July 21, 2009--Tory Time

Trying to follow the healthcare debate, including what I think the legislation should and shouldn’t include and how to pay for whatever emerges, I am coming quickly to feel that nothing of significance is going to happen.

Our current system is too confoundingly complicated to be reformed in large part because so many with power and influence are happy with the healthcare they currently receive and those who provide it are making so much money that they have an even greater fear of change—actually loss of income and profits—than those who receive it. And these organized groups of providers and profiteers have so many strings connecting them to key members of Congress that even those who would like to vote for some sort of reform are reluctant to bite the proverbial hand that feeds them.

Then, on top of everything else, assuming at least the Democrats in Congress--really in the Senate—can come up with something, anything about which they can agree, they have to round up 60 votes to get it to the floor for consideration and an up-or-down vote. Theoretically they have those 60 votes from just among themselves—if independent Senators Sanders and Lieberman vote with them and they can literally wheel onto the floor of the Senate the gravely ill Senators Byrd and Kennedy.

(See the linked New York Times article for a fuller discussion of some of these issues.)

But both President Obama and Democratic leaders in the Senate want the ultimate bill to have bipartisan support. Not just because that is a nice thing to strive for—a sort of congressional kumbaya moment—but because that would cloak it with the cover of joint ownership and provide political protection for those who wind up supporting something that no matter what anyone tells you is not ever going to be fully paid for and will likely require some sort of rationing of medical services and, God help us, taxing a portion of healthcare benefits (now non-taxable) for at least those couples earning several hundreds of thousand of dollars a year. So no one wants to be out on a political limb by him or herself. It is not exactly profiles-in-courage time in the U.S. Senate.

I know I am oversimplifying things; but to try to discuss any aspect of this dispassionately and in a non-partisan way, it must be oversimplified because the current system and all the proposed reforms are too complicated for anyone to understand much less adequately summarize or put a price tag on.

But one thing about which I am certain, and which I fully understand, is that to have any chance of moving a healthcare bill along without a firestorm of partisan filibustering and gridlock for the next four years will require a so-called 60-vote supermajority.

Though I do not understand why the Senate imposed this extra-constitutional straightjacket on itself. Well, let me correct myself, I actually do understand how it happened—

It used to be that to carry out a filibuster a senator had to speak continuously until the rest of the Senate gave up on a piece of legislation or the filibustering senator collapsed. Think of the Jimmy Stewart character in Mr. Smith Goes to Washington. But in 1919, at the request of President Wilson, the Senate passed Rule Number XXII. This allows debate to be cut off, cloture, with only a 60-vote majority rather than the 67 required prior to that. But, and this is significant here, under this rule, just the threat of a veto requires a 60 vote supermajority. Only one senator announcing that that he or she will engage in a filibuster triggers the 60-vote requirement.

So, in recent super-partisan years pretty much every significant piece of legislation to move forward has required 60 votes in the Senate. A daunting task since rarely does one party have 60 votes of its own. And if they do, as now, it is nearly impossible to get all 60 to agree to anything. As someone said, to get votes in the Senate is like herding cats. Thus, ironically, this rule, which was designed to help move legislation along, has made it even more difficult to do so.

Which brings us to healthcare-reform limbo.

There is, though, a way out of this quagmire—something called Reconciliation. A sleight-of-hand that the Senate majority leader can use to break gridlock. It is intended to allow a so-called “contentious budget bill” to be considered for a vote, after only 20 hours of debate, without being subject to a filibuster.

Don’t struggle with this one too much, but trust me that a healthcare reform bill could be labeled by the majority leader as a bill of this kind and it would then not be ruled by either an old-fashioned or new-fashioned Rule XXII filibuster. It would require just a simple, 51-vote majority. Or a 50-50 vote with Joe Biden, as Vice President, constitutionally able to break the tie—the VP’s only functional constitutional role. And, thus, we would have healthcare reform of some kind. And an energy bill and an education bill and an immigration bill and . . .

But we won’t. The Democrats are afraid to use Reconciliation because they know it would signal the end of the little bipartisanship that currently exists; and, perhaps more important, it would set a precedent for Republicans for when they return to power, as they some day surely will, to ram things down Democrats’ throats.

Which brings me to one of my least-favorite senators—Lindsey Graham of South Carolina. You may know him as the diminutive senator pretty much joined at John McCain’s hip during the recent presidential campaign. At the Sotomayor hearings last week, though one might have excepted Graham to oppose her confirmation (he may still do so), he said that “Elections have consequences,” including the last one; and that presidents should have their way when it comes to appointing judges.

He though didn’t go on to say that these consequences should also allow administrations to have their way when it corms to significant legislation such as healthcare reform. But still, this got me thinking—Why not?

If this were Great Britain or France or Spain, their chief executive would also be the leader of the majority party and the parliamentary system is such that he or she would have little trouble enacting the programs for which they campaigned and for which people voted. I know well the history of the framers of our Constitution, and how more than almost anything else, concerned about the tyranny they abhorred and recently fought to overcome, how they wanted not to allow the government they were establishing to have much concentrated ruling power. Thus all they did to lace myriad checks-and-balances into the structure of our federal institutions.

That was then—and it was a good and understandable and profound idea; but this is now and the system that made so much sense then makes very little now. We live in an interconnected world where information and money and threats move in nano-seconds at the speed of light, a world in which an intentionally hobbled governmental system such as ours does not allow us to be light on our feet or to respond nimbly and wisely to opportunities and crises. Call me a pre-revolutionary American Tory, but I think we should have a Constitutional Convention and rethink the system we have and consider bringing it fully into the 21st century.