[Edit 10/5/13. Note: When I wrote this, I had not yet read this piece in the Washington Post, which refers to this bill. This doesn’t change the basic math of the post and, indeed, makes its points arguably even more tangible.]

A few people (fewer than I would have expected) have mentioned the possibility of the discharge petition as way to circumvent the House leadership in pursuit of a “clean CR.”  I will briefly describe this procedure and why it wouldn’t work, even procedurally, for the current dilemma.  (For those interested in more details, see my 2007 article “The House Discharge Procedure and Majoritarian Politics,” the ungated version of which is here.)

Essentially every bill considered by the House of Representatives is first considered by one or more standing committees.  While committees are generally thought of as places where bills might be more closely considered and amendments proposed for eventual consideration by the floor, they also represent opportunities for “gatekeeping,” or negative agenda control, insofar as the committee(s) in question can delay or potentially block floor consideration (and, hence, passage) of the bills referred to them. The discharge petition is a tool that allows a majority of the House to remove (“discharge”) the committee from its responsibility for/ownership of a bill.

The basics of a discharge petition are as follows:[1]

1. A bill is referred to a committee.
2. The committee does not report the bill to the floor within 30 days.
3. A member starts a discharge petition to remove the committee from consideration of the bill.
4. The petition is signed by a majority of the House (218 members).
5. The petition is called up when it is privileged (2nd and 4th Mondays of the month)
6. The motion to discharge is approved by majority vote.
7. The bill is then considered under the standing rules (open rule)
8. The bill (possibly as amended) must then receive a majority vote to pass.

This is quite a hill to climb, for many reasons.  For the purpose of this post, I simply want to point out that, as far as I can tell, no “clean CR” has been referred to a committee in the House.[2]  Thus, a member would need to introduce such a CR and have it referred to a committee, and then wait 38 days at least (November 11, 2013). That assumes the member can get 218 signatures.[3]

More to the point, even if a clean CR has been sitting in some committee for 30 days or more, the earliest that such a CR could practically be brought up is October 12th 14th (the second Monday of October).  Given that the GOP has shown unity on procedural maneuvers (such as the previous question on a special rule) during this SHUTDOWN SHOWDOWN, I have a hard time imagining that even this would work.  After all, in 1993, the discharge petition was successfully used…to make signatures on discharge petitions public.[4]  Thus, every GOP member who signed it would be “out in the open” for potentially several days or weeks.

So, in a nutshell, the discharge petition is a potential route to circumventing the leadership, but it definitely ain’t an easy one.  But, you know, should we really be surprised?

With that, I leave you with this.

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[1] I dispense here with some variations on the route to discharge, including special rules and multiple referrals.  There are some interesting differences for special rules, but discharge of a special rule for consideration of a bill can take no less (and, generally, more) time than a “straight discharge.” The virtue of discharging a special rule is that this route to discharge allows one to discharge a committee and then consider the bill under a “closed rule,” protecting it from amendment.  This is arguably irrelevant in this case, since the Senate has already passed a clean CR, and this would arguably be the object of the discharge.

[2] The closest thing I could find currently in committee in the House is H.J.Res. 62, which is a CR that permanently defunds the Affordable Care Act.  Using this measure to achieve a clean CR would require the use of the special rule route to discharge, mentioned in note [1].  The time problem remains even if this route were used.

[3] …And that the Speaker has not read my article about a subterfuge that would at least theoretically circumvent the whole thing. Really, it’s quite cool.  You know, if you’re into stuff like that. It also can probably be pulled at most one time, after which the rules would be changed.

[4] To see the four currently pending discharge petitions, click here and scroll to the bottom.

So, the shutdown continues.  Indeed, it seems to me that the collective conscience has accepted that the shutdown will continue until mid-October, when we can get a “two-for-one” CR-Debt Ceiling deal.  Kind of makes sense, in a sad way.

Anyway, the topic of today’s post is the uncomfortable position of Speaker John Boehner, who may very well want a clean CR. Or, more to the point, he might have truly wanted such an outcome before the shutdown.  There is at least a partial narrative to the effect that a clean CR would not pass.  The storyline is, as I alluded to in the previous post, is one of “ends against the middle,” in which liberal Dems want a “clean plus” CR that restores funding to the pre-sequestration levels[1] vote with tea-party GOP members who prefer people eating the goo out of each other’s heads to anything that might be seen as conferring legitimacy on collective governance.[2]

So, how to resolve this?

Well, I definitely don’t know for sure.  But I think the problem right now—to the degree that one thinks that the proper and properly lexicographic priority is to open the government—is entirely due to the Democrats’ stance on the CR.

Let’s be quick about this.  There is no discussion of what one might call a “CR minus,” which would (for example) fund the government at (say) 95% of the last FY’s levels.[3]

So, what Boehner needs here is a way out while saving face.  That’s basically what he is pleading for with respect to the debt ceiling. To me, Boehner is basically (and reasonably) saying “I’ll get the votes however I can, including from Dems…but I need to look like I got something out of this.”  It is important to note that, in politics, hypothetical wins and losses can count as much (if not more than) observed ones.

From a game-theoretic perspective, Boehner’s leadership struggle (as well as the reelection struggles of his more moderate copartisans) is based on the suspicion that he is not a sufficiently “true conservative.”  In signaling game terminology, Boehner needs some meaningful (“costly”) way to differentiate (“separate”) himself from Obama.

A side note: this argument can be related directly to the normal practice (at least in the US) of the winner of an election deferring his or her victory speech until the loser gives his or her concession speech, often preceded by a publicly announced “phone call” from the loser to the victor congratulating him or her on the victory and “a contest well fought.”

Here’s the deal: Obama (and arguably Pelosi) each have the opportunity to go VERY public and demand the moon.  Overplay the hand—demand not only a clean CR, but—-I dunno—a tax increase on the rich.  Let every Democrat who wishes to do so go public and disown this position as too extreme.  Then, have Obama/Pelosi sit down with Boehner and Cantor at the local Applebee’s, and come out with Pelosi and Obama mad as hell.  They need to say that Boehner won’t budge, won’t give into the strengths of their positions.  Maybe get Howard Dean to come up and give a “HEEEE-YAAHHH” for full effect.

Then Boehner takes the stage and says, look, this isn’t the thing we as good conservatives wanted here, but I think it’s time for us to come together and get to the real business of this nation.[4]  He turns and welcomes Reid, McConnell, and a few other Democrats and Republicans to the stage.  The Rules Committee brings the clean CR passed by the Senate to the floor with a closed rule, Boehner walks out smelling like roses with a solid 330-100 or so vote, and *POOF* the tea party is arguably neutered.

It has been said that the real value of the right to appeal in judicial systems is as a way for losers to “save face.” I really believe this.  Almost every collective decision has at least two components: the policy impact of the actual choice, and the reputational impacts on those who argued for and against the choice during the deliberations.  Incentivizing “fair dealing” sometimes requires the (policy) winners to “take a hit” on the reputational front.[5]

It would be sad and truly ironic if the Democrats take the “evidence” (at least strong folk belief) that the GOP overplayed its hand in 1995-96 so closely to heart that they end up overplaying their own hands in this one.

With that, I leave you with this.

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[1] Sorry to bring it up again, but remember sequestration?  Man, those were crazy times.  Like when we opened the fire exit for those dudes bringing burgers back from Hardees and almost didn’t get to walk in graduation!  Except, now it’s like, they got cold hot dogs from 7-11 and we ate them while watching Full House reruns.

[2] Too strong?  Oh, I don’t think so.

[3] The piecemeal approach being pursued by Boehner is an intriguing one, but I’ll leave that for later.  For now, I’ll simply say that such a strategy smacks of “politics meets the need to be seen as active meets the desire of Members of Congress to have their trash picked up.”  Or, more simply, “panic politics.”

[4] Which is, of course, Reality TV.

[5] Note that, in classical two-party electoral competition, “taking a hit” and “declining to pounce on an opportunity to win” are equivalent.

The US federal government is currently “closed” because the Democratic and Republican parties cannot agree to what seems to be a Pareto optimal (i.e., unanimously preferred) policy (namely, the government being “open”).

I will dispense with current events and turn immediately to the question of “why?”  This shutdown is arguably different than the most recent (1995-96) one.  In the previous shutdown, a Republican controlled Congress attached policy prescriptions to measures keeping the government open (known as continuing resolutions, or “CRs”).

That sounds similar to this situation…but remember, in 1995 the GOP had not controlled both chambers of Congress for FORTY YEARS.  (Interestingly, Bill Clinton was arguably slightly more popular (in terms of job approval margin) when he faced the shutdown than Barack Obama is now.)  So, in a sense, the stance they took could be argued to be “a new one” with respect to the status quo policies.

Now, of course, the GOP’s focus is on a policy that has most definitely been debated and redebated repeatedly over the past 3 years: health care.

So, why the impasse?  Well, in game theory, there’s a classic result (really, family of results) known as the “folk theorem.”  This result states that cooperative (Pareto optimal) outcomes can be sustained, even in spite of players’ short-run incentives to shirk/defect/fight, so long as the players expect the game to “continue for long enough.”[1]

The basic (very loose) intuition behind the folk theorem is that, if two players are facing each other in the same game repeatedly (i.e., “for long enough”), “defecting/selfish play” by one player can lead to “defecting/selfish play” by the other in future periods/iterations of the game.  Thus, this specter of punishment of today’s poor behavior deters such behavior in pursuit of higher sustained cooperative payoffs in future iterations of the game. The political salience of this possibility in the present conflagration is brought out by this article. In a nutshell, Speaker Boehner arguably might worry that effecting a compromise will lead to his ouster as Speaker of the House. But this leads to the question of why members of either party would risk overturning normal order and replacing a Speaker for enabling a seemingly obvious, common-sense, and efficient (if stop-gap) compromise.

A key feature of today’s electoral environment—especially for members representing “tea party” (i.e., very conservative) and “tree hugger” (i.e., very liberal) districts—is a high level of uncertainty—not about the general election, but the primary election.  In particular, the internal politics of both parties, combined with both demographic (immigration/aging) and technological (facebook/cell phones/twitter) changes has arguably made things like microtargeting possible and highly potent in terms of mounting a “challenge from the extremes” in primary elections—especially in ideologically homogeneous districts.

In some ways, such changes are “good”: to the degree that voters’ wishes should be respected, these changes potentially reduce the stagnation attributed historically to regularities such as the “incumbency advantage.”

On the other hand, such changes arguably increase the incentive for (reelection-seeking) members to “dig their heels in” as a bulwark against potential challengers from the extreme of their in the upcoming election.  To think about this concretely for a second, note that both Democrats and Republicans have been against a “clean CR” (one that would simply extend funding at the present (sequestered) levels.[2]

I will not delve into the details of this opposition too much, but simply consider this vote and this vote—in both, the extreme liberals and conservatives of the House essentially voted “in protest” of what was about to happen.  This “(ideological) ends against the (ideological) middle” type of conflict is rare in Congress.  That’s because, from a simple “yea/nay vote on a bill” perspective, it doesn’t really make sense: one of the “ends” should be happy about the (either left or right) direction embodied in the bill in question.

But here—the conflict is not about the policy, it’s about the appearance of supporting the policy as opposed to a hypothetical counterfactual.  The liberals against a clean CR (at least early on) wanted to make it clear that they favored expanding funding back to the pre-sequestration levels.  The conservatives against a clean CR wanted to make it clear that they were against Obama the Affordable Care Act.

So, in this situation, as in all good social science: there’s a pro, a con, and a lot of gray.[3]

On the one hand, members are arguably very attentive to their constituents. YAY!

On the other hand, members are unsure about how constituents will interpret their actions. BOO!

The gray area comes about because, it is not clear to me that the voters are actually clear on what THEY want either.  The Affordable Care Act polls very badly.  I doubt that it will do so in five years. But, to be fair, this is a democracy.  The question, then, is do we want Congress to make long-lived policy choices based on what “we want them to do now,” or on what “we, looking back in 20 years, will want them to have done now”?

That’s paternalism, of course, though arguably in a slightly subtle guise.  But, if you say you’ve never worried about your short-term impulses and tried to constrain yourself, then I say, you should. When you “worry about short-term behavior,” this is equivalent to worrying about the impact of revisiting/second-guessing “normal” decisions on a regular basis.

The problem in this situation, then, is that we are (at least in certain districts, and arguably everywhere but to different extents) an electorate that allows itself to constantly reconsider “what has my representative done for me lately?”  Keeping your representative “responsive” can provide strong incentives to pander and/or “act tough/sincere/ideologically pure.”

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Notes.

[1] Folk theorems rely on something known as “the discount parameter,” which indicates how much one values “rewards received tomorrow” relative to “rewards today.”  In other words, a higher discount factor means one is more patient. The interpretation of the discount parameter in practice is a bit ambiguous, but one positive determinant of its value in this context is the likelihood that the player in question will be involved in the interaction in question (i.e., policymaking) again in the future.  Thus, higher certainty of reelection for any GOP member of the House implies that this member’s discount parameter should be higher, ceteris paribus.

[2] Remember the sequester?  Remember the fiscal cliff?  Ahh, we were so innocent. Turns out that was just a “fiscal step.”

[3] In much good social science, there’s also a con man.