March 20, 2010
Just when you thought the Democrats in Congress had run out of tricks up their sleeves, they come up with a new and fiendishly clever procedural subterfuge. At the beginning of this month, there was a flap over the "reconciliation" process (a.k.a. the "nuclear option"), under which the Senate could pass a bill with a simple majority vote, precluding any chance of a filibuster. In other words, that historic special election victory in January by Scott Brown of Massachusetts was rendered much less significant than most of us thought. Reconciliation was bad enough, but it presupposed that the House would approve the "reconciled" bill, which became less likely as public opposition to their health care scheme continued to mount. (When the House passed their version of the bill last November, it was a very close vote: 220-215.)
So, the headline in Tuesday's Washington Post must have raised a few eyebrows: "House may try to pass Senate health-care bill without voting on it." (Emphasis added.) Speaker Nancy Pelosi disclosed that she was considering use of a "self-executing rule," also known as "deem and pass," rationalizing that it has been used in the past. The short-cut was never supposed to be used to pass large-scale controversial pieces of legislation, however.
All of a sudden, Rep. Louise Slaughter (D-NY), who chairs the House Rules Committee, which sets the schedule and terms of debate for the full House, is at the center of attention. As noted at politico.com, the "Slaughter solution" to pass health care reform without the House and Senate voting on an identical bill could easily be challenged constitutional grounds. It's an obvious attempt to shirk legislative responsibility for voting for a controversial measure, minimizing the risk of losing reelection bids due to retributive voters this fall. Or as the Wall Street Journal editorialists put it,
Democrats would thus send the Senate bill to President Obama for his signature even as they claimed to oppose the same Senate bill. They would be declaring themselves to be for and against the Senate bill in the same vote. Even John Kerry never went that far with his Iraq war machinations.
Such objections may be a bit exaggerated, at least according to some experts. (I have read a few specialized books on Congress, but it's not my specialty.) As GWU Professor Sarah Binder explains in The New Republic (hat tip to Bruce Bartlett), "If the rule is written in such a way that enactment of the rule itself deems the Senate bill passed, the Senate bill would--at that point--be ready for presidential signature." She doesn't think that is very likely, however. This is what bothers me: "(In theory, the rule could deem the Senate bill passed only after the Senate votes for the reconciliation package. But House Speaker Nancy Pelosi has ruled out that option, citing the parliamentary complications it would create.)" Conveniently, she notes, there are nine Democrats and only four Republicans on the all-important Rules Committee.
The idea that the House could modify the Senate health care bill and then send it to the White House without Senate consideration is utterly mind-boggling to me. That would be a flagrant violation of Article I, Section 7 of the U.S. Constitution, on top of the violation of the 10th amendment represented by the health insurance mandate.* According to the textbook used in my U.S. Government class (Steffen W. Schmidt, Mack C. Shelley, and Barbara A. Bardes, American Government and Politics Today, 2008-2009 Brief Edition),
After the bill has been passed in each chamber, if it contains different provisions, a conference committee is formed to write a compromise bill, which must be approved by both chambers before it is sent to the president to sign or veto.
Or maybe not! As Graham Nash sang in "Chicago" (1968), "Rules and regulations, who needs them?" How appropriate for the Chicago radical currently residing in the White House! To better understand the shenanigans that are going on in Congress right now, take a look at the WaPo graphic that attempts to trace the options leading up to the final vote on the House floor.
House Minority Leader John Boehner is doing his best, but as he said on Friday, the Republicans at this juncture cannot stop Obamacare. Only the American people can do so, by calling their congressional representatives. Exactly! Boehner showed bad judgment by bragging that Democrats will lose control of Congress this fall, unwittingly giving the moderate Democrats more reason to stay loyal to Obama. I was encouraged that Sen. Tom Coburn (R-OK) warned House members who switch to "yes" that any special deals and any government positions they are promised will be blocked in the Senate.
* All of the lame excuses for bending the rules remind my of a dispiriting phrase I used to hear when I was a lowly Federal bureaucrat:
Hey, it's close enough for government work!
The President has been out on the campaign trail, making stump speeches to rally support for his health care bill. He keeps insisting that he doesn't care about the politics of it, saying it's the "right thing to do," while claiming it will cut the budget deficit. (Nancy Pelosi made that same point yesterday, right after she boasted that there would be a firm cap on how much people have to pay but no limit on their benefits! How illogical can she possibly be??) As Robert Samuelson writes in Newsweek, the notion that the bill would control health care costs is a "mirage," and it violates his campaign promise to "tell you what you need to hear." Even as the President scolds the Republican opposition for misleading the public, Samuelson says, Obama has failed in his vital responsibility of educating the American people. He goes on to explain how health insurance works in practice, urging that the whole fee-for-service system be junked. He basically confirms my fundamental contention that the real problem is that this country has too much health insurance already! True "reform" would address that issue by eliminating tax breaks that hide the full cost of health care from employees, many of whom don't even know their employers are paying the lion's share of the bill.
Whatever the merits of the bill, however, it is clear that the big issue has become Obama himself. The bombastic speeches that intermingle utopian hope with threats of Apocalypse are exactly what one would expect from a tyrant in the making. Setting aside concerns over due process is an old trick of leaders who get elected and then cement their (or their party's) control over the country by declaring a state of emergency. The exquisitely narcissistic Chief Executive has basically told Democrats on Capitol Hill that either they vote yes, or else they and the administration are going down in flames together. It's a high-risk strategy and just might work, if the fence-sitting Democrats don't get assurance from Republicans that will get rewarded for a no vote. In other words, the GOP needs to put partisan politics aside in order to win Democratic allies and save the Republic.
Obama also made a gesture of "outreach" by consenting to an interview at Fox News, during which he kept brushing off questions about the procedural sleight-of-hand by which Congress is passing his bill. Sadly, I'm afraid Obama is right that the American people don't care about procedural details -- bor-ing! Ironically, the kids he has been thrilling with his speeches are the ones with the most to lose from Obamacare, while the elder folks who are dead-set against the proposed national scheme probably have the most to gain from it.
For a quick graphical summary of reconciliation votes in the U.S. Senate back to 1990, see sunlightfoundation.com. It shows that there is a mixed record, with some votes being sharply divided along partisan lines, and others with many crossovers. The Republicans did indeed use this procedure several times when they had a majority in the Senate during the first six years of the Bush administration, which from the perspective of today is very regrettable. There is some justification, however, which is that all of these votes were for budget-related bills, which is what reconciliation was intended for. The Democrats' claim that their health care bill qualifies for this because it will reduce the deficit is absurd (see Samuelson above), especially given that they promote it, above all, on moral grounds.
I added a countdown clock courtesy of the National Republican Congressional Committee to the main blog page and the Politics blog page. It is set to reach zero at Sunday noon, when the House is scheduled to vote. They will only hold that vote, however, if Nancy Pelosi and Jim Clyburn (House Majority Whip) actually get the last few Democrats on board. They wouldn't risk the embarrassment of defeat if they aren't sure of getting a majority, unless, perhaps, it's all a big diversionary tactic. Perhaps the Democrats' leaders have decided to "punt" on this issue and use GOP "obstruction" as a campaign issue for this fall and in 2012. They can tell their leftist core supporters, "at least we tried," without really doing so. They may calculate that they can withstand the tide of right-wing opposition to their agenda in preparation for retaking the momentum in 2012, but that's a far-fetched scenario.
In any case, Washington will be full of anti-Obamacare protesters this weekend, and I may head up there myself. The fate of republican self-governance may hang in the balance...
The momentum started to shift the Democrats' way on Thursday when Dennis "the Menace" Kucinich (D-OH) announced he was going to support the House bill after all, even though it doesn't go far enough for him. As Dana Milbank wrote in the Washington Post, Kucinich's "capitulation was the clearest sign that the left, after 15 months of antagonizing Obama because of his compromises, is now ready to cooperate." Translation: They are now convinced that the bill being considered is indeed merely a first step toward a public option, which in turn will lead inevitably to a fully nationalized health care system. What a perverse irony it would be if that flake from Cleveland (he once saw a UFO; see foxnews.com) ended up making all the difference in this debate?
Just yesterday, one of the undecided Democrats, freshman Rep. Tom Perriello (Virginia Fifth District) announced his conditional support for the health care package. He is "prepared to vote yes on health care reform as soon as 51 Senators commit to seeing this reconciliation bill through to completion." He knows he may lose in this fall's election, however, so he also made sure to recruit local hospitals to join him. See his Web site. OK, Fifth Distict residents, it's time to call those hospital administrators and complain about their unwarranted involvement in politics:
Ironically, Perriello was caught on camera admitting that members of Congress will go on stealing the people's money unless someone is alert enough to stop them. See the video at youtube.com, graciously provided by the folks at the Republican National Committee.
To put all of this into broader, context, two offbeat economic pundits, Marc Faber and Mike "Mish" Shedlock, argue that "Washington lawmakers are a delusional bunch of boneheads." Fiscal irresponsibility has gotten so bad that the entire American economy may well collapse in the next year or two. Watch the video at Yahoo Finance, and prepare to weep and/or buy gold; hat tip to Dan.