Wednesday, August 19, 2009

How Can Only 40 Senate Republicans Stall Health Care Reform?

And How Senate Democrats Can Out Maneuver The Republicans

Updated Thursday August 20, 2009 10:10 AM
So far the new era of bipartisanship in Washington is more uni-lateral that bi-lateral. Last winter Pres. Obama kindly offered Republicans a bipartisan olive branch and extended them a place at the table of ideas to craft an economic stimulus package.

The response to that bipartisan olive branch was that Republicans trash talked Democrats and voted in mass against the stimulus bill anyway. Pres. Obama's stimulus package passed the in the U.S. House with zero Republican votes and only three Republicans broke ranks in the Senate to vote yes on cloture, which narrowly avoided a 'cloture filibuster' of the stimulus bill.

Pres. Obama, who had hoped for a widely supported bipartisan economic stimulus bill, got stonewalled despite conceding away large parts of the stimulus package to Republican objections that many economists said were essential.

Sound Familiar? The same thing is happening on health care reform legislation! How can only 40 Senate Republicans, with maybe the help of half-a-dozen conservative blue dog Democrats, kill, or at least stall, health care reform legislation?

In the Senate a mere threat of a no vote by 41 Senators on a cloture motion to limit debate on a bill amounts to a filibuster.

Cloture - The only procedure by which the Senate can vote to place a time limit on debate of a bill or other matter, and thereby guarantee that an up or down vote will be called on the bill. This is the only way to overcome a Senate filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes. The cloture rule, adopted in 1917, allowed the Senate to end a debate with a two-thirds majority vote. The new 'two-thirds' rule still made breaking up a filibuster difficult; therefore, the Cloture rule was amended by the senate body in 1975 to reduced the number of votes required to end the filibuster from two-thirds (67 votes) to three-fifths (60 votes).

Photo of Senator
Hubert H. Humphrey
June 10, 1964
Civil Rights Filibuster Ended

At 9:51 on the morning of June 10, 1964, Senator Robert C. Byrd completed a [filibuster] address that he had begun 14 hours and 13 minutes earlier. The subject [of Sen. Byrd's filibuster] was the pending Civil Rights Act of 1964, a measure that occupied the Senate for 57 working days, including six Saturdays. Democratic Whip Hubert Humphrey, the bill's manager, concluded he had the 67 votes required at that time to end the debate.

The Civil Rights Act provided protection of voting rights; banned discrimination in public facilities—including private businesses offering public services—such as lunch counters, hotels, and theaters; and established equal employment opportunity as the law of the land.

Democrats in the Senate today do not seem ready to make Republicans actually stand on the Senate floor and publicly filibuster health care reform in front of the Senate cameras for hours and days and weeks. (As in Mr. Smith Goes To Washington - youtube clip) Neither do Democrats seem ready to threaten the "nuclear option," to eliminate or amend filibustering in the senate rule book, as Republicans did against Democrats when the G.O.P controlled the Senate.

It certainly did not routinely takes sixty votes to do almost everything in the Senate during the years Republicans were in the majority and controlled Senate business. When Republicans controlled the U.S. Senate during the Bush presidency they accused Democrats of being obstructionists any time they said they might call for and vote down cloture in response to Republicans pushing very partisan conservative legislation and judicial nominees through congress. Ranking Republicans in the G.O.P who then controlled the U.S. Senate, threatened the "nuclear option," against Democrats, which would have effectively eliminated filibustering from the senate rule book.
(The term "nuclear option" was coined by Lott, one of the leading advocates of a proposal to change the Senate rule that requires a three-fifths supermajority to invoke cloture and end a filibuster. After Republican strategists deemed the term a political liability, Republican senators began to attribute it to Democrats. As Media Matters for America noted, at the time, many in the news media followed suit, repeating the Republicans' false attribution of the term to the Democrats.)
The nuclear threat worked - Senate Democrats were consistently cowed into allowing Republicans to pass very partisan conservative legislation and confirm very conservative judges, effectively unopposed. Ultimately, this left Democrats with no voice in the Republican controlled Senate! - None!

Republicans were singing a different tune after they they lost control of the senate in the November 2006 election and became the minority party in the 110th Congress. The number of cloture votes (stealth filibusters) forced by Senate minority Republicans skyrocketed in the 110th Congress.

So, before Republicans were for using the filibuster as the minority party, they were against it when they were the majority party - A clear flip flop!

The Senate was forced by Republicans to voted on 112 cloture motions (filibuster attempts) in the 110th congress controlled by Democrats, exactly double the number (56) of cloture votes in the 109th Congress, when Democrats were in the minority and Republicans were in control. The 110th congress cloture motions were two-and-a-half times as many as the average number of cloture votes (44) over the previous nine Congresses.

Of these cloture motions, 51 were rejected, meaning that Republicans succeeded in "procedurally filibustering" an up-or-down vote because at least 41 Republican Senators merely said they would vote against limiting debate to allow a floor vote. They effectively accomplished a "procedural filibuster" without actually holding the senate floor to continue debate for hours and days and weeks in a "Mr. Smith Goes To Washington" type of filibuster. On the 61 cloture votes to limit debate that did succeed, thus defeating the procedural filibuster, Republicans at the very least successfully stalled for time.

With the Republican minority numbers slipping to just 40 Senators for the 111th Congress (now that Al Franken D-MN has been seated) Republicans have formed a united front in threatening to use the power of the cloture vote to stall legislative business at every opportunity. Republicans forced the legislative pendulum to the far right during the Bush years and now with the help of up to six or so conservative blue dog Democrats they are determined to do everything possible to keep it stuck in the far right position using the 60 vote cloture rule.

With the Republican minority in the senate, along with a handful of blue dogs, exerting every effort to kill any health care reform legislation, Senate Democrats have two options to skirt Republican cloture vote filibusters against health care reform legislation:
  1. The Nuclear Option of changing senate rules on the cloture vote threshold, or
  2. Use Senate Budget Reconciliation rules, which disallows a motion for a cloture vote, to vote on health care legislation
Under the Congressional Budget Act of 1974, so called "Budget Reconciliation" legislation was given special Senate protection so that budget related bills may be passed by simple a majority of 51 votes, after limited debate. Budget Reconciliation rules give senators the ability to make the kinds of tough decisions on slim support margins required to cut the deficit.

Legislation passed under the Budget Reconciliation rule is allowed to contain only provisions for policy changes in mandatory spending (entitlements) or revenue programs (tax laws) to achieve government spending and revenue goals. Therefore, Republicans would undoubtedly contest "Budget Reconciliation" legislation that includes health reform items, such as regulations on rescission and pre-existing conditions practices employed by private insurance companies. Republicans would argue such items do not conform to Budget Reconciliation rules. [NYTimes]

The question of whether or not the public health insurance option legislation conforms to Budget Reconciliation rules is a gray area and would likely also be challenged by Republicans. [Dailykos] Even so,
White House and Senate Democratic leaders are reportedly considering a strategy shift that would present health reform legislation in two separate bills. One bill would include health reforms that do conform to Budget Reconciliation rules and would reportedly include a public insurance option to compete with private insurers. This bill could be passed with just 51 votes through the Budget Reconciliation parliamentary maneuver. [WSJ Online]
Republicans repeatedly used reconciliation to pass President Bush's agenda when they controlled congress to circumvent any possibility of a filibuster by Senate Democrats. Republicans used the budget reconciliation process to pass President Bush's 2001 and 2003 tax cuts as well as the 2005 "Tax Increase Prevention and Reconciliation Act." The Senate also used the reconciliation procedure to pass a bill containing a provision that would permit oil drilling in the Arctic National Wildlife Refuge. (Although, the final version of that bill signed by President Bush did not contain the provision on drilling.)
The second health care reform bill would include non-budgetary items such as the stricter insurance regulations central to Pres. Obama's health-care message. This bill would be advanced as normal legislation. The second bill would likely set new rules for private insurers, including stopping the practice of rescission and requiring they accept anyone, regardless of pre-existing medical conditions. This portion of the health-care overhaul has already drawn some Republican support and wouldn't involve new spending, leading Democratic leaders to believe they could clear the 60-vote hurdle.

The Nuclear Option From Talking Points Memo:

Should the Democrats Change the Filibuster Rule?
December 10, 2008, 9:00PM

With the Democrats holding the presidency and solid majorities in both houses in Congress, Republican filibusters are now the only thing preventing truly progressive legislation. Should the Democrats therefore try to change or get rid of filibusters? We should keep in mind that the Democrats could do this if they wished, possibly turning the Senate into a majority-rule chamber like every other legislative body.

How could this be done? There are two possible ways to change the rules. Rule changes in the Senate currently require a two-thirds majority of Senators present and voting. So theoretically this is possible, but the Republicans of course would never allow it. The other way is to use what is called the nuclear option (by its opponents), or the constitutional option (by its advocates).

This is a complicated use of parliamentary procedure that ultimately results in a simple majority vote that ends a filibuster. Essentially a Senator wishing to end the filibuster makes a point of order calling for an immediate vote and the presiding officer of the Senate upholds this, citing the Constitution rather than Senate precedent as a guide (hence the name Constitutional option). When this happens the only recourse in parliamentary procedure is to appeal the decision of the chair. If one of the filibustering Senators does this, then an anti-filibuster Senator immediately moves to table that appeal. Since motions to table are non-debatable in parliamentary procedure, a vote to table the appeal is held immediately, and if it is passed by a simple majority then the chair's ruling that a vote must take place is upheld, and so a vote is taken. The filibuster is broken by a simple majority.

The Republicans threatened to use this option when the Democrats were filibustering some of George Bush's judicial nominees, but a compromise was eventually reached and it was not employed.

It has been used in the past, however, and it definitely does work. If the Democrats wanted to use it they could, and once this option is employed it becomes precedent-setting, so the Senate would then become a majority-rule body. There is no question, really, about whether this would work. It does work if a majority votes for it. The only real question is political: does the majority want to do it?

A bit of history is in order here. The Senate had unlimited debate, and no cloture rule, until 1917, when a rule was adopted requiring a supermajority of two-thirds of Senators present and voting in order to cut off debate and end a filibuster. This rule remained in force until 1975, and filibustering was used most importantly by Democratic Senators from the south in order to block civil rights legislation. The longevity of this rule despite the fact that it can be overridden demonstrates the political considerations, as does the next step in the evolution of the rule.

In 1975 a version of the nuclear option was used to change the filibuster rule by a simple majority vote of 51-42. However, the filibuster was not eliminated, rather the supermajority that was required to end a filibuster was changed from two-thirds of Senators present and voting to three-fifths of the Senate's full membership. This shows the political caution that Senators feel they must exercise regarding the filibuster rule. Polls have shown support for the filibuster rule, so Senators have two reasons not to use the nuclear option. First, they might want to use filibusters themselves at some point, second, they might not get re-elected if voters disapprove. The result is that Senators are very reluctant to get rid of the rule completely.

The 1975 change was supposed to reduce the use of filibusters by lowering the cloture requirement from two-thirds to three-fifths, but it hasn't worked out that way. In the past, the requirement of two-thirds of those present and voting meant that the filibustering minority had to keep its Senators constantly present in order to maintain a one-third blocking minority anytime a vote to cut off debate might be held. This required a lot of personal commitment and discomfort f the majority decided to keep the Senate in session around the clock. This also produced high drama at times, as was depicted in the classic Jimmy Stewart movie Mr. Smith Goes to Washington.

The 1975 change made the required supermajority to cut off debate three-fifths of the Senate's full membership, or sixty Senators if there are no vacancies. This means that the filibustering minority really only needs to mobilize one Senator at a time to conduct a filibuster, just the one doing the talking. If they rotate people speaking, then even if a cloture vote winds up 59-1 in favor of cutting off debate, it still fails and the filibuster continues.

The result has been that the minority now just tells the majority that they intend to filibuster, and if the majority can't find sixty votes, it gives up. This is called a procedural filibuster, because an actual one is no longer necessary. Due to this, filibusters have proliferated tremendously. In the old days, filibusters were only employed when the minority felt very strongly about something, because filibusters were really uncomfortable and took a lot of effort and sacrifice. Now, any time a minority has 41 votes, they just announce a procedural filibuster, and they win.

Given all this, I think we can expect that in the very near future we will see a huge number of filibusters. There is a lot of pent-up demand for progressive legislation, and the Democrats control the presidency and both houses of Congress, but the 41 or 42 Republican Senators can still effectively kill all the new legislation that the country needs. We also should keep in mind that several Democratic Senators are from Republican states, and we are as likely to lose votes at the margin as to gain them.

So, the question soon will be: should the Democrats use the nuclear (oops, I mean Constitutional) option? I think they should, but in the same cautious way it was used in 1975. The Democrats will not be willing to just go completely to majority rule, because voters are not in favor of it.

I feel that the Democrats should use the constitutional option to amend the filibuster rule, changing it from three-fifths of the full membership of the Senate to three-fifths of those present and voting. That would make it like the old days, but with the magic number being three-fifths instead of two-thirds. Then the chronic absenteeism of Senators becomes a very big factor. If only 90 Senators are present for example, then you would only need 54 votes to end a filibuster. This would require the Republicans to work for it if they really wanted to oppose something. They would have to do the Jimmy Stewart thing, which would also have the added benefit of making the Senate a lot less boring.

I think we should expect this issue to be prominent in the coming months and prepare for it. The slogan should be "the filibuster - amend it, don't end it", and I have some talking points. The first is "when a vote is 59-1, one shouldn't win, and the second is "90% of life is showing up, except in the US Senate". Be prepared.

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