Back from the cliff?

Apparently the votes aren’t there for an amendment, so the House will pass the Senate bill tonight.

Third update Bill passes. Nearly two thirds of Republicans vote for disaster.

Second update Voting now. Yup: looks as if a majority of Republicans will vote to let taxes rise for all non-rich Americans, while also crashing the markets. Amazing, when you think about it.

Update House now voting on the Rule to bring the Senate bill to the floor. No provision for amendments.

Here’s what seems to be happening:

1. Boehner promised a vote on whatever the Senate did.

2. Most of the Republicans hate the deal.

3. Boehner told them that if they could assemble a majority for an amendment, he’d allow a vote on the amendment. Presumably that would be something Ryanesque about encouraging poor people to starve.

4. But the Senate has gone home, and Reid says no vote on an amended bill.

5. If the House Repubs reject a bill that got 89 votes in the Senate, there’s no doubt who gets the blame.

6. So there won’t be 216 Republican votes for an amendment, and therefore no amendment will be offered.

7. The Senate bill will then come up for a vote, and pass with virtually all the Democrats and a few of the Republicans, including Boehner but not Cantor. That vote is expected to be tonight.

So the Teahadis get what they want, which is a chance to say they voted “No.” But Boehner has to step back from the “Hastert Rule” against voting on legislation that doesn’t have majority support within the House Republican Conference.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

34 thoughts on “Back from the cliff?”

  1. But what of the Article I requirement that revenue bills must originate in the House? Can it really be safely ignored? Or is there some formalistic work-around?

    1. The House apparently preferred to defer to the Senate on this one. Does saying “please, you go first” count as “originating” the bill?

      1. The house has sent the Senate numerous, symbolic, DOA tax “bills” over the session. I have assumed Reid and the Democratic leadership hollowed one out down to the title and had the appropriate committee amend it into the vehicle of the deal.

    2. Yes, there’s a formalistic “work-around”: They take a House bill that died, and tack it’s “HR” number onto the Senate bill. As I’ve remarked before, kind of like ripping the VIN tag off a wreck in the junkyard, pop riveting it onto your Chevette, and claiming you drive a Mercedes.

      But as long as the House leadership go along with the joke, the courts won’t entertain any challenges to this unconstitutional procedure.

      1. In what sense is this unconstitutional, Brett? The bill clearly originated in the House, satisfying Article I. It was then duly amended in accordance with Senate procedure and then returned to the House for reconsideration. At what step does Congress run afoul of the Constitutional requirements?

        1. No, the BILL originated in the Senate. Only the NUMBER originated in the House, attached to a completely unrelated bill.

          1. In fact, the bill originated in the House. I’m not sure what the bill originally addressed, but it was duly amended by the Senate to address the fiscal cliff, and those amendments were agreed to by the House. All of the proper Constitutional procedures were followed. Is it a bad bill? Almost certainly — but not every bad policy is unconstitutional.

          2. It could be as bad a policy as one could imagine, and if the actual bill had originated in the House, it wouldn’t be unconstitutional on that basis. But when the only part of a ‘bill’ that came from the House is the “H.R.”, which was taken from a completely unrelated bill, it’s more than a little tendentious to pretend it originated with the House.

      2. @ Brett Bellmore

        What do you think about the Senate’s parliamentary rules for invoking a filibuster and effectively requiring every piece of legislation to have a supermajority vote? Is that constitutional in your view?

      3. hard to see how this is any more “unconstitutional” than the Senate’s parliamentary rules for invoking a filibuster which allow the minority party to turn every simple majority vote into a super-majority in order to defeat a mere threat of filibuster

      4. “As I’ve remarked before, kind of like ripping the VIN tag off a wreck in the junkyard, pop riveting it onto your Chevette, and claiming you drive a Mercedes.”

        Or more like taking a license plate from a junked car, and putting it on another car, after legally re-registering the car.

  2. I know that the Senate can take some long-dead trivial revenue provision that the House had passed months ago, strip out its husk, and add whatever revenue provisions it wants for consideration of the House. I don’t know the detailed mechanics of this.

  3. Yes, they’re voting on the Senate amendments to H.R. 8.

    Doesn’t make it any less disgraceful for the House to cede the initiative to the Senate on the one set of issues the Constitution assigns to them. But it’s clearly within the rules.

    1. Eh. On the list of disgraceful stuff this HoR has done, asking the senate to take the lead on this ranks pretty far down, IMHO.

  4. Just so we’re clear: the Democrats in Congress, and the Democrats in the White House, are the ones who did this to us.

  5. All this does is delay the final breakdown another 58 days, when the debt ceiling can be added to the list of threats. Better to have it over with now, or as soon as possible. We’re just prolonging the inevitable.

    1. It’s not a completely terrible tax deal, but now that it’s passed, the Democrats lose what leverage they had from the fact that inaction meant a tax increase on all Americans – and so now the Republicans will have a much freer hand to be reckless about the Debt Ceiling, because while there will be consequences for the country their base will remain happy.

      1. I’m sure that all the people who will continue to get unemployment checks would rather have their leverage back.

  6. Mark,

    I hope you are wrong in your prediction (although I believe that the sequence of events you’ve described in how it will go down). I just think Obama made a terrible mistake and he’s got a slim chance here for a do over where he gets to keep all his leverage. Many of the really critical elements of the “fiscal cliff” remain unresolved, yet Obama has traded away all of his leverage just to say that he made a deal. Maybe if he repudiates his not very good deal, he can make a better one now that the Bush tax cuts have technically expired.

    The other problem is that I don’t see how he gets past the next set of negotiations without a government shutdown and maybe a default on the national debt. In this negotiation he kept making big speeches about how tough he was going to be, especially about the $250K threshold. Then, he backed down (I’ve described it as Obama holding four aces in draw poker, the GOP draws three cards. They go all in and Obama folds). This is a very bad precedent.

    What’s more, I don’t see a way out for future negotiations, especially the debit ceiling. At this point, the GOP isn’t going to back down. If Obama backs down, he’s screwed and says screwed for the remainder of his presidency. Instant lame duck status. Republicans won’t take him seriously. Democrats will be afraid to back him. On the other hand, if he really mean it this time—and there’s no way to be sure in advance—he has to play it out—maybe all the way through a government shutdown or a default. At that point, damage to the economy, the credit rating and the fabric of society aside, maybe the GOP throws in the towel again but maybe they don’t. Then what?

    1. I thought it became clear, from the last runaround, that a refusal by Congress to raise the debt ceiling means:
      1. The Treasury is immediately under a strict pay-as-you-go constraint.
      2. Debt interest takes priority for ongoing payments under the 14th Amendment. (So technically does repayment of debt principal falling due, but that takes you back under the ceiling and Treasury can borrow the same amount again.) So no bond market panic.
      3. Anything else can be cut proportionately or selectively to stay within PAYGO.

      The remaining uncertainties are about how item 3 plays out. All the expenditure has been lawfully authorised, and forms an obligation of the US government. IMHO, since the Executive is forced to break the law, there’s no solid formal basis for discriminating between “entitlements” and other contracts like military pay – correct me. Politically it’s another matter. My partisan zipcode solution – cut in the districts of Congressmen who voted to prejudice the credit of the United States – is a nice fantasy but not Obama’s style. However, it would be consistent with his populist campaign rhetoric and promises to pay obligations to the poor and middle class in full (Social Security, Medicaid, the first $100,000 of the salaries of military and civilian government employees) and pay the defence corporations and hospitals in IOUs. The IOUs state that they will be paid off when the House comes to its senses. I offer to draft the accompanying letter for nothing; all Geithner will have to do is delete the four-letter words.

      1. Your zipcode solution would also prompt an immediate impeachment, which Democrats, after having it pointed out that a Republican President could do that, too, might concur with.

        1. On what grounds, exactly?

          To be specific, here is the scenario you lay out:

          1. Debt ceiling is not lifted.
          2, President is forced to be selelective about which bills he will pay.
          3. If Congress doesn’t like his choices he gets impeached.

          That makes no sense. It’s like giving you a shpping list, but not enoungh money to cover it, and then getting angry when you cut items I really wanted.

          And I don’t think there’s much to fear from a Republican President doing that. Remember, it’s only forced on Obama because of Tea Party tantrums. Let him act and there will be no such tantrums in the future, by either side.

          1. That’s the scenario I lay out, where James’ proposal is that the President’s choices be based on the party of the Congressmen representing a district.

            Yes, I think a set of choices that nakedly political would represent a “misdemeanor” in the sense the impeachment clause represents. I also think the “most transparent (To neutrios, maybe…) administration in history” would never be stupid enough to do anything that transparently abusive.

          2. What’s the limit? You want Obama to cut some spending unilaterally, after all. It’s very strange then to raise hell about it. Surely you understand that it would take a saint not to play some amount of politics with that power that you want to grant him.

            I mean, there are lots of military bases in red states. Maybe some aren’t all that essential. Some non-defense federal installations might need to deal with furloughs or whatnot. Impeachable? I don’t think so.

          3. Brett, lay out a scenario in which the President makes unilateral decisions about what to fund and what not to fund that doesn’t fall within the parameters of impeachment. It isn’t that I disagree with your logic here, it’s that I see no evidence that you understand the basic problems with the approach you advocate, namely that the President will be committing an impachable offense no matter what he does. The issue isn’t with what he does; it lies entirely with Congress’ irresponsibility.

          4. Brett: “James’ proposal is that the President’s choices be based on the party of the Congressmen representing a district.” No it isn’t; read the comment again. It would be based not on party but on the vote on the specific issue. Some of us (not the White House) think the debt ceiling is unconstitutional; others, including Obama, that it’s merely nonsense.

            I don’t see the impeachment charge either. The President would be failing to faithfully execute the laws, because and only because Congress has adopted logically contradictory ones, a knock-down defence. In these weird circumstances, his constitutional duty, if he has one, is to do the least damage to the constitution. He could well argue that dirty pool is the fastest way of resolving the crisis and protecting the republic.

  7. BTW, the Senate bill had other things in it; some good policy, some trivial pork, one mean and spiteful cut. HuffPo:

    Green energy was another big winner in the bill. Roughly a dozen provisions would extend credits and incentives for plug-in electric vehicles, energy-efficient appliances, biodiesel and renewable diesel, and other alternative energy initiatives. [JW: other sources say this includes extension of the PTC for renewable energy production – a big deal for wind and geothermal.]

    The legislation also would kill the part of Obama’s 2010 Affordable Care Act designed to let millions of elderly and disabled people get help at home rather than be placed in institutional care, which tends to be more expensive.

    Democrats acknowledge that the insurance initiative known as the Community Living Assistance Services and Support program, or CLASS, is financially flawed but they had argued it should be fixed rather than ended.

    Sorry, Vincent.

  8. Got #2 right, that’s for sure. The odds of Boehner facing a revolt from his own party have just substantially increased. The plan I hear about is to offer, first motion of the new House, a resolution that all leadership elections are to be secret ballot. Which it’s presumed Boehner can’t oppose, having made a big deal of the importance of the secret ballot during Democratic efforts to abolish it for unions.

    If this can get a majority of the House voting for it, the biggest impediment to getting rid of Boehner, the the threat of retaliation if the effort isn’t successful, will be gone.

    Does anybody actually have a good argument why leadership elections SHOULDN’T use secret ballots? This is something Democrats ought to vote for, just as a given.

    1. Shouldn’t constituents know who their representative supports for leading the party? That’s substantial evidence of what policies the representative would like implemented.

    2. No. But the first legislator to suggest it is going to marked as a troublemaker.

      “When you strike at a king, you must kill him.”

    3. And if those in revolt had their way what policies would the new house leadership favor? How do those opposing the Boehner deal propose to deal with fiscal issues other than repeating the mantra of no tax increase? Do they have the votes to significantly reduce any portion of the federal budget?

  9. If the revolt succeeds with step one, does it occur to you that Democrats wouldn’t have to vote for Pelosi, either?

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