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The Filibuster And Health Care Reform

Political scientist and all around smart guy Carl Scott asks why I think the filibuster will have to go if we are to truly get rid of Obamacare.  The short answer is that I have trouble seeing how we get sixty votes in the Senate to either restore the pre-Obamacare status quo or to enact, on a national level, one of the several kinds of market-oriented health care reform.  I'm under no illusions that the David Goldhill or James Capretta-style health care reforms you will find in the above links are popular.  In fact the vast majority of the public (probably including most self-identified conservatives) have barely even heard of them in any detail.  I can imagine a (not especially likely) scenario where some version of the above policies win majority support within Congress and the electorate (though like I said, the obstacles would be huge), but I don't see the breadth of support you would need for a bill embodying those kinds of policies to get sixty votes in the Senate. 

The Democrats know how high the stakes are on health care.  The Democratic leadership, the liberal-leaning media institutions, and the Democratic base would go all out against free market-oriented health care reform.  Unless we have the kind of Republican Senate supermajorities that we haven't seen in eighty years or unless red and purple state Democratic Senators think it is death to vote against cloture, I don't see how there aren't 41 Senate Democratic votes to filibuster free market-oriented health care reform to death.  I don't expect that, even under an optimistic scenario, the public will support David Goldhill or James Capretta-style health care reform by the same huge margins that the public supported Lawrence Mead-style welfare reforms in the 1990s.  I don't expect the Senate Democrats to split down the middle regarding whether to block free market-oriented health care reform.  Alice Rivlin is a former Clinton OMD Director and she worked with Paul Ryan to come up with a plan to voucherize Medicare and block grant Medicaid.  If more Democrats were like her I would be more optimistic, but I don't think there is (at this moment) any significant constituency within the Democratic political coalition for free market-oriented health care reform.  The issue of opposing a Goldhill or Capretta-style reform is more likely to unify than divide congressional Democrats.  I do think there is room for creative conservative politicians to form alliances with local elected Democratic politicians to advance certain kinds of state-level reforms like allowing cities to offer municipal employees an HSA/catastrophic coverage option that might save municipalities money on rising employee health care costs while avoiding layoffs.

I might still favor retaining the filibuster if I didn't believe that the Democrats would ditch the filibuster themselves if they had a narrow majority in the Senate and a narrow majority among the public in favor of single-payer and the filibuster was all that stood in the way of government-run health care.  

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Discussions - 10 Comments

The filibuster and holds prevent anyone from getting much of anything done without it being festooned with pork. The defenses of these practices are looking increasingly silly (but will likely hold the day, nevertheless).

Dr. Rivlin is an economist. Some time ago, Joseph Stiglitz passed through my area and had a confab with the economics faculty at one of the local colleges. He told them that intramural policy debates commonly articulate into volleys between economists and lawyers. Do you recall who ran for the Democratic Party's presidential nod in 2008? Five lapsed attorneys (though only two who had put any serious time into law practice) ; one fellow who appears to have been on the government payroll (uninterrupted) since he was 24 years old; one fellow who has alternated between stints in government, talk radio, and crashing with friends; and a one-time real estate broker (Gravel). There's a reason you got deregulation of airlines, trucking, and (in part) the petrol trade during the Carter Administration and not earlier or later: the man had been in business.

So Pete, I assume you're saying that it is more untenable, politically speaking, for Republicans to push for repeal along with half-hearted reforms attempts (i.e., ones that everyone knows the Dems will shoot down, or ones that tinker on the margins) than for them to push for a serious free market reform that includes repeal.

I wonder about that...and I would demand the GOP take any plausible chance it had for repeal, even if the possibility for a reform package along with it was nil.

Heck, I would legalize pot (and worse) and grant an amendment legalizing gay marriage, if I thought I could get repeal in exchange. And I'm a social con and I hate all this "truce" talk...that's how scared Obamacare makes me for our future. And how unworried I am, policy-wise and perhaps politics-wise, of a repeal that just returns us to the problematic but livable heath-care status-quo of the aughties and 90s.

BTW, I assume the line you'd have the GOP take would be--"this (suspension of filibuster for the bills in question) is an extraordinary step, only taken because the survival of the genuine republican liberty rides on this issue; we expect many Dems to claim precedent for suspending the filibuster if they gain power, and so we understand that we put this important check that's developed in our system into jeopardy by taking this extraordinary action; nonetheless, we do pledge ourselves to return to the typical use of it on all but any other bills not involving extraordinary risk to our very system of government."

Filibuster experts may now pipe in--I write the above without consulting the books...I'm no expert on Congressional rules, although of course I know (which some don't) that those rules are not written in the Constitution and can be changed.

And finally Pete, you are of course right that this latest Congress, now in its last throes of its shamelessness, stepped over some major lines(remember those proud days of trying to figure out what "deemed passed" meant?), and showed us that like-minded Dem reps can be expected to stop at nothing. Sad, but all too true.

so we understand that we put this important check that's developed in our system into jeopardy by taking this extraordinary action; nonetheless, we do pledge ourselves to return to the typical use of it on all but any other bills not involving extraordinary risk to our very system of government."

New Zealand, Israel, Portugal, Sweden, Nebraska, and just about any municipality you care to name in this country get along with a unicameral legislature. Bicameral legislatures where the two houses are co-equal (as they are in Australia, Italy, &c) are atypical and that in the U.S. where the upper house is more influential is nearly unique. The notion that the Senate itself (much less parliamentary rules which have existed in their current form for about 35 years or so) is all that necessary for constitutional government to continue is not a sustainable idea.

Well, Art, while your're right that constitutional conservatives sometimes make too much of bicameralism, and that the Senate can make less and less claim, in the century since its indirect election was removed, to be the august and more deliberative body that the founders intended...

a) bicameralism is not the issue in my exchange with Pete--the filibuster is.

b) since Article V mandates equal state suffrage in the Senate as the one non-amendable feature of the Constitution, we will always have a Senate. It would impossible, short of a Constitution-rejecting revolution, for the U.S. to adopt unicameralism unless it made the Senate, not the House, the sole chamber.

c) it seems to me that the agony of Obamacare's passage, with its near-defeat following the election of Scott Brown, present as solid a case for bicameralism as we could wish for.

Scott Brown's election and its effect on pending legislation is not an argument for bicameralism. It is simply an instance where extant procedures worked to benefit a policy which you prefer. They can also work to inhibit the enactment of policies you prefer.

The Constitution mandates equal representation in the Senate. As far as I can tell from reading it, there is no entrenched clause mandating that the Senate and the House have co-equal powers. In most countries with bicameral legislatures, they do not.

I do not think the failure of the Senate to act as an august deliberative body is attributable to popular election. I would wager that if the Republican caucus of the New York Legislature had its druthers, Dede Scozzafava would sit in the U.S. Senate as long as she liked. No, she cannot read Sallust in the original Latin.

I do admit the Senate's quality was going downhill prior to the 17th amendment...there's lots of evidence for that.

And yes, we can amend away bicameralism, the House, the presidency, just about anything...but we can't amend away a Senate grounded in equal state representation. And I assume there is no champion of unicameralism that is going to be willing to do it by giving all legislative power to the representationally disproportionate Senate, which would be the only non-revolutionary way you could do unicameralism in the U.S.

But just as I'm not really for a repeal of the 17th anyhow, may I assume that you, Art, are not for getting rid of bicameralism? Especially now that I've shown you what it would mean in the U.S.? A weird but entertaining conversation, this...maybe we'll wind our way back to the filibuster.

Art, I just now get what you're implying by noting the absence of language requiring "coequal" powers! That is ingenious, and more than simply entertaining...

You're saying that were we for unicameralism (count me out) or against the disproportionate representation of the Senate (count me quite sympathetic, but ultimately resisting given our nation's need for constitutional reverence, and yes, bicameralism) we could amend the Constitution so that the Senate's powers would be so weak compared to the House's that we would DEFACTO NEUTER THE SENATE, but still be kosher with Article V's special provision. You could also institute another House if you still wanted bicameralism. Of course, you seem to be pushing more the idea of a weakened Senate than a neutered one, that is, a lopsided bicameralism.

Again, count me out, but ingenious, Art. I guess there's always a way through "parchment barriers" in the end.

Hey fellas sorry I'm late getting back to you.

Carl, my read is that government-run medicine proceeds by cutting people off from or destroying alternatives in being to the government provision of health care rather than from providing a high quality and abundant product. If people can't see an existing and easily available alternative, then they are more likely to stick with an unsatisfactory regime rather than risk all their health security on a promise.

I would be in favor of repealing Obamacare and returning to the pre-Obamacare status quo right this instant if I could get it. The thing is it won't happen this month or next year or 2012 and even if the Republicans win the presidency and the Senate in 2012, there probably won't be 60 Senate votes for repeal in 2013 either. The thing with Obamacare is that even its negative effects (like spiking premiums and causing people to lose coverage) will, if conservatives aren't careful, tie people more closely to Obamacare. If prices are rising and people are losing coverage it will be a tough sell to try to repeal guaranteed issue and community rating (because now mean old insurance companies will deny you coverage after bleeding you dry, and since you've lost your employer-provided insurance, they'll spike your premiums if you have a preexisting condition) without doing something to allay concerns that repeal will not reduce health care costs but will reduce such health care security as people have. Tort reform isn't going to make most people feel much more confident that routine health care will be affordable and that a catastrophic event won't leave them broken and helpless.

There are policy ideas about how to deal with the negative consequences of abolishing guaranteed issue and community rating http://www.nationalaffairs.com/publications/detail/how-to-cover-pre-existing-conditions But these kinds of polices have to be explained to a public that has never heard of them and that won't be easy. On the state level it will be important to establish, protect and broaden market-oriented health care programs and to pass market-friendly health care regulations. The more people are on consumer-driven health care plans, the more those kinds of plans will seem like a viable alternative in being to nonideological voters who want security against high cost events but wouldn't mind having more spending money from reduced health care inflation. Also, the more people are on consumer-driven health care plans, the tougher it becomes for Congress to abolish such plans.

Given a certain set of widely shared norms, I think that a 60 vote cloture requirement can be useful in making sure that major policy changes on issues of high salience to the general public are built upon at least somewhat stable majority support. I think that is good for the country. But I'm not sure we have those norms now - at least not in the ways that matter most. My suspicion is that if Scott Brown had been elected three months earlier, you would have gotten a majority of Democrats to suspend the filibuster (and thereby kill the rule as a practical matter) rather than have to wait another half generation or more to take a long leap toward government-run health care. Some of us who remember Miguel Estrada have grinned inwardly at liberal whining about Republican filibuster obstructionism, but we probably won't be smiling if there is a chance to replace Kennedy or one of the Supreme Court liberals with someone to the right of Sandra Day O'Connor.

It seems to me like we are on the way to getting the worst of all worlds where the filibuster is used to obstruct and/or corrupt routine business while not serving as a real check upon a radicalized Senate majority when the stakes are highest.

Something of value would be lost if we got rid of the filibuster. Policy would swing more widely than otherwise (though the American system would still provide several veto points), but there are circumstances where I would be willing to pay the price of losing the filibuster since I suspect we are likely to lose it anyway.

My preference would be for a division of labor between the House and the Senate. The House composes statutory legislation and votes on treaties and the Senate vets proposed rules and regulations, undertakes inquiries, and issues letters of marque and reprisal. Instead of a popularly elected Senate, the caucuses of the House choose one Senator each, who holds office just during that Congress.

My point in raising the issue of bicameralism was to suggest that if a second chamber is dispensable, the peculiar parliamentary rules of our second chamber are not likely all that critical to maintaining the constitution of liberty (though they may be crucial for maintaining the ego satisfactions of Sen. Shelby).

No point in trying to game this out. Too many moving parts.

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