Reid: Reconsiliation fix for HCR passed in 60 days.

[Darth Holbytlan]

I wasn't able to find the segment on Maddow where they talked about it, and it was about a month ago so my memory of it is unclear.

I think I found the segment you saw. It's an interview with Sen. Tom Udall, and he pretty clearly proposes that the Senate should just adopt its rules at the beginning by majority vote. But he also states that his idea is based on how the House adopts its rules, which isn't a continuing body like the Senate. It's important to remember here that Udall was a Representative for 10 years, but has only been a Senator for barely over a year. The difference in experience may be coloring his understanding of the issue.

Here the thing. If you go back to the old Journals of Congress, you can check out the records for the 1st and 2nd Congresses, both House and Senate. If you do, you'll find that the during the 1st Congress, the House and Senate both appointed committees to decide their rules (on April 2, 1789 and April 7, 1789, respectively1). During the 2nd Congress, the House did the same thing (on October 24, 1791), but the Senate did not. Even from the very beginning, the Senate has always maintained its rules from Congress to Congress. The link to the Congressional Record shows the same exact thing happening in the 111th.

Add to that the fact that precedent has always had legal force in a Common Law system such as ours, not to mention that Senate Rule V specifically says that the rules carry on from year to year and can only be revised through normal procedure, and it should be clear why I think Udall doesn't know what he's talking about.

I don't think the minority should support the blanket hold of 80 presidential appointees in any circumstance. I don’t think any sane minority would, but then these are republicans. The minority should have refused to honor his holds. If he wanted to sit on the floor and withhold his consent in person, that's his choice. The whole concept of "unanimous consent" seems very susceptible to corruption.

To nitpick, it's the need for unanimous consent that's the problem. If the Senate rules worked smoothly and swiftly when not waived all the time, it wouldn't matter,

It's also important to remember that it's the same process allows Senators keep unanimous consent from running roughshod over issues they want addressed. If a Senator wants to debate a bill, raise an amendment on it, or what have you, he lets his leadership know that he objects to unanimous consent on that matter. That the leadership ensures that he gets to object is part of the benefits of caucusing with the party. While it might be nice to imagine the Republican leadership exercising some common sense and restraint about this, I expect that doing so would piss the member off royally. I would expect the aggrieved member to show up and start objecting to unanimous consent on all matters to make his point. Under such a potential threat, it makes sense that that doesn't happen—even if we pretend that the Republicans wanted to be reasonable about it.

I wouldn't put anything past him.

We can always hope. From digging through those Maddow clips, it sounds like a number of Senators (plus the VP) are starting to consider more drastic action. So it looks like there is some promise of progress.

1I was amused to see how many times both chambers met and could do nothing. Both took about a month of meeting every day, finding there wasn't a quorum, and adjourning.

[eion]

Fine work. That was it exactly!



Hopefully someone finds a solution to this mess.

Conceded on all points. I think you're absolutly right about Udall.

So the only way to change the Senate rules without involving the dreaded 67 vote threshold would be to ammend the constitution via constitutional convention, which in our entire history has never happened, so no one is sure how one would even work.

[Darth Holbytlan]

So the only way to change the Senate rules without involving the dreaded 67 vote threshold would be to ammend the constitution via constitutional convention, which in our entire history has never happened, so no one is sure how one would even work.

The "Nuclear Option" may sound dramatic, but it's nothing like a constitutional convention. (I hadn't even considered a constitutional convention—for obvious reasons.) It only requires a majority to dispose of a filibuster, but a majority in favor of a bill is very different from a majority in favor of eliminating filibuster. Senators are rather jealous of their powers and wouldn't give them up unless they feel they have no option.

In fact, this mechanism has been used before back when it was still known as the "Constitutional Option" in 1975, when it ended up changing the supermajority required for cloture to 3/5ths from 2/3rds for ordinary bills. One of the Maddow interviews included a section with Walter Mondale, who was apparently at the center of that.

[eion]

In fact, this mechanism has been used before back when it was still known as the "Constitutional Option" in 1975, when it ended up changing the supermajority required for cloture to 3/5ths from 2/3rds for ordinary bills. One of the Maddow interviews included a section with Walter Mondale, who was apparently at the center of that.

So they could pass a normal bill with 50+1 votes that neuters the filibuster? In other words, introduce a bill say the "Senators are Noxious Old Totalitarians" act that permanently reduces the votes required for cloture to 55 or some sliding scale. In other words, could the Senate change its rules through a normal bill via the nuclear option? Or would the Senate leadership have to repeatedly employ the nuclear option to pass legislation?

[Vympel]

Is anyone in the least surprised that the reconciliation fix doesn't include a public option?

Link

As I wrote back in August, the evidence was clear that while the President was publicly claiming that he supported the public option, the White House, in private, was doing everything possible to ensure its exclusion from the final bill (in order not to alienate the health insurance industry by providing competition for it). Yesterday, Obama -- while having his aides signal that they would use reconciliation if necessary -- finally unveiled his first-ever health care plan as President, and guess what it did not include? The public option, which he spent all year insisting that he favored oh-so-much but sadly could not get enacted: Gosh, I really want the public option, but we just don't have 60 votes for it; what can I do?. As I documented in my contribution to the NYT forum yesterday, now that there's a 50-vote mechanism to pass it, his own proposed bill suddenly excludes it.

This is what the Democratic Party does; it's who they are. They're willing to feign support for anything their voters want just as long as there's no chance that they can pass it. They won control of Congress in the 2006 midterm elections by pretending they wanted to compel an end to the Iraq War and Bush surveillance and interrogation abuses because they knew they would not actually do so; and indeed, once they were given the majority, the Democratic-controlled Congress continued to fund the war without conditions, to legalize Bush's eavesdropping program, and to do nothing to stop Bush's habeas and interrogation abuses ("Gosh, what can we do? We just don't have 60 votes).

The primary tactic in this game is Villain Rotation. They always have a handful of Democratic Senators announce that they will be the ones to deviate this time from the ostensible party position and impede success, but the designated Villain constantly shifts, so the Party itself can claim it supports these measures while an always-changing handful of their members invariably prevent it. One minute, it's Jay Rockefeller as the Prime Villain leading the way in protecting Bush surveillance programs and demanding telecom immunity; the next minute, it's Dianne Feinstein and Chuck Schumer joining hands and "breaking with their party" to ensure Michael Mukasey's confirmation as Attorney General; then it's Big Bad Joe Lieberman single-handedly blocking Medicare expansion; then it's Blanche Lincoln and Jim Webb joining with Lindsey Graham to support the de-funding of civilian trials for Terrorists; and now that they can't blame Lieberman or Ben Nelson any longer on health care (since they don't need 60 votes), Jay Rockefeller voluntarily returns to the Villain Role, stepping up to put an end to the pretend-movement among Senate Democrats to enact the public option via reconciliation.

Basically, this is how things have progressed:

Progressives: We want a public option!

Democrats/WH: We agree with you totally! Unfortunately, while we have 50 votes for it, we just don't have 60, so we can't have it. Gosh darn that filibuster rule.

Progressives: But you can use reconciliation like Bush did so often, and then you only need 50 votes.

Filbuster reform advocates/Obama loyalists: Hey progressives, don't be stupid! Be pragmatic. It's not realistic or Serious to use reconciliation to pass health care reform. None of this their fault. It's the fault of the filibuster. The White House wishes so badly that it could pass all these great progressive bills, but they're powerless, and they just can't get 60 votes to do it.

[Month later]

Progressives: Hey, great! Now that you're going to pass the bill through reconciliation after all, you can include the public option that both you and we love, because you only need 50 votes, and you've said all year you have that!

Democrats/WH: No. We don't have 50 votes for that (look at Jay Rockefeller). Besides, it's not the right time for the public option. The public option only polls at 65%, so it might make our health care bill -- which polls at 35% -- unpopular. Also, the public option and reconciliation are too partisan, so we're going to go ahead and pass our industry-approved bill instead . . . on a strict party line vote.


This is why, although I basically agree with filibuster reform advocates, I am extremely skeptical that it would change much, because Democrats would then just concoct ways to lack 50 votes rather than 60 votes -- just like they did here. Ezra Klein, who is generally quite supportive of the White House perspective, reported last week on something rather amazing: Democratic Senators found themselves in a bind, because they pretended all year to vigorously support the public option but had the 60-vote excuse for not enacting it. But now that Democrats will likely use the 50-vote reconciliation process, how could they (and the White House) possibly justify not including the public option? So what did they do? They pretended in public to "demand" that the public option be included via reconciliation with a letter that many of them signed (and thus placate their base: see, we really are for it!), while conspiring in private with the White House (which expressed "sharp resistance" to the public option) to make sure it wouldn't really happen.

The only thing I wonder about is whether Washington Democrats are baffled about the extreme "enthusiasm gap" between Democratic and Republican voters, which very well could cause them to lose control of Congress this year. By "enthusiasm gap," it is meant that the very people who worked so hard in 2006 and 2008 to ensure that Democrats became empowered are now indifferent -- apathetic -- about whether they keep it. Even as crazed and extremist as the GOP is, is it remotely possible that the Democratic establishment fails to understand not only why this "enthusiasm gap" exists, but also why it's completely justifiable?

Frankly I'll be laughing my ass off if the Democrats get fucking nuked in the midterms and the Republicans retake the house and senate. Fucking useless party- bunch of damn duplicitous softcock losers.

[eion]

Is anyone in the least surprised that the reconciliation fix doesn't include a public option?

Frankly I'll be laughing my ass off if the Democrats get fucking nuked in the midterms and the Republicans retake the house and senate. Fucking useless party- bunch of damn duplicitous softcock losers.

Well, time to start packing for Canada/Finland/Far-Far-Away again. I have less than a year to get ready to get the fuck out of here in case this ship sinks, hopefully with all these rats on board.

If they passed a good bill, ignoring any political fallout in Nov, chances are they'd probably win just for getting something done while the other guys just sat around jerking the Teabaggers off.

[Vympel]

They've obviously convinced themsleves that they need health insurance industry money more than they need their base, and are confident that the base will turn out to vote for them in the mid-terms anyway, even though they've done absolutely nothing that liberals / progressives want. What'll really happen is that the base will stay home and they'll get their ass thoroughly kicked by a political party that was thoroughly thumped a little over a year ago.

[Formless]

They can always buy more voters-- I mean, fund asinine ad campaigns and encourage pundits like Glenn Beck and Rush Limbaugh who are great at getting people at voting against their own interests. Worked so far, why would they change strategies now? Morals? They don't have any of those.

[eion]

They've obviously convinced themsleves that they need health insurance industry money more than they need their base, and are confident that the base will turn out to vote for them in the mid-terms anyway, even though they've done absolutely nothing that liberals / progressives want. What'll really happen is that the base will stay home and they'll get their ass thoroughly kicked by a political party that was thoroughly thumped a little over a year ago.

I'd really rather they learn their lesson some other way than giving the keys of the ship of state back to the half-wit inbred cousin who doesn't know how to drive and always wants to fire the missile launcher just for fun.

[Simon_Jester]

I suspect that if this carries on much longer, the people the Democrats are trying to appeal to will rebel and take over the party; they have the demographics. They just don't have anything remotely like the organization.

But I may just be whistling in the dark.

[Darth Holbytlan]

So they could pass a normal bill with 50+1 votes that neuters the filibuster? In other words, introduce a bill say the "Senators are Noxious Old Totalitarians" act that permanently reduces the votes required for cloture to 55 or some sliding scale. In other words, could the Senate change its rules through a normal bill via the nuclear option? Or would the Senate leadership have to repeatedly employ the nuclear option to pass legislation?

Essentially, it relies on the fact that moving to table a motion requires an immediate debateless vote, so a Senator makes a point of order that one way or another breaks the filibuster, then pushes things to the point where s/he can move to table a motion that somehow rejects the original point of order. That gets an up or down vote (once various dilatory tactics are bypassed, such as quorum calls and the like), and if it works, the original objection is upheld and becomes precedent. Since this entire process involves convincing the Senate to rule that its own rules actually ban or limit a filibuster in some way, this essentially involves getting a majority to believe that this really must be a rule and that the result is a good outcome for them and the Senate as a whole.

This method has been tried a number of times, and worked in three cases. Since each attempt has varied quite a bit in its execution, it's best for you to look to a detailed source to explain things. Here is one I found yesterday that looks quite good. I'm still reading/digesting it, but it's already convinced me that you (and Udall) were right, after all. (Congratulations.) My claim was that just adopting different rules at the start of the session had no basis in the rules of the Senate, but it turns out that although the Senate has never done this, it has debated doing this and even had a non-binding declaration from the Chair (Richard Nixon, of all people) that it is an option. The notion that the Senate could choose to adopt rules of its choice at the start of the session turns out to have been a core part of the original Constitutional Option/Nuclear Option.

BTW, I've mostly been sticking to "Nuclear Option" because that how it is mostly referred to today; I thought it would be less confusing even though "Constitutional Option" is actually the original name. Just this morning I heard some Republican refer to passing health care using a conference committee as a "Nuclear Option", even though that is a completely unrelated process. So much for clarity.

[eion]

Just this morning I heard some Republican refer to passing health care using a conference committee as a "Nuclear Option", even though that is a completely unrelated process. So much for clarity.

That lack of clarity seems to be intentional as the Republicans are also calling reconciliation (a process used by them 16 of the 22 times its been used since 1980) the "nuclear option" while also claiming that reconciliation has never been used ever.

in short, they are desperate.

[Darth Holbytlan]

You'll get no argument from me on that point. I imagine that the Republicans renamed it so they could make a big deal out of "Look at what a horrible thing those Democrats are trying to force us to do!". Now that the shoe is on the other foot, the argument has switched to "Look at what a horrible thing those Democrats are threatening to do!" It's really pretty shameless.

[eion]

You'll get no argument from me on that point. I imagine that the Republicans renamed it so they could make a big deal out of "Look at what a horrible thing those Democrats are trying to force us to do!". Now that the shoe is on the other foot, the argument has switched to "Look at what a horrible thing those Democrats are threatening to do!" It's really pretty shameless.

And may well be effective in the end. Democrats in general just lack the equivocating abilities of your average republican. They have always shown great skill at “owning the words”.

[The Romulan Republic]

They've obviously convinced themsleves that they need health insurance industry money more than they need their base, and are confident that the base will turn out to vote for them in the mid-terms anyway, even though they've done absolutely nothing that liberals / progressives want. What'll really happen is that the base will stay home and they'll get their ass thoroughly kicked by a political party that was thoroughly thumped a little over a year ago.

I'd really rather they learn their lesson some other way than giving the keys of the ship of state back to the half-wit inbred cousin who doesn't know how to drive and always wants to fire the missile launcher just for fun.

Damn right. As tempting as the thought of punishing the Democrats may be, the thought of Republicans taking back control is quite frankly terrifying.

And we should keep in mind, its not all Democrats who are to blame. There are Democrats out there who would love a public option; hell, a public option of sorts was passed through the House. Its mainly a few conservative Democrats in the Senate who've fouled everything up- is it really worth handing the nation to the GOP over them?