Monday, January 18, 2010

Letter From the Editor: Senate Dems Must 'Go Nuclear' on Health Bill if Brown Wins

With Polls Showing Battle for Ted Kennedy's Seat Surprisingly 'Too Close to Call,' a Victory for Republican Scott Brown, a Fierce Opponent of Health Reform Bill, Would Leave Senate Democrats With No Choice But to Invoke the So-Called 'Nuclear Option' -- Impose a New Senate Rule to Permanently Do Away With Filibusters -- in Order to Get the Final Bill Passed

Suddenly, the road to health care reform, which to date had overcome obstacle after obstacle thrown in its path by congressional Republicans, is facing a major new political threat. But this time, it's the voters of Massachusetts -- arguably the most overwhelmingly Democratic and liberal state in the nation -- who might throw up the newest roadblock. Tomorrow (Tuesday), they will decide who will succeed the late Senator Edward M. Kennedy, who made health-care reform his life's work. With polls unexpectedly showing a neck-and-neck race between Democrat Martha Coakley, who supports it, and Republican Scott Brown, who's against it, a Brown victory may force Senate Democrats to ram through a rules change to do away with the filibuster in order to get the final version of the bill passed with a simple 51-vote majority. (Image courtesy

(Posted 5:00 a.m. EST Monday, January 18, 2010)


For months, it appeared that the path to health-care reform had moving inexorably, overcoming one obstacle after another thrown into it by congressional Republicans -- and even squabbling Democrats. And leading the way, step by step, has been President Obama.

But now, suddenly, all those months of hard work to get the measure to Obama's desk for his signature are being jeopardized -- from an unlikely quarter.

Tomorrow (Tuesday), voters in Massachusetts -- arguably the most predominantly Democratic and liberal state in the nation -- will decide in a special election who will succeed the late Senator Edward M. Kennedy, for whom health-care reform has been his number-one domestic priority for nearly his entire 46-year career in the Senate.

Massachusetts has not had a Republican in the U.S. Senate since Edward Brooke, who made history in 1966 as the first African-American ever elected to the U.S. Senate and the first to serve in the upper chamber since the post-Civil War Reconstruction period (when senators were appointed). And Brooke -- who served from 1967 to 1979 and is now 90 years old -- was something that is now almost extinct: a liberal Republican.

Given the fact that Democrats in the Bay State outnumber Republicans by better than three to one, conventional wisdom would say that the Democratic candidate in this special election should coast to an easy victory.

But independent voters form the majority of the state's electorate -- and to the surprise of almost everyone, deep dissastisfaction with the Democrats among independents has thrown the contest between the Democrat, state Attorney General Martha Coakley, and the Republican, state Senator Scott Brown, into a neck-and-neck race, with the final outcome very much in doubt.

With pre-election polls in the Bay State showing wildly conflicting results, no one is willing to predict who will win. But the outcome will determine the fate of the health-care bill now being negotiated between House and Senate Democrats and the president.

A Coakley win would all but assure the final measure's passage. A Brown victory, however, would rob Senate Democrats of the 60 votes needed to overcome a solid -- and, to date, unbreakable -- brick wall of Republican opposition.

Brown made it abundantly clear in a series of TV and radio campaign commercials in recent weeks that he will vote to defeat the final version of the health-care bill if elected. Conservative groups backing Brown's candidacy have also saturated the airwaves with ads urging a vote for Brown to "stop government-run health care."

For her part, Coakley has been running a series of ads of her own that attack Brown not only for his opposition to the health-reform bill, but also accusing her Republican opponent of being against emergency contraception for rape victims. Liberal groups allied with Coakley have blitzed the state with similarly-themed ads.


Observers have been stunned by pre-election polls showing wildly conflicting results. Just in the last 10 days, one poll showed Coakley leading Brown by 14 points. But another poll showed almost the exact opposite -- Brown leading Coakley by 15 points.

The Boston Globe called into question the accuracy of some of the polls, noting that the one showing Coakley with a 14-point lead was conducted by a longtime Democratic pollster, Mark Mellman, while the other poll showing a 15-point Brown margin was conducted by Pajamas Media, a conservative website with ties to Republican consultants.

Adding to the confusion are two other polls also showing conflicting results. One, by Suffolk University, showed Brown ahead by four points, while the other, commissioned by the liberal blog BlueMassGroup, showed Coakley ahead by eight points.

The bottom line: The race is simply too close to call.

"God, what a puzzle!" exclaimed Mark Blumenthal, editor and publisher of, in an interview with the Globe. "My advice to a voter would be to say that the only thing we can say with any scientific precision is that it’s looking like it will be a close race, and go vote if you want your voice to be heard."


For the Democrats -- and particularly the president -- the stakes could not be higher. The president has said repeatedly since last July that health-care reform was vital to the nation's economic recovery.

But from a political perspective, health care reform is just as vital to the viability of Obama's presidency and of the Democrats' control of Congress.

Indeed, in the past few weeks, the president has taken full command of the process of getting the health-care bill to his desk for his signature, investing extraordinary amounts of his time and energy to that end.

Last Wednesday, Obama met with Democratic congressional leaders at the White House to hammer out a final measure for nearly eight hours, then, after a dinner break, met again in an evening session that ran into the wee hours of Thursday morning -- interrupted only by telephone calls keeping the president up to date on the situation in earthquake-ravaged Haiti, according to congressional sources who spoke on condition of anonymity.

Obama then convened a third marathon session with the Democratic leaders on Friday, the sources said.


But all that effort is now in danger of going for naught in the Senate. With the outcome of the Massachusetts race uncertain, Democrats on Capitol Hill are becoming increasingly nervous. A Brown victory, given his vow to join with his 40 fellow Republicans to kill the health-care bill with a filibuster, could force Senate Democrats to do something that until now they have been loathe to do.

That something would be what Republicans threatened to do in 2005 when they controlled the upper chamber: Resort to the so-called "nuclear option," a change of Senate rules that would permanently abolish the filibuster and enable passage of legislation by a simple 51-vote majority.

It's too late for Senate Majority Leader Harry Reid (D-Nevada) to invoke "reconciliation" -- the process allowing a contentious bill to be considered without being subject to filibuster -- to ensure the measure's passage, because the measure has already been approved and is now being negotiated with the House to resolve differences with the House version.

When Bill Clinton was president, he wanted to use reconciliation to pass his 1993 health care plan, but Senator Robert Byrd (D-West Virginia) insisted that the health care plan was out of bounds for a process that is theoretically about budgets. Sixteen years later, however, Senator Jeff Bingaman (D-New Mexico), a member of the Senate Finance Committee working on the current health reform bill, said that reconciliation may be used, is an acceptable option, and that he can support it.


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.

Reid, 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.


In two editorials, posted on October 29 and on November 23, The 'Skeeter Bites Report forcefully editorialized that any health-care reform bill that reached Obama's desk must include a "public option" -- a government-run health insurance exchange that would compete directly with private health insurers that would give the estimated 31 million Americans who cannot now afford health insurance an option to purchase health insurance they can afford.

With a "public option" having no chance of being included in the final bill, The 'Skeeter Bites Report steadfastly believes that the measure will not address the affordability issue for Americans whose incomes are not high enough to enable them to afford private health insurance but are too high for them to qualify for Medicaid.

But unlike many other commentators on the liberal/progressive side of the political spectrum, I am not willing to "throw the baby out with the bath water" and see the bill go down to defeat solely because it doesn't contain the "public option." It is absolutely imperative that the bill -- even with all its flaws -- reaches the president's desk for his signature.

The "public option" and other matters that address the affordability issue can be addressed at a later time. We've come too far to allow health-care reform to fail now. Even a flawed reform bill is better than no reform at all; the status quo -- which is what the Republicans are hell-bent and determined to preserve -- simply cannot be allowed to continue. Their bullheaded obstructionism must be defeated at all costs.

And if that requires the Senate to do away with its long-cherished filibuster to get the health reform measure passed, then so be it. Americans cannot wait another generation for health-care reform. It must pass -- or else there will be hell to pay in November's midterm elections.

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Volume V, Number 5
Copyright 2010, Skeeter Sanders. All rights reserved.


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