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In an effort to demonstrate that there is no lack of ideas or will available for the task of health care reform in Congress, if Members are left to their own devices, this diary documents all that was left ‘on the Congressional cutting room floor’ in favor of privately-negotiated, top-down, autocratic deals generated by, and deferring to, the President, his appointees, and the corporate benefactors of America’s two national political Parties.
Wholesale, unquestioning deference to leadership by sheep pens-full of our federal legislators, clustered and bleating together by Party, has been able to thwart the will of most of those (non-leadership) members of the United States Congress of both Parties with ideas of their own on health care reform, because of a Democratic Party leadership that has been allowed to prevent substantive productive debate and deliberation from taking place on the House and Senate floors to improve the legislation.
I contend that simple-majority passage of a genuine health care reform bill is still possible, even without reconciliation, provided that:
A. Democratic Party caucus members stand up for their individual prerogatives as elected representatives of the people, and for their Party platform, despite White House-generated Party leadership pressure to be "loyal" to the Party and its funders rather than to the American people, and
B. Democratic Party caucus members in the Senate insist that their Majority Leader cease his excessive use of the cloture motion, and default instead to real filibusters, while allowing both majority and minority members of the body genuine input into, and the ability to actually change (given simple-majority support), in public, the health reform legislation on the floor, if not in committee.
That same dynamic – otherwise known as "legislating" – would help (the country, if not the Party wars) on every other legislative proposal and Executive nomination yet to be considered by the 59-member Senate Democratic caucus, including policy matters unrelated to the budget, for which reconciliation is not an option. [Reconciliation itself originally being a way of taking Party politics out of "tough" votes to reduce the deficit, by getting around politically-motivated filibusters, real or threatened.]
1. The "Administration" speaking this month (pre-Massachusetts):
Backstage bargains like these kept the [health reform] plan afloat, but at the price of extinguishing some of the best ideas for reducing costs. The White House is unapologetic. "Let’s be honest," said Rahm Emanuel, Mr Obama’s chief of staff: "The goal isn’t to see whether I can pass this through the executive board of the Brookings Institution. I’m passing it through the United States Congress with people who represent constituents." That attitude, shot back Bill Galston, one of the slighted think-tank’s senior fellows, all but guaranteed that Congress would duck the hard issues.
2. According to the author of a health care reform amendment adopted by a committee of the House:
"An amendment [authored by Dennis Kucinich] which would have protected the rights of states to pursue single-payer health care was stripped from the [House] bill [by Speaker Pelosi] at the request of the Administration."
3. At this link are summary descriptions of the 200+ floor amendments filed on this major health reform bill by some of our 435 House Representatives – including many Representatives unable to otherwise influence the bill because they don’t sit on one of the three House committees that marked up the legislation [Education and Labor with its 49 members, Ways and Means with its 41 members, Energy and Commerce with its 59 members]. Yet every one of those amendments was summarily dismissed by the House Rules Committee, except for Stupak/Pitts and a doomed-to-fail Republican leadership "substitute" amendment, and thus never reached the floor of the House for debate or a vote by our Representatives – likely "at the request of the Administration," but certainly at the direction of the Speaker of the House who has been given iron-fisted control over the Rules Committee (and thus the ability to completely shut down meaningful floor debate and floor amendments, at her sole discretion) in and by the modern House. [A House where the sheep herd continues to dutifully obey commands from on-high, without complaint, while everyone busily points fingers at the Senate.]
[Ironically, the only genuine debate in the House on their "historic" health reform legislation, outside of the three committee markups of the legislation, took place in the small Rules Committee meeting room in the Capitol - where a tiny minority of members engaged each other for more than 10 hours while the Speaker was busy in backroom negotiations with Stupak/Pitts and others, and thus had not yet decided what decree to issue to the Rules Committee [with the sycophantic approval of tuned-out sheep like Earl Blumenauer who fielded a call from Speaker Pelosi that night, even as his Republican colleague from a huge district in eastern Oregon was doggedly making his case in person to the Rules Committee for relief for rural America, to no avail]. The Rules Committee members played their acting roles well, and pretended to listen – the Republican members even meaningfully engaged the witnesses and thus helped ignite genuine debate – to the impassioned arguments of those colleagues who had taken the trouble to come to plead their hopeless cause, as though the majority members were actually independent actors not in thrall to the Speaker. All they asked is that the committee vote to simply allow their amendment(s) to be heard on the House floor – to no avail, save for the few led by Stupak who bravely called the Speaker’s bluff, and were prepared to challenge the Party hierarchy. As soon as the last witness was finished speaking, staffers handed forward to the Chair the multipage blue document containing the Rule (Jim McGovern sat in for Louise Slaughter, who, along with every other Democratic female, had fled the scene), with copies for every member, and Rep. Hastings proceeded to read the Speaker’s decree that one, and only one, Democratic amendment on the health reform legislation would reach the House floor, whereupon the remaining Democrats present quickly rubberstamped the Speaker’s decree en masse without comment. Later that day the House dutifully proceeded to "debate" and pass both the Speaker’s Rule and the "historic" legislation in one day’s time.]
4. Senate Amendment [SA] 2786, filed by Majority Leader Harry Reid on November 19, 2009 (shortly before the Senate’s week-long Thanksgiving break), was the first amendment offered – in the form of a substitute – on the shell bill from the House (H.R. 3590, an unrelated taxing-power bill that the Reid substitute amendment would wholly replace except for title and number) used by Reid as the vehicle – in place of the actual House-passed health reform bill (H.R. 3962) – to present his merged Senate committee product (text available here) to the Senate floor for (supposedly) good faith debate and amendment. Proposed floor amendments to the Reid substitute amendment shortly thereafter began being filed by Senators of both Parties.
5. On December 8, 2009 alone, 78 proposed amendments were submitted on the Reid substitute amendment, beginning with SA 3001 proposed by Senator Hagan (providing for "Improvement in Part D Medication Therapy Management (MTM) Programs"), and ending with SA 3078 proposed by Senators Klobuchar and Snowe (establishing the "Young Women’s Breast Health Education and Awareness Requires Learning Young Act of 2009"). Text of all 78 amendments is available here.
6. On December 18, 2009, SA 3275 filed by Senator Snowe (one of 11 amendments filed that day, this one to establish an "Accreditation Requirement for Rotary Wing Air Ambulance Services") was the last amendment proposed on the Reid substitute amendment (SA 2786) before Majority Leader Reid filed his secretly-negotiated (with …someone…) "Managers’ Amendment" SA 3276 on December 19, 2009 (text here), and then immediately filed cloture motions to end debate on his new amendment and the underlying amendment and shell bill, before "filling the tree" to block any possible amending of his newly-unveiled Managers’ Amendment from the floor.
7. Of the more than 400 floor amendments (SA 2787 – SA 3275+) offered on the Reid committee-merged substitute bill by United States Senators of both Parties, less than 30 were ever called up for debate or a vote on the Senate floor, including meaningless "Sense of the Senate" amendments, and all those called up needed 60-vote supermajorities to pass, by unanimous consent, so that less than 10 passed, including only one or two substantive amendments. [Though the unamendable backroom Reid Managers' Amendment filed on 12/19 included some and perhaps many of the never-debated Democratic amendments that had been filed on the bill (including at least one amendment of Dick Durbin's), but presumably none of the Republican amendments.]
"Filling the tree"? Good question. The "tree" in question is a reference to a chart graphic in the Senate Precedents Manual that demonstrates when and how to file amendments (first degree, second degree, etc.) on a measure.
Arlen Specter in 2008, speaking when he was still part of the minority Republican caucus:
U.S. Senator Arlen Specter (R-Pa.) spoke on the Senate floor Monday night regarding the use of the Senate procedure called "filling the tree" to derail progress on important pending legislation this session.
Filling the tree is a process whereby the Majority Leaders use their power to offer a sufficient number of amendments to "fill the tree" so that no other Senator can offer an amendment. Senator Reid has employed the practice 15 times this Congress on legislation, including the oil speculators bill currently pending, the Medicare bill, FAA reauthorization and climate change.
[Excerpting his floor speech:]
The institutions of the Senate are very important to this country. That is because this body has been called the world’s greatest deliberative body, because under the precedents, any Senator can offer any amendment to any bill at any time, virtually. There are some limitations, but that is the valid generalization. If you combine that with unlimited debate, this forum has been a place where ideas can be expressed, the public can hear them, the public can understand them, and momentous matters of public policy are decided by the Senate because of our ability to bring up these issues. Nobody can limit it. That has made America great. The Senate is a very important institution.
Now, regrettably, in the past 15 years–and it has been the fault of both Democrats and Republicans; and I have not hesitated, as the record shows, to criticize the Republican caucus. [...] In noting what has happened on this procedure of filling the tree–that is an arcane expression, but let me take a moment to explain it.
When a bill is filed, called up by the majority leader, the majority leader then has what is called primacy of recognition. If two Senators seek recognition, and the majority leader is one of them, he has the right to recognition first. So he then offers an amendment to the pending bill. Then he offers another amendment in the second degree. I won’t go on to detail the kinds of amendments, but the consequence is that no other Senator can offer any amendment. That is called filling the tree. Then, when the majority leader has done that, he moves for cloture. That is to cut off debate. Senator Reid did not invent this process. It had been used very sparingly until 1993, only 15 years ago. In one Congress, for example, the 101st Congress, 1989 to 1990, the Democratic majority leader, George Mitchell, did not use it at all. Then, in the session from 1993 to 1994, Senator Mitchell used it nine times. Then it got to be in vogue. Senator Lott used it nine times in the session from 1999 to 2000. Senator Frist then used it nine times in 2005 and 2006. Senator Reid has now used it 15 times, and it has had the consequence of precluding Senators from offering amendments [on the floor].
[...]
When I quoted Senator Reid about his denouncing the filling of the tree, his comment was that I had supported Senator Frist, the majority leader, and it is not true. I did not support him on that. I think Senator Reid was exactly right when he objected to the procedure to foreclose amendments by saying that the filling of the tree "is a very bad practice." These are Senator Reid’s words:
It runs against the basic nature of the Senate. The hallmark of the Senate is free speech and open debate.
Senator Christopher Dodd, Democrat of Connecticut, had this to say on the subject on May 11 of 2006:
….. to basically lock out any amendments that might be offered to this proposal runs contrary to the very essence of this body. ….. when the amendment tree has been entirely filled, then obviously we are dealing with a process that ought not to be. ….. the Senate ought to be a place where we can offer amendments, have healthy debate over a reasonable time, and then come to closure on the subject matter.
Majority Leader Reid has managed to set new records for the use of this deplorably-undemocratic practice even as he’s set records in the deployment of cloture motions (in the absence of actual filibusters), and made misleading public claims that shutting down Senate floor debate and amending is not his preference.
As I noted, Reid most recently "filled the tree" to silence the will of the Senate on Saturday, December 19, 2009, when he filed his Managers’ Amendment [SA 3276, text here] to the Senate health care legislation contained in his earlier merged substitute amendment SA 2786 (amending H.R. 3590). The Republicans had the Senate Clerks read the Managers’ Amendment aloud, following which Majority Leader Reid immediately filed three cloture motions – on SA 3276, then SA 2786, then H.R. 3590 (two of which were scheduled for votes by Reid at 1 a.m. in the morning) – and then Reid immediately filed and called up these subsequent second-degree amendments and motions:
SA 3277 [to SA 3276]:
At the end of the amendment, add the following:
The provisions of this Act shall become effective 5 days after enactment.SA 3278:
At the end of the language proposed to be stricken [from H.R. 3590 by SA 2786], insert the following:
This section shall become effective 4 days after enactment.SA 3279 [to SA 3278]:
In the amendment, strike "4" and insert "3".
Mr. REID. Mr. President, I have at the desk a motion to commit the bill with instructions.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. Reid] moves to commit the bill to the Finance Committee with instructions to report back with the following amendment numbered 3280.
The amendment is as follows:
SA 3280 [Instructions to a Motion to Commit]:
At the end [of H.R. 3590], insert the following:
The provisions of this Act shall become effective 2 days after enactment.Mr. REID. Mr. President, I have an amendment to those instructions.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. REID] proposes an amendment numbered 3281 to the instructions of the motion to commit.
The amendment is as follows:
SA 3281 [to SA 3280]:
Strike "2 days" and insert "1 day".
SA 3282 [to SA 3281]:
Strike "1 day" and insert "immediately".
There you have it: "Filling the tree" in action last month at the direction of the Democratic Majority Leader, as Senator Coburn immediately clarified with the Presiding Officer:
Mr. COBURN. Mr. President, reserving the right to object, and I do not intend to object [to an unrelated order-of-speaking request], but I want to make a parliamentary inquiry prior to us doing that. And the inquiry is this: Based on the second-degree amendments just filed by the majority leader, as well as the elimination of their language, is it, in fact, the effect that no other amendments will be allowed on this bill?
The PRESIDING OFFICER. There are no available amendment slots at this time.
Mr. COBURN. Further in my parliamentary inquiry, if there were amendments available, could they be filed on this bill?
Mr. REID. I am sorry, I could not hear my friend.
Mr. COBURN. If, in fact, amendments were available, could amendments be filed to this bill and made pending?
I will restate my inquiry to the Chair. Is it, in fact, a fact that because of the filling of the tree by the majority leader, the opportunity to amend the bill before us will be limited?
The PRESIDING OFFICER. The Senator is correct.
The next day, Sunday, December 20, 2009, here’s the Democratic Majority Whip, Senator Dick Durbin, speaking from the floor to the American people:
Senator Coburn of Oklahoma filed 212 amendments during the HELP Committee markup. He offered 38 amendments to the bill. Nineteen of his amendments–half of them–were agreed to. Of those that were offered, 15 were not agreed to–all by rollcall vote. So 13 amendments offered by the Senator from Oklahoma were included in the bill that is before us today.
He has questioned whether the current procedure gives him an opportunity to offer amendments. The fact is, we are now on our 21st day of considering health care reform. Exactly 4 [floor] amendments have been offered by the Republican side of the aisle, 4 substantive amendments to change provisions in this bill of 2,000 pages–in 21 days, 4 amendments. They offered six motions to stop the debate, send the bill back to committee. They were generic motions. They did not ask for specific changes. They just take on an issue in the bill and say: Send it back to the committee and tell them to solve this problem and then bring it back to the floor at a later time. Well, that is kind of a procedural and, if I might say, political statement more than a substantive statement about a provision in the bill.
Fortunately, at least some members of the Senate can count, and aren’t as invested in selling this particular incarnation of publicly-underwritten corporate profit insurance to the American people as Dick Durbin is, and has relentlessly been, on behalf of his protege, and now master, Barack Obama:
Mr. KYL. [...] A final point on this. I have to say, the majority leader dictates the schedule of the Senate. All Senators are pretty much equal, but the majority leader has two things he can do and only he can do. He has the right of first recognition, and he has the right to set the schedule. By the schedule, I mean when he files a cloture motion, which is what brings this bill to the floor or this amendment to the floor [for a vote despite objection(s)]. When he files the cloture motion, that is what determines when the vote will be. He determines when to bring the Senate back in session. Under the rules, an hour after he brings us back in session, the cloture motion ripens and we have a vote.
He can set that time at any time. He can say tomorrow morning, at 9 a.m., the Senate will come back in session and we will vote at 10 a.m. The leader could do that. That is his right, and he is the only one who has the right to do that. But instead, he says we will come in at 1 minute past midnight tonight. Therefore, the vote will be 1 minute past 1 a.m. tomorrow morning. It is his right to do that.
We didn’t do that; he did that. He is the only one who has the right to set that schedule. If he wanted to set a schedule that was a little more convenient for all the Members–including our dear friend, the Senator from West Virginia, who is ill and indeed does have to get out of a bed to come in a wheelchair to this Chamber–the majority leader has it within his power to say we will do it at a more convenient time.
[...]
I guess I am going to conclude by saying I don’t believe this bill can be sold on its merits, and I think that is another reason why we have to hurry up and do it–before the public figures out what is in it. [...] That is why the majority of Americans want us to start over and address the problems on a step-by-step basis.
I was amused by my counterpart, the Democratic whip, saying Republicans have only offered four amendments. I think it was seven but say it is four. Guess who determines how many amendments we get to offer? The majority leader. He sets that schedule as well. He says now it is our turn to offer an amendment. Then it is your turn. The way he managed the schedule, we only got to file either four or seven amendments. We have 200 amendments pending [filed, but never called up for debate]. We would love to get as many of these pending and voted on as possible. Believe me, it is not Republicans who don’t want to vote on our amendments. The majority leader, again, has set the schedule.
This is why we oppose the bill. It is why we don’t like the process. We respect what our constituents are telling us. We believe this bill will be bad for them, and it will be bad for our country. Our Democratic colleagues have a different position. Neither their position nor ours is malignant, nor should they be expressed vindictively.
Mr. GRASSLEY. We have been hearing repeatedly from the majority whip from Illinois that the Republican side has offered only four amendments. I found this to be rather astonishing. The majority whip should know, because they are filed at the desk, that Republicans have put forth 214 [floor] amendments. In addition to striking some of the bad ideas in the Reid bill, these amendments also contain Republican proposals that are improvements over the Reid bill. But in this rush to get it done, the majority has decided they don’t want to consider any more of the 440 [Democratic and Republican floor] amendments filed at the desk.
Let’s be clear. We keep them so people can have access to them anytime they want to, the 440 amendments that have been filed, that we are accused of not offering any suggestions or improvements. Right here in these three binders, any one of the amendments you want, it is there.
Since this happens to be the case, I would like to take them up on their interest in considering additional amendments. The majority leader and my friend, the Senator from Montana, have both said they want this bill to fill the doughnut hole in the Medicare Part D Program. I share my colleagues’ desire to provide even more protection than seniors get under Medicare. I filed an amendment that is in this binder, amendment No. 3182, that would use the savings from medical liability reform, which happens to be about the second or third thing that always comes up at my town meetings that the people in this country feel we ought to be working on if we are going to make real the word "reform." It would put that $50 billion into savings toward eliminating the doughnut hole. The amendment puts the needs of 27 million seniors ahead of the needs of trial lawyers. I can’t speak for my colleagues, but that seems like a pretty easy decision.
To my good friend from Montana, I only have one unanimous consent request. I ask unanimous consent to set aside the pending amendment in order to offer amendment No. 3182, which is at the desk.
The PRESIDING OFFICER. Is there objection?
Mr. BAUCUS. Mr. President, reserving the right to object, the doughnut hole will be filled. I have made that promise. Senator Reid has made that promise. The White House made that promise. When the bill is presented on the President’s desk, the doughnut hole will be filled but not in the way suggested by my friend from Iowa. He is one of my best friends in the Senate, and it is with regret that I must object.
The PRESIDING OFFICER. Objection is heard.
There’s actually a parallel between the unseen hundreds of amendments (and thus the unseen genuine debate and legislating) that Party deference to the White House kept off the House and Senate floors on health care reform, and the unseen real filibuster of days gone by that has been ‘disappeared’ by succeeding Majority Leaders for convenience’s sake.
Question: If both real filibusters and Rule 22‘s cloture motion option could co-exist from 1917 until 1975, as they unquestioningly did – right through Mr. Smith Goes to Washington’s fictional, and Strom Thurmond’s actual, filibuster – why couldn’t they since 1975 (when the cloture motion vote threshold was merely lowered from 67 to 60)?
Answer: They could and can still co-exist, I contend, provided only that the Senate majority wants them to (because no one makes a Majority Leader file a cloture motion with its 60-vote supermajority, in lieu of forcing a filibuster so as to maintain simple-majority passage of legislation).
In case there are a few U.S. Senators not off cavorting in Davos, who need a reminder that their struggles today are not unique, here’s a sampling of the sort of principled resistance that led another President, eager to strut the world stage, to force his Senate allies to enact the first cloture rule in 1917, as related by one member of that principled 1917 opposition, speaking on the Senate floor in 1938 (transcribed from the Congressional Record):
Senator George Norris of Nebraska (Progressive Republican, then Independent in 1936), speaking April 27, 1938:
I suppose no living man can tell with any accuracy just what would have happened [if we had stayed out of the World War]. We are all entitled to our guess.
It seems to me that, if we had stayed out of the war, we in America, the Federal Government should have been able to step in at a time when there was no victory in sight for either side, and help to make a peace which would have been an honorable one, instead of the dishonorable peace which was made by the Treaty of Versailles. That, of course, is conjecture.
[...]
We should not have had more than 100,000 graves of soldiers killed in the war, the cream of American citizenship.
We should not have had thousands of our citizens sleeping the eternal sleep under the poppies of France.
[...]
We should not have had the vast accumulation we now have of the wealth of the country, the lifeblood of the country, within the hands of a comparatively few men.
[...]
I cannot think of a single thing we got out of the World War that was good, or that helped civilization. Our participation in the war tied our hands so that we were unable to help make a peace which would have been honorable, upon which the warring nations could have based a treaty of justice and fairness.
[...]
Mr. President, whether or not anybody but myself believes the statement, I venture the assertion that it was the people of this country who went wild; that Congress would not have declared war if it had not been for the people back home, moved by propaganda spread all over the land, much of it false, nearly all of it false and unfounded, much of it exaggeration; that from home came the demand that we go into the war.
In the contest which took place here less than 2 months before we declared war, when the proposal to arm the ships of the merchant marine was killed by a filibuster, I know that while the filibuster was going on word was brought in secret to the filibusterers, from those who took part in trying to pass the bill, encouraging the filibusterers to keep on. I myself had something to do with the managment of the filibuster, and with keeping Senators here during that long, weary night, ready to take the floor at a moment’s notice. I was visited by Members who were opposed to the position we were taking who secretly said to me, "For God’s sake, do not stop the filibuster." When Senators came to me secretly urging that the filibuster be continued, I told them that what we needed was Senators to speak and occupy the floor. I said that it did not make any difference which side of the question they were on; if they would take up the time of the Senate they would help the filibuster; and at least two Members of this body, of as high standing as any other Members of the Senate at that time, assisted in the filibuster by making speeches on the other side. They came to me and said, "I cannot withstand the pressure from home. It means political death, it means political extermination if I do not continue in my present course." Some of them admitted that they thought they could at last see that they were wrong, but they said they could not withstand the awful propaganda which went over the country urging them to push us into the fight.
It was not Members of Congress who were wholly to blame for that step, regrettable as I think it was. It was the men and the women at home who were pushing them on, who were threatening them with destruction if they did not vote right on the matter. That is one of the reasons why we went into the war; and I have enumerated some of the things we have that we would not have had if we had stayed out.
I believe there is greater cause now for building a large navy than there was then; there is more reason now why there should be additional preparedness than there was then, because there are some outlaw nations in the world who respect nothing on earth but power. They have no respect for honor. They have no respect for their word. They do not hesitate to go into war if they are not afraid of meeting opposition which they cannot overcome. [Ring a bell at all, today, somewhere near a mirror, America...?]
[...]
There is a difference of opinion as to whether we would gain by building larger battleships, for we must take into consideration the ability of an enemy to drop bombs upon battleships from the air. I do not know that that question is determined; I do not believe it is; there is some doubt about it; but it may be that if we build battleships of 45,000 tons, we will find, by the time they are completed, that they are useless in combat against an enemy discharging bombs from the air and flying so high that they cannot be reached with the present antiaircraft guns on naval ships.
[...]
For one battleship of 45,000 tons costing $100,000,000 we can build a great fleet of airplanes.
Accurate predictions before both World Wars by Nebraska’s principled Senator Norris, it seems, looking back, and yet all President Wilson wanted to hear was that the U.S. was entering the World War, and later that the first cloture motion would be filed to force the Senate to vote on adopting his benighted Treaty of Versailles.
Those echoes from the actions of one man who impatiently tried to unilaterally control both the Executive and Legislative Branches of government on a matter of vital national import are not mere coincidence. They’re a stark warning to us all.
40 Comments
thanks powwow, this is a great statement and challenge to our political class. recommended (x100 if only i could).
You & me both. It’s a work of art.
Ah, compare that to the “debate” about the Iraq War. Evolution is clearly real; it just runs backwards.
That is just an awe-inspiring post.
Anyone interested can also track “Amendments Submitted and Proposed” by date of Senate (or House) session, through the Library of Congress Congressional Record browsing link here:
http://thomas.loc.gov/r111/r111.html
Each day’s session of the Senate has, whenever applicable, toward the end of its list of numbered topics, a non-PDF listing first of any amendments filed that day (listing the author and the bill being amended), and then, just below it, a separate non-PDF listing of the text of those amendments. [All links past the first one are temporary searches, so will expire if linked in non-PDF form.]
[Thank you so much, Jane and selise. This is a post that's been building for awhile, that I wasn't sure I'd ever get the will to pull together (the wise words of Senator Norris finally motivated me to get it done), so I'm very glad to hear that it's well-received by those who've made their way through it.]
I generally believe that a point should be made with brevity if one is to be effective.
The point here seems to be that the end result of HCR in both chambers was preordained and in keeping with the interests of the industries that make a profit from healthcare.
But that is obvious from the end result itself. Outrage of this rigged result would be warranted only if one had faith in the politcal process. But why does anyone still entertain that faith?
For those that still need convincing a test case in real time will serve to clarify whether government ever yields to the public’s demands.
Let’s see how far the government goes in passing legislation to curb the effects of the recent Supreme Court ruling that allows companies to flood unlimited amounts of money into the government. The government says it has pending legislation to be introduced within the next 10 days to blunt the effect of this ruling. Let’s see how far that gets.
As things now stand there is one force that determines policy and that is money, public interest is of no account. In order for the public to become relevant it must act directly against those companies that provide the money into the government, and thereby become a countervailing force.
Excellent summary – while even the summary is of necessity long, what would be useful is a summary by area of heath care being changed – and then a list of the proposals identifying who is proposing what (with commentary on what is farce based on past actions).
Please do not take this on yourself – I am just saying that it would be useful – a NYT project if they still do such things.
What you have shown is that the Senate Bill is all Obama/WH-Rahm with near zero imput from many others (the Baucus comittee, albeit corporate owned, did discuss many variations).
Meanwhile getting anything acceptable out Congress now depends on the decision the NYT discusses here http://www.nytimes.com/2010/01/26/health/policy/26health.html
Decision Looms on Advancing Health Care Bill
By DAVID M. HERSZENHORN and ROBERT PEAR Published: January 25, 2010
WASHINGTON —The maneuver, known as budget reconciliation, could allow President Obama and his party to muscle the legislation through Congress with a simple majority vote in the Senate. But it carries numerous risks, including the possibility of a political backlash against what Republicans would be sure to cast as parliamentary trickery. The procedure is also subject to complex rules that could make it difficult for Democrats to include all the provisions needed to win approval of the bill, especially among rank-and-file House Democrats. For instance, it might be difficult to include provisions related to insurance coverage for abortions.
~~~EDITED FOR LENGTH HERE to keep FDL within Fair Use guidelines. 200 words is the limit for copyrighted material. Thanks.~~~
Whoa. This was quite the read.
Man.
I’ll read this again after I finish a course in Constitutional law and Roberts rules of order.
An important reason for focusing on the broader legislative process, or lack thereof, in Congress, is the fact that the reconciliation approach to passing legislation, as restricted by the Byrd rule, is limited to provisions affecting mandatory spending (not including Social Security) and tax cuts only, leaving the 30-50% of annual federal spending made up of “discretionary” spending – the largest portion being the defense budget – plus all non-budgetary policy, and Executive nominations, outside the narrowly-crafted exemptions in Senate rules for reconciliation measures:
Here’s a PDF link to the text of the Conrad/Gregg “Bipartisan Task Force For Responsible Fiscal Action Act of 2010″ [Senate Amendment #3302 (to create what's been called a "cat food commission") on the Joint Resolution to increase the public debt limit that's now pending in Congress], which will be getting a vote this Tuesday, as indicated by the following Unanimous Consent Agreement made Friday:
As usual powwow, you have provided the detail and expertise so sorely lacking in M$M reporting. You can’t be the only person who can do the research, yet all our stenographer “journalists” just rely on who says what or opinion based on assumptions. Rather than seek out sources like you who can provide the expertise, the M$M is more interested in conflict and race horse coverage. They could give a damn about informing the public on such a crucial issue. Finally they could do like I and so many users of the Internet do, find experts like you to learn from and share with our family and friends. In my case it will be over 300 email addresses.
So the “party of no” could be more accurately describes as the “party told no”? As bad as republicans are they are now the scapegoats, offered no redemption or quarter in order to participate in a supposed “bipartisan” fashion unless they climb in to the veal pen.
We are really in trouble.
On the bright side…
You really have a talent for explaining legislative rules and procedure in a manner that makes all this hokum understandable, then tying it to current events and past history makes it quite interesting, lIke discovering secrets of the temple. I have never been able learn this because it literally would put me to sleep. You could be the Howard Cosell of legislation.
Thank you.
Two more points worth making about that quite-amazing day and night of debate in the House Rules Committee in early November (the 6th into the 7th, I believe it was), as I think back on it.
Frank Pallone of NJ was an all-star, in the calm, competent, informed, and respectful debating department. He was called in on what I believe he said was “two minutes notice” to substitute for Henry Waxman (Chair of the Energy & Commerce Committee) as the bill’s presenter, almost certainly because Waxman was needed in Pelosi’s backroom talks (his absence was unexplained). So Pallone singlehandedly fielded all questions and comments from the Republicans on the committee, and others, about the merged bill under discussion, at great length. In the process, and despite knowing that the game was rigged in his favor, Pallone spread light, not heat, and demonstrated that some Members of Congress still know how to debate in good faith, while displaying an impressive command of the facts at issue, and an ability to respectfully press his case, despite good faith opposing opinions with which he disagreed.
Also, the “Republican colleague” of Rep. Blumenauer’s I reference in the post is Rep. Greg Walden of Oregon’s 2nd District. Walden’s two amendments were actually two more victims of the backdoor stripping by Speaker Pelosi that I note in Item 2 of the post. Walden’s amendments (addressing the concerns of rural visiting nurses, among others), like the Kucinich amendment, were both passed in committee, only to be deep-sixed for unexplained reasons when Pelosi & Waxman & Co. merged the three committee bills into one. I believe it was in response to Walden – to whom the out-voted Republican members of the Rules Committee expressed their sympathies – that Dennis Cardoza, a Democrat on the committee, dropped the play-acting long enough to also express sympathy for Walden and his amendments, in the form of a ‘wink, wink, nudge, nudge’ because, Cardoza indicated, he’d spoken to the President on Walden’s behalf about getting them reinstated – thereby as good as stating that the power to propose and enable amendments was one that the “Legislative Branch,” in the form of the powerful House Rules Committee, somehow no longer wielded, at least on this bill, under majority Democratic control…
Lastly, to avoid spreading unnecessary confusion, when I said in Comment 8 above that:
I should have said (as the excerpt below it clearly indicates, and in line with the deficit-reducing purpose of reconciliation):
Thank you for showing me the how, I still don’t understand the why, or perhaps I do but that conclusion from the obvious answer is too horrible to contemplate.
What can be said of this beautiful work of investigatory legislative science but what Chris Hedges writes:
“There is no national institution left that can accurately be described as democratic. Citizens, rather than participate in power, are allowed to have virtual opinions to preordained questions, a kind of participatory fascism as meaningless as voting on “American Idol.” Mass emotions are directed toward the raging culture wars. This allows us to take emotional stands on issues that are inconsequential to the power elite.”
http://www.commondreams.org/view/2010/01/25
Thank you, powwow, for this work of heartbreaking beauty. Heartbreaking because so few will be edified by it.
Fantastic article, powwow, thanks. The process behind the votes and amendments and clotures and filibusters is getting clearer. But the House doesn’t have these rules, yet you report the Speaker ruling with an iron hand. Is that all just loyalty? How did she get such control over the Rules Committee that she can pull such Senate-like control over the unruly House?
I think “happenstance,” supplemented by power-seekers seeing a way to obtain and consolidate power, followed by inertia, is probably the short answer, ondelette.
But this link to the history of the House Rules Committee may fill in some of the gaps (an official, politically-correct version though it may be):
Note that originally the House, like the Senate, had “unlimited debate” for its members. That was apparently considered too much of an impediment as the size of the House membership grew, and thus that right has been lost in the House. So we’ve gone from supposedly “too much” debate at one time to practically no debate at all today on the House floor (trading Party barbs on unamendable legislation, in two-minute increments for an hour or two, doesn’t qualify as “debate” in my book), now that the majority Party has the ability to so completely consolidate control over floor operations in the modern House, primarily through its unchallenged grip on the House Rules Committee.
And yet many ends-focused observers insist that the Senate should be ‘more like the House’ – to the extent of abolishing the ability of Senators to debate at length, or even to conduct the rare real filibuster.
I think the contrast between the 200+ floor amendments filed by 435 House Representative and the 400+ floor amendments filed by 100 Senators on this health reform legislation demonstrates which body took the time to look most closely at the issue. Likely because Senators knew they had – or generally have – the power to do so, and thus weren’t filing amendments knowing they were almost certain not to reach the floor, as was the case in the House. Of course, as the post shows, the Senate Majority Leader in the end shut down the Senate floor just about as thoroughly as the Speaker did in the House, with the collusion of his caucus (whose members probably got some of their amendments included in his Managers’ Amendment without debate in exchange), despite weeks of floor time during which their amendments could have been getting votes, but didn’t. In the end even that facade of debate ceased after the Dorgan drug reimportation amendment threatened to breach the 60-vote barrier, and pass, thereby upsetting the backroom deal’s apple cart and the unseen dealmakers hawking it to the nation as “the Senate’s” bill.
I’ll guess her power came thru the control the WH had of big corp donors money. IF the WH had deals with corps for campaign donations, then the control comes thru the Party machine WIELDING that money to bribe/threaten House members up for re election in ’10 and ’12. Not voting for the WH agenda? You lose your campaign support, cut off at the knees. A PURE Rahmian tactic, start to finish.
Ergo, House and Senate members, bought off on way or another, thru and thru.
powwow, selise tipped me off to this over on a post of David Dayen’s, and although I won’t be able to absorb it all until later I simply wanted to note that this looks like a really impressive piece of documentation and I look forward to absorbing it all tonight.
Thank you.
I’ve been kind of tracking the Google News results for “filibuster” thinking that it’s absurd that particular topic has not been highlighted more frequently.
So far, James Fallows seems to be doing a good job of highlighting the problem, but just today US News & World Report has something up about it (blog comment on the article).
And here’s the article link, which I happen to think is very well titled: How the Filibuster Changed and Brought Tyranny of the Minority And it has a great line: “…as a friend quipped, 60 is the new 50.”
There appear to be roughly 3 times as many items in Google’s ‘news’ aggregator on the term ‘filibuster’ today as there were about 24 hours ago. And if you check BlogPulse for changes in the use of this term, it appears to be spiking in the past 5 days.
So I don’t think that it’s just us around FDL digging in to figure out what in heck is wrong with the US senate, and why extremists seem to be gaining control of events.
Thanks powwow this great and I agree with cocktailhag.
Ah, compare that to the “debate” about the Iraq War. Evolution is clearly real; it just runs backwards
So sad
Progressives are able to elect men and women who are not pawns of Wall Street.
Everything else is just rearranging the deck chairs on the Titantic.
All the stuff we see unfolding in Congress and the White House [TARP, phoney health care reform, Afghanistan, the inevitable selection of Bernanke for a second term at the Fed] revolves around crony capitalism, corporatism, the very real systemic relationships that encompass the pact between economic power in New York and political power in Washington.
If progressives can organize a mass movement against that, even the Supreme Court coup that grants Wall Street still more access to the revolving doors embedded in the Bilderberg agenda, can be stymied.
Towards that end, let’s see what gets accomplished between now and the November elections. That is the measuring stick by which to evaluate everything.
Thanks powow this will require several reads just to digest. So you are saying that in addition to the depressing ruling last week from the SCOTUS on ‘speech is money’ we now have to stomach the fact that the Democratic majority has been sandbagging all the Republicans, and most Democratic colleagues as well, in order to keep back a flood of actual legislative debate on all national issues of any real importance.
Pretty much, yes.
Kos said something today (in a post in which he rightly defended the “canaries in the coal mine”) that relates to this issue, which I want to highlight and critique, in light of this diary (and that also perhaps pertains to bluedot12′s comment @ 21):
Is that not Marcos essentially asserting that Obama had no hidden agenda and no involvement in the backroom meetings of the “Gang of Six,” and simply sat back, idling, as Max Baucus, and Max Baucus alone (perhaps aided by Harry Reid), held the rest of the Senate Finance Committee, never mind the Senate as a whole, hostage for months? And that Obama then merely watched as Harry Reid struggled alone, first to include a public option, and then quickly thereafter to exclude a public option, in the final Senate bill?
In that regard, this excerpt of a lengthy explanation of the Gang of Six process by Senator Grassley, made in December, may be enlightening.
But what’s Kos really calling for there? Democratic self-government, or ruthless power politics akin to Speaker Pelosi’s Rules Committee-effected silencing of House floor debate (save on Stupak/Pitts)?
We’ve become so accustomed, through the media parroting the Party spin, to pre-counting votes – primarily to avoid Party embarrassment – before ever even broaching an idea in the House or Senate, that the normal legislative process, where we find out in due course who supports, or opposes, or wants to amend, a measure, after it’s up for debate, and then finally voted on, seems to have disappeared from the federal scene.
I don’t believe that Mike Enzi (who long worked well on substantive issues with Ted Kennedy) or Olympia Snowe are necessarily “bad faith” actors. They do, however, clearly support many policies that many of us (and supposedly Democrats in Congress) strongly oppose. But… That’s the beauty of having a numerical majority in Congress: Our position, the (supposed) Democratic position, gets to carry the day, anyway, even if “we” let Enzi and Snowe make their case openly and fully on the floor or in committee. Unless, of course, they choose to stage a filibuster, in which case, “we” have to wait them out and then use our simple majority to pass the amendment or bill, if no minds have been changed by their arguments.
What Kos is actually objecting to, though he doesn’t actually say it, is the Democratic “bad faith” that created a private, make-believe legislative process (the Gang of Six, and other backroom “negotiations”) where the minority were given veto power over the majority, and even members of the majority were cut out of the discussion (as far as we can tell given the secrecy involved), all supposedly in the name of “bipartisanship.”
That cynical, bad faith, deceitful (in pursuit of a definite, if unstated purpose) “supposedly” is what Kos is falling for in his analysis, when real bipartisan legislative process was in fact nowhere to be found in the Senate (or House) except on a rare non-Party line vote in committee.
There’s a profound difference between make-believe and real (“good faith”) legislative process. The White House and Senate leadership have managed to give the latter a bad name by pretending that the former was the real deal on health care, and is therefore the best the Senate can do (besides conveniently having ‘nothing to do with’ the White House now that their make-believe process has produced a hated product). None of us should fall for that destructive con, especially the savvy Kos.
But at least someone “mainstream” may finally be getting it about the painless cloture process, as the DailyKos front page is reporting:
Well said, Governor Rendell. But be sure to preach it where it matters: to the Senate Democratic caucus.
[The comments to that Rendell post, though... It seems that DailyKos is in its own little silo - "Is it possible"?! "Yes, NO, Maybe, Someone tell us!" comments abound, but hard, factual information seems sorely lacking, perhaps by choice, in that echo chamber (though I grant that the Senate and Senate leadership have done nothing but help confuse the filibuster/cloture issue).]
Nailed it.
I’m with Larue.
It’s epic.
hence no serious discussion or debate of single payer alternatives can be tolerated.
I’m impressed, I really am (though I couldn’t wade all the way through it) but—. Health care legislation has failed unless you pass what is now in the house – - and fix it later. Congress has no more stomach for it, none at all. You can blame whomever you like but that is the truth of the matter. What the dems are going to do now is address the 17.3% real unemployment in this country and/or the alarming foreclosure rates- – er to save their collective asses come November. They probably should have been doing that all along instead of all the “strategy” on health care. Yeah, I have seen hundreds, even thousands, of pages of words on “how to” pass health care but for whatever reason, none of it worked. Congress is now fed up with it. Mass convinced them they need to get real. You may have a “better” mouse trap but it is just one more piece of strategy along with many others for the past year. Maybe next year. For now we are among the whiners and losers, not the smart winners we thought we were. People are angry with us. Go to the next town hall and learn how much. I did.
Nice work. Very enlightening, and not in a happy, Nirvana-y way.
Truly an epic post, Powwow . . . . thanks for the grim reality at hand.
I see no way to break that grip we the people are being choked by.
Short of active street demonstrations, work stoppages, and boycotts by MILLIONS upon millions.
All Peaceful In Intent, of course.
Powwow, this is an epic post. Thank you so much for your effort.
I’m sure most of us had some idea that political machinations were involved with the legislating process. After all, the place is run by very smart, sharp, competitive laywers, but I doubt any of us had any idea of the scale of opacity involved.
We snark all the time the the fix is in, and I usually take that with a grain of salt, but really why should I? We made big hay out of the fact that the DO NOTHING Congress only worked like 4 day weeks and laughed at the R’s when they complained that Pelosi was going to make them work 5 days. When the rules of the system are being used to circumvent the system, why should anyone bother to show up at all?
I think you’re right to point Kos’s anger at the real issue: Fake Process. Just like the Gruber fiasco I wonder, what are they afraid of? Are they so insecure in their positions that they feel the need to lie, dissemble, obfuscate lest someone figure out what they’re up to?
We call it Kabuki and laugh. It’s so very much worse, extreme nuclear kabuki on steroids.
Just listening to Keith & Rachel. Apparently Obama et al. figured this worked so well on health care legislation, they’re going to use it for environmental issues.
All the words are not needed. What is needed is a health care bill. The one in the house today will do. Then it can be amended, legislated, cursed, etc. But we need it NOW.
Thank you for a really incredibly well researched and written article. It makes me sick to my stomach, but it’s obviously imperative that more people understand what’s really going on in the halls of Congress and between our congressional leaders and the White House if we are to ever hope to get it changed. How can we get this to go “mainstream” so that more voters understand how far away from the democratic process we have gotten on the Hill? It seems that there needs to be a concerted effort from our legislators on both sides of the aisle to shine a huge light on this process asap.
Again, thanks for taking the time to put this together – it must have taken an incredible amount of time and expertise.
You’re most welcome, akw1.
It seems that way to me, too. The minority Republicans, of course, have reason to complain at the moment (and have). It’s the majority Democrats whose resistance is most needed now.
I think most people watching, or hoping for good results from the Congress, have grasped the situation on some level – the results of the Senate race in Massachusetts being the most recent evidence of that.
But sensing the broad parameters, and proving it, are two different things. Only the former can be asserted “with brevity” while “all the words needed” to document the latter are pretty much unavoidable, so long as those in power are (successfully) working everyday to sow confusion and misdirection among the public.
I can’t say that I know how to make this go “mainstream,” but it does seems clear that people need proof, so that they can see with their own eyes, and make up their own minds. Summarizing this situation doesn’t seem to sink in the same way that providing the evidence does. And some people, obviously, simply don’t have the patience to watch or understand the (real) legislative process, slow and churning as it is.
If Americans heard a committee or two in Congress loudly assert that they were restarting the debate on health care reform (which, these days, seems to require defying the Party leadership), with an open mind and a transparent process, and were then able to watch that committee quickly proceed to do just that, via on-line or C-SPAN broadcasts, faith in the (vital) legislative process could be regenerated, I believe. If we were able to monitor their progress ourselves, we wouldn’t need to trust them, or rely on endless streams of anonymous leaks to know what was (allegedly) happening. And we might even learn that some of the Republican ideas for health care reform are good ones, and certain prized Democratic ideas perhaps bad ones, or that a true compromise between the two gets us the best of both worlds.
Yes, we need health care reform, and the sooner, the better. But far, far more than that, this country needs a Congress worthy of the name.
Disregard of ideas is one thing – and a bad thing
…… but the GOP is into obstruction, and not value added.
….There can be no compromise although there can be incorporation of good ideas. The basic idea of government performing functions to help people (other than Defense) is totally rejected by the GOP as a party, so what we are discussing by way of individual legislator ideas to consider are ideas that fly along with the Democratic party concept of heath reform.
…..Under the current be polite rules there could be enough bills and ideas submitted for consideration – almost all con jobs put in the hopper to simply slow the process – to keep committees going for 5 to 6 years, if not forever. Therefore any process that is to come to a conclusion must be one that rejects unlimited “idea” filing and demands “give us your best 200 ideas by Friday” and then limits discussion before vote. I dare say the right wing talk radio media will sell this process as running over the minority, and the rest of the media will buy into that story line.
……The result will be that any process that results in a signed bill will look bad to the public in today’s media – so I doubt your start over approach – if you want it to result in a bill – will develop much trust in the public – the bill will have to be sold to the public post its signing.
…But I agree that good ideas that are filed should not be pushed aside the way single payer was.
Excellent post.
What do think about what Lakoff proposed yesterday re “California Democracy Movement”? “Where’s The Movement?” (http://www.dailykos.com/story/2010/1/25/829887/-Wheres-The-Movement). Who has done this type of analysis across the states. What is required for New York or Texas, for example?
“Pragmatism”? As the administration sees it perhaps. “Bipartisanship”? Only as cover story, as I noted in my comment @ 23 about a similar statement by Markos. So Lakoff falls for their con, and then just keeps on going. Seems to me if you misdiagnose the disease, you have a poor chance of curing it [speaking with regard to the federal level, which is, I believe, very much decoupled from actions, even by Party members, at the state and local levels].
Not to dismiss the many good points Lakoff makes in that piece, but in my view he’s way too Obama-centric, too presidency-centric, in line with the media and national times, for his proposals to be a credible solution for what ails Congress (which is in large part that most Members of Congress too are overawed by and devoted to enhancing the power of the presidency, even at the expense of their own branch of government).
“We” don’t “have” to do anything for Obama. He has a job to execute, as head of the Executive Branch of government. Isn’t control of one sprawling branch of government, and the execution of multiple “wars,” enough for one man? If we want to change our nation’s policies and direction, that is the job of Congress and the representatives elected to represent us, not the job of the man hired to execute our nation’s policies.
And, building on papau’s points @ 35: A key purpose of “open government” and transparent process is accountability, and that accountability includes being able to see for ourselves who is “obstructing” in bad faith, and then bringing consequences to bear on those who do. We don’t have to fear Republican “obstruction” if it’s done in the open, and in a fair and democratic forum where the majority can override any such obstruction.
The Party talking points are always one-sided, often to hide their own contribution to the problem. For example: If Democrats write a bill behind closed doors on their own, and then present it as a fait accompli with a day or two’s notice to a committee for final markup, the chances of getting many Republicans to offer amendments in good faith, especially if Democrats unite to protect the original product from any such amendments, are predictably low. But then we’d hear the Democratic talking points about Republicans just trying to score political points and refusing to participate in good faith. But when all the majority allows you to do is either score political points or else sit quietly as they roll over you, by abusing their power, or shutting the minority out of meaningful participation “at the take-off” of the legislative process, as John McCain put it, that outcome is basically preordained.
If the leaders of both Parties are bound and determined to use Congress simply as a power-enhancing, political point-scoring vehicle for the Parties (and the President), at the expense of the nation itself, as now seems to be the case, it is incumbent upon the members of those Parties in Congress to resist and object to such tactics, in order to allow the voices of all of our elected representatives, regardless of Party, to be heard and given the opportunity to contribute. And Harry Reid, no less, is capable of putting that objective into words, if not into practice, as this comment he made on the floor just last week indicates:
Given we’re in coredump … Next question: who has aggregated the analysis of a democratic twist– I would say some kind of social justice indicators– on a “Capability and Maturity Model” (http://en.wikipedia.org/wiki/Capability_Maturity_Model) evaluation of city and county governments? What would be the roll-up to each state level + the evaluation of the state government?
Powwow, thank you very much for taking the time to respond to my question. I have a great deal of interest in what constitutes “good governance.” I can see that I need to review all the articles of your thread and make sure I have digested all the content. Again, thank for your generosity of spirit, time and effort!