Republicans and Teabaggers Finally Embrace Big Government 5MAI10

For more than a year now, we've been hearing from Republicans, tea party people and Glenn Beck's chalkboard about how big government is destroying American liberty and freedom. Much of the shrieking is literally accompanied by the yellow Revolutionary War "Don't Tread on Me" flag.

Every tea party lawn concert and misspelled sign regatta features people dressed in colonial drag with tea bags dangling from their tri-corner hats, waving banners in support of tax cuts, liberty and freedom and against the allegedly tyrannical Obama government. They're really scared and they want their country back from the (somehow) black liberal Nazi.

We've heard about how the "czars" are unconstitutional, even though the name "czars" was invented by the press as clever pseudonym for "advisers."

We've heard about how the Recovery Act, which has created hundreds of thousands of jobs and cut taxes for 95 percent of working families, is unconstitutional and an attack on states' rights and individual liberty. We've heard about how it's "generational theft" for the government to spend money to solve an economic crisis. We've heard about how the tax cuts in the Recovery Act are just a scam and should be returned to the government in protest.

We've heard about the crazy conspiracy theories involving the IRS invading our neighborhoods with armed goon squads -- rounding up anyone who purchased one of Glenn Beck's dozens of McBooks. Of course this meme turned out to be entirely untrue as there is no enforcement mechanism in the health care reform law should you simply choose not to pay the tax penalty for not buying insurance.

Republican attorneys general across the nation are challenging the health care law in court because, they say, it's unconstitutional. House minority leader John Boehner once called the bill "Armageddon" because of the tax penalty for Americans who choose not to buy insurance. Armageddon!

Throughout all of the misinformed and contradictory right-wing antics of the past year, I've been wondering how post-Bush Republicans and conservatives can possibly square all of their newly found affinity for freedom, liberty and the Constitution considering their eight year support for Bush era policies. Policies like illegal wiretaps of American citizens, the USA Patriot Act, suspension of habeas corpus (it's in the Constitution) and all the rest of it.

Have they at long last abandoned their support for these obvious trespasses against liberty and the Constitution? In fact, Glenn Beck said recently that he failed to speak out back then but, "It doesn't matter. I'm here now." Convenient timing. History appears to have skipped the first decade of the 21st century.

Put another way, are the Republicans suddenly joining up with civil libertarians to denounce policies that infringe upon basic constitutional rights? Maybe Rush Limbaugh teaming up with the ACLU during his drug case was a sign of things to come. A civil liberties-oriented conservative movement, eh?

Not a chance in hell.

This week, Rep. Peter King (R-NY) said about the failed Times Square car bomb suspect, "Did they Mirandize him? I know he's an American citizen but still."

I know he's an American citizen but still. This easily catapults to the top of the list of awful, creepy, dangerous things Republicans have said in the context of terrorism since 9/11 -- the same list that includes: "None of your civil liberties matter much if you're dead," and, "I have had it with members of your party undermining our troops, undermining a commander in chief while we are at war."

Republicans from King to John McCain to John Cornyn and Jon Kyl are engaged in some sort of weird penis-measuring contest over the Faisal Shahzad case, each attempting to prove how quickly they can subvert the basic rights of American citizenship in order to appear "tough" on terrorism.

Marco Rubio, who is the tea party favorite for the U.S. Senate from Florida, said, "If this individual has information that could help us prevent future attacks and loss of life, nothing should stand in the way of that, including Miranda."

So nothing except, again, the basic rights of American citizenship.

Pseudo-Republican Joe Lieberman wants to change the law in order to strip would-be terrorists of their American citizenship. Hey, why not expand that to encompass all violent crime. Before long, we're not going to need Amendments Four, Five, Six, Seven, Eight and Fourteen.

Liberty! Freedom! Constitution! Except when we're scared.

At the same time, a new poll from the New York Times and CBS shows that a narrow majority of Americans support the Arizona anti-immigration law even though a wide majority also believes that it will involve racial profiling. Concurrent to this poll, a Gallup survey shows that 75 percent of Republicans support the Arizona law with only 17 percent opposed.

Knowing full well that American citizens who happen to be brown will be swept up in the law enforcement dragnet, regardless of whether or not they've actually broken the law and regardless of whether or not they've lived in Arizona longer than many of the white people there, the Republicans and tea party people appear to be perfectly comfortable with the idea of government overreaching and engaging in a clear violation of the Fourteenth Amendment, among other things.

Liberty! Freedom! Constitution! Except if you're brown.

And finally, as the Deepwater Horizon disaster in the Gulf of Mexico rapidly buries any previous records for oil spills, dumping perhaps as much as 25,000 barrels of oil per day into the sea -- dooming jobs, wildlife and natural resources for decades to come, suddenly big government spending and "redistribution of wealth" isn't so bad after all.

Republican lawmakers are quickly stashing their "Don't Tread on Me" banners and tea bag hats in the nearest closet and demanding that the federal government come to the rescue of the Gulf States.

As documented by Dana Milbank this week, Republican David Vitter worried that BP couldn't do the job alone and that "federal and state" government agencies pitch in.

Talk radio and Fox News, meanwhile, lied about the administration's allegedly slow response, implying that the government should be doing more -- even though we've been told by everyone of Ayn Rand to Sarah Palin that the free market ought to be able to handle these things on its own. (For the record, the administration has been on the ground and at sea since day one of the BP crisis.)

The governors of Mississippi, Alabama and Florida, all run by small-government Republicans demanded more support from the National Guard. Small government senators Shelby and Sessions promised the full support of the federal government.

Bobby Jindal, who famously joked about federal spending for volcano monitoring and tried to stop any Recovery Act money from entering Louisiana, isn't so concerned about federal spending now. He issued a statement demanding "critical" federal government resources.

I think you get the idea.

But maybe we should just slow things down. Before we spend any government money, before we spread the wealth around and engage in generational theft, maybe we should start over. I know there's a crisis here, sort of like the one in which the economy was rapidly sinking into another Great Depression or the one in which American families are filing for medical bankruptcies every 30 seconds or the one in which there are 9/11-level deaths every month due to a lack of health insurance, but let's just slow down and start over.

In his University of Michigan commencement address in front of 92,000 people last weekend, President Obama made a rational, reasonable case for government. It was a far cry from Reaganomics and President Clinton's declaration about the end of big government. He said, "There are some things we can only do together, as one nation... So what we should be asking is not whether we need a 'big government' or a 'small government,' but how we can create a smarter, better government."

Perhaps, despite the inchoate rage of the tea parties and the posturing of the Republicans, they really do understand that we live in an era of unprecedented national crises and that with many of these problems only the federal government is adequately suited to repair the damage. If we could all meet up on these terms, on the terms of "smarter government," I think we'd be able to accomplish anything and mitigate any crisis.

After all, how bad can it be. The grandfather of the tea party movement, libertarian Ron Paul, receives government Medicare benefits.

Holder prefers keeping option of civilian courts for terrorism suspects from WashPost 15APR10

Consider these words from the film 'Judgment At Nuremberg' taken from the decision of Judge Dan Haywood (Spencer Tracy).
There are those in our own country too who today speak of the "protection of country" -- of "survival." A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient -- to look the other way.

Well, the answer to that is "survival as what?" A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult!

Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.

I can picture Joe Lieberman as a Kapo in the Jewish Ghettos, sending his fellow Jews off to the death camps while he licks the boots of his Gestapo master John McCain. They are disgusting.

THE WASH POST STORY
A proposal before the Senate to try all foreign terrorism suspects before military commissions would "seriously harm our national security," U.S. Attorney General Eric H. Holder Jr. said Thursday, criticizing legislation introduced last month by Sens. John McCain (R-Ariz.) and Joseph I. Lieberman (I-Conn.).

"The proposal by some respected leaders in Congress to ban completely the use of civilian courts in prosecutions of terrorism-related activity obscures some basic facts and allows campaign slogans to overtake legal reality," Holder said at an awards dinner for the Constitution Project, a bipartisan legal advocacy group. "There's no question that if such a plan advances, it would seriously harm our national security."

Civilian courts and military commissions are both effective weapons that should be selected case-by-case, he said. Civilian courts can consider a wider range of offenses -- giving the government more opportunities to disrupt plots and use leverage to negotiate cooperation -- and enjoy greater credibility with foreign allies with less likelihood of appeal until commissions become more established, Holder said.

Supporters of military commissions say that foreign terrorism suspects are enemy combatants in an open-ended war who should not be treated in the same way as criminals. They argue that evidentiary rules should reflect battlefield conditions, and they note that recent congressional reforms have solidified the legality of commissions.

THE ENEMY BELLIGERENT ACT OF 2010 from MOJO

Hitler and Stalin would have loved this!!!! God help us all and the Republic if it ever becomes law!!!

Marc Ambinder wrote about John McCain's and Joe Lieberman's "Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010" a couple of weeks ago, but I missed it. It's basically designed to allow us to detain enemy belligerents indefinitely if they meet certain criteria:

The bill asks the President to determine criteria for designating an individual as a "high-value detainee" if he/she: (1) poses a threat of an attack on civilians or civilian facilities within the U.S. or U.S. facilities abroad; (2) poses a threat to U.S. military personnel or U.S. military facilities; (3) potential intelligence value; (4) is a member of al Qaeda or a terrorist group affiliated with al Qaeda or (5) such other matters as the President considers appropriate. The President must submit the regulations and guidance to the appropriate committees of Congress no later than 60 days after enactment.

The bill applies to US citizens as well as foreign nationals, and the determination of whether someone is "high value" is made by the High-Value Detainee Interrogation Team and confirmed by the secretary of defense and the attorney general. Glenn Greenwald provides his usual mild-mannered commentary:

It's probably the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades, far beyond the horrific, habeas-abolishing Military Commissions Act. It literally empowers the President to imprison anyone he wants in his sole discretion by simply decreeing them a Terrorist suspect—including American citizens arrested on U.S. soil. The bill requires that all such individuals be placed in military custody, and explicitly says that they "may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners," which everyone expects to last decades, at least. It's basically a bill designed to formally authorize what the Bush administration did to American citizen Jose Padilla — arrest him on U.S. soil and imprison him for years in military custody with no charges.

Well, sometimes mild-mannered commentary is just what the doctor ordered. This bill sounds every bit as bad as Glenn says it is. Basically, it reminds me of the Alien and Sedition Acts, which we've long since decided was not exactly a shining bright spot in our nation's history.

My hope is that the reason this bill has gotten so little attention is that no one thinks it has any chance of passage. Unfortunately, given the current mood of the country and the obvious angst of centrist Democrats about attacks on their terrorism-fighting credentials, that hardly seems plausible. Of course it has a chance of passage. This is well worth keeping an eye on.

UGLIEST FILIBUSTER YET from MOJO 12MAR10

Ugliest Filibuster Yet?

Last month, the Senate voted 52-33 in favor of confirming Craig Becker for a seat on the National Labor Relations Board. Or, to put it another way, Becker's nomination failed. Republicans filibustered his appointment, which meant that he needed 60 votes, not 51.

Just another day at the office? Not quite, because there's a backstory here that makes this case of routine Republican obstructionism even worse than usual. The NLRB, it turns out, was the battleground for the first filibuster ever of a presidential nominee to the executive branch, one of Jimmy Carter's appointments back in 1980, and it was the opening shot in the GOP's war against unions that's lasted to this day.

But in the case of the NLRB, Republicans and Democrats soon worked out a truce: The president would be allowed to name three appointees to the five-person board, and the other party would be allowed to name two. Obama followed this pattern, nominating two Democrats and one Republican shortly after he was sworn in. Republicans initially went along with this, and all three of Obama's nominees were reported out of committee.

But, as John Judis put it in The New Republic, "What happened next says a lot about the sorry state of politics in Washington." John McCain, still bitter over his loss to Obama and preparing for a primary battle against a right-wing opponent, put a hold on Becker. His nomination went back to committee, but this time Republicans, under pressure from business interests, decided to break the 30-year-old truce. Using a paper-thin excuse, they voted unanimously against him, and when the package of nominations went to the Senate floor, Republicans voted unanimously again. With 60 votes required to break the Republican filibuster, all three of Obama's nominations—nominations that had been agreed to by the GOP leadership months before—failed.

In other words, even for the modern Republican Party, this was pretty squalid behavior. Not only did they break their own leadership's agreement to seat Becker, but their intransigence has left the NLRB barely even functional. With three seats open, they don't have a quorum for any but the most routine business.

So what's next? There are two choices: Either Obama caves, or else he makes a recess appointment. His next opportunity is the Easter recess from March 29 to April 11. It's one he shouldn't pass up.

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
Copy and paste this link for the article
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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