*** UPDATE (8/22/09) ***: It seems as if the Republicans and their flaks in the media (read: FAUX “News”) have been trying to make hay by conflating the Democrats’ consideration of using budget reconciliation with the “nuclear option” which made such a splash a few years ago during the Bush administration, when the Republicans were considering using the “nuclear option” to get around Democratic filibusters. Be aware, no matter what ClusterFOX (or anyone else) tells you, these two things are NOT the same. The main difference is that budget reconciliation, while unusual, is specifically provided for in law, whereas the “nuclear option” the Republicans were considering in 2005 to get around Democrats would have – and still would – require a major change to the rules of the Senate in order to accommodate it. Oh, and the other big difference would be: Democrats aren’t talking about trying the “nuclear option.” Only the Republicans were talking about that. Surprise, surprise, I know. For a very thorough run-down on the differences (complete with links to the actual legal precedent) between the “nuclear” option and budget reconciliation, check this excellent post at DailyKos.
This one’s been brewing for a while now – at least a couple of weeks, and far longer, if you’re the sort of person who works in Washington (or reports on it), and also has the foresight to look down the road a bit. If you’ve been watching the health care debate at all, whether in person or on TV or the newspaper, you’ve probably started recently hearing talk about the Democrats using something called the “budget reconciliation” process to pass health care reform. It sounds odd, since the budget was passed a few months ago, what is this process and how might it work? More importantly, what are the events and forces which have led to such considerations, and what should the Democrats do? To answer that, requires a bit of background.
When the Constitution was drafted, the entire point of having a Senate with only two members from each state – no more, no less – and with much more arcane and restrictive rules than the House of Representatives, was to ensure that large, populous states didn’t simply ride roughshod over smaller ones. In the House, representation is apportioned based upon population. It’s a game that a state with a very small geographical footprint, like Rhode Island or Delaware, or a large-but-(comparatively) empty state like Montana, can never hope to win against a California or a New York or Texas. Those states already have a larger role in general elections, where electoral votes are tallied to represent a combined total. And frankly, though I’ve got my problems with the electoral college, that’s as it should be: popular vote decides our elected leaders (more or less). But the Senate was designed as the primary check on both the population-weighted, winner-take-all House as well as the “advise and consent” check to the power of the executive branch.
Unfortunately, it’s never been a perfect solution, nor has the process of moving legislation and equaling out the weight of various states in crafting legislation in the Senate been perfect. Most people are familiar with the filibuster rule. This is a rule which states that, if the opposition party (whoever has fewer Senators at any given time) truly doesn’t like a particular piece of legislation, if they feel it really goes against their party’s fundamental principles, they are allowed to register their disapproval of it by means of the filibuster. The Senate’s rules are set up so that, as long as there remain Senators who are not finished debating an issue, the issue cannot be voted upon. If even one Senator wishes to hold up a vote on a piece of legislation, they can do so by means of a filibuster. A filibuster consists in theory of the Senator or Senators in question rising from their seats, obtaining parliamentary permission to speak, and then simply refusing to yield the floor….ever. As long as someone continues to speak out against a bill on the floor of the Senate, debate is still officially open, and thus no vote can be held. The exception to this rule – the way to end such a filibuster – is by means of a cloture vote. If sixty or more Senators in the chamber vote to force debate to a close, then the rules state that the debate is closed even over the objections of the Senator who’s filibustering, and a vote proceeds to take place on the legislation. The theory behind the filibuster is that since the Senate always has only 100 members, that even if a given party is in the majority (51 or more Senators), they would have to either have a huge majority (60 or more Senators) or they would have to attract a good number of the other party’s Senators to vote with them in favor of cloture – in favor of shutting down debate and voting on the bill under consideration. This was – again – a fail-safe so that no party which had only a simple majority of 51 or more Senators could just run roughshod over the opposition. It gave the opposition a way to exert some limited power.
However, as originally intended – and as used by both parties for many decades – the filibuster was a tool to be used only in unusual cases when the bill being proposed was so odious to the minority party that they couldn’t stand for it. It was a way to force the majority party to demonstrate (if they could) that the bill had enough bipartisan support that it could even overcome a sixty-vote threshold to be passed. Any bill which could do so was assumed by default to be popular enough that it ought to be made law (or at least sent to the President) due to its obvious popularity.
Unfortunately, the GOP has, in the last decade or so, fundamentally changed the nature of the game with regard to the Senate. The filibuster, which used to be a tool for unusual circumstances, became literally a commonplace thing for Republicans to in use virtually every vote, when they were in the minority. In fact, so commonplace did the GOP’s use of the filibuster become, that in the last session of Congress, after Democrats re-took control of both houses of Congress (but George Bush was still President), the Republicans set an all-time record for most filibusters in a Congressional session. Even more amazing, they did so in just under half a session. In other words, it would have been as if Roger Maris had hit his long-standing 61 home-run record….before the All-Star break. It was literally unprecedented, and it reflected not just a tactical shift on the part of the Republicans, but a sea-change in the way laws were getting passed – and thought about – in Washington.
That’s why there was so much foo-raw about the Franken/Coleman race earlier this year: because seating Al Franken would give the Democrats that magic 60-seat total number of Senators. In theory, that would be enough to overcome filibusters and actually pass legislation. However, leaving aside for a moment whether this is in fact true, it should not – indeed it cannot – be overstated that this new focus on sixty (instead of
fifty one for most bills) votes as a threshold for legislation is due entirely to the GOP’s changing of the rules. You may have heard them described as “the party of no;” well, sometimes I think that label might be mis-applied, depending upon the circumstances. But there is no way at all to gainsay that this is the clearest example of the truth of that statement: since its inception, the Senate has required fifty one votes to pass legislation except in very unusual circumstances. Those are the consequences of winning (and losing) elections. The filibuster was created to make sure that not ALL of the power went to the victor of the last election. But – more or less by gentlemen’s agreement – it was unspoken that it was a tool to be used only in unusually contentious situations. The Republicans tossed all that out the window like petulant children as a result of the stinging rebuke the American people dealt them at the polls in 2006 and again in 2008. They are now literally holding the Senate’s ability to pass laws hostage, by demanding an unusually difficult to achieve threshold for passage of literally ALL bills. If you look back through history, you will see that the dominant balance of power in the Senate rarely gets lopsided enough to hit sixty seats. In a chamber where the total is always one hundred, an advantage of two or three seats – and certainly of six or seven, let alone ten or twelve – is significant, even dominant. Many – no, MOST previous Congresses, whether controlled by Republicans or Democrats, were able to get much of their agendas passed with only a few seat majority in the Senate. That’s all – traditionally – that’s been required. Until about 2000.
Today, one reason the Democrats seem ineffective sometimes is not that they can’t muster support for their legislative initiatives, but that they are having to jump over a much higher hurdle than any Senate session in America’s history, because the Republicans have forced it to be that way. One of the pieces of beltway conventional wisdom is to tread lightly when it comes to considering heavy-handed political or parliamentary tactics, because the way American politics goes, no party is going to be in the majority forever. It’s sort of a negatively-stated golden rule: don’t enact draconian or punitive restrictions on how to pass legislation, if you wouldn’t want those measures used against you — because you will be in the minority again, someday. And it’s very difficult to put the toothpaste back in the tube, once unstoppered. There are those who claim that the impeachment of Bill Clinton over a private sexual matter (and lying about it to a grand jury) was directly attributable to nearly two decades-worth of simmering Republican anger over the almost-certain impeachment of Richard Nixon. I don’t know whether that explains all of the madness that gripped the GOP and the rest of the nation during the “Lewinsky years,” but it’s not a completely implausible theory. Old scores are often shelved in Washington until there’s an opportunity to pay them back. And if a particular party – either party – acts in a high-handed manner when they’re in power to the other party, you can almost guarantee a swing-backwards of the pendulum, often using the exact same tactics, when the roles are reversed.
Except that the Democrats – unlike the modern Republican party – are still trying to hold firm (more or less) to the older, less antagonistic and polarized rules and conventions. Prior to this last Congressional session’s filibuster record, the previous record had been held by….the Republicans in 2001, the last time that they were in the minority in the Senate (a razor-thin one). But, when the 2002 mid-terms returned control of the Senate to the GOP, the Democrats did NOT rack up a similarly large total of filibusters. That may have been due to timidity or lack of “message discipline” within the Democratic caucus, but it may also have been due to a genuine desire not to upset the carefully-crafted and fragile balance of power which the filibuster gave to the minority. Liberals and progressives are still split over whether the Democrats are noble, or whether they’re chumps, for that decision.
No matter where you fall on that question, however, the current state of affairs in the Senate is that the President has proposed the most sweeping and impactful piece of legislation since the Great Society, perhaps since the New Deal: health care reform. And, as those opposed to it take every opportunity to point out, it comprises somewhere between a sixth and a seventh of our economy. Reforming it will literally affect every single American (though obviously some more than others), even the ones whose health care delivery won’t change because they’re on Medicare or are veterans, for example. Even they will see changes in their finances, as things shift around. And, as you might expect, the powerful and wealthy interests who like things just the way they are because they make a lot of money that way – namely, the insurance industry, though of course there are others as well – are arrayed against any reform, especially that which includes the fabled public plan option. The White House and Congressional Democratic leadership have approached that – and many of health care reform’s other provisions – with an unsteady set of talking points. They’ve said the public option is essential to real reform, they’ve floated trial balloons suggesting that it’s only one small piece of reform (and not the most important or essential one), they’ve toyed with the idea of substitution co-ops for a genuine public option. In short, they’ve been all over the place.
Why? If the Democrats have the magic sixty votes in the Senate, why don’t they just propose the bill they way, and be done with it, since they’ll be able to pass whatever they wish? The answer is because they don’t really have sixty votes. Not every Democratic Senator is a sure-thing to vote for a bill which contains significant reform. There are the so-called “Blue Dogs,” conservative Democrats who on many fiscal (and some social) issues, resemble many Republicans far more than they do the average Democratic Senator (and certainly the average Democratic voter). Conservative Democrats? Yup, they exist. And they’re a headache for the White House. It may seem surprising, because the modern GOP has become synonymous with conservatism (and usually older, white and southern versions of it), but there was a time not too long ago when “Republican” wasn’t automatically a synonym for “conservative.” And “Democrat” wasn’t a synonym for “liberal.” In reality, there would be no such thing today as Blue Dogs if it weren’t still at least somewhat true that the Democratic party is genuinely a big tent: big enough to contain both fiscal and social liberals and conservatives. The GOP may have gone on a systematic ideological jihad, led by the likes of Rush Limbaugh and Michael Savage, to purge the party of all “non-believers” in the conservative orthodoxy so well-embodied by the Bush/Cheney regime, but the Democratic party still is expansive enough to include a few conservatives. And it is literally these few conservative Democratic Senators – Baucus, Conrad, Lieberman, a few others – who could decide not whether the Democrats have enough votes to pass their health care reform bill, but whether they could overcome the inevitable Republican filibuster of it. Although some analysts (including Kent Conrad himself, which I found rather self-serving) claim that the Democrats don’t even have enough votes to pass a bill with a strong public option in it on a 51-vo
te threshold, most people agree that, with careful leadership, a straight majority-vote wouldn’t be hard to achieve, even on contentious legislation such as this health care reform bill.
Enter the process I began this post with: budget reconciliation. What is it? Budget reconciliation is a parliamentary procedure in the Senate which allows for some legislation which is deemed critical by the majority party, to be introduced under budget reconciliation, meaning that it bypasses the filibuster rule and allows for a straight 51-Senator vote. But there’s a catch. The reason it’s called “budget reconciliation” is that not just any legislation can be voted on thusly: it has to be something which demonstrably affects the budget process one way or another. And that brings up a host of problems for health care reform advocates and Democrats in the Senate. While certain provisions of a health care reform bill could obviously be considered to have budgetary impact, not all could. For example, there’s a good argument to be made that the “employer mandate” (requiring employers to offer coverage) is not budgetarily necessary. There’s no question that such a mandate would affect businesses and citizens….but it doesn’t directly impact the US government budget in any way. It could be argued, I suppose, that anything which affects that many individuals and businesses would, by definition, affect the budget by virtue of affecting taxes collected, etc….but those are esoteric argument which rely upon supposition and theoretical modeling for their substance. It’s not at all clear that such an argument would carry the day. Who gets to decide, if legislation is attempted under the budgetary reconciliation process, which portions of legislation are kept and which are either thrown out or have to be changed?
His name is Alan Frumin, and he is the Senate parliamentarian. His job is, by agreement of both parties, to act as a sort of binding arbitrator within the Senate’s rather arcane parliamentary rules, on legislation proposed under the budget reconciliation process. It is he who will get to decide, should the Democrats propose health care reform under this process, what stays and what goes – or has to be drastically changed. One guy. I cannot believe, in the world’s wealthiest nation, with some three hundred sixteen million citizens, that the future of all of our health care may be in the hands – literally – of one guy. Nevertheless, this is shaping up to be the case. It’s a foregone conclusion that the Republicans will not only not support, but will filibuster any health care reform legislation the Democrats introduce under normal Senate rules. Though the bill’s passage is a near-certainty in the House of Representatives where there is no filibuster rule and majority rules – and where Democrats hold an 80-seat majority, it would have to be an outlandish bill indeed to make more than eighty Democrats consider voting against it. But in order to put a bill on President Obama’s desk, the Senate needs to vote yes on it, too. And that will require sixty votes, given a certain Republican filibuster. And that, in turn, will require every single Democrat to vote in favor of the bill — a prospect which is far from certain. Democrats would need every single member of their caucus to override the filibuster, and for every one of their own they cannot keep, they would need to peel off one Republican from voting no. It used to be that Maine’s two Senators, Susan Collins and Olympia Snowe, plus Pennsylvania’s Arlen Specter, could be counted on to be at least approachable on sensible legislation of this sort. They wouldn’t always vote with Democrats, but they could at least be reasoned with. It was this trio which provided Obama with the votes he needed to pass his budget in the Senate….and it was also Specter’s vote on that budget bill which caused him to come to believe he could not win a Republican primary in his own state, so angry were the GOP at his “defection.” That led to him actually switching parties, which means he is already counted amongst the 60 seats the Democrats would need to hold to override a filibuster. That leaves only two potential “gets” for Democrats…and neither of them is likely. Also, there may be more than two Democrats who might vote the other way. So straight-up passage over a filibuster in the Senate, while not impossible at all, is a considerably dicey proposal.
That makes the budget reconciliation process look ever more enticing…until you discover that one lone man – not even an elected official, but a Senate staffer – would have to power to decide what form health care reform takes under that method. Republicans are already gearing up to make proposals to Frumin of which bits of health care they think should be quashed, and why. They’d like to quash all of it, but if they can’t, they’ll certainly try to kill enough portions of it to render whatever does end up passing ineffective in truly reducing costs and increasing coverage. The the GOP would get to trot out before the cameras, declare that even though the Democrats “cheated,” they still couldn’t deliver on their promises. Therefore, why not re-entrust them, the GOP, with the reins of power? And it might work.
I just read an absolutely fantastic article by David Waldman over at Congress Matters, regarding the budget reconciliation process, and some possible Democratic strategies concerning it. Waldman digs into the history of the Senate parliamentarian, and notes that although both parties have used the process since its (relatively recent) inception a couple of decades ago, it has been used more frequently – and on more contentious and wide-reaching legislation – by the GOP (surprise, surprise….NOT) than by the Democrats in the Senate. George Bush used it to ram through the most controversial of his tax cuts in 2001, when things were already starting to go downhill and Senators were starting to get cold feet about draining more out of the treasury. And – get this – the man who preceded Frumin in the office, Bob Dove, was fired by then Senate majority leader Trent Lott…because he wasn’t going to approve the Bush administration’s tax cuts. Waldman points out, with some justification, that if you step back a moment, it’s quite clear who’s been abusing the parliamentary rules of the Senate for their own ends for at least a decade: the GOP. If they weren’t certain to filibuster this and any other piece of legislation they dislike, it would probably pass outright. Democrats have earned the right, historically speaking, to get most of their agenda enacted. They did it by the difficult work of electing sixty Senators, a President and an 80-seat majority in the House of Representatives. That, by tradition, entitles them to the temporary privilege of getting much of their agenda passed. But the Republicans keep moving the goalposts. Now, it requires sixty votes every single time to pass legislation that isn’t completely non-controversial. Count on it. And on top of that, it seems that when the shoe is on the other foot, the GOP is content to “shoot the horse” (that can’t jump the hurdle) by firing the adjudicator and hiring one that WILL jump the hurdle for them, allowing the GOP to skirt a Democratic filibuster.
Waldman’s solution? Actions such as that have retaliatory consequences: fire Frumin if he balks at passing health care reform legislation, and
then hire whomever you wish and pass what you wish. Sound heavy handed? Yeah, it did to me, too. But the problem is that Democrats were recently facing near-extinction as a party because of tactics like this: they’d been bullied and beaten by Republicans (who, to their credit, did indeed do a lot of hard work out on the hustings, electing their own). But they’ve so stacked the deck in their own favor – and refused to play by the rules when the tables were turned – that it virtually requires that the Democrats hold their noses and do similarly, when the chips are down. And, on legislation as important as health care reform, which we’ve been waiting for since at least Truman (and which the Republicans have thwarted many times), the chips are well and truly down, as they might not perhaps be for any other issue for a long time to come. Lose this one, and all most of the American public will see is that even if you DO elect Democrats to overwhelming majorities, they still can’t get anything done. Never mind that the Republicans have cheated and stacked the deck so badly; it sounds like whining for Congressional leaders to complain that they still just don’t have the votes to pass widely popular legislation. And frankly, it IS whining. The Democrats are a large majority in both houses of Congress. They control the White House. And if the opposition party refuses to accept that and cheats or stacks the deck to thwart them? Then they need to recognize that the time has come for some genuine hardball. Because, as Waldman astutely notes, not only would it be a loss for the American people – which is the worst of it – but Democrats would likely lose both credibility and seats – and possibly control of Congress – in upcoming elections.
But even beyond that, there’s the additional factor that if Democrats cave in and refuse to meet the GOP on their admittedly low-ball level, the lesson learned by not only the public, but also the Congressional Republican caucus, will be that they can get away with it. That’s the lesson they learned on warrantless wiretapping, on outing a covert CIA agent, on torture. With each refusal of either Democrats in Congress or the President to get tough and order investigations because they were the right thing to do, regardless of where the chips might fall, the GOP became emboldened to do it again, more emphatically, more frequently. I fear that we are facing the classic “schoolyard bully” phenomenon: that, to whatever degree you accede to the bully, it only emboldens him to push for more. And it is not until you stand up and punch him squarely in the nose that he decides that you’re not worth the trouble and learns either to take it elsewhere, or to behave. The GOP has shown no signs whatsoever of internal self-regulation when it comes to these things. Indeed, driven by Rush Limbaugh and others, they seem hell-bent on becoming as angry and as obstructionist as they can. I don’t know why anyone believes that this will stop of its own accord, because it most certainly will not. If the Democrats and President Obama do not draw a line in the sand and actually stand up for this thing that they brought to the fore again – health care reform – Obama will be a one-term President, and Democrats may lose one or both houses of Congress. America may not like the Republican party very much right now, after eight awful years of George W. Bush, but those memories are already beginning to fade in their ability to generate feelings of outrage, and that will only accelerate with time. And if there’s anything the public perennially likes even less than they like the GOP right now, it’s whiners who can’t get done what they told you they could – or can’t get anything at all done.
Mr. President, Madame Speaker, Mr. Majority Leader – you were swept into power largely as a reaction, a reaction to all the terrible things done in our name over the last eight years. Yes, you fought hard and you deserve your victory. But you chose to bring forward a piece of major, ambitious legislation which is indeed desperately needed. Except, you need to recognize that with such ambitious goals come – or should come – the determination to see the process through to the end. Stopping 2/3 of the way through and complaining about the big, bad obstructionist opposition only makes you look weak and ineffective. I would not suggest such unorthodox and frankly odious tactics were it not for the fact that not only has the other side apparently no scruples whatsoever about using them, but they will not listen to nor respect anything but the use of those tactics in return. Nor should they, looked at from one perspective. If they can cow you into allowing yourselves, despite such huge majorities, to fail in your efforts, then you deserve the electoral drubbing and subsequent irrelevance you will likely receive. Unfortunately, the American public – you know, the ones who GAVE you those large majorities – deserve better than to have an unprincipled minority of obstructionist thugs hold hostage the progress of this nation. So, time to decide. You can’t now UN-propose health care reform. Jim DeMint perfectly encapsulated the GOP’s goals and their strategy when he said if we can break him on this it will be his Waterloo. That’s what they’re interested in: breaking you so they can return to power an proceed with whatever plans they have. Is that what you want? What DO you want? When you propose legislation of this sweep, you are implicitly saying that this is a hill you’re prepared to die on. That’s good – if the reasons are right. And I don’t question your reasons at all. I question your resolve. Because the sad truth that I think you may not have fully realized STILL is that you ARE going to die on this hill, if you lose. To say nothing of the hundreds of thousands of Americans who will also literally die, from no insurance or inadequate insurance or capricious insurance company recission of policies over minor errors. They deserve better, and you promised you’d get it for them. You cannot un-ring that bell, the die has been cast. The only thing that remains is for you to realize this fact, and locate your courage and the will to do what must be done, and to go about it, without fanfare. You’ll get enough fanfare if and when you pass this thing. What’s it going to be?