MCCAIN'S RECONCILIATION FLIP FLOP from MOJO and THE PLUMLINE 1MAR10

Great articles on budget reconciliation and healthcare reform, and last is a primer from NPR on the process and rules of the Senate. Copy and paste links in this post to go to the actual articles, click the header to go to the MOJO article.
— By Suzy Khimm
| Mon Mar. 1, 2010 11:59 AM PST

This Sunday on "Meet the Press," Sen. John McCain announced that he plans to introduce an amendment that would prohibit the Democrats from using reconciliation to make changes to Medicare. Entitlement programs "should not be part of a reconciliation process," he declared to David Gregory, referring to the filibuster-proof procedure that requires only 51 votes. "It’s too important."

But just five years ago McCain himself voted to use reconciliation to make spending cuts to an entitlement program—in this case, Medicaid. McCain, along with 30 other current Republican senators, used a simple majority to pass George W. Bush's 2005 Deficit Reduction Act, which, among other things, "reduced Medicaid spending and allowed parents of disabled children to buy into Medicaid," as Greg Sargent notes. (Sargent's list of all the Republicans who have voted for reconciliation over the past 20 years is worth a look.)

McCain's hypocrisy blows a hole in the Republicans' contention that if Democrats use reconciliation to pass health care reform, they'll "end the Senate" as we know it. While the GOP has accused Democrats of "ramming" and "jamming" reform through the Senate, the bill in question already passed the Senate back in December. If that measure manages to clear the House, the Senate will only be passing limited tweaks to its bill via a so-called reconciliation sidecar—not pushing through a massive overhaul of the entire legislation. And although some of those fixes may apply to Medicare and Medicaid, they fall squarely within accepted reconciliation procedure, which is used for legislative tweaks that directly affect the federal budget.

Of course, Republicans themselves have long pushed for much deeper spending cuts to entitlement programs, only to turn around and accuse the Democrats of slashing benefits for vulnerable Americans. All of which makes it clear that McCain's latest flip-flop is just a political maneuver intended to derail reform, not some principled defense of the democratic process.

Chart: Your Handy Guide To GOP Senators Who Backed Reconciliation
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http://theplumline.whorunsgov.com/senate-republicans/chart-your-handy-guide-to-gop-senators-who-backed-reconciliation/

For your reading pleasure, we’ve drawn up a comprehensive chart detailing which GOP Senators who are currently in office have voted for measures passed via reconciliation over the last 20 years.

Over the weekend, GOP Senators argued en masse that if Dems press forward with plans to pass health reform via reconciliation, it will effectively destroy what remains of our fragile experiment in democracy. As Lamar Alexander put it, such a move would “end the Senate.”

But as many have pointed out already, reconciliation has been repeatedly used in the past, even to pass health-care-related measures. So we thought it would be useful to tally up how the GOPers currently inhabiting the Senate voted on them. The highlights:

* Mitch McConnell and Orrin Hatch, two leading voices against the Dem use of reconciliation, along with 19 other current GOP Senators, voted for the 2001 Bush tax cuts, which passed by a simple majority (58-33) via reconciliation.

* McConnell, Hatch, NRSC chief John Cornyn and 21 other current GOP Senators voted for the Jobs and Growth Tax Relief Reconciliation Act of 2003, which accelerated the Bush tax cuts and added new ones. This passed by a simple majority via reconciliation — 50-50 in the Senate with Dick Cheney casting the tiebreaking vote.

* John McCain, a leading critic of Dem plans to use reconciliation, along with McConnell, Cornyn and 27 other current GOP Senators, voted to pass the 2005 Deficit Reduction Act, which reduced Medicaid spending and allowed parents of disabled children to buy into Medicaid. This passed by a simple majority (52-47) via reconciliation.

* McCain, McConnell, Cornyn, and 28 other current GOP Senators voted for the Tax Increase Prevention and Reconciliation Act of 2005, which extended the Bush tax cuts for some tax brackets. This passed by a simple majority (54-44) via reconciliation.

Now, Republicans argue that these uses of reconciliation pale beside the use of reconciliation being planned right now by Dems to reshape the nation’s massive health care system. However, Dems are not planning to pass their whole measure via reconciliation. It has already passed the Senate, and they would only pass the “sidecare” fix via this tactic.


GOP Senators’ Votes On Reconciliation

Omnibus Budget Reconciliation Act of 1989 (87 to 7)
Republicans still in Congress Voting in Favor of bill
1) McCain
2) Lugar
3) Grassley
4) Bond
5) Specter (now a D)
6) Hatch

Omnibus Budget Reconciliation Act of 1990 (54 to 45)
Republicans still in Congress Voting in Favor of bill (the Second vote)
1) Lugar
2) Bond
3) Specter (now a D)

Omnibus Budget Reconciliation Act of 1993 (passed 50 to 50)
Republicans still in Congress Voting in Favor of bill (the Second vote)
None

Balanced Budget Act of 1995 (passed 52 to 47)
Republicans still in Congress Voting in Favor of bill (the Second vote)
1) Shelby
2) Kyl
3) McCain
4) Lugar
5) Grassley
6) McConnell
7) Snowe
8 ) Bond
9) Gregg
10) Inhofe
11) Specter (now a D)
12) Hutchison
13) Bennett
14) Hatch

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (passed 78 to 21)
Republicans still in Congress Voting in Favor of bill (the Second vote)
1) Shelby
2) Kyl
3) McCain
4) Lugar
5) Grassley
6) McConnell
7) Snowe
8 ) Bond
9) Gregg
10) Inhofe
11) Specter (now a D)
12) Hutchison
13) Bennett
14) Hatch

Balanced Budget Act of 1997 (passed 85 to 15)
Republicans still in Congress Voting in Favor of bill (the Second vote)
1) Shelby
2) Kyl
3) McCain
4) Lugar
5) Grassley
6) Brownback
7) Roberts
8 ) McConnell
9) Collins
10) Snowe
11) Bond
12) Gregg
13) Specter (now a D)
14) Hutchison
15) Bennett
16) Hatch

Taxpayer Relief Act of 1997 (passed 92 to 8 )
Republicans still in Congress Voting in Favor of bill (the Second vote)
1) Sessions
2) Shelby
3) Kyl
4) McCain
5) Lugar
6) Grassley
7) Brownback
8 ) Roberts
9) McConnell
10) Collins
11) Snowe
12) Bond
13) Gregg
14) Inhofe
15) Specter (now a D)
16) Hutchison
17) Bennett
18) Hatch
19) Enzi

Taxpayer Refund and Relief Act of 1999 (50 to 49)
Republicans still in Congress Voting in Favor of bill (the Second vote)
1) Sessions
2) Shelby
3) Kyl
4) McCain
5) Crapo
6) Lugar
7) Grassley
8 ) Brownback
9) Roberts
10) Jim Bunning
11) Mitch McConnell
12) Collins
13) Snowe
14) Gregg
15) Voinovich
16) Inhofe
17) Specter (now D)
18) Hutchison
19) Bennett
20) Hatch
21) Enzi

Marriage Tax Relief Reconciliation Act of 2000 (60 to 34)
Republicans still in Congress Voting in Favor:
1) Jeff Sessions
2) Richard Shelby
3) Jon Kyl
4) John McCain
5) Michael Crapo
6) Richard Lugar
7) Charles Grassley
8 ) Samuel Brownback
9) Pat Roberts
10) Jim Bunning
11) Mitch McConnell
12) Susan Collins
13) Olympia Snowe
14) Christopher Bond
15) Judd Gregg
16) James Inhofe
17) Arlen Specter (now D)
18) Kay Hutchison
19) Robert Bennett
20) Orrin Hatch
21) Michael Enzi

Economic Growth and Tax Relief Reconciliation Act of 2001 (58 to 33)
Republicans still in Congress Voting in Favor (Second Vote)
1) Sessions
2) Shelby
3) Kyl
4) Crapo
5) Lugar
6) Grassley
7) Brownback
8 ) Roberts
9) Bunning
10) McConnell
11) Collins
12) Snowe
13) Bond
14) Ensign
15) Gregg
16 Voinovich
17) Inhofe
18) Specter (now D)
19) Hutchison
20) Bennett
21) Hatch
22) Enzi

Jobs and Growth Tax Relief Reconciliation Act of 2003 (50 to 50)
Republicans still in Congress Voting in Favor (Second Vote)
1) Sessions
2) Shelby
3) Lisa Murkowski
4) Kyl
5) Crapo
6) Lugar
7) Grassley
8 ) Brownback
9) Roberts
10) Bunning
11) McConnell
12) Collins
13) Bond
14) Ensign
15) Gregg
16 Voinovich
17) Inhofe
18) Specter (now D)
19) Graham
20) Alexander
21) Cornyn
22) Hutchison
23) Bennett
24) Hatch
25) Enzi

Deficit Reduction Act of 2005 (52 to 47)
Republicans still in Congress Voting in Favor
1) Sessions
2) Shelby
3) Murkowski
4) Kyl
5) McCain
6) Martinez
7) Isakson
8 ) Crapo
9) Lugar
10) Grassley
11) Brownback
12) Roberts
13) Bunning
14) McConnell
15) Vitter
16) Bond
17) Ensign
18) Gregg
19) Burr
20) Voinovich
21) Coburn
22) Inhofe
23) DeMint
24) Graham
25) Alexander
26) Cornyn
27) Hutchison
28) Bennett
29) Hatch
30) Enzi

Tax Increase Prevention and Reconciliation Act of 2005 (54 to 44)
Republicans still in Congress Voting in Favor (Second Vote)
1) Sessions
2) Shelby
3) Murkowski
4) Kyl
5) McCain
6) Martinez
7) Isakson
8 ) Crapo
9) Lugar
10) Grassley
11) Brownback
12) Roberts
13) Bunning
14) McConnell
15) Vitter
16) Collins
17) Bond
18) Ensign
19) Gregg
20) Burr
21) Coburn
22) Inhofe
23) DeMint
24) Graham
25) Thune
26) Alexander
27) Cornyn
28) Hutchison
29) Bennett
30) Hatch
31) Enzi

College Cost Reduction and Access Act of 2007 (79 to 12)
Republicans still in Congress Voting in Favor (Second Vote)
1) Sessions
2) Shelby
3) Murkowski
4) Kyl
5) Martinez
6) Isakson
7) Crapo
8 ) Lugar
9) Grassley
10) Brownback
11) Collins
12) Snowe
13) Ensign
14) Voinovich
15) Thune
16) Alexander
17) Corker
18) Cornyn
19) Hutchison
20) Bennett
21) Hatch
22) Barrasso
23) Enzi
Thanks to reporter Ryan Derrousseau for the research help.

NPR PRIMER ON BUDGET RECONCILIATION
http://www.npr.org/templates/story/story.php?storyId=124196402&sc=nl&cc=ph-20100301
Reconciliation Won't Be Smooth Ride For Health Bill
by Liz Halloran
March 1, 2010

Democrats face a bumpy road ahead as they prepare an attempt to pass a version of health care overhaul legislation by using a Senate procedure that circumvents a GOP filibuster. So who better to explain how the coming weeks may unfold on the Hill than the man who helped write the road rules?

Robert Dove is the preeminent expert on the rules of the U.S. Senate: He served in its parliamentary office for more than three decades, heading it for a dozen years before his 2001 retirement.
Health Care & Reconciliation

The budget reconciliation process has been used to pass major health care legislation before. Among the changes passed using the procedure:

1982 — TEFRA: The Tax Equity and Fiscal Responsibility Act first opened Medicare to HMOs

1986 — COBRA: The Consolidated Omnibus Budget Reconciliation Act allowed people who were laid off to keep their health coverage, and stopped hospitals from dumping ER patients unable to pay for their care

1987 — OBRA '87: Added nursing home protection rules to Medicare and Medicaid, created no-fault vaccine injury compensation program

1989 — OBRA '89: Overhauled doctor payment system for Medicare, created new federal agency on research and quality of care

1990 — OBRA '90: Added cancer screenings to Medicare, required providers to notify patients about advance directives and living wills, expanded Medicaid to all kids living below poverty level, required drug companies to provide discounts to Medicaid

1993 — OBRA '93: created federal vaccine funding for all children

1996 — Welfare Reform: Separated Medicaid from welfare

1997 — BBA: The Balanced Budget Act created the state-federal childrens' health program called CHIP

2005 — DRA: The Deficit Reduction Act reduced Medicaid spending, allowed parents of disabled children to buy into Medicaid

Dove helped write the Congressional Budget Act of 1974, which contains the filibuster-busting provision called "reconciliation," and, as parliamentarian, he presided over many such maneuvers. The process allows the Senate, under certain restrictions, to pass legislation with a simple majority vote. Dove, a professor at George Washington University and lawyer with Patton Boggs, sat down with NPR after President Obama's health care summit last week.

He predicted a messy process ahead — one that could give important, but not unprecedented, power to current Senate parliamentarian Alan Frumin. He knows the pressure Frumin faces: Dove, once a top aide to Republican Sen. Bob Dole of Kansas, became an ex-parliamentarian nine years ago after a disagreement with GOP leaders over a rules interpretation.

NPR: What are the special rules the Senate must follow in debating and amending reconciliation legislation that contains changes to the already-approved House and Senate bills?

DOVE: Debate — that's easy: Total [Senate] debate on a reconciliation bill is limited to 20 hours. Amendments, that's much harder. There is no limit to how many you can send. And you can send amendments of whatever length and have them read.

This seems to allow much room for the minority party to delay a vote on a reconciliation bill. How might this play out?

I can remember Sen. Dole sending up, attached to an amendment, the United States Code. [The code is the compilation of every Unites States law.] That got peoples' attention. After he had gotten what he wanted, he asked for unanimous consent to dispense with the reading.

Doesn't that become a virtual filibuster?

It becomes a way of people forcing votes on many things that senators don't want to vote on. Despite the fact that amendments [to reconciliation bills] have to be germane and cannot violate the Byrd Rule [see below], that doesn't stop senators from sending amendments that are totally out of order, and then asking for a vote on waiving the Budget Act [rules] to allow them. That vote counts as a real vote and is used against senators who can claim they were protecting the budget process, but suddenly are on record as refusing to waive [rules] to deal with Guantanamo Bay, or trying terrorists in New York City. I can imagine the list of amendments that will be sent forward.

You mention that Senate reconciliation amendments are required to pass the "germane" test, which was in the original Budget Act, and also not violate the Byrd Rule, which was added later. What do those prescribe?

The germane test is very narrow: Basically, all you can do is play around the edges of something that's already in the bill. It doesn't mean because you're dealing with the subject matter of health care that anything dealing with health care is germane — not at all. It is a very nice test for people who have written the bill, because they know that things that they didn't deal with aren't going to be available as amendments on the floor.

But the Byrd Rule, which was adopted in 1985, complicated that? [The rule was named after Democratic Sen. Robert Byrd of West Virginia, who devised it as a budget-balancing maneuver.]

The initial Budget Act limited amendments by saying they had to be germane, but that was supplemented by the Byrd Rule. And that has a whole series of things that are not in order as amendments to reconciliation bills. Some are very simple. For example, any provision that has no effect on the budget — doesn't increase it, doesn't decrease it — is not in order. But some of them are very difficult. One test requires that if something actually does [affect the budget], it becomes the duty of the parliamentarian to go into the motives of why the provision is there.

How might that "motives provision" play out, given differences in the current Senate and House bills — including whether proposed federal subsidies may be used to purchase insurance plans that cover abortion?

In 1995 there was a provision that absolutely disallowed any federal funds for abortion. The Congressional Budget Office determined that it was going to save money. But it was my view that the provision was not there in order to save money. It was there to implement social policy. Therefore I ruled that it was not in order and it was stricken. That is a tough rule: to go into the motives of people who have either amendments, or have put provisions into bills.

What happens if senators disagree with the parliamentarian's ruling, and the presiding chair — whether it's Vice President Joe Biden, who is officially the Senate president, or a Democratic senator — rejects the recommendation and issues his or her own ruling?

Under the Budget Act, rulings by the chair can only be overturned by 60 votes. That means that the vice president or whoever is sitting in the chair, plus 41 senators, can effectively control the procedure. For Republicans to overturn a ruling of the vice president or presiding chair, they would not only need their 41 members, they would need 19 more votes to overturn.

Have you ever seen a Senate chair overrule the parliamentarian?

It could happen, but, so far, since Hubert Humphrey, who was vice president when I came to the Senate, that has not been the practice.

Do you agree, as some have suggested, that under the rules of Senate reconciliation, the country could end up with a health care bill shaped by the chamber's parliamentarian?

That would be correct if this was starting de novo as a reconciliation bill. It's not. There are already a lot of provisions in the Senate bill that was passed in December not under reconciliation. And those provisions will still apply — unless they are contradicted by reconciliation.
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