HR1, Obamacare, the filibuster, and political power
Regarding yesterday’s news about Sinema and her speech to retain the filibuster, commenter “Frederick” wrote:
The rules are not the rules. The only rule is does a majority of both Houses want something. All else is distraction. Let’s learn the lesson so we can make effective changes.
I don’t think that’s something most of us didn’t already know. It seems to me that it’s acknowledged that a majority can change the rules if it so desires.
The issues right now – and perhaps always – are whether such changes will be made, when, by whom, in what manner, to what purpose, and what the result will be.
For many years the 60-vote Senate threshold rule remained intact, despite the fact that a majority could have changed it. Some of the reasons for this:
(1) each party recognized, when it was in power, that it might need to respect the 60-vote majority rule because soon it might be out of power (2) both parties wanted some sort of bipartisanship on major transformative legislation, or at least the approval of a strong majority of the public. Of course, if that party already held over 60 Senate seats and therefore was filibuster-proof as long as all its members voted to end cloture, then it was understood that a large majority of the public was already on their side.
What it really boiled down to was that both parties felt vulnerable to voters’ opinions for the next election, and therefore didn’t want to rile too many voters with extremely partisan transformative legislation and risk their seats next time. There are other factors, too – for example, the parties really used to be at least somewhat less polarized in their goals.
However, at present HR1 is the entire ball of wax for the Democrats, who have moved much further to the left than ever before in my lifetime and perhaps in American history. That’s what makes it different and that’s what makes them more even more determined than usual (and they usually are very determined indeed) to pass this legislation, because they believe it will give them permanent power. Permanent power includes the power to do more things that will solidify that power, including making new states out of DC and Puerto Rico. Then they would never have to worry about the likes of Sinema and Manchin. To be blunt, HR1 gives them a much greater opportunity to win elections through fraud, and if so then they also would never have to worry about the pesky voters’ rejection, either.
Whether anything will stop them is anyone’s guess. But they will not stop trying to pass this bill any way they can (and that includes some sort of executive action if the legislative action fails, and lawfare as well).
That’s why the latest approach to passing HR1 surprises me not in the least, and it should surprise no one:
Democrats have figured out a way to sneak their “voting reform” bill into the House and then on to the Senate. It involves hollowing out a bill that has to do with NASA, and replacing the text with the text of their voting bill…
…Politico reports:
“‘The Senate will finally debate voting rights legislation, and then every senator will be faced with a choice of whether or not to pass the legislation to protect our democracy,’ Schumer wrote in a memo, obtained by POLITICO, to Senate Democrats.
That “hollowing out a bill” approach rang a bell, and that bell was Obamacare. I’m not keen on relating all the Byzantine details of the passage of that legislation, but the main relevant points are the following:
(a) The United States Constitution requires all revenue-related bills to originate in the House. To formally comply with this requirement, the Senate repurposed H.R. 3590, a bill regarding housing tax changes for service members. It had been passed by the House as a revenue-related modification to the Internal Revenue Code. The bill became the Senate’s vehicle for its healthcare reform proposal, discarding the bill’s original content.
(b) The House passed it with only a narrow margin (220-215). Only one Republican voted for it, and 35 Democrats voted against it. Therefore, except for that one vote, support was not bipartisan but opposition was.
(c) The Senate passed its own bill with a 60-vote margin. You may remember some of the hurdles that were overcome to get to that magic number of 60:
At the start of the 111th Congress, Democrats had 58 votes. The Minnesota Senate election was ultimately won by Democrat Al Franken, making 59. Arlen Specter switched to the Democratic party in April 2009, giving them 60 seats, enough to end a filibuster.
The vote to end cloture was passed by 60 votes, as was the bill itself. No Republicans voted for it and all Democrats plus two Independents voted for it, thus making it a completely partisan affair. But at least it was a partisan affair passed by a strong majority rather than a very narrow one.
(d) The next step was to unite the House bill with the Senate bill and pass a single bill. This is where the election of Republican Scott Brown of Massachusetts (to replace the deceased Ted Kennedy) came in. That election let the Democrats know how opposed the public was to the passage of this bill – if even liberal Massachusetts seemed to want to stop it – but they didn’t care. It was thought that Brown could stop the Democrats from getting 60 votes to invoke cloture on the new bill that would unify the two previous ones, but the Democrats got around that little problem by having the House merely approve the previous Senate bill as written (with a few budgetary changes), which meant Democrats did not face a new cloture vote at all and the bill could now be passed in the Senate by a simple majority.
From that Wiki page:
Since any bill that emerged from conference that differed from the Senate bill would have to pass the Senate over another Republican filibuster, most House Democrats agreed to pass the Senate bill on condition that it be amended by a subsequent bill. They drafted the Health Care and Education Reconciliation Act, which could be passed by the reconciliation process.
Per the Congressional Budget Act of 1974, reconciliation cannot be subject to a filibuster. But reconciliation is limited to budget changes, which is why the procedure was not used to pass ACA in the first place; the bill had inherently non-budgetary regulations. Although the already-passed Senate bill could not have been passed by reconciliation, most of House Democrats’ demands were budgetary…
The House passed the Senate bill with a 219–212 vote on March 21, 2010, with 34 Democrats and all 178 Republicans voting against it. It passed the second bill, by 220–211, the same day (with the Senate passing this bill via reconciliation by 56-43 a few days later).
Note again the bipartisan nature of the opposition rather than of the support.
Coming back to HR1, the approach has some similarities and some differences. The hollowed-out bill is the same approach, but that wouldn’t be of concern if HR1 itself had strong bipartisan support. Not only does it not have that support, but the Democrats now don’t have the kind of majority they did back when Obamacare was passed. There is no way they could reach that 60-vote threshold that was initially reached for the Senate to pass Obamacare. That’s why there’s all this talk about ending the filibuster. It’s because the Democrats have only the slimmest of margins, and even that margin is iffy (Sinema has indicated she would vote for HR1 but not to end the filibuster, and I’m not sure what Manchin’s position is right now on the bill, but in the past he opposed it).
Obamacare was very important to the Democrats, but its importance pales in comparison to the importance of HR1. As I’ve stated many times, HR1 is the entire ballgame to them, their entree into permanent power. That’s not only the reason they are so grimly determined to pass it no matter what, but it’s also the reason it is a profoundly dangerous and pernicious bill. With its Orwellian “For the People” title, it purports to secure voting “rights.” In actuality, it provides the mechanism to subvert them.
This move is the height of dishonesty, but that doesn’t seem to bother Democrats. Their motto is by any means necessary.
I hope this fails. If Schumer can’t get sixty votes to push this through, all he will accomplish will be putting senators with tough elections upcoming on the spot. It may be that party leaders think getting people to vote for this takeover of elections will be a positive thing in the midterms. I think otherwise for swing states.
Should this unconstitutional (and completely illegitimate) bill somehow manage to pass, it will ensure one-party (mis)rule, in perpetuity, by the party the unofficial motto of which is, without question, “by any means necessary”. This, combined, with the efforts of the commissars at Biden’s Department of (In)Justice to brand all who oppose this failing administration’s nation-wrecking policies as “extremists” and “domestic terrorists” (essentially as enemy combatants) would truly sound the death-knell of the republic.
We could hope that states would challenge this monstrous bill, if passed, on constitutional grounds. Or perhaps, like federal marijuana laws, they could simply ignore it.
I really, really dislike trying to parse out the details and machinations of the congressional Democrats over the years and try to analyze what reprehensible underhanded trickery they’ve engaged in order to foist various pieces of awful legislation on an ill informed public. It’s like reading about how some clever burgler was able to rob your house. It only infuriates me to no good end. I already knew that they’re awful. I just wish they weren’t so successful at their awfulness. I keep waiting and hoping for some breaking point where the American public begins to finally wake up, and it may have been reached, but I can’t yet tell.
One thing you left out Neo. Part of that whole thing for Obamacare also did something that very few in the media want to mention. Nationalizing student loans. Basically the dems screwed over college kids because now the federal government is the entity that makes most of the money when it comes to student loans. I figure the media doesn’t want to talk about that because if college student and recent grads found out how much they got soaked over that they might be a little P.O’d and not blindly vote for them anymore.
@Kate:If Schumer can’t get sixty votes to push this through,
He only needs 50. Sinema and Manchin in December consented to chicanery that allowed the debt ceiling to be raised without 60 votes, it’s a common Senate maneuver that Schumer points out has been done “thousands of times”. If they agree to that again this one will pass.
Maybe Mitt Romney and Mitch McConnell will help be part of the less-than-60 like they did with the debt ceiling, or maybe they won’t, but they are not needed. And we can go back to watching them all stub the butts they just lit and proclaim themselves unalterably opposed to smoking.
Frederick:
The issues around HR1 are extremely different than with the debt ceiling. I am speaking of the bills themselves and their effects, not about the process by which they might be passed. You seem to be ignoring that.
Somehow Fredrick can’t grasp the the Debt Ceiling is not the same as HR1. It’s all the same;: “process!’ It is true that it is all politics. If Fredrick is correct then why all the hue and cry and gnashing of teeth? Why is Brandon worried?
Fredrick may be mistaken,.
“If Schumer can’t get sixty votes to push this through, all he will accomplish will be putting senators with tough elections upcoming on the spot.”
Kate: Schumer doesn’t need sixty votes to push this through, only 50. And Sinema has already said she’ll vote for it. That’s the point of using the EUL bill. It’s already passed the Senate and thus cannot be filibustered. The fact that not a single word of the bill that passed the Senate is in the current bill does not matter.
I post a comment, edit some of my mistakes only to find that Neo has jumped in made the point better. 🙂
mkent:
Maybe so, but there is the Senate Parliamentarian who may have a say whether the Pelosi plan will pass muster. I know, “rules.”
Neo states, “HR1 is the entire ball of wax for the Democrats, who have moved much further to the left than ever before in my lifetime and perhaps in American history. That’s what makes it different and that’s what makes them more even more determined than usual (and they usually are very determined indeed) to pass this legislation, because they believe it will give them permanent power.”
Yes they do believe that and they’re gravely mistaken about that, as disenfranchising 70+ MILLION Americans is not a winning strategy. Their ideological blinders will prove to be their undoing.
j e,
Liberty is a phoenix. It cannot be permanently exterminated.
BigD,
Not a chance. They not only don’t connect the policies with their difficulties, they’re convinced that their difficulties are the result of ‘unfairness’ by… someone. Victimology always provides a scapegoat.
@om:the Senate Parliamentarian who may have a say whether the Pelosi plan will pass muster
The Senate Parliamentarian can be overridden by (checks Senate rule XX) 50 votes plus Kamala.
Checking the Constitution… no mention of a Senate Parliamentarian.
Hmm, seems like the Senate gets to make its own rules and gets decide when and how to follow them. I’ll be damned.
Also seems that the Senate Parliamentarian serves at the pleasure of the Majority Leader, who appears to be one Chuck Schumer, Democrat. And they have been fired before for ruling “wrong”.
Well, we shall see, politics and sausage making ….. I’ll go with Neo.
Others have noted that those two Senators have been taking the heat but they may not be the only Ds who aren’t all in with HR1.
50 may be a “bridge too far.”
Frederick; mkent; et al:
I have read quite a few articles on this latest move by Schumer, and all of them say that the filibuster – and the 60-vote threshold – will ultimately come into play unless they vote to end it. The most detailed article on the subject can be found here. I suggest that everyone interested in the question read it. Here’s a small excerpt:
Perhaps you think that Manchin and Sinema will cave on the filibuster ultimately. That is certainly possible, and it was always possible and remains possible. That was possible even before Schumer proposed this latest maneuver. But I see no reason to expect it to happen – except the usual one that politicians’ words are not ordinarily something to rely on.
My reading of Manchin is that he actually does oppose HR1 as written, and that he opposes much of the same stuff that Republicans oppose. He also opposes ending the filibuster for something that doesn’t have some Republican support. Sinema is in favor of HR1, but not in favor of ending the filibuster in order to pass something that doesn’t have some bipartisan support.
Now, you may think they’re both lying strategically and will ultimately cave. But if that’s true, then it will happen anyway, no matter what the Republicans do. Politicians often lie, but sometimes they actually tell the truth and keep their word.
om
Agree that there may be others who are against it, not just Sinema and Manchin, but who have kept quiet about it. It’s hard to tell.
I don’t see this ploy working with Sinema. She might as well announce her resignation after voting for it. Unless she believes that voting for it will protect her via the new federal laws. I doubt she does. I suspect we might find there are more than 2 Democrats opposed to it. After all, the polls do not support the HR1 provisions at all.
What this does do is make it clear how much Democrat leaders want this, and that rule of law won’t matter to them after they get it, because it doesn’t matter now. And if it passes and the GOP somehow manages to gain both the House and Senate; their only chance at survival (regardless of the opinion of the base) will be to prosecute Democrat crimes.
it purports to secure voting “rights.” In actuality, it provides the mechanism to subvert them.
Grim and sordid subject, but fine analysis.
These scoundrels want to destroy “democracy” to save it. Death is too good for them.
Neo:
My understanding of the parliamentary procedure is that because the “bill” in question already passed the Senate, it is not subject to a filibuster. That the “bill” now no longer contains a single word of the original bill does not matter.
From https://spacenews.com/nasa-leasing-bill-transformed-into-voting-rights-legislation/
[emphasis mine]
The whole point of co-opting the NASA EUL bill is to avoid the filibuster. If the filibuster is still in play, they didn’t need to do that, just consider HR-1.
What doomsayers like Frederick miss is that if Schumer and Pelosi tried to pass HR1 in the manner they describe, the GOP response would be to nuke the filibuster itself the next time they have 51 votes. With the 2022 midterms now less than 10 months away and with the GOP currently in control of the legislature and governorship in 23 states, do you think the Democrats would risk it?
Or more simply, if the Democrats COULD do what Frederick and company say, why are they bothering with this filibuster nonsense at all. Why don’t they just DO it?
Mike
The Hill, a news agency that should know something about government affairs, says the NASA/voting rights Trojan Horse would still be subject to Senate filibuster.
https://thehill.com/homenews/house/589577-house-passes-voting-rights-package-setting-up-senate-filibuster-showdown
Mike
The solution might be even easier. If the bill is introduced, then Manchin changes his party affiliation to republican. Then we have 51 rep 49 dem. end of HR1
MBunge:
Also, if you read the link I offered at 5:30 PM, Schumer himself said it would need 60 votes.
mkent:
Did you read the Schumer quote in my comment at 5:30, from a memo he sent to Senate Democrats? I’ll repeat it in case you missed it – and understand that this is Schumer writing:
Why do you think Schumer said that?
I think the misunderstanding is perhaps about the difference between the vote to debate a bill on the floor, and the vote to pass the bill. Because of the bill-stripping, the debate (which hadn’t occurred earlier because the GOP blocked it) can go forward. The debate doesn’t need to cross a 60-vote threshold anymore. But the actual vote on the actual bill can still be blocked by 41 votes.
It’s one of those complicated things, but that’s my understanding from what I’ve read so far.
om
Agree that there may be others who are against it, not just Sinema and Manchin, but who have kept quiet about it. It’s hard to tell.
Enacting HR 1 should solve the Democrats’ 2022 election troubles. Perhaps it will not take effect until 2023 but that seems to be a problem that ingenuity by Schumer could solve.
I may be misremembering some details and I’m not going to research this tonight. But my understanding (& I was a History Government undergrad back when it meant something) is the filibuster about in the early 19th century, to prevent a small majority of states from imposing substantial changes on a large minority of states. Remember, back before the 17th Amendment of 1913 the senators were selected by state governments to represent THEM. Today they are free agents beholden only to their large donors and/or family interests. Since the federal government was a creation of the union of states, this was completely reasonable for an expectation of stability in the contract between them (Constitution, federal law). So the filibuster started well as a guarantor between the states, instead of political parties. Someone should write a book on all the failings & unintended consequences of the 17th Amendment. States no longer having representation at the federal level, for example, and having to take the feds to the courts in order to have a voice in the government they created.
Doug Martin: “States no longer having representation at the federal level … in the government they created.”
Interesting phrasing “they created”. We recognize that 9 of the the original 13 States consented to grant some of their sovereignty to the federal government; and then the federal government transferred some of its sovereignty back to the territories that successfully solicited to become new states. But was the ratification a set of states ratifying the Constitution, which could have been done by their respective State legislatures, or the People within the states sending their reps to the local state ratifying convention, presumably as a means to debate and approve/reject the Constitution within a manageable group of people – also presumably some of their “better” people. Yet their approval was recognized as a State approval and not necessarily a “People” approval, at least as I currently understand Article VII (after rereading it).
Thanks for your thought provoking comment.
You’re welcome. I feel the ramifications of the 17th Amendment are what set us off down the road of progressive government. It is an ideology of centralized control by “experts”. Cutting out the local state governments & the actions of FDR pressuring SCOTUS to rule for many of his plainly unconstitutional New Deal programs (some he couldn’t get passed through congress in the usual way) accelerated the denuding of states & centralizing their powers in DC, controlled by our very own House of Lords- free agent senators.
Oh, and of course the states created the Union. States sent their chosen delegates to write the contract (Constitution) regardless of how they chose to ratify it. Witness they retained the right to choose our President by states via the Electoral College. States used to be very jealous of their powers & protected them from the federal government BEFORE 1913. President Wilson started the progressive march through our institutions of centralized governance by experts and the 17th Amendment enabled that.
Doug, we are probably in pretty close agreement, but sometimes our language trips us up.
At 9:13pm you said “the government they created.”
At 11:54am you phrased it as “States sent their chosen delegates to write the contract (Constitution) regardless of how they chose to ratify it.” That is, they created the contract or constitution. But ratification is what actually created the government; that is, provided the consent. So the question still sort of remains: government created, or consented to, by whom? (we the people) or what? (the states).
The states get their sovereignty from their people, in accordance with various interpretations from the DOI and/or natural law or natural rights: rights exist inherently* in rational reasoning conscious human beings prior to them being secured by a consented government. Thus even state sovereignty transferred to the federal level includes “of, by, and for the people”. Perhaps your phrasing also treats states as “fictious persons”, similar to corporations? Interesting nuances here.
*I don’t agree 100% with that “inherency” concept, but that is a topic for another time. As Reagan noted, “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream.” Or our DNA, except maybe indirectly if our evolved psychology demands or prefers liberty over the alternatives, when our culture also supports it. In our case that is the Judeo-Christian and Greco-Roman and Enlightenment culture, aka Western civilization.
Very interesting and a little deeper analysis you made… but I don’t think it gets us closer to “the” answer. Capturing all the info you and I have presented, and in the context of the actions taken, lead me to believe that the states were the actors, even if some presented it to “the people” for their approval. Remember, back then (the founding) voters had to own property in many, if not most states and of course the indentured and actual enslaved weren’t consulted either. So whatever set of “the people” we’re talking about here certainly isn’t the democratic electorate we have to be concerned with today, that vote our senators in as free agents to amass federal power today. THAT is my chief concern.
I just reread the 12th Amendment and it says unambiguously that “representatives of the states” select the President and Vice President when addressing the working of the Electoral College, circa 1802. Not “…of the people” or “…of the people of the state”. My view is that is the same stance as for drafting & ratification of the Constitution by each of the states and the conventions by which the Territories became states. “Of the People…” appears throughout our founding documents and we’d have to assume it would be called out specifically if that is what the founders and ratifying states intended. Great discussion, hope for more info from those more knowledgeable than me.