The most amazing thing in this whole episode is that holding your breath and demanding that votes magically change has somehow come to be seen as the “pragmatic, realistic solution” in this, and using procedure to design an acceptable compromise that can attract the requisite number of votes and pass is the “dirty hippie” approach.

If you ever needed more evidence that the Establishment’s deck is stacked against you, I wouldn’t know what to show you.

Funny enough, some guy at the Washington Post has been pushing the same “House is holding meaningful health insurance reform” thing, as well as at TNR too.

But we know who they are.

Totally agree.
keep hearing how there just are not enough votes to pass public option but no one says the house already did.
There is a lot of talk in mainstream media about how public has turned against healthcare reform even on PBS but they don’t say that the reason is that healthcare has been watered down. Also do not see any reporting of how public option is still popular with the public and when you add public option, people are for it.
I really wonder now how much of what is reported is the truth in anything.

yep, the house bill is sure getting the John Edwards media treatment ie ignored.

Reid can call a constitutional point of order saying that the Senate rules, which allow unlimited obstructionism, stopping a constitutional majority vote from acting to pass a bill, are unconstitutional.

Uh, on what basis?

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Stupid, undemocratic and obnoxious are not synonyms for unconstitutional; for something to be unconstitutional, there has to be a provision of the Constitution violated, and in this case, the Constitution is explicit and clear that the Senate has the right to set its own rules. There is no “Constitutional option”. So no, it is not a fact that the Senate could pass the House bill unchanged.

It does not matter if you think it violates the constitution it matters that a simple majority of senators do or vote that they do. Clearly one could argue that creating a high barrier to changing the rules creates a catch-22 which is unconstitutional.

If you read through the history of the “constitutional option” you can see it was almost done at many points in history, including during WWI and the Civil Rights fights.

If they are treating this like the nuclear option, we might as well go for it.

Gold_Gupta_JLPP_article.pdf

The Bush Repubs used reconsiliation (sic) to pass tax cuts for the ruling class. No problemo… The Bush Repubs used reconsiliation (sic) to start their war of aggression on The Republic of Iraq. No problemo… But for the Dems to use the same method? One Dem Senator was quoted last week as saying that to pass health care reform through reconsiliation (sic) would be “iccky.” “Iccky” from a grown man?

The Dems could have simply passed their health care reform bills through this same reconsiliation (sic) one year ago, but they preferred to go through this long painful stupid attempt to get sixty votes so that they could protect insurance corporation greed for another twelve months. What a stupid show: kowtowing to GOPs and Blue Dogs. And the Dems knew all along that this was totally unnecessary. As Mike Malloy might say, “How I hate these people.”

Unless stated otherwise, the constitution is based on democratic majority rule. There are noted exceptions for super majorities, prolonging debate endlessly (fillibuster) is is not a ‘right’ granted or addressed in the constitution, it is invented by the senate itself.

The fillibuster actually follows the characterristics of dictatorships and non democratic rule, ie, obstructing common democratic processes and upholding self appointed ‘rules’ to protect oneself (and part) and the status quo.

The us == banana republic

Thank you for writing what a lot of us know to be so, Jon.

And holy shit Kagro’s here.

Fuck the NY times.

It looks like the heavy lifting to push for the inclusion of a public not-for-profit insurance plan that challenges private insurer’s profits, which is the root cause of the health care problem, is left to the left blogosphere.

It bears noting that proponents of the public plan in Congress have just as much leverage as anyone considering that without their support HCR will not pass. And at this point this is an outcome that Obama can not afford have.

“If Senate Democrats are really fed up with Republican obstructionism, at any time, if they really wanted to, they could take steps to end it.”

That’s the crux of the biscuit. Reid and a good number of Senators don’t really want to. Why not, I have no idea. Nothing Reid does at this point will hurt him in November, he’s already lost all the votes he is going to over this. The other Senators blocking this I guess are doing it for the money they get from the lobbyists, really can we reach any other conclusion?

Clearly one could argue that creating a high barrier to changing the rules creates a catch-22 which is unconstitutional.

Yes, perhaps one could, if there was such a rule preventing the Senate from passing a rule change by simple majority (rather than, as has been clearly explained to you, just an optional Rule 22 supermajority cloture motion route available to the majority in the event a real filibuster cannot be broken, or negotiated to an end, without it). Talk about letting “Senators get away with pretending” an optional rule is mandatory…

Senate President Pro Tem, and longest-serving Senator, Robert Byrd, Tuesday:

“I am sympathetic to frustrations about the Senate’s rules, but those frustrations are nothing new,” Byrd wrote. “However, I believe that efforts to change or reinterpret the rules in order to facilitate expeditious action by a simple majority, while popular, are grossly misguided.”

[...]

Byrd said the solution to the Senate’s impasse would be to force Republican senators to actually filibuster — that is, continually talk and debate on the Senate floor without yielding.

“Senators are obliged to exercise their best judgment when invoking their right to extended debate,” Byrd said. ” They should also be obliged to actually filibuster — that is, go to the floor and talk, instead of finding less strenuous ways to accomplish the same end.”

Power seekers hate impediments to amassing power, and always will. The two national Parties today are power seekers, essentially by definition, with an all-consuming focus by their leadership on preserving the Party’s power, primarily for the sake of the privileges, as opposed to the policies, that come with it. Our Senate should not be reduced to just another pawn in the self-serving games of the powerbrokers of the Parties, and those who care for more than Party will heed the stark warnings about such a future furnished by the pitiful current state of floor “debate” and amendment in the majority Party leadership-dominated House.

SO if they have the right to set their own rules, then they have the right to change them. I don’t understand your point. It seems like your argument undermines itself.

I wonder if you give the Times too much credit for ignoring the facts, ie. with intent. Maybe overlooked. I think at least an important aspect of the piece is the obvious that a bill can get passed…maybe a good reminder for the Rs that the day has come…perhaps. As in: Deal with it.

When I saw the photo this am of McConnel, McCrazy, Kyl, & Boeh….picture of senile dysfunction. Sad.

Anyone got any figures on how “invested” in the current health insurance industry the NYT is? e.g. what percentage of advertising surface area belongs to various sectors of the health industry, and when and how that proportion has changed since the 2008 Presidential primaries?

The Senate can pass the House bill changed, or unchanged.

and just how much the owners of the ny times are invested???

Clearly one could argue that creating a high barrier to changing the rules creates a catch-22 which is unconstitutional.

Based on a violation of what provision of the Constitution again?

Good post. If we see a media blitz that starts pressuring the House to pass the Senate bill, and it looks like there probably will be http://www.huffingtonpost.com/2010/02/26/emanuel-pelosi-meet-in-ca_n_479095.html, then your argument will be an excellent response. Hopefully, someone in the media will voice it.

Someone is starting to PANIC

Maybe the new york times did not receive this memo either, the house has pass 289 bills that are now dying in the Senate.

Does New York Times endorse the following?

is the NY Times against Drug Importation like Obama and Senate Dems
is the NY Times against the Public Option like Obama and Senate Dems
is the NY Times for the excise tax on Union Health Care Plans like Obama and Senate Dems
is the NY Times for the individual mandate forcing people to buy Health Insurance from for profit companies, (maybe the Senate Dems and the White House is going to force all of us to buy the NY Times?)
is the NY Times for turning back the clock on abortion rights like the White House and Senate Dems.
is the NY TImes for the IRS charging people a penalty for not buying Health Insurance (maybe the white house told the NY Times we will make the IRS charge people a penalty that don’t buy the NY Times)

and people think the NY TIMES is a sea of liberal ideas and ideals? I don’t think so!

New flash to the NY Times, Obama and the Senate dems are going to come begging, lying, crying for progressive votes and we are going to whisper NO.

Certainly you could hoof your way through the cocktail weenie circuit all the way back to Kevin Bacon and doubtless find some interesting links to do with this sausage of a bill, but others might find that a trifle ham-fisted.

Not that it wouldn’t be interesting to know what else the owners own, but investment in this case can be read to include intangibles such as prestige, access and the air of legitimacy. Power, if you prefer. IMO, to most people conflicts of interest appear to be just an amusing little idiosyncrasy of the lordship: old boys will be old boys, and everyone wants at least a little bit to be one. I don’t see that connecting the dots buys you much unless someone’s taking notes for Up Against The Wall Day.

The NY Times is part of the pro establishment corporate elite. It does in no way have a liberal bent.

Some people there are liberals, but the majority are not. Overall they consider pro-war, anti-labor, pro-world bank, neo-con Friedman a liberal, which of course he is not.

The are not going to shine the light in such a way that would help truly liberal legislation get passed.

I think instead of 60 Dems and 40 Repubs in the Senate,

we need 45 Dems, 35 Repubs and 20 progressives.

I think then we would see the Senate function differently. Both of the old parties would need to cooperate with and address the needs of progressives.

So, if there was a third party there, the Dems would lose some seats to the Progressive Party, but so would the Republicans. Just a few, but enough.

Having a Progressive Party that draws some support from Dems is not a bad thing.

Judge and jury as to what the Senate can do re rules are the Senators – whatever 51 vote for becomes the rule – the filibuster is not in the Constitution nor is any other rule requiring more than a majority – except for the 2/3rds vote required for impeachment conviction (which has never happen) and for passing Constitutional Amendments to send to the states for their approval.

Hard to believe the amount of fuss over a relatively minor disruption in our health care system – a less than 10% change in system assuming it costs twice what we have estimated- more than half of the “good” effect just an expansion of Medicaid that is only 25% of the total cost of the bill.

Hillary care was much larger giving greater rights/change – and Nixon’s universal idea was maybe 3 times the Obama disruption with much less corporate control of the system – Carter’s was similar to slightly pared down Hillary but Teddy killed both Nixon and Carter ideas as not going far enough.

And for this minor change that is a few rights purchased at a cost of a $600 billion welfare check to the corporations, we spend a year – and end up with a President and Democratic Party that look like wimps and like they can not govern. Not even Medicare buy in. Not even a public option that is national with the right to use Medicare provider contracts. Not even a state based public option that must start from scratch and likely to fold in most states. Not even a national exchange – - BUT WE DO GET STATE BASED EXCHANGES!!! – and maybe even a regulatory function on the state level getting advice from a Federal office on price control – but this last one is of course just another bait and switch – I expect Obama to compromise the federal regulation down to an authorized study of cost increases in the insurance market :-)

My friends in the insurance industry were right – Hillary would have been too disruptive with her health care reform – Obama was the man the progressives needed to elect.

It can be done.
http://www.cfif.org/htdocs/legislative_issues/federal_issues/hot_issues_in_congress/confirmation_watch/nuclear_option.htm

1.) The Constitutional principle against Legislative Entrenchment is firmly supported in precedent “followed by the Supreme Court throughout American history and it is supported by compelling arguments..As such, Rule XXII is unconstitutional in requiring that any revision be by a two-thirds margin.” (Chemerinsky, Fisk: “The Filibuster,”49 Stan. L. Rev. 181 (1997).”

2.) Their conclusion is bolstered not only by the same long line of Supreme Court cases, but also by the text of the U.S. Constitution itself, which explicitly sets forth only seven instances in which supermajority votes are necessary for the federal legislature to act and states that the “Vice President of the United States” shall break ties in the Senate when “they be equally divided.”
–
The clear import of these provisions is that Congressional action, in both the House and Senate, is to be by simple majority, except in the seven instances specifically listed in the Constitution. After all, according to the canon of construction expressio unius est exclusio alterius, or literally “inclusion of one is the exclusion of all others,” the enumeration of one thing in the Constitution implies the exclusion of another.
On the practical front, the constitutional rule against legislative entrenchment means that it must be possible for the current Senate to amend, repeal, or ratify Standing Rule XXII by a simple majority vote of the body.
According to Professors Chemerinsky and Fisk, “The effect of declaring [legislative entrenchment] unconstitutional is that the current Senate could change Rule XXII by majority vote. In other words, a majority of this Senate could eliminate the filibuster if a majority wished to do so.”

This is the so-called “nuclear option.”

(see the link cited, for more detail and the practical Parliamentary procedure.)

Kagro is always here, its just sometimes he amuses himself with his Tony Clifton-like alter ego “David Waldman”.

BayofArizona cited the very interesting article written by Martin Gold and Apple Gupta.
http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf

Worth reading if you haven’t already, particularly their discussion of changing the interpretation of rules midsession instead of changing the text of the rules at the beginning of a new Congress.
PART IV: THE CONSTITUTIONAL OPTION TO RENDER NEW RULES PRECEDENT

The Senate’s constitutional rulemaking power can be exercised a second way: A simple majority could set a new Senate precedent that would alter the operation of a Standing Rule while leaving its text untouched. This exercise of the constitutional power could be applied to alter the interpretation and application of any Standing Rule,including Rule XXII’s requirement of a super-majority for cloture. This second form of the constitutional option also might be used to facilitate a majority’s efforts to exercise the first form: Majoritarian precedents could smooth the path toward a majority’s enactment of formal rules changes. (Gold, Gupta, p. 260)

if the VP and a majority of senators were on board, a senator could make a point of order to close a debate:

“Debate on this matter having proceeded for ‘x’ [20? 30? b.] hours, I make the point of order that any further debate is dilatory and not in order.”

Under Senate Rule XX, points of order not referred to the Senate are not debatable except at the sufferance of the Presiding Officer, although debate may generally be had on appeals. If the Presiding Officer sustained the point of order, he would set a new, binding Senate precedent allowing Senators to cut off debate. That, however, would not end the matter.The minority could (and likely would) appeal the Presiding Officer’s ruling. In a final step, the majority could move to table the appeal.The tabling motion would be non-debatable and subject to immediate vote. If a simple majority voted to table the appeal, the Senate would affirm the Presiding Officer’s ruling and thus allow Senators to cut off debate under the terms of the point of order.(Gold, Gupta, p. 261)

beowulf – you know gold was frist’s floor advisor and counsel? not suggesting he be ignored, only that it might be good to have a second opinion. also, if take into consideration the follow on effects — that it would among other things very likely blow up the senate (if we think things are bad now….)

Having every house Democrat commit political suicide is the answer?

Thanks, Jon, KagroX, selise, and everyone.

This whole thing has been in stalemate since Christmas. And everyday one or another of the 500-some players announces this or that or whatever. All these empty words only show how empty the whole charade is.

We can’t make them do anything. They don’t want to do anything. There is absolutely no point in calling or writing or yelling at them. Spend your money on yourselves, people, you need it!

I would worry for a minute about whether the House is fucking insane enough to pass the Senate bill on any promise from anyone if I could find *one* single sign that they wanted to actually do anything at all.

The rules don’t matter. The rules are not the problem unless you count byzantine complexity to the point of insane nonsense a problem.

There’s the aristocratic class (Wall Street + Corporations + Politicians) and then there’s the rest of us.

EVERY SINGLE positive thing in ONLY a ploy to raise campaign contributions. How can anyone live that way?????? I guess being rich is all that matters. And I include every last one of them in that … including the “good” ones. GOOD. my. ass.

Selise,

Yes I know Gold was a Frist adviser, but that’s a feature not a bug. Democratic senators can cite his article in interviews and mention it was written by a Republican aide to former Sen. Frist. After all, we should all try to be bipartisan when we can. If a Republican has a good idea, its only fair that we make sure its not neglected because of mere partisanship.

As for “blowing up” the Senate, once a Senate majority asserts its authority, as the saying goes, its turtles all the way down. Any steps the minority takes to thwart Senate business can be ruled out of order by majority vote.

beowulf,

that’s a feature not a bug

gotcha. it is if that’s what you want.

not what i want though. not at all. that means no senate speeches not approved by senate majority leadership. no amendments not approved by senate majority leadership. because they too can all be ruled out of order, if that’s the path we take (as you say, turtles all the way down).

i want more public debate, not less. i want new ideas a chance to be heard instead of being shut out. imo the process of deliberation is critical and we’ve undermined our ability to deliberate thoughtfully far too much already — in all/many areas of our society. as imo can be seen even from these threads.

finally, a separate issue: are you sure that the republicans really are obstructing in the ways that have been described (i’m trying to find some actual evidence of it)? i’m no fan of batshit crazy right wingers, but i’m not so sure of the story line.

I repeat:

There is no requirement in Senate rules that Senate rules be changed by more than a simple-majority vote.

Using the supermajority cloture process as provided for in Rule “XXII” [22], in the event of a real filibuster, is optional when the Senate decides to change its rules, or at any other time, as your sources would do well to admit.

If you disagree, please cite the rule that says otherwise.

On the practical front, the constitutional rule against legislative entrenchment means that it must be possible for the current Senate to amend, repeal, or ratify Standing Rule XXII by a simple majority vote of the body.

And possible it is, today, without first violating another Senate rule or precedent [as the "nuclear" option would do].

All the rest of the “nuclear/Constitutional option” argument is a Bush OLC-style “reinterpretation” of existing Senate rules and precedents so as to allow a majority to first ignore and violate them whenever it finds it inconvenient to follow them, and would effectively lead to anarchy in the Senate in future whenever a simple majority of Senators decides that it would be easier to violate Senate rules rather than first changing them by the (simple-majority) methods already provided for in Senate rules for that purpose [methods which encompass the possibility of needing to force/face and overcome a real filibuster to pass the rule change by simple majority, without resort to the optional supermajority cloture process].

The “nuclear” option is aptly named. And those willing to blow up our Senate to achieve their desired ends using rule-ignoring means – while cynically or ignorantly invoking the Constitution as the cover for such abuse of legislative process and abandonment of the entire concept of Senate “order” – so as to operate by the creed that might makes right (because rule-breaking power grabs are deemed justified and even laudable if a majority will only agree to endorse them) are truly, as Senate President Pro Tem Byrd says, grossly misguided.

P.S. To selise, replying to your comment in the other thread:

btw, i just got back from the library and scanner. i’ve got all the congressional record cites from riddick’s you had suggested and have scanned the main one. will attempt the ocr tonight.

Great news, selise. I’m looking forward to reading that 1986 debate. [I assume you'll be posting it, or a link to it, in a Seminal diary, as planned?]

powwow, great. i was watching for you, hoping to catch you on threads. first, to apologize for the delay (a little difficulty with the ocr — due to the poor quality of the text i had to do a lot of “training” of the system, and there are still problem areas but it will have to do as i can not improve the microfiche source or public library copiers. there is only one hold up for posting the files that i hope it will be taken care of tomorrow.). i will try to check in with you tomorrow to see if the diary timing is convenient (i will post the pdf files prior). finally, i don’t remember seeing this one in previous threads (my apologies if i missed or forgot it. my notes are on another computer, but hope i would have remembered it). but in case it is a new on (as i think it is to me this weekend) here is a little bit from CRS – Cloture Attempts on Nominations:

Cloture is the only means by which the Senate can vote to limit debate on a matter, and thereby overcome a possible filibuster. It would be erroneous, however, to assume that cases in which cloture is sought are the same as those in which a filibuster occurs. Cloture may be sought when no filibuster is taking place, and filibusters may occur without cloture being sought.

[...]

In 1971, when he was first appointed to the court, and again in 1986 when he was nominated to be Chief Justice, opponents of William H. Rehnquist mounted a filibuster. Though the cloture vote in 1971 was unsuccessful, Rehnquist was confirmed to the court; in 1986, the cloture vote was successful.

[...]

While cloture affords the Senate a means of overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Cloture may be sought when no filibuster is taking place, and filibusters may occur without cloture being sought. The reason is that cloture is sought by supporters of a matter, while filibusters are conducted by its opponents. Leaders of the majority party, or other supporters, may move for cloture even when opponents do not assert that they are attempting a filibuster, or when no extended debate or delaying actions have actually occurred. They may do so in response to a threat or perceived threat of a filibuster, or simply in an effort to speed action.

It is also possible for opponents of a matter to engage in a filibuster without supporters deciding to move for cloture. Supporters may refrain either because they think they lack the votes to obtain cloture, because they believe they can overcome any delaying actions and reach a vote without cloture, or because they hope to resolve the matter in dispute by some negotiated accommodation. This situation may be less common today, but does seem to have occurred in relation to nominations in earlier times.

Thanks for tracking me down, selise. Sounds like the OCR process was less than fun… If the PDFs are posted tomorrow I should be able to read them by evening. If you want pre-diary feedback, maybe another (non-anthrax, this time) Seminal diary by Jim – posted sometime over the weekend and scrolled away by then, but with comments still open through Monday – would be in order for the purpose? I think I’ll have the chance late on Monday, and most of Tuesday, to comment in a third working diary thread.

[You certainly hid Byrd's light under a bushel with that earlier link! Besides proving our point in a general way, it sounds like a gamechanger of a Dear Colleague letter to me. I tried to find the letter itself on Byrd's website, without success. You might consider posting the couple of quotes from the letter as reported by the Hill in your planned Seminal diary to bring Byrd's 1986 efforts/outlook up to date.]

I don’t remember reading that particular CRS report before. It looks like a good cite (with interesting history about Rehnquist’s nominations, before and after the 1975 lowering of the cloture threshold) to use as a back-up to, and elaboration on, your answer from the Senate Parliamentarian’s office about cloture being optional, though it does obviously portray as uncontroversially routine the current (bad) majority practice of regularly filing for cloture in the absence of real filibusters – aside from its oblique reference to “earlier times” in the last sentence you quoted.

thanks powwow, in the end the ocr was no real trouble, just a little more hassle and therefore time than i thought it would be. if you pick a thread of jim’s anytime after 7am, i will look for you and give you a temp link for the ocr’ed and compressed pdf (19 pages) so that you can download it tomorrow at your convenience (the link will be just for the purpose of getting the file to you – i have some additional work to do for the permanent link).