The Senate Is A Jungle... And Joe Biden Is Tarzan

-by Doug Kahn

To everyone out there who thinks the Senate parliamentarian is going to play a definitive role in the passage of health care reform: you’re out of your flipping mind. The parliamentarian is an employee, and the boss can defer to an employee, but can choose not to. Is that simple enough for you?
 
Does anyone really question that a majority of Senators, with Joe Biden presiding over the Senate, can do whatever they really want to do? Only two things hold them back, and they’re both judgment calls by the Senators themselves. They are: 1. How is this going to look to the American public? and 2. What’s the downside of tacitly endorsing the same tactic done back at me by the opposition, that is, how is this going to look in the future? The U.S. Senate is all about looks, appearance, façade, presentation, drama.  

“The only way this works is for the House to pass the Senate bill and then, depending on what the package is, the reconciliation provision that moves first through the House and then comes here,” said Sen. Kent Conrad (D-ND) outside the upper chamber this morning. “That's the only way that works.”


I [Brian Beutler, Talking Points Memo] pointed out that House leadership, including Speaker Nancy Pelosi, has repeatedly insisted they won’t take a flier on a reconciliation package-- that they will only pass the Senate bill after the smaller side-car reconciliation bill has been all wrapped up.

“Fine, then it's dead,” Conrad said.

[See Kent Conrad to Nancy Pelosi: Drop Dead in Conrad v. Sanity, 2010 Annals of Mediocrity, U.S. Senate.]

Kent says the Senate can’t pass a reconciliation package until the House passes the Senate bill, because until then, the reconciliation package will be about nothing. What about National Seedless Watermelon Day, Kent? You voted for that, didn’t you? 

I don’t know what the rules of the Senate say about the parliamentarian, and I don’t have to know. Practically speaking, here’s how it works in any deliberative body where the process is worked out in public, by spoken word. Someone presides over the debate.
 
Now where’s that old American Heritage dictionary? Preside: 1. To hold the position of authority; act as chairperson or president. 2. To possess or exercise authority or control. The person presiding over the debate (Vice President Joe Biden, who is a Democrat, last I checked) recognizes someone (a Democratic Senator), who makes a motion to do something. (Like pass health care reform with a public option; or alternatively with a prohibition against discrimination based upon pre-existing conditions; or maybe including a gala Sadie Hawkins Day cruise and dance, in a paddle-wheel steamer, on the Potomac River, by Professor Plum, in the Conservatory, with a blueberry cobbler containing four-and-twenty blackbirds. And there’d better be fresh flowers in the dressing room! And ice!) 

In a Town Meeting government, for instance, you have a Moderator presiding over the proceedings. The Moderator is presumed to impartially apply the Rules of Order (Robert’s Rules of Order, typically, in some form). Consider for a moment the Motion to [lay on the] Table. If a member wants to discuss a change in existing law or policy, another member sometimes will get the recognition of the Moderator and move to table (end) the discussion until the next session. The rules say a Motion to Table is not debatable, so if the Moderator recognizes the motion, calls for and gets a second, the question is automatically called, and a majority can stifle debate indefinitely. Tabling is meant to be a way of taking up urgent, crucial issues first. The impartiality of the Moderator is therefore crucial; one expects that he/she should not allow the majority indefinitely to snuff out discussions of policy. But the Moderator is also a member of the Assembly (therefore ‘partisan’), and although prohibited from making motions or debating, can vote if there’s a tie. If the Moderator wants to allow majority rule, it happens.
 
Back to the U.S. Senate. The Chair (or moderator or presiding officer or whatever you choose to call him or her) opens up the question for debate. Then, after a certain amount of blabbing and harrumphing (20 hours under the rules of reconciliation, apparently), someone calls the question, the chair recognizes the call and asks for a second, accepts the second, and so on and so forth. In the end, there’s a final vote.

The Senate parliamentarian supposedly becomes significant when his ruling is requested on a point of order (or some other item of parliamentary procedure, voicing an objection, it doesn’t matter what you call it) from a Senator on the floor (if all the Republicans haven’t already walked out of the chamber in protest, and I think it’s very likely they will when reconciliation actually occurs). Biden can simply say that he determines that the proposal meets the standards of the reconciliation rules, and move on. You say that’s against the rules, or any of this is against the rules? The Congressional Budget Office (more employees!) has to be consulted? The Senate can change its own rules by majority vote any time it wants, not just at the beginning of each session (2 years), or each year, but any time it wants to. A quorum of the Senate is 51 Senators. A majority of the Senate is 51 votes (when all Senators are in attendance). Majority rules. 

After the posturing and preening and acting is all over, we hope it’s going to be about what 51 Democratic Senators think the overwhelming majority of the ‘public’ wants it to get done, and the ‘public’ doesn’t give a flying fuck about the Senate rules. Last fall, there were all sorts of threats about using reconciliation, and we were all for it, because reconciliation is majority rule, and we elected a majority of Democrats.  

They were threatening to pay attention to us, and the other side acted like it was an empty threat. Maybe it is, maybe it isn’t. This isn’t over yet. But inertia is the immovable object in Washington D.C., and we’re beginning to look like the irresistible force. If health care reform does get enacted, it’s against the odds, especially since we’re now into an election year. Typically, nothing gets done in an election year in D.C.; less than nothing, because things fall apart. Maybe this year is different, though. Usually you don’t see a Democratic Lieutenant Governor challenge a sitting Democratic Senator in a primary, either. I guess this is the year that it makes a difference if Blanche Lincoln has been bought and paid for by the financial sector and the insurance lobby. 

Here’s a useful rule: “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” The House passed HR 3962, the Affordable Health Care for America Act, definitely a revenue bill. Did the Senate then debate this bill, as the rule plainly dictates? No! They took another House bill, stripped out the entire contents of the bill, and filled it up with their own revenue bill. But the Senate didn’t originate a revenue bill, did they, so the rule wasn’t violated, was it?
 
That there rule is the opening sentence of Article 1, Section 7 of the Unites States Constitution. Do not try to tell me that Congress can’t get around rules. 

The Congress is the oldest established permanent floating craps game in the United States, and the bank doesn’t have to pay attention to kibitzers like the Senate parliamentarian. The bank makes the rules.