Lieberman and 60

Just a few points I want to make regarding Joe Lieberman, the Myth of 60, and the filibuster. Conveniently, DemFromCT's pundit roundup informs me that Joe Conason has already made the political points well for me today:

Let’s count the actual votes on the Republican side of the aisle, asking which Senators would have both the inclination and the will to join a filibuster. Every issue calls forth different levels of resistance, of course, but in each instance the opposition would need at least 41 total. In the very worst case, should the Republicans pick up all the remaining seats, they will begin with three more than that.

Six Senate Republicans will face reelection two years hence in states that went for Mr. Obama: Judd Gregg (R-NH), Arlen Specter (R- PA), George Voinovich (R-OH), Mel Martinez (R-FL), Chuck Grassley (R- IA), and Richard Burr (R-NC). Having seen their fellow incumbents fall in the last two elections, that half dozen may well consider themselves in varying degrees of political peril. Poor Mr. Gregg watched his New Hampshire colleague John Sununu drop this year as their state turned deep blue. Mr. Martinez won his seat in 2004 by a single point and is widely considered vulnerable. So are Mr. Specter, nearing his 80th birthday, and Mr. Voinovich, now 72.

Again, the thing to keep in mind about filibusters and cloture votes is that it's not how many seats your caucus occupies, it's how many votes you can muster. To paraphrase a recent popular refrain, seats don't vote.

Conason makes the point politically. There are several Republicans facing potentially tough reelection battles in 2010, and that tends to make some of them reticent about obstructionism. Not always, and not on every single vote. But the peculiar nature of cloture votes is such that party affiliation isn't always the most dependable predictor of how things will come out.

In looking over the cloture votes in the 110th Congress, it quickly becomes obvious that aisle-crossing votes aren't even something you can easily quantify, because a significant number of them don't break down along anything approaching strict partisan lines. Sometimes the ideological lines are clear, but partisan lines much less so. A typical cloture vote may well see 10-15 Democrats, or even nearly half the caucus on one side, with the rest on the other. Republicans, too, split their conference with fair frequency. In fact, of the 110 cloture votes in the last Congress, only three saw no crossover voting whatsoever. And in one of those instances, some 19 Senators didn't even vote, so it's hard to pin down its analytical value. Even so, three out of 110 votes is a rarity no matter how you look at it. Over 97% of the time there were Senators straying from the position taken by the majority of their side of the aisle, not including Lieberman or Harry Reid, who as Majority Leader will often switch his vote at the last minute to the other side -- a procedural move that gives him the right to call the vote up for reconsideration at a later date.

As for Lieberman, he parted ways with the majority of the Democratic caucus only 15 times out of those 110, largely over issues that -- broadly defined -- could indeed fit under the excuse that "he's with us on everything but the war." And when I say broadly defined, I mean including votes on habeas corpus for enemy combatants and FISA as being "war-related." Three of his departures were over those issues, while three more were on the questions of enhanced rescissions authority, a judicial nomination, and the "no confidence" vote on Alberto Gonzales.

And even if you count Lieberman as a Democrat, he wasn't even the one most frequently departing from the majority of the caucus. That honor (if it is one) goes to the just-reelected Mary Landrieu of Louisiana, who parted ways with the majority of Democrats 21 times on cloture votes in the last two years. Others in the same neighborhood include Mark Pryor with 14, Evan Bayh (now an outspoken Lieberman defender) and Byron Dorgan with 13, and Max Baucus and Claire McCaskill with 12.

Now, it's hard to evaluate statistics like that in a vacuum. There are lots of reasons why individual Senators might find themselves at odds with a majority of their caucus over some given vote, or even all votes in a given issue area. And it's not by itself a measure of "loyalty" or even necessarily an indicator of where you come down on the ideological spectrum. The next Senators on the list, for instance, were Bernie Sanders (who for these purposes was counted as a Democrat) and Robert Byrd, both with 11. You could hardly put the two in the same category, yet it must be admitted that Landrieu, Bayh, Pryor, Dorgan, Baucus, McCaskill and Byrd do all have a little something in common. And as for Sanders, it's hard to be surprised that a Senator who's not actually a Democrat would part ways with Democrats with some fair frequency.

But really, it's the other side of the aisle we might want to be concerned with here, since reliable performance on cloture votes -- if there is such a thing -- will require some crossover voting from Republicans whether there are 60 Democrats (broadly defined) or not. It turns out that there were fewer than ten cloture votes in the last Congress in which no Republicans crossed over to join the position taken by a majority of Democrats. And among Republicans, the undisputed champ of aisle-crossing on cloture is Olympia Snowe of Maine, who departed from the majority of her colleagues in the Republican Conference 42 times in the 110th Congress. That's a 38%+ crossover rate. The endangered (and indeed, now defeated) Gordon Smith followed closely with 40. And Snowe's Maine colleague, Susan Collins, crossed over 39 times, while Norm Coleman hopped the aisle 35 times. Remember, these are just the times they voted with the majority of Democrats while leaving the majority of Republicans behind. Their numbers are even higher if you count votes where the majority of Republicans joined with the majority of Democrats on cloture votes -- something which actually happened 43 times out of the 110. Still, it should be borne in mind that even if Snowe was with the majority of Dems in every single one of those 43 votes as well (I haven't looked), that would make 85 out of 110 votes, meaning that Landrieu was still the "more dependable" of the two, as measured by frequency of voting with the majority of Dems. Even there, it must be noted that voting with the majority of Dems is no measure of, say, progressivism. There were a number of votes in the 110th Congress where the progressive position was arguably in opposition to that taken by the majority of the Democratic Caucus.

The point of the counting exercise, though, is to highlight how much or how little value party identification by itself has in predicting voting position on distinct cloture votes, or even on cloture votes in general. In fact, the numbers tell us that the only Republican Senators who didn't jump across the aisle with a minority of their GOP colleagues at least once during the last Congress were Wayne Allard and John Barrasso, and Barrasso wasn't even in office for the first half of 2007. Dems, by comparison, were relatively disciplined, holding the votes of every Democrat (save Lieberman and Reid, who were not counted for these purposes) who cast a vote 72 times (versus just nine for the GOP), with four Senators (Cardin, Clinton, Klobuchar and Murray) who never strayed from the position of the majority of the caucus.

Remember, too, that the filibuster and cloture are a different game when Democrats control both the Congress and the White House. Lieberman most often bolted on issues surrounding the war. But while George W. Bush sat in the White House, legislation was the only method by which Democrats could even hope to influence or change the direction of the war, and between the filibuster and the veto pen, there was virtually no chance that was going to happen. Often, Republican Senators would filibuster war-related legislation to protect the president from having to veto it, on the theory that presidential vetos make a bigger media splash than legislation that dies on the Senate floor. With only the legislative avenue open to Democrats to make a statement on the war, it stands to reason that the filibuster and cloture votes would become the Republicans' most frequently used weapon, perhaps exaggerating its importance somewhat, and thus inflating the perception of the danger posed by an aggrieved Lieberman.

With a Democrat in the White House, changing the direction of the war no longer depends exclusively on legislation. That may well mean considerably fewer opportunities for filibusters in the first place, which would substantially reduce both the threat Lieberman poses even if he decides to act purely out of spite, and the strategic value of capitulating to his demand that he retain his committee chair in order to keep his vote on cloture. With the tools of the executive in the hands of someone who actually wants to change the direction of the war, the threat of a filibuster against legislation designed to do what the president can often do unilaterally is significantly diminished.

That's something Democratic Senators should keep in mind as they approach this decision. Only 2.7% of the vastly inflated number of cloture votes taken over the last two years saw no crossover voting. That'll tell you something about both the reliability of a 60 seat count, and the illogic of writing off all Republican votes in making cloture predictions. Do you trade the gavel of the Senate's chief executive oversight committee to a Senator who's essentially threatening to abandon his political principles to exact revenge? That would be a bad bet in any situation. But given that just 2.7% of cloture votes over the last two years fell strictly along partisan lines, and that the one issue where Lieberman has presented any kind of a problem on cloture is no longer going to be primarily a legislative issue, anyway, I'm not at all certain that giving the gavel to a more dependable vote presents much of a threat.