13 New Directions in Veto Bargaining: Message Legislation, Virtue Signaling, and Electoral Accountability
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13
New Directions in Veto
Bargaining: Message Legislation,
Virtue Signaling, and Electoral
Accountability
Charles Cameron and Nathan Gibson
Introduction much of the action, the sound and fury of
daily politics, is quite mysterious and clearly
In the years since the creation of separation- beyond the ambit of those simple frame-
of-powers (SOP) models – aimed first at works. Examples include repeated fruitless
courts,1 then at Congress,2 and finally at attempts to pass doomed bills, hopeless
presidents3 – much has changed though vetoes, futile filibusters, lopsided cloture
much remains the same. Needless to say, the votes, obviously doomed attempts at bicam-
constitutionally mandated architecture of the eral legislating, hostage-taking via govern-
American government hasn’t changed at all. ment shut-downs, manifestly impossible
This architecture separates the three branches impeachment attempts, ostentatiously illegal
and forces them to interact through a struc- executive orders and more.
tured bargaining process of proposals and In this chapter we focus on the mysteri-
vetoes. On the other hand, the coalition struc- ous, and we offer some suggestions on how
ture of the political parties, the participants in to make the murky more transparent.
politician selection and the media environ- We begin with a brief review of the clas-
ment have all changed, arguably dramati- sic separation-of-powers (SOP) models,
cally.4 The causal linkages remain disputed focusing on the veto bargaining version but
but the net effects are striking and manifest noting easy extensions to the filibuster. We
to all: elite partisan polarization, political emphasize the use of incomplete information
rancor, congressional stasis, aggressive presi- models to study not just outcomes but pro-
dential unilateralism, and puissant courts.5 In cess. We are terse because handy and more
the new American politics, policy outcomes elaborate reviews are available elsewhere.6
are generally quite understandable using the Then, we note the rise of several puzzling
classic SOP models, or so we assert. But empirical phenomena. These include bizarre
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vote margins on vetoed bills and during over- recruitment, fund-raising, participation in pri-
ride attempts; similarly weird vote margins maries, campaigning and turnout.10 Without
for filibustered bills and during cloture votes; the enthusiastic support of these individuals,
and the useless re-passage, many times, of a member of Congress or president is in seri-
virtually the same doomed legislation. (If ous electoral peril. Furthermore, the selector-
space allowed, we would add more from the ate will be enthusiastic only about politicians
laundry list above.) We trace much of these who, if circumstances permit, are willing to
phenomena to a single cause: the desire of work hard to enact the base’s policy agenda.
political agents to send credible signals to That programmatic agenda is, in contrast to
political principals about their dedication the typically muddled and inchoate desires of
and ideological fealty, using the policymak- less engaged citizens, usually quite definite
ing procedures of the SOP system. In other in some particulars. Politicians’ seemingly
words, they are variants on or consequences bizarre SOP manipulations, such as fruitlessly
of what congressional scholar Frances Lee, repealing portions of the Affordable Care Act
in a seminal contribution, called ‘message dozens of times in a legislatively hopeless
legislation’ in the lawmaking context.7 We configuration, can be seen as rational efforts
dub this phenomenon ‘virtue signaling’. to prove to their skeptical ‘boss’ that they
Virtue signaling is closely related to, com- are indeed the type who will bring home the
plementary of, but distinct from, blame game policy bacon should circumstances permit in
politics. the future. And demanding such signaling is
With one exception – Groseclose and actually rational for a boss who is doubtful
McCarty’s prescient explication of ‘blame whether the agent possesses ‘true grit’.
game vetoes’ – the first-generation SOP To illustrate these points, we sketch a sim-
models did not accommodate, and say noth- ple model that embeds a stripped-down veto
ing about, message-oriented manipulation of bargaining game within a simple account-
the SOP system’s policymaking procedures.8 ability model (we do not undertake a genuine
Instead, they assume serious policy-minded formal analysis here; our discussion is merely
actors who pursue genuine policy goals by illustrative). We hope these notes-to-a-theory
bargaining with one other in a straightfor- suggest the potential for a new direction for
ward and serious way. Even the blame game separation-of-powers models.
veto model, which takes a big step away from We conclude with some observations about
this paradigm, does not fully capture the new whether the sound and fury of phony legislat-
direction in American legislative politics. We ing actually makes a substantive difference
assert, however, that if the SOP models are or is just meaningless political theater. Our
suitably modified, then new veto bargaining, simple new-style SOP model suggests it does
pivotal politics and related models can make make a difference.
sense of the novel phenomena while retaining
their broad accuracy about policy outcomes.
The trick (in our view) is to move
beyond the first-generation framework by Classical Veto Bargaining
embedding the SOP games within what is Games
now called an ‘accountability’ model of elec-
tions.9 In other words: situate the SOP game The classical models feature bilateral bargain-
in a larger model that features retrospective ing between a policy proposer, Congress, or C,
voting or similar action by political princi- and a policy receiver, the President, P. Also
pals. The principals we have in mind are the making an appearance is the veto over-ride
high-information ‘base’ or ‘selectorate’, that player, O. This player is defined as the legisla-
is, the individuals who are critical in candidate tor closest to the president for whom exactly
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one third of the legislature has ideal points actors and incomplete information. In its
either lower or higher than the over-ride play- simplest form, the sequence of play in TILI
er’s, depending on whether the president’s bargaining is:
ideal point p (defined momentarily) lies in the
left or right portion of the policy space, respec- 1 C makes a proposal b (a ‘bill’) to change the
tively. In some versions another player, the status quo or reversion policy q.
filibuster pivot, appears as well. The filibuster 2 P accepts or vetoes the offer. If P accepts the
offer, the final policy outcome x is the bill b, and
pivot is defined similarly but only for the
the game ends.
Senate and using 40 members (the threshold 3 If P vetoes the offer, a vote on a motion to over-ride
for cloture since 1975), most relevantly on the occurs. If O supports the motion, the bill is success-
opposite side of the median from the President. ful and again x = b is the new policy. If O does not
The policy space is typically assumed to be support the motion, the bill fails and x = q, so the
one dimensional. So it is a policy evaluation status quo remains the policy in effect.
space similar to the oft-used NOMINATE
space in empirical studies of roll-call voting.11 Because the game features complete and
A critical point in the policy space is the cur- perfect information, it is easily solved using
rent policy, the status quo, denoted q. backward induction, thereby incorporating
Each actor has a policy utility function the idea of forward-thinking strategically
defined over the policy space, with a well- minded actors. The resulting subgame per-
identified most preferred policy, the ideal fect equilibrium is unique, depending only
point. Call these ideal policies c and p, for on the configuration of ideal points and the
Congress and President respectively, and that location of the status quo. We will not go into
of the veto override player o. Policies increas- any of the details since very clear expositions
ing far from the ideal point have declining are readily available. However, several points
value. An example of such a utility function are worth noting. The first three are substan-
is the ‘tent’ utility function: tive; the last two are theoretical.
First, the basic model reveals a promi-
u( x , xi) = − | x − xi | nent advantage for Congress relative to
the President. The presidential veto acts
where xi is player i’s most-preferred policy as a check on congressional power, but
(e.g., c, p, and o) and x is any policy in the Congress’s ability to force an unamendable
policy space. offer on a president who can only say ‘yes’
This simple apparatus was first developed or ‘no’ (and who might not be able to make
to study elections and voting.12 The SOP ‘no’ stick) gives a huge, constitutionally
policy-making models take the apparatus in a entrenched power advantage to Congress.
somewhat different direction, however. Second, given much policy disagreement
between the legislature and the executive
or across the parties, moving the status quo
The Engine: the One-shot Take-it- usually requires supermajorities in the leg-
islature. Given the Constitution’s veto over-
or-Leave-it (TILI) Bargaining Game
ride provisions and the Senate’s privileging
The engine that makes the SOP models run is of the filibuster, this should hardly be a sur-
the celebrated one-shot take-it-or-leave-it prise. But it is a point of major historical
(TILI) bargaining game first analyzed by importance – almost every piece of impor-
Romer and Rosenthal (1978). Most of the tant legislation in the post-World War II
SOP models, including veto bargaining, just era was enacted through supermajorities.13
make changes to this model, for example, by It also implies that the American rules of the
adding more moves, additional institutional policymaking game force narrow coalitions
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of extremists to compromise if they are to trials, no strikes. The reason is that the par-
accomplish anything legislatively. Moderates ticipants understand perfectly what ultimate
will see this as highly desirable normatively; adjustments will happen and therefore reach
passionate extremists will see it as a bug, not agreements that obviate uselessly destructive
a feature, of American government. conflict. In order to get actual vetoes, filibus-
Third, (and related to the second point), ters, wars, trials, strikes, and so on, a model
often no policy movement is possible: the sta- requires a degree of incomplete information.
tus quo lies in the so-called gridlock region. In other words, some actor must lack knowl-
In fact, the model and its variants supply the edge about an important variable, and this
causal mechanisms behind the status quo bias ignorance or uncertainty leads to ‘mistakes’
so characteristic of American politics. We (more accurately, the rational calculations of
all know that status quo bias exists because the actors lead one or both to insist on obdu-
there are so many choke points in the policy rate actions that would not occur if everyone
process. The models go beyond this cliché to knew everything).
show exactly how the choke points work to This fundamental point about human
create policy gridlock. interactions is often met with skepticism: do
Fourth, because the core model is so sim- you mean to say the horrific slaughter in the
ple and easy to analyze, the analysis is very trenches of World War I (for instance) was
extendable. This is a lovely feature for the caused by a lack of information, not national-
theoretically inclined. For example, one can ism, militarism, military technology, age-old
add congressional committees with gate- hatreds, and so on and so on? Not exactly:
keeping power;14 filibusters and cloture nationalism and so on may have been neces-
votes;15 a powerful Speaker of the House sary for the conflict, in the same way that pol-
with gate-keeping power;16 agencies that icy disagreement is necessary for a veto. But
begin the game by setting a policy via regula- nationalism was not sufficient. It took nation-
tion, so the model becomes a model of the alism plus incomplete information to pro-
administrative state in action;17 presidents duce the tragic slaughter. Similarly, in SOP
who move first via an executive order, so models, it takes policy disagreement plus
the model illustrates presidential unilateral incomplete information to produce a veto,
action;18 and more. With very simple tools a filibuster, an over-ride attempt, a cloture
requiring minimal mathematical ability, one vote, a judicial strike-down of an executive
can easily see how a great deal of national order, a congressional reversal of a judicial
policymaking works. policy, and so on.
The fifth point is subtle and deep and not There is a logical corollary: analysts who
easy to grasp on first acquaintance. In com- want to study not just policy outcomes but
plete information models of the kind we phenomena such as vetoes, filibusters, clo-
have been discussing, policy typically moves ture votes and over-ride attempts need to
quickly to its final resting place. There are use models that incorporate incomplete
no vetoes, over-rides, filibusters or cloture information.
votes along the path of play; policy just
adjusts. If no movement is possible, noth-
ing happens at all. In this sense, the modern Bilateral Bargaining Under
analysis of vetoes and filibusters is similar
Incomplete Information
to modern analyses of wars, litigation and
strikes. Complete information models of Early analysts of separation-of-powers poli-
those phenomena predict changes in territo- tics moved to do just that. McCarty (1997),
rial boundaries, cross-litigant payments and for example, studied how a president can use
wages. But they also predict no wars, no vetoes to build a reputation across different
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policy arenas over time. This model affords a move or counter-move by Congress are
one explanation for the well-known honey- signaling games.20 These games feature stra-
moon effect in presidential–congressional tegic reputation-building and require more
relations (Congress, knowing the freshman sophisticated modes of analysis than the sim-
president is hungry to build a reputation for ple complete information models (one must
toughness, is extremely accommodating – at model player beliefs simultaneously with
first). player strategies, and the two must reinforce
Cameron (2000) explored a model of one another).
sequential veto bargaining. Here, Congress Many of the incomplete information bilat-
and President go through multiple rounds eral bargaining models make rather precise
of passing and vetoing the same bill, with empirical predictions about vetoes, over-
Congress making concessions each time in rides and so on. Data from the mid-20th cen-
an effort to produce an offer the President tury (or earlier) through to the 1980s or so
will accept, and the President vetoing and re- strongly display the predicted patterns. As a
vetoing in a gamble that Congress will return result, this analytical endeavor has often been
with a better offer before bargaining breaks seen as a success for the empirical implica-
down. Perhaps somewhat surprisingly, some tions of theoretical models (EITM) move-
of the most consequential legislation of the ment in political science. Critically, however,
20th century emerged from this sequential some of the key predictions of the incom-
bargaining process (e.g., welfare reform plete information bilateral bargaining models
under Clinton). show signs of breaking down – a point we
Cameron (2000) also offered a very simple return to below.
model of over-ride attempts. Here, in the face
of uncertainty about who the critical veto
over-ride player will be at the actual moment Bargaining before an
of the attempt, over-rides can occur, both
Audience: Message Votes
successful and unsuccessful. Essentially the
same model could be used to study filibusters One of the early incomplete information
and cloture voting. models stands out from the others, because it
In a particularly clever model, Matthews is not a bilateral bargaining game. We refer to
(1989) studied veto threats. Here, a veto Groseclose and McCarty’s blame game veto
threat is a little like a bid in a poker game: the model (2001). This model involves three
president opens with a ‘bid’ (a veto threat), intrinsically important players. Specifically,
Congress may or may not adjust its next Congress and the President play a legislative
‘bid’ (a bill) and then the President ‘calls’ or game before an audience, a Voter. The
‘folds’ by vetoing or accepting.19 Cameron President and Congress understand each oth-
et al. (2000) take this model to data, which er’s preferences perfectly, so there is no
generally display the predicted empirical incomplete information at that point. But the
patterns. Voter is somewhat uncertain about the
All of these models feature bilateral bar- President’s preferences; therein lies the criti-
gaining between the President and Congress cal incomplete information. The Voter’s
with uncertainty about one of the player’s uncertainty creates the opportunity for
preferences. In most cases, the uncer- Congress to set up a policymaking sequence
tainty involves the president’s preferences, which, if observed by the Voter, will lead her
although in the simple veto over-ride model to draw a relatively unfavorable inference
the uncertainty is about the preferences of about the President’s preferences (even know-
the over-ride player. Models in which the ing that Congress would like this to happen).
unknown-preference President moves before And that is the whole point – not truly
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legislating, but play-acting legislating in order President George H. W. Bush immediately
to cast blame on the other side. Indeed, the before the 1992 presidential election. Bush
veto-bait bill may fail miserably in enactment had publicly opposed the bill and his veto was
but still succeed as symbolic action. entirely predictable. Given the vote margins,
The ideas in the Groseclose–McCarty a successful over-ride was clearly doomed.
model should resonate with contemporary So from a serious legislating perspective, the
scholars, for blame-game vetoes are closely bill was futile. The Democrats nonetheless
related to what Frances Lee has called ‘mes- pressed ahead, and then used the failed bill as
sage votes’. According to Lee (2016: 143–4), a signature electoral issue. Upon re-gaining
message votes occur when the presidency, they quickly enacted family
leave in 1993 and touted it as a flagship legis-
A party brings to the floor an attractive-sounding lative accomplishment. Quintessential blame
idea with the following characteristics: (1) its mem- game politics!
bers support it; (2) the other party opposes it; and
(3) it is not expected to become law. Former
The general phenomenon of blame game
Senator Olympia Snowe offers a more detailed politics, presciently explored by Groseclose
explanation: ‘much of what occurs in Congress and McCarty in the specific context of veto
today is what is often called “political messaging”. bargaining, has now become routine, at least
Rather than putting forward a plausible, realistic in the opinion of astute observers such as
solution to a problem, members on both sides
offer legislation that is designed to make the
Lee and candid participants such as Snowe.
opposing side look bad on an issue and it is not In fact, a series of empirical anomalies in
intended to ever actually pass.’ separation-of-power politics suggest the need
for some fresh thinking.
The Groseclose–McCarty model works out
the logic of ‘make the opposing side look
bad’ in the specific context of the presiden-
tial veto.21 Empirical Anomalies
An obvious question is, how frequently
have blame game vetoes occurred? We take Recent years have seen congressional legisla-
a look at some relevant data below. But tive behavior that is extremely difficult to
Cameron (2000a) addressed this question reconcile with the classical SOP models. Let’s
over the 20th century, using an admittedly look at some of the empirical anomalies.
stringent set of criteria: the veto needed to be
prominent, occur in the run-up to a presiden-
tial election, and led to a hopeless over-ride What to Look for: Vote Margins at
attempt (so the enactors should have known
the Pivots and Policy Concessions
that serious legislating was off the table).
The historical data on vetoes during the 20th The first question, though, is this: where
century uncovers relatively few blame game should we look for legislative anomalies?
vetoes, according to these criteria (see ibid, The incomplete information bilateral
Table 5.1). Most vetoes did not look like this. bargaining models assume a degree of uncer-
To the extent that this is a fair test, the blame tainty about the preferences of a key player,
game model does not look like a general but not a huge amount of incomplete infor-
model of vetoes, at least over much of the mation. This has important implications for
20th century. However, the data reveal that vote margins at the pivots and for policy
some vetoes were clearly blame game vetoes. concessions in re-passed bills.
An example was the Family and Medical First, vote margins at the critical pivots
Leave Act of 1991, passed by a Democratic should be close. To see the logic, suppose,
Congress and presented to Republican for example, a bill is geared to beat a likely
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presidential veto with the veto over-ride A second anomaly can occur with re-
player as the critical pivot. Then the roll call passed, previously failed legislation: no
margin on passage in both chambers should concessions. (That is, for re-passage under
be about two-thirds. If it is much higher, the same configuration of players.) Under
the proposers have not been tough enough; the sequential veto bargaining model, re-
they have conceded too much. If it is far shy passage of vetoed bills can occur, but the
of two-thirds then the bill is a sitting duck, re-passed bill should contain a compromise
doomed from day one, and the proposers are in the direction of the president, so either he
wasting their time. The margin for the over- will sign it or the veto over-ride player will
ride attempt should also be about two-thirds. support the bill. As a result, the cutting line
Now, suppose the president himself is the between the yeas and nays in NOMINATE
critical pivot (that is, the veto override player space should shift toward the president, and
is more extreme than the president). Then the the aye margin should increase.22 Similar
passage margin may be lower than two-thirds logic applies to bills that die from a filibus-
but if the president does veto the bill, no ter in the Senate: if re-passed, they should
over-ride attempt should follow, as the over- contain a compromise to the filibusterers
ride is hopeless. If an over-ride attempt did so that either they will accept it or cloture
occur (anomalously), the vote margin would will succeed. The same logic also applies to
be well short of two-thirds. In short, unless bills that are enacted by one chamber dur-
the president is moderate relative to the over- ing split-chamber divided government, but
ride pivot, passage margins for vetoed bills then die in the other chamber (perhaps they
should be about two-third yeas and one-third are never taken up). If the first chamber re-
nays, over-ride attempts should not occur for passes the bill, it should contain concessions
vetoed bills with narrow passage margins to the recalcitrant chamber. Cutting lines for
and actual over-ride margins should be about the roll call vote in the enacting chamber
two-thirds yeas and one-third nays. should shift in the direction of the recal-
Similar ideas apply to filibusters. Suppose citrant chamber and vote margins should
a bill is geared to beat a filibuster in the increase.
Senate. Then a bill that is likely to provoke In sum, the place to look for legislative
a filibuster should pass the Senate with about anomalies are: 1) lop-sided supermajori-
60 votes. If it passed with many more votes, ties or, conversely, very narrow enactment
the filibuster is pointless since cloture will be votes for vetoed bills upon initial passage;
easy, hence no filibuster should occur (and 2) veto over-ride margins far from two-
the bill’s proponents conceded too much to thirds in one or both chambers; 3) enact-
the opposition). If initially passed with a nar- ment votes for filibustered bills far from
row majority, then cloture seems likely to fail 60–40 in the Senate; 4) cloture vote mar-
and the bill should not have been passed in gins far from 60–40; and 5) re-passed pre-
the first place – its authors should have con- viously failed bills in the same legislative
ceded more, or just abandoned the effort. configuration that do not contain conces-
Similarly, actual cloture votes should show sions from bill to bill.
about 60 votes in favor of cloture. Lop-sided So, how many legislative anomalies have
successful cloture votes should not occur occurred in recent decades? Has the rate of
because the filibusterers should have known anomalies increased? Unfortunately, a com-
they would fail; lop-sided failed cloture votes prehensive empirical analysis lies outside
should not occur because the bill authors our writ here. However, we can present some
should have known the bill was a sitting duck simple data and mini-case studies that sug-
and either conceded more or given up the clo- gest anomalies now abound and have distinc-
ture attempt. tive features.
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Veto Anomalies the Senate. Theory would predict something
close to zero. It should also be noted that, of
Table 13.1 presents some simple summary the 34 hopeless over-ride failures, six of these
statistics on vetoes from 1975 to 2018. There over-ride attempts failed in the Senate after
were 167 vetoes in that period, with about success in the House (so the House success
half escaping an over-ride attempt. Of those was immaterial), while the other four hope-
that were challenged (90), about 69% were less over-ride failures in the Senate occurred
sustained (the over-ride attempt failed) while for vetoes where the House did not even
31% succeeded. Under traditional veto bar- attempt an over-ride (so they were truly hope-
gaining models, we would expect that if a less failures). In sum, the number of hope-
veto is challenged it should either succeed or less over-ride attempts was not large but this
fail by a narrow margin. Otherwise, either the phenomenon has become a notable feature of
president should not have vetoed it or veto politics.
Congress should not have challenged it. What type of bills did Congress typically try
Hence, a 70% failure rate for over-ride so hopelessly to over-ride? At least in recent
attempts may raise an eyebrow; one might cases, the bills were highly visible, highly con-
expect something closer to 50–50. In fact, tentious vehicles for partisan position-taking.
Cameron (2000) reports a success rate of They are similar to the bills involved in the
45%, using earlier data (p. 56). Still, one frenetic, frenzied re-passage episodes dis-
needs to look more closely at actual vote cussed momentarily; in fact, some of them are
margins to identify anomalies. the same bills. So, for example, bills repeal-
Table 13.2 takes a closer look at sustained ing parts of Obamacare and the Dodd–Frank
vetoes, that is, failed over-ride attempts. It financial legislation both generated vetoes and
focuses on hopeless over-ride attempts. In the hopeless over-ride failures in the Republican
House, over half of the time that an over-ride Congresses facing President Obama. Hopeless
attempt failed, it failed by at least 10% of the over-ride failures during the Bush administra-
required votes (29 votes). In the Senate, some tion were generated by vetoed bills banning
10 of the 22 failed over-ride attempts failed waterboarding and establishing a timeline for
by the comparable 10% margin (6 votes). withdrawing troops from Iraq.
Hence, the “hopeless over-ride” rate among Some of the hopeless over-rides seem to
the failures was 60% in the House and 45% in follow the script of Groseclose and McCarty’s
Table 13.1 Summary statistics on vetoes: 1975–2018
Sustained1 62 37.1%
Overridden 28 16.8%
Unchallenged 77 46.1%
Total vetoes 167 100%
1This counts two vetoes that were overridden in one chamber but unchallenged in the other, technically leading to an
outcome where the veto was challenged but not overridden. Accordingly, we classified these as sustained but exclude them
from the following analysis of sustained votes.
Table 13.2 Hopeless over-ride attempts, 1975–2018
Sustained in House 40 Sustained in Senate 22
Failed by more than 10% 24 Failed by more than 10% 10
Percent not close 60% Percent not close 45%
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blame game vetoes. For instance, the water- massive rolls of vetoes have occurred only
boarding episode can be seen as an attempt about once per decade. Table 13.3 provides a
by the Democrats to demonstrate to the pub- brief overview of these vetoes.
lic the inhumanity of the president and his At the time of writing, the most recent
administration. However, in some cases there massive roll of a presidential veto involved
are hints of another dynamic. Thus, reporting President Obama’s veto of the Justice
in The Hill noted: ‘Republicans say they are Against Sponsors of Terrorism Act (JASTA).
playing the long game with the [ACA] repeal This bill would have allowed private indi-
vote, hoping it will give voters a glimpse of viduals to pursue legal action against for-
how they would govern if they win back the eign companies in US courts, primarily in
White House in November.’23 We will return response to the victims of the 9/11 terrorist
to this point below. attack. President Obama veto message cited
We have looked at hopeless over-ride foreign policy concerns.24 President Bush’s
attempts; what about hopeless vetoes? How lone massive roll came from his veto of the
frequently does the president get massively Water Resources Development Act of 2007.
rolled after vetoing a bill? Given the hopeless Bush claimed the bill was too pork-ridden to
quality of the veto, why did he veto it in the serve the nation’s interests.25 Finally, a bill
first place? canceling Clinton’s line-item veto of military
In the time period we study, the presi- construction projects was also overridden
dent occasionally vetoed a bill with massive by large margins.26 As with Bush’s veto, the
support, so that an over-ride was virtually concerns behind the veto seem primarily cen-
certain. Of the 28 over-ridden vetoes dur- tered on pork.27
ing this time period, Congress overrode nine In each of these examples, the president
of them by at least 10% in each chamber. Six had genuine policy concerns, but the veto – a
of these massive rolls came during the first hopeless endeavor from the get-go – seems to
12 years of the data (during the Ford have been undertaken partly or primarily for
and Reagan Administrations). Since then, position-taking. Perhaps the president wanted
Table 13.3 Massive rolls of presidential vetoes, 1975–2018
Bill Number Bill Name Date of Veto House Vote Senate Vote Reason for Veto
S.2040 Justice Against Sponsors of 9/23/16 348–77 97–1 International concerns
Terrorism Act
H.R.1495 Water Resources Development 11/2/07 361–54 79–14 Too much pork
Act of 2007
H.R.2631 Line Item Veto Cancellation 11/13/97 347–69 78–20 Too much pork
H.R.1 Water Quality Act 1/30/87 401–26 86–14 Too much spending and federal
oversight
H.R.2409 Health Research Extension Act 11/8/85 380–32 89–7 Too much red tape and
bureaucracy
H.R.6198 To amend the manufacturing 7/8/82 324–86 84–9 Free trade concerns
clause of the Copyright Law
H.R.7102 Veterans’ Administration 8/22/80 401–5 85–0 Spent money on VA physician
Health-Care Amendments bonuses instead of helping
veterans
H.R.5901 Education Division and Related 7/25/75 379–41 88–12 Fiscal irresponsibility
Agencies Appropriation Act
H.R.4222 National School Lunch and 10/3/75 397–18 79–13 Fiscal irresponsibility/personal
Child Nutrition Act responsibility
BK-SAGE-CURINI_FRANZESE-190202-V1_Chp13.indd 232 30/01/20 9:37 AMNew Directions in Veto Bargaining 233
to signal his frugality and good stewardship filibusters may have been fruitless efforts
to a national audience (or, in Obama’s case, leading to a crushing cloture vote, but one
an international one). Or, the president may cannot easily detect such filibusters using
have wanted to highlight Congress’s fiscal positive cloture margins alone.
imprudence, a sort of reverse blame-game Therefore, let us turn our focus to the left-
veto. In all three of these examples, both hand tail: failed cloture motions. In the face
chambers of Congress were controlled by the of incomplete information about the filibus-
other party. ter pivot, one would expect some cloture
motions to fail, but generally with margins
close to zero. Yet one sees some eye-popping
Filibuster Anomalies negative margins, some by 20 votes or more.
Thus, some invincible filibusters provoked
Discussion of the filibuster may seem some- completely hopeless cloture attempts. Votes
what odd in an essay on veto bargaining, but like this are hard to reconcile with classical
we argue that the anomalies are similar in SOP style models.
both cases and likely to have a common Have futile cloture efforts increased over
origin. Therefore, let us quickly examine time? Figure 13.2 address this question by
‘strange’ patterns in filibusters, focusing on examining the number of hopelessly failed
cloture vote margins. cloture votes, votes failing by a 10% margin
Figure 13.1 displays vote margins in or more (that is, six votes or more). The time
all cloture votes in the 111th to 115th period is longer, from the 94th Congress to
Congresses (2009–18). Recall that the the 115th, in order to provide more of a
required quota for success was 60 votes in historic contrast (the critical cloture mar-
this period; in the figure, a margin of 0 cor- gin was 60 votes over the entire period). As
responds to 60 votes for cloture. The thin shown in the figure, there appears to be a
vertical line shows the average margin in jump in the number of big failures starting
these Congresses: about 7.3 votes (in the at the 104th Congress (1995–6). Using the
94th through 98th Congresses, the average benchmark of a 10% short-fall in votes, the
margin was almost exactly 0). Two features average number of futile cloture votes was
stand out in the figure. 10.1 in the 94th to 103rd Congresses; it was
First, and most noticeable, is the very 23.5 in the 104th to 115th Congresses. Thus,
long and rather flat right-hand tail, that is, the number of futile cloture votes doubled
successful cloture votes. As shown, some beginning with the ‘Gingrich Revolution’
cloture votes succeeded with absolutely Congress after the 1994 mid-term elec-
spectacular margins, suggesting that the fili- tion. We note that the percentage of futile
buster in question was a hopeless endeavor. cloture votes (relative to all cloture votes)
Unfortunately, this inference is clouded did not change much over this time period,
by the changing vagaries of senatorial pro- though the number of such votes seemed to
cedure. As explained by CRS experts: increase.
‘In recent times … Senate leadership has What were some examples of recent hope-
increasingly made use of cloture as a nor- less cloture votes? In the most recent period,
mal tool for managing the flow of business many deal with border security, sanctuary cit-
on the floor, even when no evident filibuster ies, DACA and abortion – all highly visible
has yet occurred.’28 Thus, cloture is now used and highly partisan issues.
pre-emptively and as a device to restrict non- We have just scratched the surface of this
germane amendments. This change in proce- material but clearly some filibuster and clo-
dure probably accounts for some of the huge ture attempts look quite strange from a bilat-
positive margins in cloture voting. Some eral bargaining perspective.
BK-SAGE-CURINI_FRANZESE-190202-V1_Chp13.indd 233 30/01/20 9:37 AM234 The SAGE Handbook of Research Methods in Political Science and IR
Figure 13.1 Passage margin of cloture votes, 2009–2018
Note: A vote margin of 0 corresponds to 60 votes for cloture. The right-hand tail of the figure captures successful cloture
votes; the left-hand tail unsuccessful ones. Not every cloture motion resulted in a vote. The data exclude nominees consid-
ered under a pure majority confirmation rule.
Figure 13.2 Futile cloture votes, 1975–2018
Note: Shown are counts of dramatically failed cloture votes by Congress, using the benchmark of a 10% short-fall in votes.
BK-SAGE-CURINI_FRANZESE-190202-V1_Chp13.indd 234 30/01/20 9:38 AMNew Directions in Veto Bargaining 235
Frenetic Failed Legislation ‘shellacking’, in President Obama’s memora-
ble phrase. Critically, the Republican gained
One of the strangest recent phenomena in the control of the House of Representatives, while
new legislative politics is what can be called the Democrats retained the Senate until the
frenetic failed legislation. With frenetic failed 2014 election, when the Republicans estab-
legislation, one or both chambers of Congress lished a narrow majority. The Democrats held
repeatedly enact almost identical bills that all onto the presidency until the 2016 election.
participants understand have no realistic The classic SOP models clearly indicate
chance of becoming law. And they do not, that the Republicans had no realistic pros-
until the legislative configuration changes. In pect of repealing the ACA in the 112th,
the traditional SOP frameworks, this spastic 113th and 114th Congresses. In the first
re-passage of doomed legislation makes two Congresses, the Democratic-controlled
about as much sense as repeatedly slamming Senate would simply ignore House legisla-
oneself in the face with a baseball bat: it is a tion. In the third Congress, Democratic fili-
sign of madness. Yet, Congress has spent busters or presidential vetoes would surely
significant time and resources on such bills kill Republican bills. These were the trans-
in recent Congresses. In fact, it has become a parently obvious outcomes predicted by the
signature activity of contemporary legislative models, and that is what transpired.
politics. Accordingly, using the SOP models, one
To be clear, frenetic failed legislation typi- might expect Republican legislators to focus
cally occurs under divided government, where on other legislation that might actually have
one chamber (typically the House) passes and a chance of enactment. Or, they might con-
re-passes a bill (sometimes with minor vari- centrate their efforts on congressional over-
ations) favored by the majority party in that sight, constituency service, fund-raising
chamber but opposed by the other chamber and just plain electioneering. Nonetheless,
and/or the president. The status quo clearly the Washington Post documented a total
falls within the gridlock interval. That is, the of 54 total or partial repeals of the ACA in
bill lacks the votes to overcome a filibuster or the first four years of Republican control.29
veto or both. In contrast to the sequential veto While these bills were far from identical,
bargaining model, which envisions repeated attacking the existing law from a plethora of
passage of a succession of modified bills in angles, they all had the exact same chance of
a serious effort at policymaking, there is no becoming law: zero.
effort at compromise. Instead, these repeated The ACA wasn’t the only Obama-era stat-
efforts are characterized by their intransigent ute that Republicans repeatedly attempted
and clearly infeasible nature. Let us look at a to repeal during this period. They also made
few examples from recent periods of divided several efforts to undo the Dodd–Frank regu-
government to illustrate. lations on the financial industry. For example,
The most famous example of frenetic in 2013 alone, House Republicans passed HR
failed legislation is of course the Republican 1256, HR 992, HR 2374 and HR 1105, all
efforts to ‘repeal and replace’ the Affordable of which were intended to repeal aspects of
Care Act. Recall that this landmark legisla- Dodd–Frank.30 None of these bills were con-
tion was enacted by the 111th Congress after sidered by the Democratic Senate.
a historic donnybrook and signed into law by It should be noted that Republicans held
President Barack Obama in March 2010. The no monopoly on frenetic failed legislation.
mid-term elections that November then saw Democrats found themselves in a simi-
the electorate administer a brutal drubbing lar political configuration during the 109th
to the Democrats, racking up some of the Congress, when they had a House major-
largest losses since the Great Depression – a ity during the waning years of the Bush
BK-SAGE-CURINI_FRANZESE-190202-V1_Chp13.indd 235 30/01/20 9:38 AM236 The SAGE Handbook of Research Methods in Political Science and IR
administration. And they engaged in simi- majority to highlight the perfidy of the oppo-
lar legislative behavior. In particular, House sition: ‘Look, everyone! We would have this
Democrats repeatedly attempted to restrict wonderful legislation but for the intransi-
activities in the Iraq war, such as through gence of these terrible people!’ So: throw the
requiring troop withdrawals. As noted in bums out!
CQ Weekly: ‘In July, for example, the House At the same time, much of the weirdness
passed a bill (HR 2956) sponsored by Armed seems somewhat distinct from pure blame
Services Chairman Ike Skelton, D-Mo., that game politics. For example, it may make
would have required troop withdrawals. But sense to try and fail to pass a symbolically
like about a half dozen other measures, it resonant bill once, in order to demonstrate
went no further.’31 Furthermore, the accounts that the fault for failure lies with the opposi-
make clear that House Democrats were fully tion. But why pass the same bill 60 times?
aware of the futility of their efforts: How much more education in the vileness
of the opposition does the public need, once
After Republicans blocked an effort last week to
the opposition is revealed to be bad via the
require a withdrawal of U.S. troops from Iraq,
Senate Democrats put the issue aside and are not first failure? If, as Senate Majority Leader
expected to return to it until after the August Mitch McConnell liked to suggest, ‘There’s
recess. House Democrats, however, plan to do no education in the second kick of a mule’, 33
their part to keep the subject alive this week, with how much is there in the 40th, 50th or 60th?
war-related votes possible during committee con- Similarly, even in clear blame game politics
sideration of the fiscal 2008 Defense spending bill
and on the floor.32 such as the veto of the Family and Medical
Leave Act, part of the signaling was not just
If the multitudinous ACA repeals are a sign that President Bush was blocking family
of legislative madness, the malady, unlike leave. The message was also, ‘we Democrats
much in Washington today, is refreshingly are really in favor of this idea and can be
bipartisan. trusted to deliver if handed the keys to the
But perhaps there is a method in the mad- kingdom’. In other words, the message sent
ness, a method outside the ambit of the clas- to the audience is not just ‘the other side is
sical SOP models. horrible, so kick them out’ but also ‘our side
is wonderful, so support us’. Virtue signaling
seems as much at play as blame game.
What is Going on? Blame Game Consequently, let’s briefly explore the pol-
itics of virtue signaling.
Versus Virtue Signaling
Our admittedly cursory review of recent
empirical evidence suggests that much legis-
lating continues to follow the script of the Toward A Model of Message
classical, incomplete information bilateral Legislation: Virtue Signaling
bargaining models. For example, in and Accountability
Figure 13.1 most cloture votes do fall near
the 60-vote benchmark. As the same time, Let’s consider a model of message legisla-
there appears to be a serious under-current of tion, legislation not intended for enactment
something else going on. What is it? but instead constructed solely to send a mes-
An obvious candidate is blame game poli- sage to outside observers. Many obvious
tics. As suggested by Senator Snowe’s com- questions arise: who are the senders? Who
ment, a phenomenon like forcing a futile are the receivers? What is the message? What
cloture vote in the face of an invincible fili- gives the message meaning? What gives it
buster may be an attempt by the chamber’s credibility? Why is strategic information
BK-SAGE-CURINI_FRANZESE-190202-V1_Chp13.indd 236 30/01/20 9:38 AMNew Directions in Veto Bargaining 237
transmission of this form advantageous to the McCarty already constructed an example of
parties? Many answers to these questions are the former.
possible and lead to different models. But Virtue signaling requires the receiver (the
let’s sketch one set of answers, if only to sug- selectorate) to have incomplete informa-
gest how to embed veto bargaining-style tion about the sender, the incumbent legis-
models of SOP policymaking within an lator. This is in contrast to the blame-game
accountability model of the electorate. We’ll approach, where the incomplete information
focus on the dramatic, frenetic failed legisla- must be about the opposition (e.g., the oppo-
tion of the ‘repeal and replace’ variety. sition president or party). So, here, the selec-
First, let’s assume the senders are mem- torate is somewhat uncertain about the virtue
bers of a party that controls one chamber of of the incumbent representative. To make
Congress but does not control all the major matters concrete, suppose there are two types
veto points in the legislative process. So, the of representatives: slackers (low virtue) and
president may belong to the opposite party. zealots (high virtue).35 Slackers have no pol-
Or, the other chamber may be controlled by icy convictions but just value holding office.
the other party. Or, ‘our’ chamber may be the Zealots also value office but in addition they
House while the other party controls the very value policy, and value it similarly to the
constraining filibuster pivot in the Senate. selectorate. From the viewpoint of the policy-
Let’s assume the status quo lies firmly in the minded selectorate, it doesn’t make much dif-
gridlock region, so no enactment improving ference which type holds office when policy
matters from the sender’s policy perspective is gridlocked. After all, no change is possible.
is actually possible. But if policymaking becomes possible and is
Let’s assume the receiver of the mes- costly of time and effort, then it may make a
sage is the sender’s selectorate – the high- great deal of difference who holds office. For
information, highly engaged portion of the on that happy day, the slacker won’t do much
party whose money, time and enthusiasm work, but the zealot will toil like a Trojan
is vital for re-election. With the support of in order to achieve the policy goal. Clearly,
these hyper-engaged kingmakers, re-election from the viewpoint of the policy-oriented
is almost assured (the district is a safe one). selectorate, it will be much better to be rep-
But without it, the sender may well be ‘pri- resented by a zealot rather than a slacker on
maried’ and out of office. This approach that future day.
is particularly compatible with the UCLA How then can an incumbent zealot prove
approach to parties, where parties are formed he is a zealot and worthy of re-election? A
out of a coalition of policy-motivated groups non-starter is, issue a raft of campaign prom-
which ‘insist on the nomination of candi- ises. Any promise a zealot could make, a
dates with a demonstrated commitment to slacker could make as well. So, our model
its program’,34 but can also fit with others in will not feature Downsian-style prospective
which the political marketplace is less than campaign promises. Rather, it will incorpo-
perfect. rate V.O. Key-style retrospective voting. The
Two broad classes of messages are pos- selectorate will act in light of what has gone
sible. The first (as discussed above) is the before, eliminating incumbents likely to be
blame-game message: I will show you that slackers and retaining those likely to be zeal-
the other side is terrible [so you should sup- ots. The point is to increase the chances of
port me]. The second is the virtue-signaling having a zealot incumbent when policy win-
message: I will show you that I am trustwor- dows open in the future.36
thy, your faithful agent, one of you [so you Let’s focus on one type of action the
should support me]. Let’s consider the sec- incumbent can undertake: frenetic failed
ond class of models, since Groseclose and legislation. So, pass, re-pass and continue
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re-passing virtually the same bill in the face equilibrium is quite attractive for the incum-
of an unbeatable veto, an invincible filibus- bent politician regardless of type; after all,
ter or just plain disregard from the opposite he doesn’t have to do much policy work in
chamber. The resulting sequence of play is: period 1 and yet gets re-elected. But it is
not so good for the voter, because when the
1 Nature selects the incumbent legislator’s type policy window opens in the second period he
(slacker or zealot), which is private information may find himself saddled with a slacker as
for the incumbent. representative, resulting in a missed legisla-
2 The incumbent engages in a futile legislative
tive opportunity.
interaction with, say, the President, fruitlessly
passing and re-passing the same bill with multi-
The second, and more interesting, equi-
ple vetoes and re-vetoes. Enactments are costly librium is a separating equilibrium.37 Here,
of time and effort that could profitably be spent in period 1 incumbent slackers and zealots
elsewhere. behave in very different ways. The zealot
3 When either the president accepts a bill or the engages in frantic frenetic failed legislating,
incumbent desists with fruitless legislating, play- fruitlessly passing and re-passing the same
ers receive period 1 payoffs. bill over and over and over. The slacker does
4 The voter then retains or fires the incumbent. nothing because imitating the furious action
If the voter fires the incumbent, nature selects of the zealot would be too costly of effort.
the type of the new representative. Nature also The zealot’s policy-mindedness creates a
selects a new president so that policy windows
wedge between him and the slacker that
open.
5 The representative (either new or retained)
allows this separation to occur – but only at
engages in a legislative interaction with the new high levels of effort, hence the need to do a lot
President. of futile policymaking. The voter then fires a
6 Based on the outcome of the legislative interac- revealed slacker and retains a revealed zealot.
tion, players receive second period pay-offs. In the second period, when policy windows
open, a zealot works hard to legislate and a
Comparison of this sequence with that of the slacker doesn’t. This equilibrium is much
simple TILI game indicates a much more worse for the legislator: a period 1 slacker
complex game. It features two periods, not gets fired, and a period 1 zealot must slave
one; incomplete information (held by the away at phony legislating in order to retain
voter about the incumbent’s preferences), not his job. But this equilibrium is much better
complete information; voter beliefs about the for the voter because it boosts the chance of
incumbent’s preferences; costly signaling by having a valuable zealot in place when policy
the incumbent in period 1; retrospective windows open.
voting by the voter; and, finally, serious poli- We have only sketched an analysis of mes-
cymaking in the second period. Still, as a sage legislation and virtue signaling. But
costly signaling game, it is not hard to ana- we hope we have at least suggested that the
lyze using modern techniques. idea is worth pursuing, and that the politics
We assert without proof that the virtue of virtue signaling is distinct from but com-
signaling game has two generic equilibria. In plementary to the politics of the blame game.
the first, a pooling equilibrium, both a slacker Carefully elaborating the theory of virtue
legislator and a zealot legislator behave the signaling may enable some parsing of the
same way in period 1: they do nothing. And, difference between the two and lead empiri-
in this ‘incumbency advantage’ equilibrium, cal work in new directions, for example the
the voter re-elects the incumbent despite the effect of message votes on fund raising, pri-
dearth of effort. Then, in the second period, mary challenges and citizen voting – all new
a zealot legislator engages in fruitful leg- directions for SOP-style models. In addition,
islating while a slacker does nothing. This further theoretical development might well
BK-SAGE-CURINI_FRANZESE-190202-V1_Chp13.indd 238 30/01/20 9:38 AMNew Directions in Veto Bargaining 239
tackle the question: why the rise in message fairly subtle one. The separating equilibrium
legislation? The new media environment, in our proto-model involves considerable
partisan polarization of elites, the rise of information transmission between the send-
groups such as the Tea Party on the right and ing congressperson and the constituent. The
“the opposition” on the left, partisan sorting constituent learns something about the con-
geographically and across the parties, and the gressperson and – critically – then uses the
increase in competition to control the gov- information in choosing either to support or
ernment are probably all implicated. But how oppose the incumbent. The result is an ideo-
exactly? In a related way, in the context of the logical filter applied to incumbents, resulting
virtue signaling model one might ask, across over time in greater retention of representa-
different issues, when should we expect the tives who are zealous in pursuit of the selector-
pooling equilibrium to prevail, and when the ate’s ideological goals. The result is not quite
separating equilibrium (the difficult question the same thing as ideological polarization per
of equilibrium selection)? se. But because the key constituents who fol-
low and respond to the political theater tend
to be high-information ideologically consist-
ent extremists, the net effect is to build a more
Does Bargaining Before an extreme legislature over time. In essence, there
Audience Make a Difference? is an enhanced feedback loop between incum-
bent position taking and constituent response,
We have suggested ways to modify classical leading to a legislature responsive to relatively
SOP models, such as the veto bargaining extreme blocks within the electorate. Or so the
models, in order to better capture the new model suggests. An obvious question is: is this
American legislative politics. The new poli- actually happening?
tics on which we have focused results from There is another element, outside our
blame game politics but also (we suggest) sketch model, but of potential importance and
from politicians’ virtue signaling to an atten- concern. In the pooling equilibrium, zealous
tive audience of ideological extremists. But incumbents who face gridlock don’t under-
is modifying the classical models to incorpo- take any policymaking effort since it won’t
rate message legislation really worth the accomplish anything substantively and they
effort? After all, the classic SOP models will get re-elected anyway. But in fact, case
more or less get it right with respect to policy studies show zealous policy-minded con-
outcomes: when they say policy windows are gressmen doing a lot of policy work during
shut, relatively little is enacted. When they down periods. In particular, congressional
identity the key veto players, they are gener- policy entrepreneurs hone their legislative
ally correct. And when they suggest the proposals and lay the foundation for future
political evaluation needed for enactment – legislative coalitions. For instance, Senator
that is, the spatial position of viable legislation Bill Bradley spent years working on tax
in something like NOMINATE space – reform before policy windows opened creat-
usually they are close to the mark. So, one ing the opportunity for a big policy innova-
may well ask, does all the noisy action atten- tion.38 Similarly, famed policy entrepreneur
dant on message legislation actually make a Representative Henry Waxman labored long
substantive difference? Or does the sound and hard, often for years, to build carefully
and fury signify nothing? crafted bills well aimed at specific health
Our sketch model of message legisla- policy problems.39 The result was (arguably)
tion and virtue signal suggests that the poli- high quality bills ready to go, when the grid-
tics of bargaining before an audience does lock region narrowed and legislative opportu-
make a difference for outcomes, though a nity presented itself.
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