July 29, 2009

Senate Democrats: Caving - or Bushwhacking?

Hatched by Dafydd

AP breathlessly reports that the Democratic leadership has "reached a shaky peace" with the somewhat moderate Blue-Dog Democrats (which AP calls "the party's rebellious rank-and-file conservatives"):

The House changes, which drew immediate opposition from liberals in the chamber, would reduce the federal subsidies designed to help lower-income families afford insurance, exempt additional businesses from a requirement to offer insurance to their workers and change the terms of a government insurance option.

What does "change the terms" mean? A New York Times story clarifies that the shaky peace retains the most odious element of ObamaCare, the government so-called "option" -- which won't be optional at all, if your employer dumps his plan in favor of heavily taxpayer-subsidized government-controlled health care:

While the federal government would still establish and run a new public health insurance program, to compete with insurers, the new entity would not use Medicare rates to pay doctors and hospitals. Instead, the government plan would negotiate rates with health care providers, just as private insurers often do.

On the Senate side of the Capitol rotunda, however, the deal being cut in the Senate Finance Committee omits the government option in favor of "non-profit cooperatives" -- which the shaky House peace also includes... another provision that might undercut private health insurance and employer-offered health insurance, if those co-ops are allowed to operate at a loss, then receive regular bail-outs by the feds (as happens with Amtrack, for example). From AP:

More problematic from the Democrats' point of view is a tentative agreement [in the Senate Finance Committee] to omit a provision in which the government would sell insurance in competition with private industry. In its place, the group is expected to recommend non-profit cooperatives that could operate at the state, regional or even national level.

Let's suppose, for sake of argument, that this is how it's ultimately passed in each chamber and sent to the Joint Committee for reconciliation: The House enacts government-controlled health care plus non-profit co-ops, the Senate only enacts the co-ops. Suppose further, as would almost certainly be the case, that Senate Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 70%) appoints to the joint committee a strong majority of senators who support the government "option." This would of course result in that provision being reinserted into the joint version of the bill, which is then sent to both chambers of Congress.

Can the resulting bill be filibustered? If not, then of course it will pass; there is no way that Republican senators plus Blue-Dog democrats equals 51 votes against it. But if it can be filibustered, then there is a very good opportunity to kill the bill: If, say, 37 of the 40 Republicans vote against cloture, then it would only take four Blue Dogs to get to 41, which means the best the rest of the Democrats (and the defecting Republicans) can get for cloture is 59 -- which is not enough. I suspect that at least four moderate Democrats in normally Republican states will be afraid to thwart their constituents, so will vote against cloture... knowing that the other Democrats will eventually have to compromise, so there will be a bill -- just not the current bill.

So it's an important question to analyze: Can the bill be filibustered?

Note: We're dealing with the arcana of Senate rules, and I'm out of my depth... as is anybody who hasn't spent his life studying those rules! So I may very well be utterly wrong in my interpretation. Anyone who has actual working knowledge of the Byrd Rule in action, please post in the comments; if necessary, I will change this post -- even if that means the post becomes completely wrong and must be publicly retracted.

In theory, if a bill enacts a provision that was already included in the budget resolution, and if the budget resolution includes "reconciliation instructions" prohibiting amendments and limiting debate, then the bill cannot be filibustered; it only takes a simple majority to enact it. But there is an exception, which I'll get to in a moment.

On April 29th, the Democrats (with no Republican votes) enacted the budget resolution for fiscal year 2010, which begins on October 1st; and they did indeed include health-care reform and "reconciliation instructions":

The budget resolution also includes reconciliation instructions for healthcare and education overhaul proposals, which Republicans lambasted. Under reconciliation, healthcare and education legislation would only need 51 votes, thwarting any Senate filibuster.

At a meeting of conferees Monday, Senate Budget Committee ranking member Judd Gregg, R-N.H., characterized the move as a power grab and likened Democrats to Venezuelan President Hugo Chavez for including reconciliation in the budget resolution. Obama was criticized by some lawmakers recently for shaking Chavez's hand in a visit earlier this month to Latin America.

"I can understand shaking Chavez's hand, but I can't understand accepting his politics, and basically shutting down the minority," Gregg said. "It will harm the final product."

So facially, it would appear the Senate Democrats can "bushwhack" their own Blue Dogs by tricking them into voting for a health-care "reform" bill that does not include government insurance, then sneak it back in during the joint conference and pass it over the objections of Republicans and even the Blue Dogs themselves.

But in that same passage quoted above, Senate Budget Committee Chairman Kent Conrad (D-ND, 95%) opines that he does not believe the nervy tactic will work:

Conrad, who opposed the use of reconciliation to pass major legislation, said he did not believe that healthcare legislation would be written with its use.

"I believe, as people get into it, they will find that it just doesn't work well for that purpose," Conrad said. "I believe health care will be done under the regular order."

What did Sen. Conrad, a Democrat, mean by that? Why wouldn't it work?

There's one potential fly in the Democratic ointment: There is a provision of law called the Byrd Rule which allows, under certain circumstances, any senator to raise a "point of order" and object to any provision of any bill that falls under the reconciliation rule of no filibustering... so long as the Senate parliamentarian determines that the provision violates any one of the six "tests" the Byrd Rule sets up. In such a case, the provision is called "extraneous," and it is stripped from the bill -- unless it's waived by the full Senate. And the Byrd Rule can only be waived by (you guessed it) a cloture-like vote of 60 senators.

In other words, a filibuster is ordinarily not allowed for a bill that is covered by reconciliation; but if a provision of that bill violates the Byrd Rule (any one of the six tests), and if any senator objects to it on those grounds -- and if the parliamentarian agrees that the provision breaks the rules -- then that provision will be stripped from the bill unless 60 senators vote to let it stay.

(The only other person who could stop that process would be the Presiding Officer of the Senate, I believe, who could in theory overrule the Senate Parliamentarian's decision about whether the provision violates one of the Byrd Rule tests.)

The purpose of the Byrd Rule (named after Sen. Robert Byrd, D-WV, 79%) is to prevent the budget resolution being used to shield non-budgetary bills or provisions of bills from filibuster. For example, you couldn't push handgun prohibition or a repeal of the ban on partial-birth abortion through the Senate without being subject to filibuster merely by first including it in the budget resolution, because neither of those has anything to do with the federal budget, except incidentally. (Unless you had a pliant parliamentarian or a tyrannical Presiding Officer of the Senate.)

Here are the six tests:

Byrd rule tests - Section 313(b)(1) of the Congressional Budget Act sets forth six tests for matters to be considered extraneous under the Byrd rule. The criteria apply to provisions that:

  • do not produce a change in outlays or revenues;
  • produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision;
  • are outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
  • increase outlays or decrease revenue if the provision's title, as a whole, fails to achieve the Senate reporting committee's reconciliation instructions;
  • increase net outlays or decrease revenue during a fiscal year after the years covered by the reconciliation bill unless the provision's title, as a whole, remains budget neutral;
  • contain recommendations regarding the OASDI (social security) trust funds.

In the case of ObamaCare, the two important tests are numbers four and five, highlighted above in blue: If the government-option provision increases spending (which of course it does) and the ObamaCare bill as a whole fails to conform to the instructions in the budget resolution; or if the government-option provision continues to increase spending even after the period covered by the budget resolution (ten years) -- unless the entire ObamaCare bill can be shown to be "budget neutral" -- that is, it doesn't increase the deficit any more than the budget resolution allows it to do.

But here is the problem for Democrats: In order to shoehorn the government takeover of health-care into the budget resolution last April, they had to declare that it would pay for itself... that ObamaCare would be deficit neutral. From the House Committee on the Budget "fact sheet:

Assumes Health Reform Will Be Paid for so that it Does Not Add to the Deficit -- Our budget leaves it to the authorizing committees to determine both the policy and how to pay for health care reform.

So any provision of ObamaCare that spends money is subject to the Byrd Rule, unless (a) the Democrats can get the Congressional Budget Office (CBO) to declare that, contrary to their earlier claim that the bill would add an extra several hundred billion dollars to the deficit, it's really going to add nothing at all to the deficit; and (b) that the provision in question won't cost a dime beyond the year 2020.

Each of these assertions would be risible, of course; the bill grossly expands the deficit, and the provision in question will require spending for as long as it exists. Since the Democrats certainly don't want to enact ObamaCare with a "sunset" clause, so that it automatically ends after ten years, they're going to have to live with the Byrd Rule.

I do not believe that the CBO will go along with either of these preposterous fantasies... in which case, as soon as the bill comes back from the joint committee, and the Democrats try to claim that under reconciliation, it cannot be filibustered, any single Republican -- Minority Leader Mitch McConnell (R-KY, 80%), for example -- can rise to a point of order, object to the goverment "option" and any other odious measure under the Byrd Rule, and force a vote where the Dems need to get 60 votes to prevent those provisions being stripped out.

That is what Michael Barone meant yesterday when he said, on Hugh Hewitt's show, that under the Byrd Rule, Democrats will be unable to prevent filibusters of the health-care reform act. That's what Sen. McConnell meant when he said today on the same show that the bill "would be subject to filibuster."

But wait! What if the Senate Parliamentarian, Alan Frumin, simply ignores reality and declares that the Byrd Rule doesn't apply? Sure, in theory he could do that; and in fact, he has been heavily lobbied by both sides of the aisle since it became clear that the Democrats were going to taint the budget bill with reconciliation instructions for ObamaCare, to try to prevent a GOP filibuster.

But according to the Hill, a Capitol Hill newspaper that is considered quite authoritative, if the Democrats expect the parliamentarian to back their partisan power grab, they picked a horse that is backing up the wrong tree:

“I talk to him regularly. He is not looking forward to this,” [former parliamentarian Robert] Dove told The Hill. “All I can tell you is he’s a very good man. He will call it straight. He will make all kind of enemies....”

Both parties are already lobbying Frumin. Democrats on the Senate Budget Committee and Senate aides from both parties have met with him to discuss the Byrd rule, named after initial sponsor Sen. Robert Byrd (D-W.Va.). Frumin told Senate Budget Committee Chairman Kent Conrad (D-N.D.) a few weeks ago that legislation passed through the reconciliation process may end up looking like “Swiss cheese,” because certain provisions of a bill may survive while others are stricken, Conrad said....

“He’s known for being substantively rigorous and he understands the value of precedent,” said Stan Collender, a partner at Qorvis Communications and a former Democratic budget aide. “He’s not likely to just come up with a ruling that’s completely off the wall. He’s known to do his job really well and tries to call it pretty straight.”

The upshot of bottom line of this analysis is that I do not believe the Democrats will be permitted by the parliamentarian to abuse the reconciliation process to jam ObamaCare through the Senate; nor do I believe the Presiding Officer of the Senate would be so reckless as to overrule the parliamentarian... as that might cause Republican and Blue Dog senators to bring the entire body to a screeching halt, thus imperiling not only certain provisions of ObamaCare, but the entire bill, plus every other element of the radical agenda of President Barack H. Obama.

It would also hand a powerfully effective issue to GOP senatorial challengers next year: "Democrats stifle the Senate's own parliamentarian in order to take away your health insurance!"

One way or another, they are going to have to get 60 senators to agree specifically on the government "option," on taxing your health benefits, on employer mandates, and on every other controversial element of the Obamacle's attempted government hijacking of Americans' health care. Further, I do not believe that those 60 votes currently exist, and support will only weaken as we pass into September and October. So I don't believe the Democrats will be able to pull this off.

Hatched by Dafydd on this day, July 29, 2009, at the time of 9:36 PM

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Comments

The following hissed in response by: BD

Dafydd:

The question is begged:

"Why did Democrats put the reconciliation instructions into their budget resolution?"

While it could be they were just being thorough, I think it's far more likely they believe they can and will pull it off if necessary.

Folks on our side of the aisle are far too quick to believe "they can't think they can get away with it" ....

They get away with stuff like this all the time because they know they're not going to be called on it - as long as the MSM covers for them, they can ride out any outrage from the Right.

The notion that we may be dependent upon the Senate Parliamentarian and the then-presiding President of the Senate to stop this ought to be scary, not reassuring.

The above hissed in response by: BD [TypeKey Profile Page] at July 30, 2009 12:13 PM

The following hissed in response by: MarkJM

Dafydd,
You forget one very important point. 'Rules' don't apply to Democrats. They are for everybody else. We are so screwed...

The above hissed in response by: MarkJM [TypeKey Profile Page] at July 31, 2009 7:12 AM

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