The Nuclear Option

March 1, 2010

Again, the point of this piece, as with other items I write from time to time, is less about the substantive matter at issue (in this case health care reform, again), but about political process, in general, and the filibuster concept specifically.

In ancient times, the Senate being the grand chamber of the Congress, composed of those esteemed gentlemen who were appointed by state legislatures, not elected by the people, consisted of only 26 members.  These elite folk determined that, unless 60 % of them voted to limit debate, any senator should have the right to speak at his discretion to fully explicate his position.  Over time, the filibuster came into play as a method for individual senators to utilize this rule to stop the chamber from actually voting on a particular matter the passage of which was abhorrent to those individual members.  As a matter of respect for their membership, cloture (the cutting off of debate) was rarely ever put to a vote as this was a sign of disrespect in a chamber were the appearance of respect was part of the fabric.  In the second half of the 19th century, as certain issues become more and more controversial, the possibility of filibuster became something of a weapon wielded by the minority to force the majority to compromise.  Actual filibusters remained rare.

For those of you old enough to remember the Nixon and Johnson administrations, you may recall that there were actual filibusters.  When the Civil Rights Act when to the floor of the Senate, Strom Thurmond actually tried to stop the passage by exercising his right to talk indefinitely.  Eventually he gave up and the Act was passed by less than the supermajority needed to cut off debate.  However sometime in the Reagan years, the concept of “notice of intent to filibuster” came into play and if a senator gave notice of intent to filibuster, a bill was tabled unless sixty senators voted to limit debate.  Thus was born the policy of requiring a 60 senator vote at the outset of debate so that the senate did not take up its precious time debating a matter on which there would be no vote, i.e. the threat of a filibuster on any bill was taken so seriously that the Senate evolved into requiring a 60 vote majority to pass almost any legislation.

After a while this became an intolerable obstruction to the day to day business of the Senate and a compromise was reached through  Budget Bill.  Under this compromise, matters which related to the budget efforts to reduce the deficit would be exempt from the filibuster rule.  (Interestingly, Senate Rules which provide the right to filibuster also allow for their amendment, including amending the provisions relating to the filibuster, without the right of filibuster or the need for a cloture vote to bring an amendment of those rules to a vote.)  As a result, for a number of years, the senate has regularly used this process, called “Reconciliation” to avoid the need for a cloture vote.   Examples of this include amendments to the Medicare and Medicaid programs, the creation of the CHIP program and its revision to create the SCHIP program and on and on.  Interestingly, this process has often been used by the Republicans and Democrats alike when the cloture process has created an insurmountable hurdle to the need to bring a matter to a vote.  While this process has been used a number of times by both parties over the last generation, its use remains relatively infrequent.

In the Bush 43 years, when it became clear that George W Bush would have an appointment to fill a vacancy on the supreme court, the Democrats raised the prospect of a filibuster if there was dissatisfaction with the conservative background of a nominee.  When the possibility of a filibuster of a Supreme Court nominee surfaced, the Republican majority in the Senate threatened to amend the Senate Rules to prohibit filibuster with respect to judicial nominees, the so-called “Nuclear Option”.  (Remember this could be done with a simple majority because the filibuster right does not apply to debates relating to amendment of Senate rules.)  While this amendment to the Senate rules was avoided by a compromise worked by the “gang of 14”, seven senators from each of the two parties, the possible death knell for the cloture rule has been a ghost haunting Senate process ever since.

And along comes  a special election in Massachusetts which drops the Democratic majority to less than 60/40 and so, effectively, Democratic legislation  is subject to  filibuster.  And here we are with a Health Care Reform Bill being held hostage by the ‘notice of intent to filibuster’ and the ensuing result that the Senate has again devolved into the need for a supermajority to get major work accomplished.   And here we are again with the notion of utilizing the reconciliation process which is exempt from the filibuster possibility and the need for a cloture vote  to end it.  And here we are again with the minority Republicans shouting foul at the possible use of this process when the Republicans  have used the reconciliation process for its own benefit in the past.

All of this is wonderful demonstration of the double edge nature of U. S. politics, of how the filibuster is alternatively a great political weapon for first one party in the minority and then the other, and of how reconciliation is a tool for first one majority and then the other.  What troubles me, however, is how little of all this is actually understood by the electorate as a whole and how politicians can in one year use one of these processes as a weapon or tool and then decry its use when roles of majority and minority are reversed.  I am reminded of an episode of the Jay Leno show and his “Jay Walking” segment during the “nuclear option” debates over  judicial nominees in which he asked people on the street what a filibuster was.  The answers, while funny in a humorous sense, are quite disturbing when you realize the potential for political manipulation it suggests.

Please share your thoughts on the process.


The Health Care Debate

October 8, 2009

I’m not going to bore anyone with my views on the need for competition, the likelihood of a “government option” being positive or negative, or even whether there should be ‘mandates’.  Rather the focus of this piece is on the need for reform.

We have the lowest life expectancy of any industrialized nation and yet we spend almost twice as much per capita on health care as any of those nations.  Our infant mortality rate is the highest, higher than Slovenia, Poland, UAE and a host of other nations.  Oh we can blame other factors like crime and affluence, obesity and culture.  I’ve even seen one commentator blame our genetic make up (hard not to think of that as code for what is really racism).  But the reality is that we are the only system in any industrialized nation that continue to act like “fee for service” works in the area of health care.

As a mature democracy, we would never suggest that education should be based on fee for service.  While I do not  suggest we have the best schools, no one will argue that all are entitled to at least a basic education provided by the state.  And we know that, to the extent we tried to make education a “fee for service” system, large portions of the population would go uneducated.  Is health care any different. Does anyone really believe that people should not be ‘entitled’ to basic health care services as part of a just and humane society?  And yet fully 1/3 of our population under age 65 are either uninsured or underinsured and have no access or only very limited access to even rudimentary services.

As a practical matter none of the other industrial societies have ‘fee for service’ health care systems comparable to ours.  In every one of them, all have access to basic health care services, whether rich or poor, employed or not.  Oh there may be some long waits for some services, slightly fewer people may survive stage 2 cancers for quite as long as they do in the U.S., and the array of pharmcological choices may be slightly more limited than here (and is that bad?).  But the bottom line is that in single payor countries like Canada and Australia, it costs almost 50% less to provide longer life expectancies and lower death rates for all age categories, than in our private insurer/fee for service system.

A quick story is instructive.  I have a co-worker, an educated lady whose husband is retired military.  She is of the view that Obama’s plan is socialized medicine which she will fight to the death.  She is scared to death that such a pland will deprive her of her current coverage and force her to accept the government as her medical care provider, a recipe for disaster in her view.  The irony is that, as a spouse of a military retiree, the current system she so adores is in effect “socialized medicine” i.e. her medical providers are, in essence government employees who are paid a salary, not fee for service providers who are self employed or employed by private businesses.

But as has been said in this space on prior occasions, the problem is not identifying a solution.  The problem is in the process.  Our laws are made by politicians who spend millions of dollars of contributors’ money to get elected and then, lo and behold, tend to vote in ways that line the pockets of the industries that contribute.  Those same contributors also fund ‘think tanks’ which spew rationales for the status quo that only defy logic to those those that have a pulse and an eighth grade reading ability (and chose to use it).  The result is an irrational fear of socialized medicine and belief that the mythogical god “competition” is the only possible solution. 

“Don’t confuse me with facts, I’ve made up my mind.”

No the problem with the health care debate is not “what should we do?”  The answer to that is clear.  The problem is that we have a political infrastructure which prohibits us from acknowledging the obvious and implementing it.

As 2010 fast approaches, we enter a decennial orgy of partisan machinations which will set the tone of politics for the ensuing decade.  On April 1, 2010, hordes of non-ACORN workers will descend on us to take that complete count mandated by our Constitution called the Census.  This will be followed by the conflagration of gerrymandering our system has repeated 22 times.  However, with the aid of more detailed counting processes and the use of ever more complex computer analyses of that data, our state legislatures will create a set of districts which will contain overly homogenized populaces to guaranty the states’  respective majorities a virtually safe majority in a majority of legislative districts and hopefully all the congresssional districts. 

Oh gerrymandering isn’t new and no one who is rational can expect it to end.  But there is a more recent set of phenomena that we need to talk about, and that is its impact on our discourse and the resulting political effects.  Joe Wilson is on of many representatives (of both parties) in districts that are so homogenized that no opposition candidate can hope to attract either the funding or electoral support to be seriously considered.  As a result, the primary for the majority party is the real election in those districts.  There are two side effects of this kind of process:   the opposition voters are essentially silenced and the winner is the candidate with a mere plurality who has wooed the largest segment of the party “base”.  As a result, such a winner can be expected to both ignore the opposition in his or her political thinking and to focus more on that “base”, generally the more extreme of that party.  This catering to the base makes it far more difficult for those legislators in those districts to participate in bipartisanship or political compromise.  And the new gerrymandering that will take place in 2011 will exascerbate this problem to the next order of magnitude.

And so we get the kind of discourse that has evolved to new levels of ill-manneredness present over the last 2 or 3 decades.  We get a member of the House, calling the President a liar in the midst of a joint session of Congress.  We get a former Governor catering to her following and seeking the approval of the ‘base’ by making up out of whole cloth the concept of a “Death Panel”.  We get Tea Party leaders encouraging people to call Mr. Obama both a fascist and a communist, oxymoronic opposites, in same breath.

The problem isn’t the ideology of the two parties.  The Republican party doesn’t really believe in small government or smaller budgets (although certainly some Republicans do) when it comes to catering to its funding source, big business.  An easy example of the party’s philosophy in practice is the Medicare drug benefit enacted by a Republican controlled Congress and signed into law by a Republican President.  That “benefit” had 3 main impacts:  One, it provided the vast majority of medicare recipients with a relatively small benefit before those recipients would have to reach deep into their pockets to fund the so-called “donut hole”; Two, it barred Medicare from negotiating prices with the Drug Companies, so both recipients and the Federal Treasury (read as you and I the taxpayers) were obligated to pay the list price for all covered drugs, resulting in;  Three, the cost of the program, will cause Medicare to incur trillions in deficits and eventual insolvency over the coming decades. 

Conversely, the Democrats, as a party, seem to be unwilling to address even the simplest of controls when it comes to their large funding sources, i.e. “Big Labor”.  The Democratic Party should be fighting to make our public education system, a social program if ever there was one, the best in the world.  However, even in a compromise to obtain sorely needed funding for education, the Democratic Party fails, time after time, to participate in enacting accountability systems that can assist administrators to force out bad teachers or make educational systems operate more efficiently? 

My response to both sets of issues is the same, our political discourse is so polarized that we are moving away from a government aimed at addressing problems efficiently and towards a system that is based solely on the polemics necessary to perpetuate a given parties strangehold on those districts where safety of a majority is the guiding principal.  If you are a conservative voter, don’t accept simplistic conepts like Death Panels and rush to the conclusion that health care reform is some kind of horrific government take-over of the medical universe.  Doctors, who know the system best, are overwhelmingly in favor of reform, even if costs are controlled or reduced, because, among other things, those 40,000,000 new insureds that we as a society need to insure, are 40,000,000 new customers (who are currently getting free  but costly care in your local Emergency Room).  Yes there will be  a cost that will be funded partly through employer payments, taxing of “cadillac’ insurance plans and closing of certain tax loopholes, but that cost is both necessary and important.  On the other side of the coin, if you are a liberal, recognize that we cant’ have a single payor system and that compromise is an essential part of our system where we give a little to get most of what we view as necessary.

In simplified terms, we need to pull back from this brink of polarization.  We need to recognize that we can’t have 100% of what we believe is best and learn to work with our opponents to find that “win/win” solution instead of fighting tooth and nail to have only the “zero sum” compromise that makes both sides unhappy.