A number of diaries at Firedog Lake today, frame the coming phase of the legislative process in terms of the need for 60 votes to get cloture and pass the PO. For example here’s a quote from one of today’s diaries by David Dayen:
“Left out of this story is the fact that any amendment to the bill on the Senate floor would in all likelihood need a cloture vote – in other words, 60 votes – in order to pass. Therefore the placement of the public option inside or outside of the merged bill is crucial, as there are probably not 60 votes to either insert it or remove it from the legislation. So allowing an amendment as a “compromise” is not really a compromise at all.”
Here’s another from a diary by nyceve:
“Progressives had been told by Reid that he couldn’t do anything without 60 votes. Now that he has his 60th, he is afraid to use it. It now appears that not only is it that Reid has failed in his arm-twisting to get the party to vote together on cloture, it’s that he’s afraid to even politely ask them to behave like a party and stick together.”
And yet another from montanamaven:
“He needs a victory”, sighed Dr. Paul Hochfeld at the very end of our 40 minute interview with him on our local talk radio show. After a feisty and informative discussion with us about health care reform, in the end, Paul, like us, kind of sighed. When Paul talked to the Doctors for Obama group that had flown in to support President Obama’s health care reform (whatever that was), they told him that “the president needs a victory”. Even though Paul is a single payer advocate and knows like many of us do that a national system is the only thing that will work, in the end does it boils down to giving the President something to sign? He was politely called delusional by his colleagues. Did he not see that the Congress was incapable of passing something meaningfully comprehensive? Did he not see that there were not 60 votes in the Senate?”
These diaries all assume that in the next phases of the legislative process, the existence of the filibuster in Senate procedure will determine what can be done to amend Harry Reid’s mark, “merging” the Senate HELP and Finance Committee bills. However, it only takes 50 votes + the VP to get rid of the filibuster through using the procedure known as “the nuclear option.”
Harry Reid can decide whether a PO will be in the bill or not. But if it’s not, then Schumer, Rockefeller, or any other individual Democrat can do the following:
1) Object to the proposed Unanimous Consent (UC) agreement that Amendments to the bill would require 60 votes to pass.
2) When the bill moves to the floor without such an agreement an Amendment putting in a PO will be filibustered, but, also, one of the Senators supporting it can make a point of order calling for a vote on the amendment being considered by the Senate.
3) The presiding officer of the Senate, most often the Vice President of the United States, can then make a parliamentary ruling upholding the point of order and citing the Constitution of the United States rather than previous Senate rules (which uphold the right of unlimited debate) as the precedent supporting the ruling.
4) A supporter of the filibuster can then “appeal from the chair” by asking whether the Chair’s decision will stand as the judgment of the Senate.
5) If one of them does, then an opponent of the filibuster can move to table the appeal.
6) Since motions to table are not debatable, the Senate immediately votes on the tabling and decides by simple majority vote.
7) If a majority decides to table the ruling of the Chair, that the filibuster is unconstitutional, and that a majority vote is enough to bring a bill to vote and to pass it, then the point of order, along with majority rule, is upheld.
8) By its action in upholding the Chair, the Senate will have established a new precedent, namely that filibusters are unconstitutional, and that all legislation thenceforth, may be passed by majority vote, following a point of order calling for a vote.
None of this requires Harry Reid’s cooperation or is up to him. The 52 supporters of the PO in the Senate would get a vote allowing them to overcome the filibuster, and pass the PO amendment attaching it to his bill. It does, however, require the cooperation of Joe Biden who would be the presiding officer and therefore probably the President as well.
This possibility is often dismissed by progressive bloggers, with the cursory remark that the “nuclear option” won’t be used by the Democrats, and the bloggers then go on to talk about scenarios involving 60 votes. But, I think this kind of approach is a mistake. We should not be writing only about what is likely to happen or what may happen, or whether progressives in Congress will oppose a UC agreement or not. We should also be writing about what it is possible for the Democrats and Harry Reid to do, and what they ought to be doing to pass health insurance reform. I think this last involves the issue of the Democrats’ decision to live with the filibuster both in the health care reform area, and also other legislative areas, and therefore to continue to live with the burden of always having to corral 60 votes before they can legislate something.
This decision is, in effect, a decision to overturn the results of the last election. It is a decision to empower the Republicans and the blue dogs to block reform. It is a decision to fail at reform and to break the promises the Democratic Party made to the American people.
Harry Reid’s and the Democrats’ failure to get rid of the filibuster, and to legislate effective reform is the big story about these last months of the health care reform effort, and perhaps even of President Obama’s first term. And it is a story that most of us progressive bloggers are ignoring, at least in its filibuster aspect, as previously we ignored the President’s taking single-payer off the table, and talked up the public option instead.
What we should be doing now is generating a deafening blog chorus about the Democrats having the power to remove the 60 vote requirement in favor of the constitutional 51 vote one, by getting rid of the filibuster once and for all. But we are not doing that. Instead we are accepting the legitimacy of the filibuster and discussing the arcana of navigating the PO through what may prove to be multiple 60-vote barriers, before even a very weakened PO can finally emerge. What kind of progressivism is this?
Let’s spotlight the fact that the Democrats can get rid of it, and pass not only health insurance reform, but much else besides and get it spread throughout the left blogosphere. And let’s break through the MSM conspiracy of silence on this subject and get them to begin talking about it too. We need to get this idea out. It’s very important to have people look squarely at the fact that we can have much better health care reform, if not single-payer, enhanced Medicare for All, immediately, if Democrats are willing to give up the filibuster. So which is more important to them, and to Harry Reid, and Barack Obama, the filibuster, or a health insurance reform with a strong PO?
(Also posted at firedoglake.com where there may be more comments)