Reid’s Inside Game?

Carl Hulse and Adam Nagourney, in a piece on the legislative procedural mastery of Mitch McConnell:

Even Mr. McConnell’s fellow Republicans say somewhat admiringly that he can be a secretive and coldly calculating tactician with an eye for political openings, someone more consumed by political strategy than ideology or philosophy.

He is in many ways the mirror image of his Democratic counterpart, Mr. Reid. Both are experts at the inside game who struggle with the burden of trying to control a political caucus at a time when legislative leaders no longer have the brute power they once had and senators are hailed for acting like mavericks.

I really don’t get where the perception that Harry Reid is a master of Senate strategy comes from. I can’t think of a single issue over Reid’s tenure leading the Democratic Senate caucus where his tactical choices made me think he has any mastery of procedure that allows him to affect positive outcomes. Sure, he’s been pretty good at preventing liberal members from getting things done, but at all times it’s been while simultaneously stating that he can’t do what he personally wants to do. Usually mastery of process is demonstrated by making sure that what you want to have happen happens. So either Reid is a liar or he’s someone who doesn’t actually have mastery of “the inside game” unto what is needed for success. Or both.

I’m just really frustrated by being forced to read hagiographic assessments of someone who has shepherded one of the most disappointing and unsuccessful legislative sessions in Senate history as an expert of any sort. Experts get things done. Experts succeed. Clearly Mitch McConnell has mastered both Senate procedure and maintaining caucus discipline. In so doing, he has slowed the Democratic agenda to an historic degree, and positioned his party well to make gains in the 2010 midterms. I don’t see any great journalistic value in the Times singing McConnell’s praises on the verge of passing an albeit watered down health care bill, either, but there’s absolutely no need to elevate Reid to even McConnell’s level in the process.

Dodd: Senate is “A Dysfunctional Institution”

Mike Stark does some great work interviewing Senator Chris Dodd, getting him to speak out against the obstructionism by the Republicans that have turned the Senate into a dysfunctional institution.

he had some pretty strong words for the conduct of certain Senators (that remained unnamed), saying they needed to “start acting like Senators”.

But perhaps the most revealing thing Senator Dodd said was that because the Senate is currently dysfunctional, “because we’re frustrated right now over an abusive use of a historic vehicle that led to the essence of what the Senate is,we’re about to abandon the essence of the Senate.”

That came after he said, “I’m saddened in a way… the reason the Senate works is because the chemistry of the membership makes it work. That’s why it takes unanimous consent to do almost anything. And the essence of the Senate was basically a longer, slower look at things.”

The audio of Stark’s interview with Dodd is below:

Ben Nelson

So, is Ben Nelson going to jump ship to the Republican Party some time before January 2011? After all, his opposition to some of President Obama’s key legislative issues (health care reform and labor reform) is now being compounded by his opposition to President Obama’s nominees. Steve Benen writes of Nelson:

In other words, a senator who claims to be a Democrat will not let a Democratic Senate vote, up or down, on some of a Democratic president’s nominees. It’s not enough to vote against them, Nelson wants to prevent his own Democratic colleagues from voting on them at all.

This doesn’t look like the actions of a Senator who is planning on staying within his party’s good graces for years and years to come.

Now, to game it out, Nelson is too junior on Ag, Appropriations, Armed Services & Rules to benefit from a seniority bump by switching parties. He’s exercised a lot of control over what happens with this Democratic caucus by being one of the last votes for any issue; switching parties would probably remove him from the cat bird seat of swing vote largess.

The real question regarding Nelson is whether Harry Reid or the White House will start getting tough on him. Will he be punished for opposing Craig Becker? Will he be forced to pay a price for demanding such a high price on his support for health care?  If Senate leadership and the administration don’t get tough on Nelson, I’m sure he’ll be happy to keep being a problem child for years to come. But if Reid and Obama show some backbone and decide to stop getting pushed around by Nelson, they may give him an excuse he’s looking for to bolt the party and go help out the GOP full-time. That outcome may matter to some Democrats, but it certainly wouldn’t bother me a lick.

Fifty-nine

It’s remarkable: one year ago, when the Obama administration started, Democrats had fifty-nine votes in the Senate (though two were in the hospital (Kennedy & Byrd) and one, Al Franken, would not be seated because of frivolous Republican lawsuits). At the time, we were at an historic moment where big ideas were not only necessary, but possible. As such, the administration and Congress charged forward with plans for economic stimulus, labor reform, and health care reform.

A year later the economic stimulus has begun to work, labor reform has been moved to a back-burner about 900 miles from the President’s kitchen, and health care reform is perceived as a legislative impossibility…because Democrats have a mere fifty-nine votes in the Senate.

Fifty-nine votes is not a hurdle today any more than fifty-nine votes, which really meant fifty-six votes, was a hurdle in January, 2009. Fifty-nine votes, when used as a stated or implicit excuse for not accomplishing Democratic goals, is pure bunk. Not getting things done is solely going to be attributable to failures of leadership by the White House and the Democratic Senate leadership team. What is leadership? Partly it’s making an effective public case for a policy issue. Partly it is making clear to your caucus that they are safe to support the agenda you want them to support. Partly it is whipping votes through horse-trading, cajoling, and threatening senators to vote the right way. As far as I can tell, none of these things have been happening, particularly since the loss of the special election.

To wit, see this article in today’s New York Times. While it has an optimistic title, “Obama Maps a Way Forward for a Health Overhaul,” the title actual is belied by the text of the article, which includes this line: “Mr. Obama still did not chart a specific legislative strategy for moving a bill through Congress.” I’d hazard that it’s hard to “map a way forward” without “chart[ing] a specific legislative strategy”. I suppose Obama’s map for health care legislation since the Massachusetts loss look something like this:

  1. Have a real debate on the issues
  2. ????
  3. Sign the bill into law!

This isn’t leadership. Fleshing out #2 would be leadership. And let’s be clear: Harry Reid could do a whole lot to fill in the details here, but he isn’t either. The blame isn’t all Obama’s, but a preponderance of it, at this point in time, certainly is. After all, he was one of the loudest voices for saying that when Democrats had fifty-six functional votes in the Senate that this was the moment in history to pass health care reform. That he cannot muster the same confidence when he has three more voting Senators in the Democratic caucus is a disaster of, to borrow his word, historic consequences.

Democrats are looking for excuses to fail, but I for one do not buy it and I’m tired of it being sold to me by people who I and millions of people like me in the Democratic base have spent years working for, donating to, and voting for. Forget explaining to me why forty-one is greater than fifty-nine – this bit of idiocy is so solidified in Democratic conventional wisdom that nothing can dislodge it now. Explain to me why fifty-six is greater than fifty-nine.  Maybe then I’ll understand why this President and this Party have effectively abdicated their responsibility to get done the things they promised us they would get done.

“A Private Understanding”

Well isn’t this interesting:

Sen. Joe Lieberman has reached a private understanding with Majority Leader Harry Reid that he will not block a final vote on healthcare reform, according to two sources briefed on the matter.

Chris Bowers asks what people think the “private understanding” is.  Booman guesses that Reid threatened Lieberman with taking away his position as Homeland Security Committee Chair if Joe voted against cloture at any procedural point in the Senate debate.

Lieberman would have to get something in return for not voting against cloture on a health care reform bill he opposes. Keeping his Committee chairmanship, something that Lieberman has repeatedly bet he could do anything to retain (remember, he campaigned for John McCain), isn’t likely to be considered something by Joe Lieberman. He thinks he owns it already and there has been essentially zero will publicly expressed by the Democratic Senate caucus towards removing Lieberman from his chair as a consequence of his actions.

It’s also worth pointing out that while Lieberman has already said he won’t oppose a Motion to Proceed to the bill and sources are now saying he won’t oppose cloture on final passage, there is a third major cloture vote that has not yet been discussed. As I wrote on the SEIU blog, there is a cloture vote on the manager’s amendment to substitute the debated and amended healthcare bill onto a bill from the House Ways and Means Committee.

Cloture Motion on Manager’s Amendment (Substitute Amendment): After considerable debate and amendment to the substitute, the Majority Leader will file Cloture on the Substitute. If there are 60 votes here, the Merged reform bill/Substitute as amended will get an up or down vote after 30 hours of post cloture consideration.

So, in some sense, it seems that both Senator Lieberman and Leader Reid are weaseling on process questions right now. At least, neither are speaking publicly about Lieberman’s expected stance on the cloture vote that will occur between the Motion to Proceed and the cloture motion on final passage of the measure.

Getting beyond the weaseling on process, I don’t know what Lieberman is seeking to extort from Reid. Job security is clearly something he already thinks he has in the bank. More job security would certainly be helpful for Joe, but would it really be enough for him to vote with the caucus on procedural votes that he already sees as tantamount to the substantive vote on the bill itself on final passage?

Lieberman’s real problem is with the public option. Perhaps what Reid promised Lieberman was an opportunity to vote on an amendment to remove the public option from the bill, with a threshold of only 51 votes. This would increase the likelihood of it getting stripped out, as well as the likelihood that Lieberman will actually vote with the caucus on all cloture votes (as he said he would if he was happy with the underlying bill). The flip side, obviously, is that if Reid were to push for a 51 vote threshold for an amendment to strip the public option in the Unanimous Consent agreement governing the debate, he would essentially be guaranteeing its removal from the bill, after showed rare leadership by fighting alongside Chris Dodd for its inclusion.  If this is the case, expect a huge uproar from the people who have worked to get the public option as part of health care reform legislation.

Of course, I think Open Left commenter bento is probably most right about what the private understanding means: “Reid, in the privacy of his head, understands Lieberman will not filibuster. Joe in his privacy understands he will. ”

Update:

Lieberman spokesman Marshall Whitman has strongly denied the reporting of a “private understanding” in a quote to the National Review.

…Adding, Reid’s office is now denying the report of an understanding as well.

On Senate Cloture Process

Yesterday I wrote a long memo on the process surrounding the health care legislation in the Senate, focusing on cloture votes. It is up on the SEIU blog and is reprinted below.

* * *

The health care debate has been long and hard fought. As we near the time when we expect the Senate to take up a bill and vote on reform, there are a lot of questions about what exactly will be happening from a procedural standpoint. After all, the Senate has a lot of complicated and misunderstood rules. Foremost among them are cloture and the filibuster.

First, filibusters really don’t happen the way they did when Mr. Smith went to Washington. Instead, the word filibuster is commonly used to refer to any time a bloc of 41 or more senators vote against considering a piece of legislation or letting it come to a floor vote. This week Andy Stern wrote in an op-ed on Huffington Post that there is no such thing as a Republican filibuster, because the GOP caucus only has 40 votes. As a result, the only way health care reform can be blocked is if members of the Democratic caucus join the Republicans to oppose moving forward.

Second, the Senate is governed largely by consensus. Things don’t get done without either everyone agreeing to them or there being a vote to see where the members of the Senate stand. One of the tools the Senate uses to keep the wheels turning is cloture. Cloture is simply a vote on whether or not to end consideration of an issue or piece of legislation for the time being. In our one hundred member Senate, there must be sixty votes in favor of cloture for a cloture motion to pass and the Senate to move forward. The Congressional Research Service has a great, detailed report on filibusters and cloture (PDF link), but I’m going to try to distill some of it here to explain what we expect to come during the health care debate.

To understand the procedure on cloture votes and filibusters on health care, it’s important to look at the general process. After the Senate HELP Committee and Senate Finance Committee bills have been merged, the final bill will need to be brought to the Senate floor. Because the health care reform bill deals with funding, the Senate will need to use a bill from the House Ways and Means Committee in order to introduce the legislation – the Senate health care reform bill will be offered as a substitute amendment to that House bill. Offering a new bill as a substitute to a bill from the House is common Senate procedure and the House bill in question doesn’t even have to relate to health care.

There are likely going to be three big points in the Senate debate of health care reform legislation that will almost certainly be subject to cloture votes. Each one of these votes will require sixty senators in favor of moving forward, yet none of them will be on the actual health care reform bill itself!

1.Cloture Motion on Motion to Proceed to Measure’s Consideration: This will be the first step, where the Senate will ask itself: Do enough of us want to start debating specific health care reform legislation on the floor? Assuming that 60 senators do, the process will continue;

If Cloture on the Motion to Proceed is “invoked” (a fancy senate term for saying 60 Senators voted yes) then the Motion to Proceed will be adopted by a majority vote and the Senate will start debating the House bill that I mentioned above. Next the very first thing that will happen is that the “merged” Finance/HELP Committee bill will be offered as a complete substitute to the House bill. Then the fun really begins. Senators offer dozens of amendments, the Majority and Minority Leaders try to work out Unanimous Consent agreements, which I will explain below, to get lots of the amendments votes and sometimes Senators even filibuster each other’s amendments. But sooner or later the Majority Leader says that is enough. That’s when…

2.Cloture Motion on Manager’s Amendment (Substitute Amendment): After considerable debate and amendment to the substitute, the Majority Leader will file Cloture on the Substitute. If there are 60 votes here, the Merged reform bill/Substitute as amended will get an up or down vote after 30 hours of post cloture consideration. Then…

3. Cloture Motion Filed on Measure (Final Passage): After the Substitute Amendment is adopted, the Senate still needs to bring debate on the entire bill to a close, so in oder to get to final passage of the health reform bill in the Senate, there will be one more cloture vote — on the final bill (or to get super technical, on that old house bill as amended by the Substitute). Assuming 60 senators support getting to a final vote on the bill they’ve just spent days and weeks amending and debating (not to mention months doing the same in Committee), then there will be an opportunity for the health care reform bill to receive a straight up-or-down vote.

What should you expect when you see a cloture motion? Lots of debate and delay. After cloture is filed, it takes one day and an hour to ripen. So if a cloture motion is filed on Monday, it cannot be voted on until Wednesday. After the motion for cloture is voted on, there is then 30 hours of debate for post-cloture consideration. This time period includes debate, roll call votes, and quorum calls. Basically each of these three big procedural steps prior to a cloture motion and vote on cloture will add a number of days before the next soonest step can be reached. This is why we expect the entire Senate floor debate of health care reform to be a process that could last, at minimum, a couple of weeks.

Now I haven’t talked at all about amendments…and we should expect to see dozens or hundreds filed. The reality is that anything that is debatable is subject to cloture, so that includes amendments to the bill that is brought to the floor. While it’s possible that the entire floor debate and amendment process is filled with cloture votes (making it a very long and drawn-out process), it’s more likely that the Senate will agree to a Unanimous Consent Agreement to govern debate and amendments. The UC Agreement sets out exactly how much time every amendment will be given for debate, how much time Republicans and Democrats will get to speak, and how many votes it will take to pass that amendment. Expect more controversial amendments to require 60 votes to pass, while less controversial ones will take a simple majority.

How does all of this process relate to the goal of passing meaningful health care reform legislation? The opponents of health care reform in the Senate will be given at least three major opportunities to stop this bill from getting a simple up-or-down vote. In each case, they will use procedure to try to stop legislation that the American public overwhelmingly supports. Health care reform is so important that it must receive an up-or-down vote to determine its outcome. Anything less is unacceptable.

Between now and the first Motion to Proceed to health care reform, there will be many twists and turns in the fight. The substance of the bill will change. The number of people that it helps will hopefully grow larger. But at the end of the day, this is vital legislation that deserves a straight up-or-down vote from the Senate. Even those members who are opposed to the underlying bill itself should not hide behind procedural hurdles to prevent it from receiving an up-or-down vote. If they oppose reform, that can best be expressed through debate of the bill, through the amendment process, and on final passage. The issue of health care reform is simply too important to be defeated by a minority of the Senate, hiding behind procedure.

We’ll have more updates on Senate and House procedure as the legislative fight progresses. Stay tuned for updates!

Eviscerating Republican Bills of Attainder

Alan “Big D” Grayson’s exchange with Georgia Republican Paul Broun is pretty remarkable. First, Grayson absolutely schools Broun on the unconstitutionality of bills of attainder. Broun is reduced to repeatedly reading off of a talking points memo – on camera – to try to respond to Grayson’s Socratic line of questioning. Second, Grayson has yet again shown what it looks like when a Democrat stands up for his beliefs and defends an ally (ACORN) from unwarranted and in this case unconstitutional attack.

Glenn Greenwald has a great post looking at the legal precedents relating to bills of attainder and why Grayson is so spot-on in his analysis.  Glenn deconstructs the argument made by Broun and other anti-ACORN Republican members of Congress. Here’s where he arrives:

For those who want to ignore the actual law and insist that it’s not “punishment” for Congress to prohibit specific people from receiving discretionary government benefits (such as government contracts), it should be the case that you’d have no Constitutional objection to bills which provide for the following:

* Only registered Democrats, but not registered Republicans, shall be eligible for unemployment benefits.

* Any individual belonging or contributing to the NRA shall be permanently barred from government employment.

* Anyone who has been employed by Blackwater at any time during the past decade — including those who performed contracting services for said corporation — shall not be permitted to participate in the Medicare or Medicaid program.

* Any organization which helps more Republicans than Democrats register to vote shall be barred from holding tax-exempt status.

* Any person or company providing services, or entering into contracts with, Fox News shall be barred from receiving government contracts.

By the reasoning of Rep. Broun and his defenders, such measures cannot be unconstitutional because Congress is not “punishing” anyone here.  Nobody has the “right” to receive unemployment benefits, or be employed by the government, or to have government-provided health care benefits or to receive special tax-exemptions.  Those are purely discretionary benefits which the Congress is free to dole out, or not dole out, as it wishes.  Nobody who is singled out by the Congress can possibly complain that they are being unconstitutionally “punished” merely because Congress has decided to deny them these discretionary benefits.  Is that what anti-ACORN crusaders are prepared to defend?

There are days where it must be truly embarrassing to be a Republican member of Congress. I’m guessing yesterday was one of them.

The Failures of Leadership

I recently finished reading Robert Caro’s Master of the Senate, the volume of his biography of Lyndon Johnson that covered his years in the Senate.

One thing that Caro’s coverage of LBJ’s Senate tenure makes clear, segregation was preserved and civil rights were delayed for upwards of half a century because of the dominance of conservative Southerners over liberals when it came to understanding the rules and procedures of the Senate. Time after time, liberals were out maneuvered in the civil rights fight. Often their troubles came from an inability to properly count their votes; other times they simply were outsmarted by the master legislators of the South who knew Senate procedure cold. The South had to know how to use the rules to their advantage and they had to know how to count their votes, because they did not control the majority on civil rights and they hadn’t for decades.

This Politico post by Glenn Thrush on Reid and Schumer’s back and forth on the public option shows how lacking Senate Democrats are when it comes to both knowledge of Senate procedure and the vote counts on this issue. Much is made by conservative Democrats, Max Baucus, and Harry Reid’s office that the health care bill has to be something that can get 60 votes to overcome the Republican filibuster. But this simply isn’t the case. As long as there are 100 sitting Senators, a filibuster requires 41 votes to be maintained. Republicans only have 40 seats. There is simply no such thing as a “Republican filibuster.” A filibuster can only take place when one or more members of the Democratic caucus joins the Republican minority to stop an issue from moving forward. Any Democratic Senator who is complaining about a Republican filibuster is being at best dishonest with the public and at worst revealing how little they know about the legislative body in which they serve.

Yesterday Markos hit Reid hard for abdicating his leadership role in the Senate. I can’t say that, to this point in the health care debate, Reid has done anything other than fail to manage the caucus. Going back to Caro and LBJ, what made Johnson the “master of the Senate” was that he knew it cold. He knew the rules and procedures. He knew the vote count. He knew what would get every member to where he wanted them to be on a vote. When members of his caucus weren’t with them, he would beg, bully, or horse trade to get what he wanted. If a member of his caucus still didn’t go with him — if they weren’t on his team — he would punish them. For members who’d been in the body for a while, that would often mean simply ignoring their existence, both in terms of legislation they wanted moved forward and refusing to talk to them, turning his back when they entered a room. For more junior members, he would keep them off of the committees they wanted to be on (though he certainly did this to more senior members who’d waited a while for a spot to open up on a desired committee).

LBJ redefined the Senate during his tenure as Leader of the Democratic caucus. He dramatically shifted power from the major committee chairs to the leader. By the time he was done, the Majority Leader had infinitely more power than when he started. But it doesn’t seem that’s the case today, to judge by the performance of Harry Reid.

One of the things I’ve heard in the past during my work in politics is that Reid was first able to get the position of leader in the Democratic caucus by making a deal with the chairs of the major committees: they would back him in exchange of him giving them the power to run the show on their issues of jurisdiction. In a sense, Reid came to power with the agreement that he neuter himself as a leader. This decision in itself shows the sort of leader Reid would be: one without a strong desire to have power or use power to control the caucus.

There are not 60 votes against the public health insurance option in the Senate. There are not 41 Republican votes to filibuster health care reform. Quite simply, the fate of health care reform lies in the ability or inability of Harry Reid (with assistance from President Obama) to control the Democratic caucus. Harry Reid must be accountable for getting reform an up or down, simple majority vote. He can do this if he can control his caucus and he can do it on a bill that includes a public option if it is in the underlying bill he brings to the floor. And anyone in his caucus who stands in his way could face consequences for years following a move against him.

But we’re talking about Harry Reid and as such, I can’t expect anything that resembles leadership from him. He is a leader in title only and he resembles the incompetents who preceded LBJ – Scott Lucas and Ernest McFarland, men who had no control of their caucus and were completely ineffective majority leaders. Of note: both Lucas and McFarland were voted out of office after their short tenures as feckless majority leaders, something that should worry Harry Reid deeply.

The Silent Filibuster: Already in Progress

Jane Hamsher has a must-read post on the culpability of Harry Reid in the possibility that there is a silent filibuster of the public health insurance option. Jane writes:

There are 51 Senators who will vote for a public option, something 77% of the country wants. It would win a majority in a floor vote. We were told that we needed 60 votes in the Caucus so we’d have a filibuster-proof majority — so that the GOP would never block a bill from getting to the floor. The only reason not to put the HELP Committee public option in the Senate bill is because Joe Lieberman and other “ConservaDems” are conducting a silent filibuster — they won’t say it publicly but they’ll say privately that they will vote with the GOP to filibuster the bill.

That means the Democratic caucus will now filibuster itself.

I only have one thing to say: Don’t even fucking think about it. We were told we had to suck up all manner of corporate whoredom for that 60 vote filibuster proof majority — that’s what we supposedly got in exchange for letting Lieberman have his committee chair, right? Except now I guess he gets all the power and the perks just because you like him, with none of the responsibility to stick with the caucus on procedural votes.

Sadly it already looks like Reid is going to not stand up to the silent filibuster.  What makes me say this? Well, yesterday following the passage of the Senate Finance bill, Reid’s office committed to keeping Olympia Snowe involved in the process by giving her a spot on the negotiating team that will merge the SFC and HELP bills. From the NYT Prescriptions blog:

Jim Manley, a spokesman for Mr. Reid, said that Senator Olympia J. Snowe of Maine, the lone Republican on the Finance Committee to vote in favor of the bill, would be invited to future sessions. And Mr. Manley said the Democratic leader was prepared to go to substantial lengths to keep Ms. Snowe’s support.

“He is prepared to do what he can to keep her on board while putting together a bill that can get the 60 votes necessary to overcome a Republican filibuster,” Mr. Manley said.

But here’s the thing: if Reid were stopping the silent filibuster of the public option, he would not need Snowe’s vote to “overcome a Republican filibuster.” He would need Snowe’s vote if and only if he has to overcome a Democratic filibuster.

Snowe is only necessary when Reid cannot or will not maintain Democratic caucus discipline. By Manley’s admission, Reid is not going to do this. Hopefully at some point soon Manley and other representatives for Senator Reid will begin to honestly speak about their decision to not hold caucus discipline and instead prioritize letting Snowe write the legislation that she wants to see come to the floor of the Senate. The sole virtue in this – the sole thing that might actually lead this to more than 60 votes – is that it will be so bad it will satisfy the concerns of people like Joe Lieberman, Blanche Lincoln and Ben Nelson. But that’s not what Democrats promised and it most certainly isn’t what the country wants.