Editore"s Note
Tilting at Windmills

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November 25, 2009

ONE CLOTURE VOTE AFTER ANOTHER.... Reader R.H. emails this afternoon with an important procedural question. It's a subject that comes up from time to time, which leads me to think a lot of people may be interested in this. With R.H.'s permission, I'm republishing the note:

...We currently have one health care reform bill passed. That's the House's. It provides for a public option.

The strong likelihood is that the Senate bill will not provide a public option. So for argument's sake, let's say it's passed and has no public option.

These bills will have to be resolved in conference. That means it will either need to take from the House bill and provide a public option or take from the Senate bill and not provide a public option.

Again for argument's sake, let's say we take from the House bill and provide a public option in the final legislation. Ah, but this needs to pass the Senate again, right?

But I believe that the final vote on the conference bill is not subject to cloture votes, meaning that the final conference resolution only needs to pass by a simple majority. And if it were just a matter of a simple majority, the Senate bill WOULD have a public option. So... wouldn't the final conference resolution providing a public option then pass the Senate by a simple majority and proceed onto the President's desk?

I wish this were the case, but it's not. The final, post-conference bill will return to the Senate where it will face the last in a series of filibusters.

And what a series it is. It took a supermajority to bring the bill to the floor for a debate; it will take another supermajority to let the Senate vote on the bill and send it to conference; and it will take another supermajority to let the Senate vote on the final, once-and-for-all bill.

The vision presented by R.H. would certainly expedite matters. The leadership could approve a more modest bill, in line with the demands of Nelson, Landrieu, Lieberman, and Lincoln, and send it conference. The White House could send back a much stronger bill, in line with the House approach, and there'd be nothing center-right Dems could do about it.

Alas, that's not the case. In fact, after the grueling task of getting the Senate bill to a point at which it can garner 60 votes, I suspect those center-right hold-outs will make a fairly explicit threat to the president and the House negotiators: "You change one letter of this thing and we'll filibuster it when the bill gets back from conference."

So, to make a short story long, post-conference bill are filibusterable. Something to keep in mind as the process continues to unfold.

Steve Benen 3:00 PM Permalink | Trackbacks | Comments (16)
 
Comments

This is the most insane thing I have ever read. Do these people have no awareness of what humans and others "need?" Until someone stands up and declares the ignorance and insanity of their "friends" in the Senate, there is no place to go but down. The Public Option they are proposing is useless, so who really cares if they include it or not. I hope the people sited in an earlier post who are in BK for medical reasons get a clue and, since they have nothing to lose, put it all on the line for the rest of us.

Posted by: st john on November 25, 2009 at 3:08 PM | PERMALINK

Thanks for clarifying that, even if the answer is pretty depressing.

The interesting thing about this, though, is that it makes the push to pass reform now even MORE important. If this is the best we're able to get even with the current Democratic majority, it's not likely to get better in the future. But *improvements* to a major reform can be made incrementally, avoiding the intense focus issue, e.g. a public option pushed through with reconciliation or attached to some other major program.

Posted by: Rick Herrick on November 25, 2009 at 3:11 PM | PERMALINK

I wonder if the folks who keep bringing up reconciliation have read some of the articles lately on what that would actually entail and how unlikely it is to produce anything worthwhile.

Posted by: Quinn on November 25, 2009 at 3:21 PM | PERMALINK

OK, it now looks like it takes 60 freaking votes on whether to turn on the lights or change the TP in the johns.

Reconciliation will be just as bad with "Byrd Rules" being invoked every 5 minutes

when do the Dems start talking about the "Nuclear option"? The country is in a crisis and there are 40 plus Nero's in the senate

Posted by: cintibud on November 25, 2009 at 3:21 PM | PERMALINK

Two questions: Is Rep. Grayson's petition asking Sen. Reid to change the number of votes needed for cloture to 55 dead in the water?

And, though the number needed for cloture used to be higher (66 or 67), that was when senators actually had to stand and deliver a real filibuster, not just threaten it (which makes it literally all hot air and does not inconvenience old guys who might not be able to stand for a long time or feel like sleeping on cots). Can they at least go back to requiring senators who want to filibuster to do so for real, tell the people why they are doing what they are doing for as long as it takes, and not just threaten to do it? Maybe if there were real consequences and the filibuster required more than two second threats, they'd be more principled and less obstructionist. (And if standing up for what you believe in is uncomfortable, tough.)

Posted by: Sf on November 25, 2009 at 3:22 PM | PERMALINK

Quinn: "I wonder if the folks who keep bringing up reconciliation have read some of the articles lately on what that would actually entail and how unlikely it is to produce anything worthwhile."

Since I was the one who just brought up reconciliation, I assume you're referring to my comment:

1. Yes, I have read what it would actually enail.
2. Yes, I'm aware of how unlikely it is to produce anything worthwhile, WHEN IT COMES TO THE PRIMARY HEALTH CARE REFORM BILL.

My point is that, once the primary HCR bill is passed, reconciliation can be used to pass additional items, changes to the existing HCR framework, regulatory reform, etc. The problem with reconciliation is not that it's worthless for everything, it's that it's worthless for passing the large permanent health care reform fixtures.

The point is that there are different tools in the legislative quiver. Just because your screwdriver is really crappy at getting your table nailed together, it's pretty awesome at adjusting the screws that level the table out.

Posted by: Rick Herrick on November 25, 2009 at 3:27 PM | PERMALINK

Excellent column in NYT Biz. page today indicating there is plenty of room for the "moderates" to affect a bill with more cost containment efforts - the argument is that there are plenty of places for Nelson, Landrieu, Lincoln, Collins, and Snowe to have real input and maybe even they could vote for it. Then we wouldn't have to have pouty Joe involved.

Good piece on Pouty Jo btw. The contrast between Lieberman and Kerry [also a good NYT article today] is telling: Kerry could have been a grumpy bitter turd like McCain and Lieberman, but - what ho! Kerry is interested in - um, actually governing!

Posted by: bigwisc on November 25, 2009 at 3:39 PM | PERMALINK

You know, were I a majority of the Senate and facing some pressure to realign procedural rules so that the majority retained some of its power, this might be exactly the place that I'd start.

As one who lived painfully in the minority for 8 years, I have not forgotten my hopes that the filibuster would be employed more often by Dems. Jettisoning it because we are at the moment in the majority seems short sighted. But an obvious compromise might be this; making Bills that emerge from conference a matter of straight up-or-down votes.

Hmmmmmmmm.

Posted by: Shantyhag on November 25, 2009 at 4:14 PM | PERMALINK

I'm sure glad I'm not in a foxhole with (almost) ANY senator, waiting for him to throw himself on the grenade. . .

Posted by: DAY on November 25, 2009 at 4:46 PM | PERMALINK

Nice turn of phrase by Rick Herrick @ 15:27

But without a functioning PO, there are no screws to turn. A PO will never appear in an incremental adjustment down the road. It needs to be included NOW.

Posted by: Kevin on November 25, 2009 at 6:48 PM | PERMALINK

Hi,

What I don't understand is why they don't make them actually filibuster - make them continue a debate 24/7 throughout every night, until the Rs fail to continue, then have everyone in the Democratic caucaus committed to the bill show up a 4 am Sunday and pass the dammed thing!

No one ever has to actually exercise the filibuster, so it is cheapened to the point where they threaten it for FREE!

If our Senate leadership were to just make them actually DO IT, rather than slide by with a mere threat, things might change. Imagine what these Republican bozos would be saying at 2 am!! CSpan would be frothing!

But if you just always say "Oh, well, then, just never mind, we're sorry we brought it up if you're opposed" is giving up the fight before the bell even rings!

Sorry for all those exclamation points but this is an important issue to me.

JR

Posted by: JR on November 25, 2009 at 7:47 PM | PERMALINK

JR,

The *actual rules* of the filibuster have changed, and maintaining it now is much more of a burden on the majority.

If democrats try to move HCR to a vote, it requires only one opposed senator to request a "quorum call". At that point, there would be a roll call. If there's not an actual quorum (51 senators) present, the bill cannot be voted on. If there *is* a quorum, then the opposed senator can just ask for another quorum call. This can go on forever until there are 60 votes for cloture.

In other words, there would be no filibustering, no reading from the phone book, etc. Just one asshole republican requesting a quorum call, then however much time it takes to do the roll call, then rinse and repeat.

I imagine that to change *these* rules, it would take a 60 vote supermajority. Sigh.

Posted by: rfs on November 25, 2009 at 10:28 PM | PERMALINK

Raising the question whether Robert Byrd is going to be able to drag himself to the floor for all this.

Posted by: bob h on November 26, 2009 at 6:28 AM | PERMALINK

Why don't progressives demonstrate in the streets for the public option? Why don't the newscasters refute the repubs who keep saying no-one wants the public option? Something is wrong with our media. In NC, Blue Cross is sending out letters asking for people to write Hagan and tell her not to vote for the public option. Every time I see Dock Armey given face time on TV my blood boils.

Posted by: JS on November 26, 2009 at 7:36 AM | PERMALINK

And any bill that includes mandates for citizens to buy coverage but does NOT include a non-profit public option is unconstitutional and defeatable in court. It is unconstitutional for the government to mandate that citizens give their money to ANY corporation, like it or not. The government does NOT have the power to require profits for private corporations (insurance companies) on the backs of the citizens.

Any bill that does NOT have a robust, and open, non-profit public option is going to be unconstitional and defeated in the courts as myself and thousands of others challenge the law as a direct means of the government stealing from citizens to hand money to CEOs and private shareholders. The final bill, sans public option, is really just a blatant, direct theft from the real humans in the country (workers, middle class, etc) to those who don't earn money but just take it (bankers, wall streeters, assorted billionaires who never worked a day in their lives).

Posted by: Praedor Atrebates on November 26, 2009 at 11:42 AM | PERMALINK

Interesting post and appreciate the insights. I really have seen the benefits of reform and the public option working in Ohio. It's proven and they have become leaders in this debate. http://cli.gs/z3AtaY/

Posted by: Stephanie Hunter on November 27, 2009 at 11:38 AM | PERMALINK
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