Want health care? Nuke the Senate

19 August 2009

I’ve temporarily run out of steam on soccer, so I guess it’s back to politics.  At least until I can afford to buy an album to review or something.

It seems like I’m not the only one running out of steam.  The fracas festering over the long hot weeks of August has put the health insurance initiative onto the back foot in a serious way.  That culminated over the past weekend with a serious trial balloon put up by senior Obama officials, including Health Secretary Kathleen Sebelius, that seemed to accept the likelihood of the loss of the “public option.”  Their reward for this suggestion was a few warm words from ex-Democratic Senator Richard Shelby (R – Alabama) and the rekindling of a newer, stronger liberal uprising than even the one I sensed coming in July.  (You can read that slightly-updated post here.)

There is no longer any mincing of words: House Democrats are openly talking about scuttling the ship if it doesn’t carry some kind of government extension of health insurance, and it appears possibly that it’s abandonment could touch off a wave of protests that would make the town halls look like insignificant skirmishes.  This is what I meant about Obama’s potential failure being worse than 1994.  In 94 Democrats blamed Republicans.  If Obama removes the public option, Democrats will blame him.  His people have backed off the notion of dropping a public plan in a real hurry, but even suggesting it openly has been almost as damaging as allowing the bill to wither on the vine in the first place.

The flurry of activity of Obama’s first several months was designed to embolden the party, whose electoral success has left it inexperienced and fractured, while demoralizing Republicans. Before they could finish getting over the election you get the stimulus.  Before you can get a grip on that you get the environment bill.  Before you can finish chewing on that you get health care.  Fast and furious.  This has not been a wasted effort – part of the vitriol you see at town halls is likely pent-up anger amongst hardcore conservatives (and make no mistake that it is hardcore conservatives, not any Nixonian Great Silent Majority, though they ought not be disregarded because of it). But the failure of the town halls, and the failure of the first stage of this battle, is that enough time was left for such anger to coalesce and express.

The reason Obama and his people kept going on about this August deadline was to keep the pressure on and prevent Republicans from getting a grip on the battle.  Up until now the Republicans have been like the French in 1940: getting the shit kicked out of them so badly that they can’t imagine a situation other than having the shit kicked out of them.  This pause is vital time they need to regroup, and they are using it.  In retrospect it was a gift from Obama.  The idea that you can push for Congress to do something-anything, so long as it’s quick, and not actually hand them a bill is a bit ridiculous.  The chaos that followed was eminently predictable, though Nancy Pelosi was swift in marshaling her forces and getting something passed.  Of course as soon as progress looks likely there lies the Senate.

To whit:

House Democrats also are growing increasingly agitated at what they see as the Senate’s outsized role in the health care debate. Liberals are especially wary of the Finance Committee, the only congressional panel that has yet to pass health care legislation and where support for a public plan is weakest.

“The Senate needs to understand that they are one-half of the process, not the entire process,” said Engel. “This is not a matter of [Senate Finance Committee Chairman Max] Baucus or anybody else negotiating a bill, than coming to the House and saying, ‘Take it or leave it.’ That’s not how it works.”

So petrified is the White House of the now automatic Senate filibuster that they’re ready to throw in the towel without anyone actually having voted against it – and despite sixty Democratic votes in the Senate.  This is hardly the first time the once-rare filibuster has conspired to destroy legislation which has clear majority support in both houses.  It ought to be the last.

You may remember that in 2005 there was a big fracas about the so-called “nuclear option.”  Democrats in the Senate had successfully blocked several conservative federal court appointees, and Republican frustration has reached a boiling point.  They proposed a striking (and not-so-unprecedented) manuever: to change the rules of the Senate to forbid a filibuster.  The idea was rather ingenious: matters under filibuster require 60 votes to clear, and a change to the rules of the Senate requires 67, but an opinion of the chair on a point of order under parliamentary procedure may be overruled by a simple majority – 51.  Such a move would create a precedent effectively overturning the cloture rule.

It would have worked like this: a senator makes a point of order asking for an immediate vote to end debate (cloture) by simple majority. The chair – the Vice President or temporary President of the Senate – rules on this point of order;  for this process to work properly they would have to uphold it. A filibusterer (perhaps filibustero) would move to appeal the decision of the chair.  This is a debatable motion. To overcome it an opponent moves to table the appeal, which is not debatable and is voted on via a simple majority.  If the appeal is tabled, the chair’s decision stands and a precedent against the filibuster is created. That precedent would be binding.

Why all this complicated crap?  Because it’s the way the Senate works.  And herein lies the problem.

It’s time to use the nuclear option.  Many Democrats opposed it in 2005 – I can’t remember, but I probably did too – but we’re not talking about a couple of judges on the DC Court of Appeals.  We’re talking about the provision of health care for millions of people.  We’re talking about what Woodrow Wilson called “a little group of willful men” when the first rule against filibustering came about in 1917.  We are talking about a body that, to quote an Australian, most closely resembles a “tinselled abortion of the House of Lords.”  And make no mistake that this is precisely what the Senate has always been and remains today: an attack on popular sovereignty and a frustration to the will of the people, regardless of who is in power.

Senators would resist, you say.  Undoubtedly.  The plans in 2005 were scuppered by a “Gang of 14,” a group of senators who pledged to support a number of appointments, accept opposition to others and vote against the nuclear option, denying it a majority.  But that was four years ago, when Republicans had a 55-45 majority.  A whopping third of the Senate is different than it was then and there are 14 more Democrats.  Of the Gang of 14, four are gone – one to the Obama Administration, one retired and two lost re-election in 2006.  All of those seats are now Democrats.  Even if you include the remaining Democrats from the 14 in opposition to such a move, that’s only 46 votes against a nuclear option – not enough to stop it.  Perhaps some others would buckle; but when you consider the stakes – not a few judges but the centerpiece of the Democratic agenda, on which they were elected with an overwhelming legislative mandate, and which has been a dream of Democrats at every level for 50 years – there is only one right option.

It’s time for a majority to count for something.  Americans do not cast votes for their officials to do nothing, and yet too often that’s exactly what they get.  The Democratic Party said it would be different; it’s time to show it.  And should Republicans take back the Senate, a year from now or three or five?  They will be elected to lead and to govern.  They have the right, and should have the ability, to do so.  This is the democratic principle: that your opponents have as much right to rule as you should they secure a popular mandate.  Sixty votes is nobody’s mandate, which nobody foresaw and which was never writ in any Constitution or charter.  By clinging to it the Senate has become not merely anti-democratic – it always was – but ossified and corrupted by purely negative power.

No more.


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