No, no, NO!!!

One word from Joe Biden takes the latest GOP effort to block health care reform off the table.

The Hill notes the Republicans’ new plan to filibuster the theoretically filibuster-proof reconciliation bill by filing millions of amendments. (h/t Jonathan Chait).  Then it describes the Democrats’ potential response as  “seek[ing] a ruling by the parliamentarian that Republicans are simply filing amendments to stall the process.” (emphasis added).

(Sigh)…this makes blogging easy.  Just find your article of the day that makes this elementary error.  Once again:

The parliamentarian does not make the ruling.  The parliamentarian advises the Chair, otherwise known as the President of the Senate, otherwise known as the Vice President of the United States, on what the ruling should be.

You don’t believe me?  Believe Robert Dove, the former parliamentarian of the Senate:

If he were to show up, and he wants to make these decisions, yes. He has the authority to do that. He is the president of the Senate.

If the Democrats want to do this, then they can do this.  period.  Full stop.  End of story.  Will they?

Mr. President, where are you?

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

12 thoughts on “No, no, NO!!!”

  1. The Hill also notes the Democrats' plan to arbitrarilly declare all Republican amendments non-germane without regard to what the amendment is. I'm not at all clear why you think that's the least bit more legitimate, unless it's simply that you define "legitimate" as, "my side prevails".

    In any event, you're right, the Democrats can do this. And then they can continue to complain that the Republicans have no ideas to offer. The only question remaining is whether they want to totally own the resulting bill, or are desperate for at least a quantum of political cover.

  2. The nice thing about the current healthcare debacle is that the process to get to whatever eventually becomes of it will not be forgotten or re-written by election time later this year. Make no mistake, this is a completely partison piece of legislation if there ever was one. So we'll hear from the American public later this year. If liberals pull out all the stops to ram it through and this turns out not to be what the majority of the American public wants (which is the indication of all polls) then they're toast at the end of this year. If liberals are right and this is what the American public really wants, then they have nothing to fear because Republicans will be toast at the end of this year for their obstruction of the public will. Of course liberals will never see it as the public will if they lose majorly this year. Which is fine with me…keep digging a hole. Dig, dig, dig. I love it.

  3. Brett: "The only question remaining is whether they want to totally own the resulting bill, or are desperate for at least a quantum of political cover."

    Well, keeping in character, I see. The GOP has spent the entirety of this administration both complaining about not being involved, and blocking each and every offer.

  4. Speaking as an ex-parliamentarian (long story), you're exactly right. The parliamentarian gives advice to the presiding officer, who is free to accept or reject it. Of course, a member of the body can always challenge the presiding officer's ruling, forcing a vote, which leads us to the nuclear option.

  5. I was wondering why President Obama, at the State of the Union Address, addressed Vice President Biden as "Vice President Biden" instead of the traditional "Mister President."

    Maybe this is a clue.

  6. Hi Steve —

    Good to see you! Anyway, it actually WOULDN'T force a vote, because then the Senate Majority Leader would move to table the challenge. Since a motion to table is not subject to debate, it would be voted on immediately and thus the challenge could be tabled by a simple majority. Robert Caro's book on LBJ as Senate Majority Leader is really excellent on this.

  7. There are real examples of a “my side prevails” approach to legitimacy: the defenestration of Masaryk, the Reichstag fire, the overthrow of Goulart, etc. Anyone who says he can't tell the difference in point of legitimacy between any of these, or less vivid examples, & the call for a majority vote in the US Senate just lacks good sense. But legitimacy is a complicated notion, & there does seem to be real confusion about what it involves. Some distinctions: 1. An act may legal, or w/in the formal rules of an institution. 2. It may be w/in the institution’s formal and informal rules. (The legitimacy of formal rules may depend on the whole background of informal structures in which they’re embedded. Zasloff has noted the post-'94 Republican war on the informal institutions of Congress.) 3. Acts w/in the rules, or the rules themselves, may withstand normative scrutiny, or not. (Apartheid law was illegitmate, whatever the procedure by which it was enacted. Rules that systematically thwart the will of the majority are illegitimate.) 4. Public opinion may approve of an act or rule, or deem it to pass normative scrutiny. What else?

  8. In the end the only thing that will matter to the electorate is how they percieve the quality of the bill that get's passed. Once the sausage is made all anyone cares about is how it tastes.

  9. I don't know, you can make some pretty tasty sausage, and if people actually SEE you adding the rat turds, they'll still be reluctant to eat it. Spending billions buying the votes of a couple of Senators wasn't exactly the most appetizing sight.

    There is absolutely no question that they CAN do this. No rule in either chamber can stand against even a slim majority that's willing to take the heat for breaking it. Heck, with the "Enrolled bill" rule in place, a nervy enough Congressional leadership can make things 'law' that don't even get voted on. The only question is whether they think they can afford to pass the bill without even a tiny fig leaf of bipartisanship. The closer we get to the fall elections, the less likely they are to be willing to do that. Even if they genuinely believed that the public would like the sausage once it's crammed down their throats, that's not going to be much consolation if the public is still puking on election day.

    Remember, this bill was crafted so that major provisions don't kick in for years. Are the parts that take effect instantly going to be popular enough to turn public opinion on a dime? That's a question a lot of members in marginal districts are asking themselves right now, even if they genuinely like the bill.

  10. Is there any other country in the world where a party with a huge majority in both houses of parliament passed legislation that it explicitly campaigned on, and there was a backlash because they didn't get floor crossing votes as well? That seems like an unlikely scenario.

    It's also odd to be referring to a plan to bring a central part of the government's program to a floor vote in a legislative chamber as the 'nuclear option'. Bringing up infinitely many amendments to stop a vote being taken looks like a blatant abuse of process. If the methods the majority uses to stop this abuse are within the letter of the Senate rules, then I don't think they should worry about the spirit of the rules. After all, the spirit of the rules can't be construed as making it impossible for legislation to be voted on. I think there are very few people who are not already opposed to the health care bill who will be opposed to the majority pulling some strings for the sole purpose of getting to an up-or-down vote.

  11. Brett Bellmore:

    "I think there are very few people who are not already opposed to the health care bill who will be opposed to the majority pulling some strings for the sole purpose of getting to an up-or-down vote."

    And now the up-or-down vote is Evul Librulizm.

  12. More to the point, not many people will notice any of this process. Most people are far too busy to worry about the day to day goings on in DC, contrary to what those of us neurotic enough to watch this stuff may think. As far as the folks who do pay attention, after the last decade and a half of watching Republicans use any and all means to ram their agenda through I hardly think any fair minded person can cry foul. The Republicans have of course been screaming foul for the entire last year (in fact it seams to be their go to mode all of the time) so that should be just accepted as the ongoing background din on the sausage factory floor.

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