There has been some bleating about a provision of ReidCare which makes it so that certain parts of the act can only be changed by a supermajority vote.

How is that constitutional? It is just like the filibuster. Only 51 votes are needed to pass the amendments, but internally, the Senate is deciding that it will not consider certain business. The Supreme Court is quite clear that it wonÂ’t meddle with the internal operations of the House and Senate.

And for good reason. It's not unconstitutional because Article I, sec. 5, cl. 2 says that the Senate can set its own rules; and to set rules only requires a majority vote. Erick mentions the filibuster; you won't find that in the Constitution either.

Two other points. First, Senator DeMint may be peeved with the parliamentarian over this, but the parliamentarian is probably right. ReidCare does not overthrow the Senate Standing Rules, something that--according to the Standing Rules--requires a vote of sixty-seven senators. Rather, it makes an exception to the Standing Rules for a few specific provisions of ReidCare. Making exceptions to rules only takes a simple majority.

Second, a quick glance at the Library of Congress website and Google shows that language similar to that used here to except these provisions from the Standing Rules has been used dozens of times in the past thirty years in both the Senate and the House, including in the 109th Congress when Republicans controlled both chambers.

And before someone jumps on me for it, I'm not saying ReidCare is a good thing or that I approve of this provision, which will make it more difficult to undo the damage. I'm saying that it's not unconstitutional or all that unusual for the Senate.

UPDATE: So I kept digging. On the Constitutional issue, it's just plain facts that Article I, sec. 5, cl. 2 controls and lets the Senate modify rules with only a majority vote. So, there's simply no cause to say that these provisions make ReidCare unconstitutional. (There may be several other parts of ReidCare that are, including the mandate and the economic deprivation worked on insurers.)

So if it runs afoul of anything, it's got to be the Senate Rules.

Let's look at the two provisions that Senator DeMint specifically named as causing problems. The first limits Congressional action to modify the deathpanels:

‘‘(C) LIMITATION ON CHANGES TO THIS SUBSECTION [on deathpanels -GM].—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.

‘‘(D) WAIVER.—This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.

Now, on it's face this does not conflict with any Standing Rules. It's shady, but there's no rule saying Congress can't pass shady laws that tie their hands. Because DeMint seemed so upset, I checked to see if it had been done before in laws that passed the Senate with less than a two-thirds majority.

That's DeMint's objection. He says the provision works a rules change. The parliamentarian disagreed. So I looked for precedent. (I'm a lawyer, it's what I do.) It turns out this has happened before.

For example, it appeared in PL 100-119, adjusting the debt ceiling. That law passed the Senate by 54-31 vote. IOW, not two-thirds. It appeared earlier in PL 99-177, on the same topic. Again, it passed the Senate with less than two-thirds: 51-37.

Let's turn to the other objection, to this language:

“Notwithstanding rule XV of the Standing Rules of the Senate, a committee amendment described in subparagraph (A) may include matter not within the jurisdiction of the Committee on Finance if that matter is relevant to a proposal contained in the bill submitted under subsection (c)(3).”

Now this on its face conflicts with Standing Rule XV, which provides that "It shall not be in order to consider any proposed committee amendment (other than a technical, clerical, or conforming amendment) which contains any significant matter not within the jurisdiction of the committee proposing such amendment."

In other words it relaxes the Standing Rule requirement so that future amendments to these sections may go through the Finance Committee. I thought DeMint would be on firmer ground on this one. The most recent example of similar "notwithstanding the senate rules" language was in the TARP legislation last year. It passed with more than a two-thirds vote. So, point to DeMint.

But similar language ("notwithstanding any rule or precedent of the Senate, including Rule XXII of the Standing Rules of the Senate, it is in order...") also appeared in PL 101-508, a budget bill in 1990, which passed the Senate with only 54-45. Not two-thirds.

And again in 100-119, which I already mentioned with respect to the "no amendments" language and again in the modified form: "notwithstanding any rule or precedent of the Senate, including Rule 22 of the Standing Rules of the Senate, it is in order (even though a previous motion to the same effect has been disagreed to)." Again, that only passed the Senate by 54-31. Not two-thirds.

So it's not unconstitutional and it doesn't break the Senate Rules. It's been done more than once before without (as folks are now muttering) revolution. It's shameful and sleazy, sure. But it's not unprecedented.

One More Update: Erick responds here. He is wrong about there never being similar legislation restraining subsequent Congressional action. This bill prohibits Senate amendments to the deathcare provision without a two-thirds vote.

Back in 1987, PL 100-119 prohibited Senate amendments to executive rulemaking on deficits unless the figures "are mathmatically consistent." It also prohibited Senate concurrent resolutions on the budget--for all future legislation--where figures "are determined on the basis of more than one set of economic and technical assumptions." And it did it with less than a two-thirds vote.

Back in 1997, PL 105-33 prohibited--for all time--any bill, resolution, amendment, motion, or conference report that exceeds any of the discretionary spending limits of a 1985 law. The exception here was if there was a declaration of war or a joint resolution under the terms 1985 law.

In each case, the Senate restrained future action unless a condition was met. It is entirely within their authority to do so.

Not unprecedented. Horrifying, sure. And it's not that I'm saying "no big deal", as he writes. I'm saying the objection should be to the substance of the bill, not the procedural sausagemaking.

Posted by: Gabriel Malor at 07:50 AM | Comments (137)
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Trendsetter?, Hot Air asks. I hope so.

We saw this same sort of behavior going the other way when the Democrats were seen as the strong horse.

Strong no more.

Before anyone says "The hell with him! He's a liberal!," well, okay, but he's from Alabama, so I don't know how liberal he is. But I don't care about this one dude -- I just like the idea that next year the incumbent will be Republican, and the strongest challenger will be another Republican.

POLITICO has learned that Rep. Parker Griffith, a freshman Democrat from Alabama, will announce today that heÂ’s switching parties to become a Republican.

According to a senior GOP aide familiar with the decision, the announcement will take place in this afternoon in his home district in northern Alabama.

GriffithÂ’s party switch comes on the eve of a pivotal congressional health care vote and will send a jolt through a Democratic House Caucus that has already been unnerved by the recent retirements of a handful of members who, like Griffith, hail from districts that offer prime pickup opportunities for the GOP in 2010.

The switch represents a coup for House Republican leadership, which had been courting Griffith since he publicly criticized Democratic leadership in the wake of raucous town halls over the summer.

I doubt this changes the math in the House on health care, as, without even bothering to check, I'm pretty sure he was in the agin' it column.

And meanwhile we also have Democrats retiring, and other Democrats shying away from running at all. And Republicans encouraged to run, seeing these races as low-hanging fruit. Almost gimmes.

Posted by: Ace at 07:39 AM | Comments (111)
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I think it's both but I'm not sure.

I sort of dig it. more...

Posted by: Ace at 07:34 AM | Comments (54)
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It's nice to see Democrats telling us what they really believe, isn't it?

Harkin dismissed deals dubbed vote-buying by GOP senators as "small stuff" that distracted Americans from the primary focus of the overhaul bill.

"We have to keep our eyes on what we're trying to do here. We're trying to cross a demarcation line," Harkin told "Early Show" co-anchor Maggie Rodriguez. "On one side is health care as a privilege, on the other side is health care as a right. With these votes, with the vote that we'll take before Christmas, we will cross that line finally and say that health care is a right of all Americans."

The senator also predicted that while a public option was unlikely to work its way back into the current health reform legislation during reconciliation between the House and Senate bills, it would be back.

"I am a strong supporter of a public option, I remain so, and I believe that sometime in the near future we will revisit that issue again and we will adopt a public option."

Isn't this a nice Christmas present we're buying for each other?

Update - Quick, who said the following?

"The President must stop gambling with taxpayers' money and get the country back on the path of fiscal sanity."

Thanks to I Heart Chomsky for that quote.

Posted by: Slublog at 07:29 AM | Comments (23)
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The "intensity index" is at -21, the worst yet, as Obama's strong disapproval hits 46% and his strong approval is 25. Total approval 44%, total disapprove 56%.

In polling jargon, this is known as a "B+" rating:

For the second straight day, the update shows the highest level of Strong Disapproval yet recorded for this President. That negative rating had never topped 42% before yesterday. However, it has risen dramatically since the Senate found 60 votes to move forward with the proposed health care reform legislation. Most voters (55%) oppose the health care legislation and senior citizens are even more likely than younger voters to dislike the plan.

One bright spot in the numbers for the President is that 51% of voters still say former President George W. Bush is more to blame for the nationÂ’s economic woes. Just 41% point the finger of blame at the current President.

That's not really so bright. The number isn't high, and it will get lower, and as it does, Obama's numbers sink further.

I should say for a long time I've been sort of blowing off the intensity index, figuring it was mostly Rasmussen's attempt at branding, at providing its own stat. A pollster tells me no, this is a very common metric among pollsters, and Rasmussen's innovation here is pushing that number out to the public, rather just among clients commissioning the poll.

It doesn't matter, of course. Now that Obama has found 60 votes for a bill no one wants, his approval rating will skyrocket up to 60%, or something.

Posted by: Ace at 07:28 AM | Comments (35)
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There's been a lot of noise about this for a few weeks but apparently today is the day he makes it official.

Rudy Giuliani is expected to announce today that he won't run for the US Senate next year, sources said last night.

That's good news for appointed Democrat Sen. Kirsten Gillibrand.

Even though former Gov. George Pataki has not ruled out challenging Gillibrand, he is not expected to do so, and there are no other prominent GOP candidates who are likely to take her on.

Giuliani's decision likely marks the end of his own electoral career.

He's expected to support Republican Rick Lazio for governor.

But Giuliani plans to continue to be a force within the party, helping to expand its base as well as speaking out on issues important to him.

I'm not surprised. Next year's Senate race is a special election to fill the last two year's of Hillary Clinton's term, that means the winner will have to run again in 2012 for a full six year term. I honestly didn't see any reason to believe that Rudy wants to essentially spend the next 3 years running for office. Add to that the fact he's not exactly a legislator by temperament and it never made sense.

I am a little surprised that the feeling is Pataki is out of the race. I spoke to a few local political types at the Hoffman election night event back in November and who said Pataki had spoken to them and that he sounded like a guy who was planning on running. The fact that he even got involved in the Hoffman/Scazafava fight (and on Hoffman's side) seemed like a sign he was going to get in the race.

As annoying as Pataki was in his later years as Governor, he was the best chance for picking up the seat with Rudy out of the picture. For a Republican to win in NY it will likely have to be someone with some name recognition to overcome the inertia of voters to pull the lever for a Democrat, any Democrat. Now it seems like a chance to steal a "blue" seat next year is gone.

And no, no matter how much you may like Rick Lazio (and let's face it, if you've even heard of him you are either a political junkie or a member of his family), he has zero shot to beat Andrew Cuomo.

Unless Pataki gets in the race, NY poised to stay Blue...not exactly breaking news but still disappointing.

Posted by: DrewM at 07:27 AM | Comments (11)
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"Chill the winds are blowing,
Death aloft is going,
Peace or hope seems growing
For our race no more."

Posted by: Gabriel Malor at 05:05 AM | Comments (122)
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Why can't the GOP teach about the constitution and limited government? I know I have mentioned my idea about a "Foundations of Freedom" series that explores the ideas behind classic liberalism / conservatism, The Declaration of Independence, The Constitution,and The Bill of Rights a few times. This guy proves that such a project is possible.

Seriously, and if they were really smart they would have them translated into Arabic and Pashtu, let the Taliban and al-Qaeda explain why their ideas are better.

crossposted at Doubleplusundead

more...

Posted by: Open Blog at 12:26 AM | Comments (61)
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Except he's not. There is still the $600 billion lie to pay for -- the lie that Medicare will be cut.

It will not be. The program is too popular and seniors too diligent about voting. The $600 billion in "cuts" will be halted and put off, indefinitely, the same as the $250 billion now being put off for ten more years in the doc-fix package (and as those cuts have been put off since 1997).

Obama's getting the country a little bit pregnant with bankruptcy and financial disaster. Sure, Part One of his package only costs a mere $2.5 trillion; Part Two, passed with bipartisan support this time (because who wants to tell grandma she can't go to the doctor anymore), will add on another $600 billion.

And there'll be more Parts forthcoming, too.

As Paul Krugman says -- it may take us years if not decades to "fix" this bill.

"Fix" means pour more money into it, in case you weren't sure.

Posted by: Ace at 05:50 PM | Comments (248)
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Good evening all. You really should be out there doing some desperation shopping about now. But, hey we're not going to judge you tonight. Plus Amazon and Bob's Liquor Mart are open 24-7.

And now some news you can use...

Science: Dark Liquors really Do Give You Worse Hangovers

Science: Cracking Your Knuckles Does Not Harm Your Joints more...

Posted by: Open Blog at 05:50 PM | Comments (573)
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