Thursday, March 4, 2010

Thoughts on Stupak and a really long afterword on Feingold

I wrote earlier about the process by which Congress could relatively simply pass a version of Obamacare. First, the House passes the Senate’s already passed health care bill as is. The House and Senate then pass a second bill (the sidecar bill) which amends the first bill as desired by the House. To get this through the Senate, the reconciliation process is used. This means the second bill only requires 50 votes to pass the Senate; it also means the second bill can only cover matters that can somewhat reasonably be considered financial matters. Using the sidecar bill to amend the first bill’s abortion funding provisions will probably not be possible under the reconciliation process.

This probable inability to make the more restrictive House language on abortion part of health care reform is giving hope to those who would prefer such reform not be passed. They were made even more hopeful by Representative Bart Stupak earlier today. Stupak, whose name is attached to the House’s more restrictive language on abortion funding, said that:

he and 11 other Democrats will vote against the overhaul unless a provision subsidizing abortion is removed.

Since the House will probably need those twelve votes to pass the Senate bill and since abortion funding can probably not be changed via the sidecar bill, does this mean passing health care reform is virtually impossible? I don’t think so.

If I were trying to get this done, I would simply create a third bill - the Stupak bill - that does nothing except amend how the first bill funds abortion. The Stupak bill would replicate the extremely restrictive abortion funding language from the House bill and would therefore be a bill which prohibits the Federal government from funding abortions in any way through health care reform. It would be an anti-abortion bill pure and simple and that would put Republicans in a bind.

How could 41 Republicans in the Senate refuse to pass the Stupak bill? If they did so, they would be leaving in place the more liberal funding for abortion. Even if Republicans claimed now that they would oppose such a Stupak bill in the future, I don’t see how they could actually do so if the House in fact passed the Senate bill. Once that happens, filibustering the Stupak bill would mean leaving more liberal abortion funding in place and I don’t think Republicans could do that and explain themselves to their anti-abortion supporters in a believable way.

Of course, that’s what I think. What really counts is whether the Stupak Twelve can be convinced that getting a Stupak bill through both houses of Congress would be a cakewalk once the Senate bill is passed. I wonder, though, if it’s possible to pass a Stupak bill now. That is, can Congress legally pass a prospective bill, one which says:

In the event the Senate health care bill is passed by the House and signed into law, it will be amended in the following way...

I have no idea if that is legally possible but if it is, it might be a way for the Democrats to convince the Stupak Twelve to vote for the Senate bill. Even if it’s not, I wouldn’t bet against the Twelve coming to realize that the Republicans would be hard pressed to oppose a Stupak bill once the Senate bill is signed into law. If the Twelve do come to such a realization, they will also realize they can vote for the more liberal Senate language secure in the knowledge that it will be tightened up immediately.

Assuming of course they believe they can get enough Democrats to vote for the Stupak bill once health care reform is a done deal. Hmm. If I were the Stupak Twelve I might insist on the anticipatory version of the Stupak bill after all.



Writers at The Corner are talking about the House vote on the already-passed Senate bill being the one that matters. Ramesh Ponnuru is counting votes in the House.

Back in the “I’m so confused” world, The Gormogons are describing a process that doesn’t really make sense to me. They seem to think a conference committee (House and Senate) can work out the differences between the two versions and that the vote on a conference committee report cannot be filibustered. I’m not sure they’re correct on that (emphasis mine):

Conference reports themselves, unlike measures on initial consideration, are not subject to a double filibuster, because they are privileged matters, so that motions to proceed to their consideration are not debatable. Inasmuch as conference reports themselves are debatable, however, it may be found necessary to move for cloture on a conference report.

In other words, Senators cannot filibuster a motion to consider a conference report but they can filibuster a vote on the report itself. (If The Gormogons are right about conference reports not being subject to the filibuster, then why do they think a sidecar bill would still be necessary? Everything could be worked out in conference.)

I was looking for something else when I found this speech by Senator Russ Feingold in May of 2000, decrying the overuse of cloture:

[The Senate] rules honor the sentiments of committed minorities. They give dedicated groups of Senators substantial power. And they give any group of 41 Senators the absolute right to kill a bill.

The Senate Rules thereby force consensus. When these rules are honored, no major change in our government’s laws may come about without the concurrence of a three-fifths majority. When these rules are honored, policy changes are likely to be more moderate and more incremental.

As Nobel Prize-winning economist James Buchanan has argued, societal efficiency may be served by a Congress that has a hard time enacting laws. Under such circumstances, laws change less often - less frequently disrupting peoples’ lives, less often intruding into them. If you agree with Thoreau that the best government is that which governs least, then the most efficient government for society is the one with the most checks and balances. [snip]

But the character of the Senate has been unmistakably altered. The majority’s actions are transforming the Senate into a much more majoritarian institution. And that is not how the Founders wanted it.

Recall that the Constitution itself manifests a belief in supermajorities. Supermajority requirements are evident in the veto power, in the ratification of treaties, in the Constitutional amendment process, and in a number of other places.

Recall, as well, that the Founders who created this Senate also expressed a healthy distrust of simple majority rule.

Feingold is, of course, a Democratic and when he made his impassioned speech he was decrying the tactics of a Republican-controlled Senate. To his credit, he repeated his concerns about reconciliation even after the Democrats took both houses of Congress and the Presidency. In the Spring of 2009 the Democrats inserted a “reconciliation instruction” into the Conference Report on the Concurrent Resolution On The Budget For Fiscal Year 2010. As Keith Hennessey told us in August of last year, the instruction was inserted:

for just this purpose, as a backup plan in case Democrats could not broker a deal with Senate Republicans, and in case they couldn’t hold all of their own caucus together.

This year’s reconciliation instruction orders two committees, Senate HELP (Kennedy/Dodd) and Senate Finance (Baucus) to report legislation to the Senate Budget Committee by October 15th. Each committee’s bill must reduce the deficit (through either spending cuts, tax increases, or a combination) by a net of at least $1 billion over the period 2009-2014.

Hold on. $1 billion?!? I thought this was supposed to be a budget bill? I thought these were trillion+ dollar bills?

You can see that Senator Reid created this instruction not to create a fast-track legislative vehicle for deficit reduction, but instead to create such a process for a bill that is basically deficit neutral.

In April of 2009, Feingold said he would support the conference report that contained the reconciliation instruction but reiterated his reservations about the abuse of reconciliation.

However, there are some features of this resolution with which I take exception, most notably the use of reconciliation as a tool to expedite health care reform. The arguments over the use of reconciliation are familiar to this body. Sadly, a tool intended to streamline the painful process of deficit reduction has been used to clear a path for major policy changes that have, at best, only a passing relationship to reducing the budget deficit. [snip]

I had hoped that with a new President in the White House and Democrats in control of both Chambers we could restore a respect for the proper use of budget procedures. But while the budget we pass today is a huge improvement over those submitted by the previous administration, both with respect to honest budgeting and the fiscal path it embraces, its misuse of reconciliation to advance policy priorities is regrettable.

I opposed using reconciliation when it was abused by the other party to enact fiscally reckless tax cuts and when it was attempted to be used to open up the Arctic National Wildlife Refuge for oil drilling. I opposed it earlier in this debate as a way to expedite climate change legislation, and I oppose it now as a vehicle to fast-track health care reform.

Congressional leadership indicate they may not need to use reconciliation to enact health care reform, that it will be used only as a last option to ensure Congress acts on that vitally important issue. That may be, and I certainly hope this body will pass a health care reform measure under regular procedures. Health care reform is long overdue, and I look forward to the Senate finally acting on an issue that is so important to my constituents. But let's not kid ourselves. It is no more appropriate to use reconciliation as a hammer to push through health care reform under regular procedures than it is to use it directly to enact those reforms. Both are abuses. Both undermine its original intent. Both invite even greater abuses in the future.

Sadly, it now appears - although I have seen only one small story about it and he is not on TPM’s running list - that Feingold has decided to support the use of reconciliation with regard to health care reform if that’s what it takes to get a public option enacted into law. I hope not. It would be nice if at least someone in the United States Senate thought that process was more important than outcome.

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