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.

April 15 is tax day, but not many Americans will be lining up at the post office or logging onto TurboTax as midnight approaches. Taxpayers who receive refunds often file well ahead of the April 15 deadline. And according to new research, many of those refund dollars are already spent or spoken for.

Early filing is particularly common among taxpayers who claim the Earned Income Tax Credit (EITC), which supplements earnings for low-income workers and their families. EITC recipients often receive substantial refunds, especially in relation to their income. According to new data available through our EITC Interactive, nationwide 26.8 million taxpayers benefited from the EITC for the 2013 tax year, and they claimed a total of $64.7 billion from the credit. Combined with other credits and over-withholding these families received, the average refund for EITC filers topped $4,100 that year. As the accompanying map shows, that amount approached $4,500 or more in many southern states.

I thought of those large refunds while reading a fascinating new book by sociologist Kathryn Edin and her colleagues, titled, It’s Not Like I’m Poor: How Working Families Make Ends Meet in a Post-Welfare World. The book provides insights from in-depth interviews with 115 families with children in the Boston area who claimed the EITC. It examines their household budgets and how the families view and use the credit. The authors find that these families rely greatly on their tax refunds to close the gap between the wages they earn and the daily costs of living in an expensive region like Greater Boston. For some, a large tax refund also enabled them to purchase something normally confined to middle-class families, such as a special birthday present for a child or dinner out at a restaurant.

One of the authors’ central findings, however, was that EITC recipients bear a considerable amount of debt—95 percent of the families studied had debt of some kind. The most common (66%) was credit card debt, with the typical family owing nearly $2,000. Considerable shares of families also had utility, car, or student loan debt.

Their indebtedness was not surprising given that wages covered on average only about two-thirds of monthly expenditures. The authors classified one-quarter of families’ refund spending as dedicated to debt/bills, but other ways families  spend the money—such as repairing a car or paying ahead on bills—point to the lack of financial cushion EITC recipients endure throughout the year.

For the families Edin and colleagues studied, the average tax refund represented a staggering three months of earnings. Despite that, the authors report that many families expressed that they preferred the "windfall" versus receipt of payments over several months, partly because the lump sum held out the prospect of helping them save. But one has to wonder if the EITC, now routinely referred to as the nation's most effective anti-poverty policy, best supports families' financial security in this form, as its recipients fall further behind each month.

We should experiment with new ways of delivering EITC recipients' tax refunds that preserve some of its windfall aspect while also periodically delivering portions of the credit throughout the year. A small periodic payment pilot is underway in Chicago, and early findings suggest that advance payments of taxpayers' anticipated EITC helped them meet basic needs, pay off debt, and reduce financial stress relative to similar families not receiving such payments. It’s time to try making the EITC more than an annual boom in a bust-filled financial cycle for low-income families. 

In 2005, billionaire hedge fund manager Eddie Lampert acquired a large portion of Sears Holdings, the parent company of Sears and Kmart, among other brands. In 2008, Lampert reorganized the company into 30 autonomous business units that would operate like independent businesses, with their own IT contracts, marketing officers, and most importantly, annual financial statements. The idea was that having each unit compete for resources would drive better decision-making and boost profits overall. The exact opposite happened. The divisions turned against one another, making decisions that benefited their divisions at the expense of others. In the year after Lampert’s acquisition of Sears, the company thrived, but two years later, profits tanked, the share price plummeted, and hundreds of stores were closed. As Jillian Popadak explains in a new paper about corporate culture and firm value, erosion of corporate culture may be to blame.

It’s not the case that decentralization is always bad—some large technology companies take this approach—but in Sears’s case, the reorganization changed the norms and culture for employees, dis-incentivizing collaboration at the expense of the overall firm. Popadak notes that former Sears employees speak to this: they said the change created a “warring-tribes culture” that lacked cooperation, and “the result was confusing to the customer.” Media accounts tell a similar story. Accounts detail managers cutting floor staff to save money, intense rivalries over the space in the weekly circular, resulting in nonsense product combinations, and a paltry one percent investment in capital expenditures. Popadak argues this is an example of how important implicit norms can be when they are working to create value at the company. When the explicit emphasis on performance was introduced, it “overpowered the implicit values to collaborate, satisfy the customer, and not act selfishly.”

How can you tell if a firm’s culture creates long-term value, or even measure something so seemingly unquantifiable? Popadak argues that while corporate governance measures are designed to change the explicit rules at a company, the culture is a set of implicit rules that govern employee behavior: the expectations employees have about what it takes to be successful at the firm. In her paper, Popadak collected millions of reviews from job sites like Glassdoor.com, Payscale.com, and CareerBliss.com by year and firm, and then used the text of the reviews to create measures of firm culture based on six categories: adaptability, collaboration, customer-orientation, detail-orientation, results-orientation, and integrity. She then assessed how these measures changed when a firm underwent a governance change.

Popadak writes of this graphic, “The figure shows that firms with stronger shareholder governance exhibited statistically significant increases in results-orientation but decreases in customer-orientation, integrity, and collaboration in the year following the governance change.” In the short term, a move to results-orientation boosts sales growth and payout in the short term, but in the long term, there are “significant declines in intangible value, customer satisfaction and brand value.” Ultimately, Popadak concludes that sacrificing corporate culture for short-term payoff may not be worth it.

On Friday, October 31, 2014, President Blaise Campaoré, who had ruled Burkina Faso for the last 27 years, was forced out of office. The resignation and subsequent military takeover of the government has created instability and questions over leadership in the country—especially since the constitutional line of succession has been broken by the insertion of military leaders. The power of the military is clear, especially since it has already influenced a second change in leadership. This interruption, subsequent transition and suspension of the constitution, then, have seriously threatened the strength of the rule of law and the future of the Burkinabé government.

The violent demonstrations that eventually forced President Campaoré to flee with his family into exile in Côte d’Ivoire could have been avoided had he not considered himself above the law. The impetus for the mass demonstrations was his attempt to change the country’s constitution in order to secure for himself another five-year term in office. Campaoré’s initial reaction to the violent demonstrations was to dissolve the government but retain his position as president until new elections were carried out to select a new government. He also agreed not to seek another term in office. The opposition, however, insisted that he resign. Interestingly, in his resignation statement, issued shortly before he fled the country, President Campaoré called for “free and transparent” elections to be held in 90 days to form a new government.

Shortly after the president’s resignation, General Honoré Traoré, Campaoré’s aide de camp, proclaimed himself president of the republic. This immediate military intervention into Burkinabé politics betrays either a lack of appreciation for constitutional democracy or a willful attempt by the military to take advantage of the instability occasioned by the planned constitutional changes to maximize their corporate interests. But, could someone who had risen to the head of the Burkinabé military have such little understanding of and appreciation for the constitutional order? In announcing that he had assumed the office of head of state, Traoré actually stated as follows: “In line with constitutional measures, and given the power vacuum . . . I will assume as of today my responsibilities as head of state.”

Importantly, there is no provision in the constitution of Burkina Faso for the head of the military or some other military officer to assume the powers of the president in case of a vacancy in the office. Succession, in the case of a vacancy in the presidency of the republic, is governed by Article 43 of the Constitution of Burkina Faso, 1991, which states that, in a case like this, the functions of the presidency should be performed by the president of the senate. [1]

After Traoré’s quick takeover, the leaders of the protests rejected the government headed by such a close and trusted advisor of the ousted president, claiming it would not represent a full and effective break with the painful past, especially the attempted constitutional changes. In fact, according to Al Jazeera, many of the protesters proclaimed that “[t]he general is linked to Campoaré, and they don’t want anyone linked to Campaoré to lead the country.”

Thus, early on Saturday, November 1, 2014, Colonel Isaac Zida declared that the army had taken control of the state to prevent further violence and that he had assumed the functions of head of state, leading what he referred to as a “peaceful transition”—one that would guarantee the “continuity of the [Burkinabé] state.” He, however, was extremely vague, providing few details, especially regarding how long this transitional government would stay in power or if the elections planned for 2015 will be held. Again, it is difficult to imagine that Zida, like Traoré, was not aware that the resignation and subsequent exit of the president from the political scene did not call for military intervention in the political system. In fact, a military officer of his standing should have had enough familiarity with the constitution to be aware of Article 43.

Oddly, the protesters appeared to have accepted the leadership of Zida, who is said to have been the deputy head of Campaoré’s elite presidential guard. It appears that the deciding factor in the struggle between the two men to assume the position of head of state was acceptance by the military: In a statement issued early on Saturday, November 1, 2014, the military indicated that Zida had been unanimously elected by military chiefs to lead the post-Campaoré transitional government. But, again, in making this decision, were these military leaders not aware of Article 43 of the constitution, which sets out the succession procedures in case of a temporary or permanent vacancy in the presidency? If, indeed, they had knowledge of the provisions of Article 43, then why did they interfere with what should have been a constitutionally mandated succession?

The international community has called on all sides in the Burkinabé political crisis to follow “constitutionally mandated” procedures for the transfer of power. The international community (especially the African Union) is asking the Burkina Faso military not to exploit the constitutional crisis for its own benefit but to respect the desire of the majority of Burkinabé for democracy and peaceful coexistence. That, of course, calls for respect by all Burkinabé, including the military, for the constitution.

The president’s resignation in itself did not create a constitutional crisis in Burkina Faso. The Constitution of 1991 specifically anticipates the resignation or incapacitation of the president and prescribes procedures for succession. According to Article 43, if the president is temporarily incapacitated and is incapable of carrying out his or her duties, “his powers shall be provisionally exercised by the Prime Minister.” As noted above, in this particular case, where the president has resigned and created a permanent vacancy in the presidency, the constitution states that the functions of the presidency should be performed by the president of the senate. [2] The military should not have intervened—military intervention in the country’s political system actually created what is fast becoming a major constitutional crisis. The military has suspended the constitution and, without the guidance provided by it, the military is now governing the country extra-constitutionally through decrees. The military can end this unfolding crisis by restoring the constitution and handing power back to a civilian regime, led, as prescribed by their constitution, by the president of the senate. The latter will, of course, serve as a transitional head of state until elections are completed in 2015 to select a permanent president. International organizations, including especially the African Union, support this approach—on November 3, 2014, the AU issued a statement asking the Burkinabé military to exit the political system and hand power to a civilian ruler.

But what about the riots and violence that had enveloped the city of Ouagadougou and were gradually spreading to other cities? Should the army not have been called upon to quell the riots and bring about peace? In virtually all countries, including Burkina Faso, the police—not the army—should be the institution enforcing the law and maintaining order. There is no indication that military intervention was necessary to bring the rioting under control or that it actually did. Most of the people participating in the riots voluntarily stopped their activities after the president resigned and left the country.

However, what the army did was interfere with the constitutional process and in doing so, actually created this constitutional crisis—shortly after declaring himself head of state and leader of the transition, Zida suspended the constitution, as noted above. Although Zida has assured the people that the military will strive to quickly return Burkina Faso to democratic governance, such guarantees appear hollow, especially given the military’s past history of intervention—every time the Burkinabé military has intervened in politics, it has remained in power for a very long time, 27 years in the case of the Campaoré-led intervention of 1987.

Article 43 of the Constitution of Burkina Faso also states that elections should be held between 60 and 90 days after a vacancy has been declared in the presidency. Zida, who is now the de facto head of state in Burkina Faso, has stated that his would be a transitional government and that it would seek input from all stakeholders to organize and undertake democratic elections to choose a new government. However, the constitution, which would have provided the necessary guidelines for carrying out such elections, has been suspended. In addition, he has closed the country’s borders and imposed a general curfew, which severely restricts the right of citizens to live freely. Such restrictions could have a significant impact on economic activities and negatively affect what is already a relatively fragile economy. These initial draconian and extra-constitutional measures do not augur well for an early exit of the military from politics and the return of constitutional rule to the country. If history teaches us anything about the military and Burkinabé politics, it is that this military, like the one that intervened in 1987, is likely to stay in politics much longer than the 90 days needed to elect a new civilian government.

[1], [2] This is in line with the constitutional amendment of June 11, 2012 (Loi No. 033-2012/AN du 1 juin 2012).