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.

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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 a resident of Nevada, I can empathize with South Carolinians on the maelstrom visited upon them by the media in the wake of their Governor’s ongoing disclosures.  While the nature of Governor Sanford’s infidelities is at best roughly analogous to Senator Ensign’s, the view from voter’s perspective tends to blur the distinctions between them and between those incidents and the recent Democratic embarrassments of Governors Spitzer and Blagojevich.  And of course, one’s own party allegiances and left/right leanings come into play in parsing any differences.

My own take on these affairs (no pun intended) is that there are two wholly divergent perspectives from which to view assess them.  One can sit back, pretend one has no vices and judge the participants from the point of view of the degree of imperfection demonstrated, reach a conclusion as to their fitness for ongoing public service in general and in their current elective office in specific, and then call forth the action dictated by those conclusions.  Alternatively, one can assess the circumstances from a strictly political perspective and judge not how the behavior weighs upon fitness for office but rather measure the likely impact on the actor’s political position, ability to impact on policy and his role as a leader within the political environment associated with his office.  Under the latter rubric, in assessing the politics of all this, one has to view not only the impact of the behaviors in question on the electorate as a whole but also on the electorate within the actor’s own party and  as well as the effect on the broader electorate’s view of the actor’s party in addition to the actor.  On a personal note, I like the line, “let he who is without sin cast the first stone”.  I will not be casting any stones, let alone the first.  I offer my views only the political perspective.

As to the two Democratic governors, I note two distinctions:  both were the target of possible criminal proceedings and both were quickly out of office.  While one resigned and the other removed, both departures could not have been accomplished without the active participation of the respective state party machinery moving to assure its long term survival by cleansing itself of the offending governor.  In both state democratic parties, the risk associated with offending those that had voted for the governor appears to have been outweighed by the need to be seen as decisive in pressing for the removal of the cancer before any possibility of it metastasizing on other party candidates in upcoming elections.  In the esoteric environment of polls and non-elective politics, the two state parties appear to have taken the correct step.

On the other hand, the Nevada and New York Republicans do not appear to have reached the same conclusions.  As noted above, neither Ensign nor Sanford are currently charged with illegalities so the severity of the scandal can be said to be more moderate.  But one cannot ignore the political leanings of the two Republicans on ‘moral’ issues.  Both have been outspoken critics of other elected officials whose infidelities have become grist for the publicity mill and both were active in the efforts to have an unfaithful president removed from office.  (I will accede to the point that those efforts will in part predicated on the allegations of perjury not just on the underlying infidelity but note that both Governor’s lied in their efforts to avoid detection albeit not in a perjury context.)  An interesting side note is that both Republicans were included on most short lists for the Republican presidential nomination for 2012. 

While I suspect that somewhere someone is doing extensive polling on the precise nature of how various demographic groups are viewing the various storylines, the blogosphere shows its own sets of reactions that are telling.  My own unscientific review of bloggers views is that Republican and right leaning bloggers do not appear to be bothered by the apparent hypocrisy of the Republican Governors’ condemnations of  others juxtaposed to their own infidelity and cover-up, and they are quick to emphasize the apparent criminality associated with the Democrats’ scandals.  On the other hand, Democratic bloggers seem greatly offended by the apparent hypocrisy of the Republicans  but are not overly vocal in their calls for resignation.  Could it be that Democrats are taking the longer view on how all this will play out in 2010 and 2012? 

Blogosphere and polls aside, the real issue, in my view,  is the impact of all this on  the “silent majority” of Republican voters and what they actually think of all this.  Are they forgiving of their leaders?  Will the failure to cleanse their party shift some of those on the left fringes of the right, the so-called Reagan Democrats,  back to the Democratic Party?  Will the abilities and politics of Ensign and Sanford enable them to restore their own images sufficient to limit any spillover on other Republican candidates in 2010?  Will the far right/party base lose its enthusiasm as contributors and grass root supporters in sufficient quantities to deepen the Republican slide that started in 2006?  Will it turn out that the “11th Commandment”, in stopping Republicans from taking the actions that the Democrats took with Spitzer and Blagojevich turn out to be the metastatic force that the Democrats appear to have avoided?

No one can assert that the Republican Party is as strong as it would like to be is most states (South Carolina could be an exception) or on the national scene.  These two June disclosures obviously don’t help 

As a resident of Nevada, I can empathize with South Carolinians on the maelstrom visited upon them by the media in the wake of their Governor’s ongoing disclosures.  While the nature of Governor Sanford’s infidelities is at best roughly analogous to Senator Ensign’s, the view from voter’s perspective tends to blur the distinctions between them and between those incidents and the recent Democratic embarrassments of Governors Spitzer and Blagojevich.  And of course, one’s own party allegiances and left/right leanings come into play in parsing any differences.

My own take on these affairs (no pun intended) is that there are two wholly divergent perspectives from which to view assess them.  One can sit back, pretend one has no vices and judge the participants from the point of view of the degree of imperfection demonstrated, reach a conclusion as to their fitness for ongoing public service in general and in their current elective office in specific, and then call forth the action dictated by those conclusions.  Alternatively, one can assess the circumstances from a strictly political perspective and judge not how the behavior weighs upon fitness for office but rather measure the likely impact on the actor’s political position, ability to impact on policy and his role as a leader within the political environment associated with his office.  Under the latter rubric, in assessing the politics of all this, one has to view not only the impact of the behaviors in question on the electorate as a whole but also on the electorate within the actor’s own party and  as well as the effect on the broader electorate’s view of the actor’s party in addition to the actor.  On a personal note, I like the line, “let he who is without sin cast the first stone”.  I will not be casting any stones, let alone the first.  I offer my views only the political perspective.

As to the two Democratic governors, I note two distinctions:  both were the target of possible criminal proceedings and both were quickly out of office.  While one resigned and the other removed, both departures could not have been accomplished without the active participation of the respective state party machinery moving to assure its long term survival by cleansing itself of the offending governor.  In both state democratic parties, the risk associated with offending those that had voted for the governor appears to have been outweighed by the need to be seen as decisive in pressing for the removal of the cancer before any possibility of it metastasizing on other party candidates in upcoming elections.  In the esoteric environment of polls and non-elective politics, the two state parties appear to have taken the correct step.

On the other hand, the Nevada and New York Republicans do not appear to have reached the same conclusions.  As noted above, neither Ensign nor Sanford are currently charged with illegalities so the severity of the scandal can be said to be more moderate.  But one cannot ignore the political leanings of the two Republicans on ‘moral’ issues.  Both have been outspoken critics of other elected officials whose infidelities have become grist for the publicity mill and both were active in the efforts to have an unfaithful president removed from office.  (I will accede to the point that those efforts will in part predicated on the allegations of perjury not just on the underlying infidelity but note that both Governor’s lied in their efforts to avoid detection albeit not in a perjury context.)  An interesting side note is that both Republicans were included on most short lists for the Republican presidential nomination for 2012. 

While I suspect that somewhere someone is doing extensive polling on the precise nature of how various demographic groups are viewing the various storylines, the blogosphere shows its own sets of reactions that are telling.  My own unscientific review of bloggers views is that Republican and right leaning bloggers do not appear to be bothered by the apparent hypocrisy of the Republican Governors’ condemnations of  others juxtaposed to their own infidelity and cover-up, and they are quick to emphasize the apparent criminality associated with the Democrats’ scandals.  On the other hand, Democratic bloggers seem greatly offended by the apparent hypocrisy of the Republicans  but are not overly vocal in their calls for resignation.  Could it be that Democrats are taking the longer view on how all this will play out in 2010 and 2012? 

Blogosphere and polls aside, the real issue, in my view,  is the impact of all this on  the “silent majority” of Republican voters and what they actually think of all this.  Are they forgiving of their leaders?  Will the failure to cleanse their party shift some of those on the left fringes of the right, the so-called Reagan Democrats,  back to the Democratic Party?  Will the abilities and politics of Ensign and Sanford enable them to restore their own images sufficient to limit any spillover on other Republican candidates in 2010?  Will the far right/party base lose its enthusiasm as contributors and grass root supporters in sufficient quantities to deepen the Republican slide that started in 2006?  Will it turn out that the “11th Commandment”, in stopping Republicans from taking the actions that the Democrats took with Spitzer and Blagojevich turn out to be the metastatic force that the Democrats appear to have avoided?

No one can assert that the Republican Party is as strong as it would like to be is most states (South Carolina could be an exception) or on the national scene.  These two June disclosures obviously don’t help