Thursday, October 29, 2009

Letter From the Editor: For Public Option to Pass, Senate Democrats Must 'Go Nuclear'

With Lieberman Vowing to Join GOP Filibuster to Block the Public Option in Open Defiance of Public Opinion -- and House Democrats Vowing They Won't Pass Health-Care Reform Bill Without It -- Senate Democrats Have No Choice But to Invoke the So-Called 'Nuclear Option' and Force a Vote on the Bill by a Simple Majority

Senate Democrats should have known that Democrat-turned-independent Senator Joe Lieberman of Connecticut -- photographed above with Republican presidential nominee John McCain (left) on the campaign trail last year -- could not always be counted on to support them on important domestic legislation. Now that Lieberman has declared that he will join a Republican filibuster against a government-run health-insurance plan to compete with private insurers -- robbing Democrats of a filibuster-proof 60-vote majority -- Senate Democrats have no choice now but to invoke a parliamentary maneuver known as the "nuclear option" -- which Republicans threatened to use in 2005 to stop Democratic filibusters against then-President George W. Bush's judicial nominees -- to force a vote on the bill by a simple majority. (Photo: Matt Rourke/Associated Press)

(Posted 5:00 a.m. EDT Thursday, October 29, 2009)


If Senator Joe Lieberman (I-Connecticut) proved anything, he showed Senate Democrats on Tuesday that he cannot be trusted.

The Democrat-turned-independent infuriated many of his former fellow Democrats last year when he endorsed and campaigned openly for Republican presidential nominee John McCain. And he remains a sharp critic of President Obama's foreign policy -- particularly on the wars in Iraq and Afghanistan.

Now he's joined the Republicans in an expected filibuster against the health-care reform bill in an effort to block the so-called public option, a government-run health-insurance plan that would compete directly with private insurers.

That Lieberman is openly defying public opinion, in which a solid majority of Americans support a public option, is beside the point. By siding with the GOP in their implacable opposition to a public option, Lieberman has robbed the Democrats of the filibuster-proof 60-vote majority they need to pass the bill.


On any other issue, the Democrats would bow to political reality and concede defeat. But in the case of health-care reform, defeat is not an acceptable option. The demand for health-care reform by the American public is too overwhelming to be denied.

Too many Americans are literally going broke because they cannot afford the skyrocketing cost of health care.

A growing number of businesses -- both large and small -- are being forced to stop offering health-care plans to their employees because they can no longer afford the soaring cost, either.

That threatens to prolong the recession for months -- even years -- by slamming the door on job creation. Consumer spending, which accounts for two-thirds of the U.S. economy, cannot and will not grow back to its pre-recession levels as long as 15 to 20 million Americans remain out of work and another five to ten million fear losing their jobs.

And for Americans in potentially life-threatening situations, the increasing unaffordability of health care can literally be a matter of life or death.

The bottom line is that health-care reform must pass -- and it must pass this year -- or else.

Obama has staked his presidency on it. Many House Democrats, including Speaker Nancy Pelosi, have vowed that they won't allow any health-care reform measure without a public option to reach the president's desk -- even though the most aggressive of the three public-option plans most favored by liberals lacks the necessary 218 votes to pass.

Under these circumstances, therefore, Senate Democrats no longer have any choice but to do something that up to now they have been loathe to do -- something that the Republicans, when they controlled the Senate, threatened to impose in 2005.

That something is the so-called "nuclear option" -- a rarely-used parliamentary maneuver whereby the majority votes to change Senate rules and force a vote on a measure by a simple majority.


The "nuclear option" -- so named by then-Senator Trent Lott (R-Mississippi) in 2005 -- is based on a 1957 advisory opinion by then-Vice President Richard Nixon, serving in his capacity as president of the Senate, that no Senate may constitutionally enact a rule that deprives a future Senate of the right to approve its own rules by the vote of a simple majority.

The Constitution specifies that, except for the ratification of treaties and constitutional amendments and the override of presidential vetoes of legislation -- in which case, a two-thirds majority is required -- the Senate is free to establish its own rules for parliamentary procedure.

Although legally nonbinding, Nixon's opinion has been treated by the Senate ever since as a definitive precedent.

Moreover, the U.S. Supreme Court ruled as far back as 1892, in United States v. Ballin, that both houses of Congress are parliamentary bodies, implying that they may make procedural rules by a simple majority vote.


The "nuclear option" is used in response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this.

The presiding officer of the Senate -- usually the vice president of the United States or the president pro tempore -- makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent.

A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue.

If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration.


The one danger with invoking the "nuclear option" is the fact that it is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the "nuclear option" is a change in the rules of the Senate that would effectively bar future filibusters.

It was fear of the "nuclear option" doing away with filibusters altogether that prompted fourteen moderate senators -- seven from each party -- to join forces in 2005 to block an attempt by then-majority Republicans to invoke the "nuclear option" to force confirmation votes on ten judicial nominations made by then-President George W. Bush who were blocked by filibusters by minority Democrats.

Democrats blocked the confirmation of the ten on the grounds that they were too "out of the mainstream" -- in other words, too far right-wing -- for a lifetime appointment to the federal bench. At the beginning of his second term, Bush resubmitted seven of the 10 names.

Senator Harry Reid (D-Nevada), then the Senate minority leader, vowed to fight their confirmation. Senator Bill Frist (R-Tennessee), then the majority leader, threatened to use the "nuclear option" to get the nominees confirmed.

The fourteen centrist senators -- who came to be known as the "Gang of 14" -- forged an agreement whereby the seven Democrats among them would no longer vote along with their party on filibustering judicial nominees (except in "extraordinary circumstances"), and in turn the seven Republicans among them would break with the Republican leadership on voting for the "nuclear option."

The agreement by the "Gang of 14" robbed both parties of their leverage and forced them to back down. As a result, five of the filibustered Bush nominees were confirmed. The other five withdrew after it became clear that their nominations would not be voted on.


For Democrats, failure to pass a health-care reform bill with a public option is simply not acceptable. A solid 57 percent majority of Americans supports it, according to a recent Washington Post/ABC News Poll, with senior citizens and independent voters -- two important voting blocs whom Democrats cannot afford to alienate -- favor a public option most strongly.

For Republicans, stopping a health-care reform bill -- with or without a public option -- is not acceptable, either. Nearly two-thirds of Americans strongly disapprove of the GOP's performance in the health-care debate, according to a Wall Street Journal/NBC News Poll, with nearly four times as many Americans likely to blame Republicans than to blame Democrats if health-care reform fails to pass.

With Lieberman's defection to the GOP on the public option, Senate Democrats have no choice: They must "go nuclear" and force a simple-majority vote. With the "Gang of 14" -- its ranks reduced to 11 since 2006 -- unlikely to intervene, the only way to stop the "nuclear option" is with a quorum call requiring 51 senators to be present. With only 4o senators, the Republicans cannot muster the 51 absent senators required to stop business.

Americans cannot wait another generation for health-care reform. It must pass, with a public option, this year -- or else there will be hell to pay in next year's midterm elections.

Skeeter Sanders
Editor & Publisher
The 'Skeeter Bites Report

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Volume IV, Number 82
Copyright 2009, Skeeter Sanders. All rights reserved.


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