places where it is not always welcome, they can tamp down the temptations of some to turn to violence.

Many places in Britain are doing the same thing. Britain is a sort of bridge to Europe on this issue, like on many others—not having the apparent problems of say Molenbeek, the enclave in Brussels from which recent attackers have originated, but also having more concentrations of recent immigrants from the Middle East than does the United States. Aware of this situation, British authorities also try to extend the state's connections with shaky neighborhoods in ways that seek to engender trust in the state and better community rapport. Sometimes this can rely on police, who in the United Kingdom are usually unarmed. However, at other times, less traditional instruments, or less potentially imposing symbols of state authority, can be better. Again, fire departments come to mind, as do work programs that foster a sense of community involvement and cohesion (while also providing a paycheck). Sometimes armies can help, depending on their roles and reputations in given societies. Any of these can improve the government's image in key neighborhoods, while also helping create the kinds of communications between community leaders and authorities that produce intelligence leads when things start to go off the tracks.

U.S. presidential candidates are not talking much about these kinds of issues. But efforts to build social cohesion are not at odds with what some of them are advocating in response to Brussels. Greater police presence in jurisdictions like Molenbeek, intelligence surges and reforms, and also stronger actions against Islamic State in the Middle East and beyond are needed, to be sure. But such measures are not, in themselves, adequate.

Building social cohesion is difficult, of course, and often the strides forward are slow to come and hard to measure. It usually must happen at the city level. It is usually manpower-intensive work. It is always painstaking. Sometimes, of course, it simply fails. But without a reinvigorated emphasis on building social cohesion, in which cities and other jurisdictions learn from each other and share best practices to tie their communities more strongly together, we will not succeed in this crucial challenge of our times.

Announcements of new federal regulations on the use of program-related investments (PRIs) and the launch of a groundbreaking fund in Chicago are the latest signals that impact investing, once a marginal philanthropic and policy tool, is moving into the mainstream. They are also illustrative of two important and complementary paths to institutional change: fast-moving, collaborative local leadership creating innovative new instruments to meet funding demands; federal regulators updating policy to pave the way for change at scale.

Impact investing, referring to “investment strategies that generate financial returns while intentionally improving social and environmental conditions,” provides an important tier of higher-risk capital to fund socially beneficial projects with revenue-generating potential: affordable housing, early childhood and workforce development programs, and social enterprises. It is estimated that there are over $60 billion of impact investments globally and interest is growing—an annual JP Morgan study of impact investors from 2015 reports that the number of impact investing deals increased 13 percent between 2013 and 2014 following a 20 percent increase in the previous year.

Traditionally, foundations have split their impact investments into two pots, one for mission-related investments, designed to generate market-rate returns and maintain and grow the value of the endowment, and the other for program-related investments. PRIs can include loans, guarantees, or equity investments that advance a charitable purpose without expectation of market returns. PRIs are an attractive use of a foundation’s endowment as they allow foundations to recycle their limited grant funds and they count towards a foundation’s charitable distribution requirement of 5 percent of assets. However they have been underutilized to date due to perceived hurdles around their use–in fact among the thousands of foundations in the United States, currently only a few hundred make PRIs.

But this is changing, spurred on by both entrepreneurial local action and federal leadership. On April 21, the White House announced that the U.S. Department of the Treasury and Internal Revenue Service had finalized regulations that are expected to make it easier for private foundations to put their assets to work in innovative ways. While there is still room for improvement, by clarifying rules and signaling mainstream acceptance of impact investing practices these changes should lower the barriers to entry for some institutional investors.

This federal leadership is welcome, but is not by itself enough to meet the growing demand for capital investment in the civic sector. Local innovation, spurred by new philanthropic collaborations, can be transformative. On April 25 in Chicago, the Chicago Community Trust, the Calvert Foundation, and the John D. and Catherine T. MacArthur Foundation launched Benefit Chicago, a $100 million impact investment fund that aims to catalyze a new market by making it easier for individuals and institutions to put their dollars to work locally and help meet the estimated $100-400 million capital needs of the civic sector over the next five years.

A Next Street report found that the potential supply of patient capital from foundations and investors in the Chicago region was more than enough to meet the demand – if there were ways to more easily connect the two. Benefit Chicago addresses this market gap by making it possible for individuals to invest directly through a brokerage or a donor-advised fund and for the many foundations without dedicated impact investing programs to put their endowments to work at scale. All of the transactional details of deal flow, underwriting, and evaluation of results are handled by the intermediary, which should lead to greater efficiency and a significant increase in the size of the impact investing market in Chicago.

In the last few years, a new form of impact investing has made measurement of social return to investments even more concrete. Social impact bonds (SIBs), also known as pay for success (PFS) financing, are a way for private investors (including foundations) to provide capital to support social services with the promise of a return on their investment from a government agency if some agreed-upon social outcomes are achieved. These PFS transactions range from funding to support high-quality early childhood education programs in Chicago to reduction in chronic individual homelessness in the state of Massachusetts. Both the IRS and the Chicago announcements are bound to contribute to the growth of the impact bond market which to date represents a small segment of the impact investing market.

These examples illustrate a rare and wonderful convergence of leadership at the federal and local levels around an idea that makes sense. Beyond simply broadening the number of ways that foundations can deploy funds, growing the pool of impact investments can have a powerful market-making effect. Impact investments unlock other tiers of capital, reducing risk for private investors and making possible new types of deals with longer time horizons and lower expected market return.

In the near future, these federal and local moves together might radically change the philanthropic landscape. If every major city had a fund like Benefit Chicago, and all local investors had a simple on-ramp to impact investing, the pool of capital to help local organizations meet local needs could grow exponentially. This in turn could considerably improve funding for programs—like access to quality social services and affordable housing—that show impact over the long term.

Impact investing can be a bright spot in an otherwise somber fiscal environment if localities keep innovating and higher levels of government evolve to support, incentivize, and smooth its growth. These announcements from Washington and Chicago are examples of the multilevel leadership and creative institutional change we need to ensure that we tap every source of philanthropic capital, to feel some abundance in an era where scarcity is the dominant narrative.

Editor's Note: Alaina Harkness is a fellow at Brookings while on leave from the John D. and Catherine T. MacArthur Foundation, which is a donor to the Brookings Institution. The findings, interpretations and conclusions posted in this piece are solely those of the authors and not determined by any donation.

Stephen was still a teenager on the north side of St. Louis when his dad, a police officer, was killed during a robbery in their neighborhood. Despite the trauma, Stephen later joined the police force to continue his dad’s legacy and commitment to safe and inclusive neighborhoods. But even before the fatal shooting of Michael Brown in Ferguson in 2014, Stephen (not his real name) yearned to right local wrongs through broader approaches. “The darkest forces weren’t necessarily the ones getting arrested,” he observed. “So I retired from the police force after 22 years, essentially to chase after a different type of perpetrator.” Wanting to focus on policies at multiple levels of government that “were causing the disparities that fueled increasing crime and violence in St. Louis,” Stephen pivoted to civil rights enforcement, tracking policy violations and innovations at a government agency in the St. Louis region.

I met Stephen in February while in St. Louis for a conference his agency organized on HUD’s recently strengthened Affirmatively Furthering Fair Housing (AFFH ) rule, which increases local accountability in promoting residential integration. He wasn’t a speaker at the event, but hearing his story reinforced the importance of combating the deeply entrenched and often invisible causes of segregation.

Recent events and new academic research, including landmark findings by Raj Chetty and colleagues testifying to the benefits of low-poverty neighborhoods for low-income kids, the updated AFFH rule, and the Supreme Court’s disparate impact decision upholding other tools to fight segregation have brought renewed attention to these challenges. Meanwhile, underlying these developments, poverty has failed to decline since the recession and, as recent Brookings research shows, has become more concentrated in neighborhoods of extreme poverty.

How can regional leaders and practitioners respond to these challenges? I was in St. Louis to discuss one part of the solution—advancing more mixed-income neighborhoods. In the Chicago region, our housing and community development-focused firm, BRicK Partners, is collaborating with the Chicago Metropolitan Agency for Planning (CMAP), the Illinois Housing Development Authority (IHDA), and 10 metropolitan Chicago public housing authorities, with support and leadership from HUD, to develop and operate the Regional Housing Initiative (RHI)

RHI is a small, systemic, and potentially scalable “work around” of a very specific set of programs and policies that contribute inadvertently to regional inequities. A flexible and regional pool of resources working across the many traditional public housing authority (PHA) and municipal jurisdictions in the Chicago region, RHI increases quality rental housing in neighborhoods with good jobs, schools, and transit access and provides more housing options to households on Housing Choice Voucher (HCV) waiting lists. Recognizing that the federal formulas allocating HCVs to each individual PHA are not responsive to population, employment, or poverty trends, RHI partners convert and pool a small portion of their HCVs to provide place-based operating subsidies in support of development activity that advances local and regional priorities. RHI supports both opportunity areas with strong markets and quality amenities as well as revitalization areas where public and private sector partners are planning and investing toward that end. In both cases, the bulk of RHI investments are in the suburbs, where the PHAs are smaller and the rental stock more limited. 

RHI has committed over 550 RHI subsidies to nearly 40 mixed-income and supportive housing developments across Chicagoland, supporting more than 2,200 total apartments, over half of which are in opportunity areas. The pooling and transferring of subsidies has allowed RHI to support proposals that local jurisdictions wouldn’t be able to undertake otherwise.

Although a number of innovative programs around the country provide assistance to households moving to opportunity areas, RHI is unique its focus on increasing the supply of housing in opportunity areas regionwide. Its approach is consistent with lessons learned from Brookings’ work on Confronting Suburban Poverty in America: With CMAP as a strong quarterback, RHI has addressed the shortage of rental housing in the suburbs by working across jurisdictions, developing shared priorities, metrics and selection criteria, and by working with IHDA and other stakeholders to leverage greater private sector investment.

This recipe for success is now being deployed in communities beyond Chicago. Baltimore is preparing to advertise for its first round of developer applicants under the leadership of the Baltimore Metropolitan Council, with regionwide PHAs, the State Housing Finance Agency, and a regional housing counselor lined up as supportive partners. In St. Louis, the regional planning and housing finance organizations both attended the February conference where I met Stephen, signaling the potential for greater collaboration for both these entities and the PHAs.

Like many housing advocates and professionals, my colleagues and I at BRicK Partners derive a lot of satisfaction from supporting communities like Baltimore and St. Louis and individuals like Stephen and his peers with replicable best practices. Given today’s political realities, we don’t expect major changes in the federal formulas and statutes behind some of the regional inequities, but “work arounds” such as RHI can still scale up. Nationwide, just a small percentage of HCVs have been converted for such flexible supply-side solutions, but there is reason to be hopeful that this will change. The Regional Mobility Demonstration proposed in the 2017 budget as well as federal public housing voucher legislation passed by the House of Representatives earlier this year are signs that there is real momentum to advance regional strategies that increase access to opportunity for low income residents and families. 

In March alone, at least nine cities across three continents were hit by terrorist attacks. Municipalities—from megacities to tertiary cities—continue to bear the brunt of such attacks: in the short term, they provide first response and take essential security measures; in the longer term, they suffer from the fallout of intercommunal tensions and economic slowdowns, which can last for years and spread beyond the target city.

Yet, post-attack discussions tend to be dominated by what national governments can do to prevent future attacks—whether through enhanced border security, law enforcement, intelligence, or military measures; or though intensified efforts to resolve underlying conflicts; or through more cooperation with foreign governments. This is understandable given the resources of national governments and their long-standing monopoly on force and foreign policy. Nevertheless, a small but growing number of cities and other local authorities are realizing that they have an essential role to play in countering violent extremism (CVE) as well.

Urban trend-setters

There is nothing new about cities coming to the realization that they need to act in the face of global challenges. Mayors and city-networks such as the C40 Climate Action Leadership Group have vocally engaged on the global stage to counter carbon emissions. Cities have frequently shown themselves to be generally more nimble and less averse to risk-taking than their national counterparts. Mayors operate under intense expectations to “get things done,” but when it comes to the threats of transnational violent extremism, what does that mean?

Much like with climate change and other global challenges where cities are becoming increasingly active stakeholders, cities are serving as laboratories for developing and testing innovative initiatives to prevent violent extremism from taking root, designed and implemented in collaboration with local communities. 

[C]ities are serving as laboratories for developing and testing innovative initiatives to prevent violent extremism from taking root.

The comparative advantages of local authorities are manifold: They are best positioned to understand the grievances that might make their citizens vulnerable to terrorist recruitment; to identify the drivers and early signs of violent extremism; to build trust between the community and local police; to develop multi-agency prevention efforts that involve families, community leaders, social workers, and mental health professionals; and to develop programs that offer alternatives to alienated youth who might otherwise be attracted to violence. 

Recognizing these advantages, local leaders are developing strategies and programs to address the violent extremist threat at each stage of the radicalization cycle. Cities across Europe have been at the forefront of these efforts, with Aarhus, Denmark often cited as a model. The approach of Aarhus involves both prevention and care, relying an extensive community-level network to help young people returning from Syria an opportunity to reintegrate in Danish society (provided they haven’t committed a crime) and mentoring to try to dissuade people from traveling to the conflict. 

In Montgomery County, Maryland, the county authorities are involved in a community intervention program that includes training for faith leaders, teachers, social service providers, police, and parents on how to recognize the early signs of extremism in underserviced immigrant communities. 

In Montreal, a $2 million, multi-disciplinary “anti-radicalization center” provides mothers who suspect their children may be vulnerable to radicalization or recruitment with resources that don’t involve contacting the police. The center focuses on training people how to identify the signs of radicalization and researching the drivers of radicalization in Montreal and what works to prevent its growth. 

Cities are dynamic actors, in part, because they have no problem borrowing from each other. Inspired by the Montreal initiative, Brussels opened a prevention-focused, anti-radicalization center, which—like the Montreal center—keeps the police out of the picture unless necessary to confront an imminent threat.

In Australia, both Victoria and New South Wales have set aside funds to support local NGO-led interventions that target individuals who may be radicalizing and build community resilience.

In Mombasa, Kenya, Governor Hassan Ali Joho is working with the regional parliament and local civil society groups to develop a county-level CVE strategy that includes a heavy focus on providing youth with positive alternatives to joining al-Shabab.

Except for Mombasa, nearly all municipality-led CVE efforts are taking place in the global north. Throughout the world, mayors and other local leaders are not part of national-level conversations about how to prevent future attacks. If national governments insist on viewing national security issues like violent extremism as being the exclusive policy domain of the capital, they will miss crucial opportunities to address a threat that is increasingly localized. 

Part of the challenge is that, much like on other global issues, municipal authorities operate within the policy and bureaucratic frameworks of national governments. Those governments can enable or, just as frequently, impede effective local action. Thus, there is often a ceiling for local actors. Raising or breaking through the ceiling is particularly difficult in the security space, given the monopoly that many national governments want to maintain over issues of national security—even while recognizing the need for local solutions.

Flattening the CVE policy space

The good news is that in countries where local authorities can innovate and lead, energy around city-led CVE efforts is increasing. Cities are sharing lessons learned and challenges, with city-to-city networks like with the Strong Cities Network (SCN)—which held its first summit earlier this month in Antalya, Turkey—sprouting to facilitate cooperation.

Yet, a significant majority of SCN members are in countries where national governments already acknowledge local authorities’ key role in CVE. With a few exceptions, cities from large swathes of the globe—including in regions where the problem of violent extremism is most acute, like the Middle East and North Africa, as well as Asia—are not enabled to contribute to efforts to prevent violent extremism from taking root in their communities. 

CVE discussions in general should highlight ways in which national policymakers have enabled effective local CVE activities, as well as roadblocks and solutions. These discussions should also be brought into multilateral platforms such as the U.N. Global Counterterrorism Forum. 

A number of other steps could be taken to enhance vertical cooperation on CVE. For example, countries could involve municipal-level representatives (not simply the national ministry responsible for engaging with such authorities) in developing national CVE plans and provide such authorities with a role in implementation. National governments that already do this could start including representatives of cities in security and broader foreign policy dialogues, particularly with those that continue to resist their involvement. 

National governments should incentivize local authorities to work with their communities to innovate in this issue area. A public-private innovation fund could be established to support city-led CVE projects in countries where political will exceeds resources; those international donors committed to supporting local solutions to global challenges and increasing the involvement of local authorities in national security conversations should invest in such a fund and, more broadly, in building the capacity of city-level officials and practitioners in the CVE sphere.

None of these steps is likely to be an elixir—after all, the notion that national security issues should be handled exclusively at the national level is deeply entrenched. However, taking these steps can generate gradual improvements in vertical cooperation on CVE issues, much like we have seen with international and inter-agency counterterrorism cooperation involving national governments over the past decade. 

Los Angeles has long been a city associated with the common ills of urban excess: sprawl, homelessness, and congestion. More charitable descriptions paint it as West Coast paradise, boasting sunshine and celebrities in equal measure.

A three-day visit to downtown Los Angeles exposed the nuances behind these stereotypes. Hosted by the Los Angeles Downtown Center Business Improvement District, which is focused on strengthening downtown as an innovation district, our visit began as a real estate tour but quickly revealed regeneration and innovation activity that confounded our expectations. 

Downtown LA (DTLA)’s innovation district focuses not just on tech firms but also on historic LA industry strengths like fashion, design, and real estate. LA may have sat in the shadow of the Silicon Valley tech boom, but it appears to be revitalizing in time for the convergence economy, in which tech is no longer a separate sector but ingrained in all forms of economic and creative activity.

And at a time where firms are revaluing proximity, vibrancy, and authenticity, DTLA could not be in a better place. While a number of U.S. cities subjected their downtowns to a range of urban renewal initiatives, the urban fabric of DTLA is largely intact. Vibrant areas like South Broadway feature boutique hotels, a dozen theatres, and clothing stores and bars that exist in historic infrastructure like reclaimed theatres. There is an urban feel that is authentically LA.

The initial renaissance of DTLA began in the late 1990s, after the residential units within its 65 blocks had dwindled to just 10,000.

Along with transportation improvements, permissive planning policies such as adaptive reuse—which allowed commercial buildings to be converted into residential use—were instrumental in increasing DTLA’s residential population. Since 1999, the residential population and housing units have tripled. With new bars and restaurants springing up on every corner, it is no surprise that three-quarters of DTLA’s current residents are aged between 23 and 44.

Building on this residential surge, an increasing number of businesses are now setting up or relocating downtown.

DTLA office space has not always been an easy sell. Employers balk at the prospect of subjecting their workforce to the punishing commute. And Bunker Hill and the adjacent Financial District, the epicenter of the central business district, offers little more than unpopulated plazas and cubicled office space.

DTLA has worked to serve its newfound residential population and attract more workers and companies by retrofitting buildings to modern aesthetic standards. The exposed brickwork and ceiling equipment of many DTLA offices like those of Nationbuilder, an online platform used for political and civic campaigns, is not just a statement of style but a conscious decision to make downtown office buildings feel hospitable to creative firms. The BLOC, a 1.9 million square foot retail development, is essentially a mall that has been turned inside out, with the roof removed to reveal an open air plaza, unrecognizable from the fortress-style building that once sat in the same spot.

While downtown’s office blocks are a fantastic asset in attracting innovation activity, the area also boasts a vast amount of warehouse space. These larger footprints, most often used for textile or food production, are attracting a range of activities that require space or, in the case of Tesla’s Hyperloop, secrecy. Such industrial firms are interspersed with new art galleries and a historic knitting mill, proof of the area’s artistic heritage.

The individuals leading the drive for a DTLA innovation district, such as Nick Griffin, director of Economic Development for the Downtown Center Business Improvement District, are realistic about challenges, such as the lack of quality public space, and proactive in leveraging existing assets, such as the large supply of creative office space.

These efforts and LA’s distinctive industry strengths are combatting one of the biggest challenges to attracting businesses downtown: the strength of competing areas like Silicon Beach, which includes Santa Monica and Playa del Rey and offers an established tech ecosystem alongside an attractive location.

Another challenge? Like many U.S. cities, LA bears the scars of suburban sprawl and a legacy of under investment in public transportation. Congestion is a constant complaint.

But here too LA is making progress.

In November, Angelinos will vote on an extension of Measure R—a 2008 ballot initiative raising the sales tax to fund core transportation projects—to provide sustainable funding for transportation infrastructure and improve access to the city center through the metro system.

Other ambitious projects, such as the Regional Connector, a light rail subway through the middle of downtown, will have a profound effect on the area's connectivity. This project is not just about getting people to and from downtown—it will also have a transformative effect on public space. The city is working with Project for Public Spaces to redesign one of the Connector’s hubs, Pershing Square, with the aim of providing a public space where employees and residents can convene and collaborate.

Connectivity will play a vital role in the continuing success of DTLA’s resurgence. But the DTLA innovation district’s main opportunity lies in better serving and connecting the people who make it work. With hometown authenticity and civic commitment, DTLA is on its way to creating a city center that is greater than the sum of its parts.

Photo Credit: Hunter Kerhart

Editor’s note: This week the Democrats gather in Philadelphia to nominate a candidate for president and adopt a party platform. Given that there are no minority reports to the Democratic platform, it is likely that it will be adopted as-is this week. And so we can begin the comparison of the two major party platforms. For those who say there are no differences between the Republican and Democratic parties, just read the platforms side-by-side. In many instances, the differences are—as Donald Trump would say, yuuuge. But in one surprising instance, the two parties actually agree. This piece walks readers through one of the biggest contrasts, while an earlier piece by Elaine Kamarck detailed a striking similarity.

When it comes to Republicans and the environment, black is the new green. In addition to denouncing “radical environmentalists” and calling for dismantling the EPA, the platform adopted in Cleveland yesterday calls coal “abundant, clean, affordable, reliable domestic energy resource” and unequivocally opposes “any” carbon tax.

Meanwhile, Democrats are moving in the opposite direction. By the time the party’s draft 2016 platform emerged from the final regional committee meeting in Orlando, it contained a robust section on environmental issues in general and climate change in particular. One of the many amendments adopted in Orlando contains the following sentence: “Democrats believe that carbon dioxide, methane, and other greenhouse gases should be priced to reflect their negative externalities, and to accelerate the transition to a clean energy economy and help meet our climate goals.” In plain English, there should be what amounts to a tax (whatever it may be called) on the atmospheric emissions principally responsible for climate change, including but not limited to CO2.

As Brookings’ Adele Morris pointed out in a recent paper, this proposal raises a host of design issues, including determining initial price levels, payers, recipients, and uses of revenues raised. It would have to be squared with existing federal tax, climate, and energy policies as well as with climate initiatives at the state level.

But these devilish details should not obstruct the broader view: To the best of my knowledge, this is the first time that the platform of a major American political party has advocated taxing greenhouse gas emissions. Many economists, including some with a conservative orientation, will applaud this proposal. Many supporters and producers of fossils fuels will be dismayed.

It remains to be seen how the American people will respond. In a survey conducted in 2015 by Resources for the Future in partnership with Stanford University and the New York Times, 67 percent of the respondents endorsed requiring companies “to pay a tax to the government for every ton of greenhouse gases [they] put out,” with the proviso that all the revenue would be devoted to reducing the amount of income taxes that individuals pay. Previous surveys found similar sentiments: public support increases sharply when the greenhouse gas tax is explicitly revenue-neutral and declines sharply if it threatens an overall increase in individual taxes.

Once this plank of the Democratic platform becomes widely known, Republicans are likely to attack it as yet another example of Democrats’ propensity to raise taxes. The platform’s silence on the question of revenue-neutrality may add some credibility to this charge. Much will depend on the ability of the Democratic Party and its presidential nominee to clarify its proposal and to link it to goals the public endorses.

EXECUTIVE SUMMARY

Despite a long-standing policy debate, insurance remains the only major financial industry not to be regulated at the federal level, a tradition dating from the 19th century. However, recent financial turmoil has fundamentally changed the terms of this important discussion.

Many contend that as opposed to as many 51 separate regulators, a single federal insurance regulator would: allow insurers to pass substantial savings on to their consumers; preempt market distorting state regulation of rates; attract the expert talent needed to supervise the increasingly complex industry products; improve competition between insurers and non-insurance financial institutions for insurance-like products; better position insurers to compete globally and; make national policy with respect to insurer solvency.
 
However, state insurance regulators and some smaller insurers and insurance agents favor the current system, arguing that: they alone have the interest, expertise, and accessibility to consumers to handle best consumer complaints; insurance rates must be subject to oversight if not outright control to protect consumers; and state regulators have moved aggressively in recent years to improve their solvency regulation.

After weighing these arguments, I conclude in this essay that insurers and agents operating in multiple states should have the option to operate under a more streamlined regulatory system, and in particular to choose between being chartered and thus regulated by individual state regulators, or by a new federal insurance regulator. Congress has considered but not yet enacted legislation establishing this “optional federal charter” system, analogous (although not identical) to the regulatory system that has long governed the U.S. banking industry.

Further, the recent financial crisis and associated bailout of AIG make it is clear that, in addition to the optional federal charter, the government should require federal solvency and consumer protection regulation of the largest insurers that are deemed to be “systemically important financial institutions.” Clearly, if the federal government is potentially needed as a source of debt or equity funds for certain insurers, there is a strong case for having the federal authorities actively oversee the financial safety and soundness of at least those firms that may benefit from federal, and thus national taxpayer, assistance.

Downloads

• Download

EXECUTIVE SUMMARY

The ongoing financial crisis that began in 2007 has revealed a fundamental weakness in our financial regulatory system: the absence of a regulator charged with overseeing and preventing “systemic risk,” or the risks to the health of the entire financial system posed by the failure of one or more “systemically important financial institutions” (SIFIs).

On March 26, the Treasury Department released the first part of its plan to fix the financial system, which concentrates on reducing systemic risk. The Treasury’s suggestions, if enacted into law, would go a long a way toward achieving this objective. One of the central elements in the plan is to establish a systemic risk regulator. Treasury did not identify which agency or agencies should assume this job. I address this issue, among others, in this essay on systemic risk.

Ideally, all federal financial regulatory activities should be consolidated in two agencies, a financial solvency regulator and a federal consumer protection regulator, with systemic risk responsibilities being assigned to the solvency regulator. As a second-best option, clear systemic risk oversight authority should be assigned to the Fed. Either of these options is superior to creating a new agency or regulating systemic risk through a “college” of existing financial regulators.

The systemic risk regulator (SRR) should supervise all SIFIs, although the nature and details of this supervision should take account of the differences in types of such institutions (banks, large insurers, hedge funds, private equity funds, and financial conglomerates). The SRR should also regularly analyze and report to Congress on the systemic risks confronting the financial system.

There are legitimate concerns about vesting such large responsibilities with any financial regulator. But as long as there are financial institutions whose failure could lead to calamitous financial and economic consequences, and thus invite all-but-certain federal rescue efforts if the threat of failure is real, then some arm of the federal government must oversee systemic risk and do the best it can to make that oversight work.

While the United States should continue to cooperate with governments of other countries in reforming financial systems, notably through the G-20 process, policymakers here should not wait for international agreements to be in place before putting our own financial house in order.

Read the full paper » (pdf)

Downloads

• Download