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The Powers of the Senate and the Filibuster

As the arguments about whether the legislature may pass major health care reform via the reconciliation process, rather than the regular legislative process, I keep hearing comparisions to this debate with that of 2005, when republicans conisdered ignoring Democratic filibuster threats aimed at blocking nominees to various courts.  Two points, for starters seem to be worth making.

It is lamentable, though not surprising how common this comparison is. As a short glance at the U.S. Constitution reminds us, we are talking about two different powers.  Health care is legislation, as such it has to do with the Senate's powers under Article I of the Constitution. By contrast, the power to advise and consent is under Article II, and is one of the cases where the Senate partakes of the execuive power that is, for the most part, loged in the President of the United States. Whether filibuster is proper for and Article II process is very much open to question. Invoking the filibuster over nominees was unprecedented in 2005.

The second point is that the current debates vindicate the "gang of 14" who "saved the filibuster" by negotiating a deal whereby the Bush administration withdrew some nominees, and the Democrats in the Senate agreed not to filibuster the rest.  Even though there is a very big difference between using the filibuster for Article I powers than for Article II powers, it would have made no difference. Unfortunately, our political debate is too ill-informed nowadays for such things to come into play.

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Discussions - 2 Comments

You are very much on the mark in pointing out the significant difference between the handling of normal legislation in the Senate and its advise and consent role vis-a-vis the use/threat of a filibuster. But far from vindicating the "Gang of 14", it indicts them. As many asked at the time, what guarantees do have that the Democrats will abide by the agreement? As we can see now, absolutely none. The deal then was politically convenient for them. Violating the deal now is similarly convenient. And in a year or three when, please God, they no longer control the Senate, they will once again find the filibuster a ready weapon.

Two notes: one on filibuster, and one on politics of the reconciliation gambit.

1) Is it not counter-intuitive to expect less partisan gridlock from modifying, and weakening, the 60-vote cloture rule? Consider, when the rule required 67 votes instead of 60, the Senate found a way to pass landmark civil rights laws on the basis of bipartisan consensus, while today with a 60 vote rule, it proves more difficult to attract bipartisan support. What is the reason? Might it be that the closer the system moves toward facilitating simple majority rule it undermines incentive to cooperate across partisan lines -- and hence, intensifies partisan division or a more parliamentary approach. In that case, would it not follow that a simple majority rule would move even more strongly in the same direction? To the extent bipartisan compromise is less necessary, it will also follow that bipartisan compromise will be even less sought. Thus, while legislation will pass, the Congress will be even more riven by partisan division, producing as a reflection more intractable political rifts in the country.


2) I am astounded how universally shallow has been the understanding of the constitutional status of discussion of reconciliation (referring not to your discussion here but to news sources in general). The proposed gambit amounts to nothing more than a very clever ploy to induce House of Representatives members to accept the Senate bill as THE health care reform, particularly those who have scruples regarding abortion. If it works it will prove to have been one of the most astute legislative ploys witnessed in Congress perhaps throughout its entire history.

Consider: The reality is that if the House of Representatives passes the Senate Health Care bill, the Constitution's presentment process requires that it be delivered to the President for signature, no matter what happens subsequently in the Senate. Therefore, this means acceptance of the Senate's health care bill, subject only to a presidential signature. While the Speaker can delay delivery to the President (as some have speculated), there is no lawful procedure for an INDEFINITE delay of duly approved legislation, which would place in the hands of the Speaker an extra-constitutional, constructive veto (without capacity for override) . Thus, the question becomes whether the President would be willing to sign the Senate Bill, even if he does not simultaneously receive amendments through reconciliation. The answer to that question must lean very heavily in the affirmative, given two facts. First, the role the President played in negotiating that particular bill and second, given the political weight the President attaches to enacting health care reform. Since it would take only an unexpected death to make passage of changes through reconciliation next to impossible if not impossible, no one can prudently foresee that the gambit of enacting a law with fingers crossed will actually succeed. Yet, it will still be a law duly enacted, and in that way the Senate's version of health care reform, with all its special deals, will have become law.

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