Diagnosis for Democracy
Insights into the State of Our Union
A Blog by Rob Tenery, MD


Capping Congressional Shenanigans

By Rob Tenery, MD on November 12, 2015

 

The major campaign platform by the Republican candidates in 2014 was to support their party by electing a majority to the United States Senate. Then, along with a majority in the House of Representatives, the Republicans claimed they would be able to overturn the mandates legislated in the Affordable Care Act (Obamacare, ACA) and block most of President Obama’s controversial Executive orders.

Although the Republican Party got its wish, ending up with a 54 to 46 majority over the Democrats in the Senate, it appears not much has changed since the elections. The Affordable Care Act continues unchanged. President Obama still seems to be able to run roughshod over the Constitution with his unencumbered use of Executive orders and ‘treaties’ that appear to emasculate any balance of power between the Executive and the Legislative branch that is now controlled by the Republicans. 

Public confidence in the representatives sent to Washington clearly demonstrates a loss of trust by those who put them there.  Much of the blame is directed toward the Republican party leadership as with the early retirement by House Majority Leader, John Boehner and growing pressure on Senate Majority Leader Mitch McConnell to do the same.

Some of this criticism appears well founded. But many of the problems of apparent ineptitude fall on the very system that these representatives of our public trust created for themselves. While the tactics of filibuster, cloture, reconciliation, simple majority and super-majority voting are used to allow discordant voices to have their say, they also serve to delay and disrupt the democratic process.

For example, potential law making in the United States Senate depends not as much on the will of the majority, but on how adeptly the differing points-of-view manipulate the Senate’s own self-imposed rules. The first is Rule XXII, more commonly known as the filibuster, is the most controversial. It was originally created to allow the minority time to rally support, since transportation to the nation’s capitol was much more time-consuming back then. Quickly becoming a method of obstruction, in 1917, President Woodrow Wilson requested that the Senate introduce limitations that resulted in the ability to close debate and end the filibuster (cloture). Until 1975, the number of Senators necessary to invoke cloture was two-thirds. That number has been lowered to three-fifths or 60 votes. Even if the Senate members pass cloture, there is a two-day delay to take the vote, and then there can be another 30 hours of post-cloture debate. During that time, another filibuster can be initiated against the motion to debate or any subject within the bill itself. *

Although it is not often used, a method to limit a filibuster is through reconciliation. The Budget Act of 1974 passed the reconciliation process into law. Using budget reconciliation, the Congress was then able to reconcile two projected budgets more rapidly than had been done before, by limiting debate to 20 hours and passing the proposed legislation by a 51 vote simple majority, versus a super majority. Reconciliation was used to pass the Bush tax cuts and multiple other funding programs since the Budget act was signed into law.

To trigger reconciliation, limiting debate to 20 hours and only requiring a 51-vote majority for passage, the proposed legislation must have a direct impact on the federal budget and reduce the national deficit. In the Senate, the Parliamentarian settles any disagreement as to whether a proposed piece of legislation meets the reconciliation rules. The Vice President can overturn that ruling, if there are further concerns.

With this growing wave of national discontent, many of the Republicans in Washington may be looking for a new job after the next election. In the House of Representatives, the Republicans are introducing a bill that could put funding of the controversial ACA legislation in real jeopardy. “We’re going to repeal the five worst parts of the law: two mandates, two taxes and one board of bureaucrats,” said Rep. Paul Ryan, R-Wis, recently elected Speaker of the House of Representatives.  

President Obama will almost certainly veto a bill that would defund any part of the ACA. But by creating the bill so that it complies with reconciliation rules, it would establish a process to dismantle the bad parts of the ACA if a Republican ascends to the Presidency after the 2016 election.

In so many areas this country is heading in the wrong direction since President Obama took office: Stagnant mean family income, the growing national debt, America’s standing in the world community that can only really claim Cuba on the positive side, race relations reverting back to the 60s level and probably the most frustrating of all, the inability of the nation’s voice to be heard through their elected representatives in Washington.

First, it was Harry Reid, former Senate Majority Leader, who virtually shut down the Senate during his tenure. Then came Mitch McConnell who seems deaf to results of the last election that put Republicans in charge of both Houses of Congress.

Maybe, there is a breath of fresh air coming in the Congress by letting the majority represent their constituency. At least with reconciliation, when these bodies collectively propose change, the responsibility of making that happen, or not, will clearly be in the hands of our President!**

 

* Klein, Ezra, Bending the Rules of Reconciliation and Filibusters, the Senate Got Twisted, The Washington Post, March 7, 2010.

**Politico (11/11/15, Kim) reports that the Senate parliamentarian ruled Tuesday that some provisions of a GOP reconciliation bill to repeal the ACA and defund Planned Parenthood did not comply with the so-called Byrd rule, which governs when the budget tool can be used. The ruling “from the parliamentarian found that two mandates that would be repealed in the GOP bill – the individual mandate and the employer mandate – did not survive the so-called Byrd rule, according to a senior Democratic aide.” However, aides to Senate Majority Leader Mitch McConnell (R-KY) said lawmakers will include a substitute amendment that will bring the bill in compliance with Senate rules while keeping the repeal provisions intact. GOP aides “also noted the parliamentarian ruled that the bill was ‘privileged,’ meaning it can avoid a filibuster.” Texas Medical Association Daily Headlines





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