Reconciliation Goes Nuclear

He sends one of your guys to the hospital., you send one of his to the morgue. That’s the Chicago way.

Just to make sure that Congressional Democrats don’t possibly get their act together, Senate Republicans have vowed to obstruct even more than they have been doing so far:

The GOP Senate leadership has privately settled on a strategy to derail health reform if Dems try to pass the Senate bill with a fix through reconciliation, aides say: Unleash an endless stream of amendments designed to stall for time and to force Dems to take untenable votes.

The aide described the planned GOP strategy as a “free for all of amendments,” vowing Dems would face “a mountain of amendments so politically toxic they’ll make the first health debate look like a post office naming.”

Can they do this?  Well, yes, unless the Democrats grow a pair and bring in the Vice President to rule out these potential amendments as non-germane and dilatory.  Is that hardball?  Yes.  Is it anything more extreme than what the Republicans are proposing?  Do I have to answer that?

Now, I realize that reconciliation doves like Ezra Klein and Mark Schmitt will come up with yet another series of reasons why the Democrats just have to capitulate again, but there is simply no basis for this.  And I have that on good authority.  Here’s an interview with former Senate parliamentarian Robert Dove:

Lester Feder: The decision about what can stay in under the rules is solely up to the parliamentarian?

Robert Dove: Theoretically, no—Vice President Biden is the ultimate decider. But no vice president has tried to play that role in reconciliation. We haven’t had vice presidents that have tried to play important procedural roles for a very long time. The last one was Nelson Rockefeller, in 1975, and before him Hubert Humphrey, in the 1960’s. But no vice president has ever tried to play a role in reconciliation. Basically, since Walter Mondale was vice president, they have kind of been co-opted by the president and given an office down in the West Wing. Their interest in playing Senate politics has become attenuated. That has left the Senate parliamentarian in an extremely powerful position.

Lester Feder: So as the rules of reconciliation are written, the Vice President is the technically the one who should make the procedural call, but he defers to the parliamentarian?

Robert Dove: He doesn’t usually even show up. If you expect to see the Vice President on the Senate floor, you’re going to be disappointed. He’s almost never there, so he’s usually not even there to do that.

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.

Emphasis mine.  I have been arguing this for months now, and no one has yet to give me a good answer to it, so I will continue to say it: the Vice President, not the Parliamentarian, has the right to rule on what stays and what goes into a reconciliation bill.  And if the Republicans decide to throw up millions of amendments, the President of the Senate has the right to say as a blanket matter that none are germane.

The goal of Congressional Republicans since 1994 has been nothing less than the destruction of the informal institutions of government — the shared understandings about some things that are “just not done.”  You don’t use the subpoena power to harass your political opponents — but they did.  You don’t use impeachment in order to bring down a President for trivialities — but they did.  You don’t use the filibuster as a matter of course — but they did.  You don’t change Senate blue slips rules not once, not twice, but three times in order to effect their preferences — but they did.  You don’t use the Office of Legal Counsel to authorize illegal behavior and give your people a Get Out of Jail Free card — but they did.  Now, it’s understood that you don’t bring up a million amendments to undermine reconciliation — but they will.  The Democrats must respond or they simply do not deserve the support of Americans.

Barack Obama is from Chicago, as Republicans love to comment.  In The Untouchables, Sean Connery tells Kevin Costner, “He sends one of your guys to the hospital, you send one of his to the morgue.  That’s the Chicago way.”

It’s coming.  It should.

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.

10 thoughts on “Reconciliation Goes Nuclear”

  1. And when you next lose control of the Senate, and the Republicans feed you the same shit sandwich, you'll whine like a little baby. That's my prediction.

  2. Uh, it's the (R) gang feeding the shit sandwich right now. Proposing Aleph Null amendments is not what The Founders ™ envisioned.

    There needs to be a way to pass legislation with less than 60% of the Senate. If my company operated like the Senate, we would be toast.

  3. Well, I guess I am turning into a new kind of birther. I have no doubts whatever that Obama was born in the United States, but I am beginning to wonder if he ever lived in Chicago.

  4. First of all, the passage appears to imply that if the Vice President doesn't preside over the Senate, then the parliamentarian does. That's false. Except on the rare occasions when the Vice President shows up, the task of presiding over the Senate is assigned to some Senator. The presiding officer may consult with the parliamentarian on how to rule on a particular issue, but the ultimate decision is up to the presiding officer.

    One consequence of this is that a majority of the Senate can choose to ignore the rules at any time. Can't get the 60 votes required to break a filibuster? Have the chair rule that 60 votes aren't required. The chair's ruling can be appealed to the Senate, but it takes only a simple majority to uphold the ruling.

    "The goal of Congressional Republicans since 1994 has been nothing less than the destruction of the informal institutions of government — the shared understandings about some things that are 'just not done.'"

    But while they considered the possibility of having Cheney rule that it doesn't take 60 votes to defeat a filibuster, they ultimately did not do so. So, yes, what you are proposing does seem more extreme than anything the Republicans have done.

  5. You don’t use the Office of Legal Counsel to authorize illegal behavior and give your people a Get Out of Jail Free card — but they did.

    To be fair, that was executive branch Republicans, not congressional Republicans.

  6. "Nobody said anything about presiding"

    Johnathan highlighted this passage:

    "[The Vice President] has the authority to do that. He is the president of the Senate."

    This implies "presiding" because unless the Vice President chooses to preside over the Senate, he has no authority what-so-ever with respect to that body.

  7. As an ex-parliamentarian (long story), I agree with you that the parliamentarian position is an advisory one, not one of power. I'm unclear, however, as to why you insist that the Vice president has to make the ruling. Why couldn't the President pro tem do it? Senate Rule XX on questions of order refers to the Presiding Officer making the ruling.

  8. Hi Steve —

    I was referring to the Budget Act of 1974, which gives authority for the rulings to "the Chair." But I see your point. Theoretically, the President Pro Tempore could be "the Chair". Maybe it's because they don't trust Bob Byrd to do what they want him to. And I wouldn't exactly blame them for that.

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