Anatomy of a Backroom Deal’s Public Face: The case for letting Congress do the legislating on health care reform.
In an effort to demonstrate that there is no lack of ideas or will available for the task of health care reform in Congress, if Members are left to their own devices, this diary documents all that was left ‘on the Congressional cutting room floor’ in favor of privately-negotiated, top-down, autocratic deals generated by, and deferring to, the President, his appointees, and the corporate benefactors of America’s two national political Parties.
Wholesale, unquestioning deference to leadership by sheep pens-full of our federal legislators, clustered and bleating together by Party, has been able to thwart the will of most of those (non-leadership) members of the United States Congress of both Parties with ideas of their own on health care reform, because of a Democratic Party leadership that has been allowed to prevent substantive productive debate and deliberation from taking place on the House and Senate floors to improve the legislation.
I contend that simple-majority passage of a genuine health care reform bill is still possible, even without reconciliation, provided that:
A. Democratic Party caucus members stand up for their individual prerogatives as elected representatives of the people, and for their Party platform, despite White House-generated Party leadership pressure to be "loyal" to the Party and its funders rather than to the American people, and
B. Democratic Party caucus members in the Senate insist that their Majority Leader cease his excessive use of the cloture motion, and default instead to real filibusters, while allowing both majority and minority members of the body genuine input into, and the ability to actually change (given simple-majority support), in public, the health reform legislation on the floor, if not in committee.
That same dynamic – otherwise known as "legislating" – would help (the country, if not the Party wars) on every other legislative proposal and Executive nomination yet to be considered by the 59-member Senate Democratic caucus, including policy matters unrelated to the budget, for which reconciliation is not an option. [Reconciliation itself originally being a way of taking Party politics out of "tough" votes to reduce the deficit, by getting around politically-motivated filibusters, real or threatened.]
1. The "Administration" speaking this month (pre-Massachusetts):
Backstage bargains like these kept the [health reform] plan afloat, but at the price of extinguishing some of the best ideas for reducing costs. The White House is unapologetic. "Let’s be honest," said Rahm Emanuel, Mr Obama’s chief of staff: "The goal isn’t to see whether I can pass this through the executive board of the Brookings Institution. I’m passing it through the United States Congress with people who represent constituents." That attitude, shot back Bill Galston, one of the slighted think-tank’s senior fellows, all but guaranteed that Congress would duck the hard issues.
2. According to the author of a health care reform amendment adopted by a committee of the House:
"An amendment [authored by Dennis Kucinich] which would have protected the rights of states to pursue single-payer health care was stripped from the [House] bill [by Speaker Pelosi] at the request of the Administration."
3. At this link are summary descriptions of the 200+ floor amendments filed on this major health reform bill by some of our 435 House Representatives – including many Representatives unable to otherwise influence the bill because they don’t sit on one of the three House committees that marked up the legislation [Education and Labor with its 49 members, Ways and Means with its 41 members, Energy and Commerce with its 59 members]. Yet every one of those amendments was summarily dismissed by the House Rules Committee, except for Stupak/Pitts and a doomed-to-fail Republican leadership "substitute" amendment, and thus never reached the floor of the House for debate or a vote by our Representatives – likely "at the request of the Administration," but certainly at the direction of the Speaker of the House who has been given iron-fisted control over the Rules Committee (and thus the ability to completely shut down meaningful floor debate and floor amendments, at her sole discretion) in and by the modern House. [A House where the sheep herd continues to dutifully obey commands from on-high, without complaint, while everyone busily points fingers at the Senate.]
[Ironically, the only genuine debate in the House on their "historic" health reform legislation, outside of the three committee markups of the legislation, took place in the small Rules Committee meeting room in the Capitol – where a tiny minority of members engaged each other for more than 10 hours while the Speaker was busy in backroom negotiations with Stupak/Pitts and others, and thus had not yet decided what decree to issue to the Rules Committee [with the sycophantic approval of tuned-out sheep like Earl Blumenauer who fielded a call from Speaker Pelosi that night, even as his Republican colleague from a huge district in eastern Oregon was doggedly making his case in person to the Rules Committee for relief for rural America, to no avail]. The Rules Committee members played their acting roles well, and pretended to listen – the Republican members even meaningfully engaged the witnesses and thus helped ignite genuine debate – to the impassioned arguments of those colleagues who had taken the trouble to come to plead their hopeless cause, as though the majority members were actually independent actors not in thrall to the Speaker. All they asked is that the committee vote to simply allow their amendment(s) to be heard on the House floor – to no avail, save for the few led by Stupak who bravely called the Speaker’s bluff, and were prepared to challenge the Party hierarchy. As soon as the last witness was finished speaking, staffers handed forward to the Chair the multipage blue document containing the Rule (Jim McGovern sat in for Louise Slaughter, who, along with every other Democratic female, had fled the scene), with copies for every member, and Rep. Hastings proceeded to read the Speaker’s decree that one, and only one, Democratic amendment on the health reform legislation would reach the House floor, whereupon the remaining Democrats present quickly rubberstamped the Speaker’s decree en masse without comment. Later that day the House dutifully proceeded to "debate" and pass both the Speaker’s Rule and the "historic" legislation in one day’s time.]
4. Senate Amendment [SA] 2786, filed by Majority Leader Harry Reid on November 19, 2009 (shortly before the Senate’s week-long Thanksgiving break), was the first amendment offered – in the form of a substitute – on the shell bill from the House (H.R. 3590, an unrelated taxing-power bill that the Reid substitute amendment would wholly replace except for title and number) used by Reid as the vehicle – in place of the actual House-passed health reform bill (H.R. 3962) – to present his merged Senate committee product (text available here) to the Senate floor for (supposedly) good faith debate and amendment. Proposed floor amendments to the Reid substitute amendment shortly thereafter began being filed by Senators of both Parties.
5. On December 8, 2009 alone, 78 proposed amendments were submitted on the Reid substitute amendment, beginning with SA 3001 proposed by Senator Hagan (providing for "Improvement in Part D Medication Therapy Management (MTM) Programs"), and ending with SA 3078 proposed by Senators Klobuchar and Snowe (establishing the "Young Women’s Breast Health Education and Awareness Requires Learning Young Act of 2009"). Text of all 78 amendments is available here.
6. On December 18, 2009, SA 3275 filed by Senator Snowe (one of 11 amendments filed that day, this one to establish an "Accreditation Requirement for Rotary Wing Air Ambulance Services") was the last amendment proposed on the Reid substitute amendment (SA 2786) before Majority Leader Reid filed his secretly-negotiated (with …someone…) "Managers’ Amendment" SA 3276 on December 19, 2009 (text here), and then immediately filed cloture motions to end debate on his new amendment and the underlying amendment and shell bill, before "filling the tree" to block any possible amending of his newly-unveiled Managers’ Amendment from the floor.
7. Of the more than 400 floor amendments (SA 2787 – SA 3275+) offered on the Reid committee-merged substitute bill by United States Senators of both Parties, less than 30 were ever called up for debate or a vote on the Senate floor, including meaningless "Sense of the Senate" amendments, and all those called up needed 60-vote supermajorities to pass, by unanimous consent, so that less than 10 passed, including only one or two substantive amendments. [Though the unamendable backroom Reid Managers’ Amendment filed on 12/19 included some and perhaps many of the never-debated Democratic amendments that had been filed on the bill (including at least one amendment of Dick Durbin’s), but presumably none of the Republican amendments.]
"Filling the tree"? Good question. The "tree" in question is a reference to a chart graphic in the Senate Precedents Manual that demonstrates when and how to file amendments (first degree, second degree, etc.) on a measure.
Arlen Specter in 2008, speaking when he was still part of the minority Republican caucus:
U.S. Senator Arlen Specter (R-Pa.) spoke on the Senate floor Monday night regarding the use of the Senate procedure called "filling the tree" to derail progress on important pending legislation this session.
Filling the tree is a process whereby the Majority Leaders use their power to offer a sufficient number of amendments to "fill the tree" so that no other Senator can offer an amendment. Senator Reid has employed the practice 15 times this Congress on legislation, including the oil speculators bill currently pending, the Medicare bill, FAA reauthorization and climate change.
[Excerpting his floor speech:]
The institutions of the Senate are very important to this country. That is because this body has been called the world’s greatest deliberative body, because under the precedents, any Senator can offer any amendment to any bill at any time, virtually. There are some limitations, but that is the valid generalization. If you combine that with unlimited debate, this forum has been a place where ideas can be expressed, the public can hear them, the public can understand them, and momentous matters of public policy are decided by the Senate because of our ability to bring up these issues. Nobody can limit it. That has made America great. The Senate is a very important institution.
Now, regrettably, in the past 15 years–and it has been the fault of both Democrats and Republicans; and I have not hesitated, as the record shows, to criticize the Republican caucus. […] In noting what has happened on this procedure of filling the tree–that is an arcane expression, but let me take a moment to explain it.
When a bill is filed, called up by the majority leader, the majority leader then has what is called primacy of recognition. If two Senators seek recognition, and the majority leader is one of them, he has the right to recognition first. So he then offers an amendment to the pending bill. Then he offers another amendment in the second degree. I won’t go on to detail the kinds of amendments, but the consequence is that no other Senator can offer any amendment. That is called filling the tree. Then, when the majority leader has done that, he moves for cloture. That is to cut off debate. Senator Reid did not invent this process. It had been used very sparingly until 1993, only 15 years ago. In one Congress, for example, the 101st Congress, 1989 to 1990, the Democratic majority leader, George Mitchell, did not use it at all. Then, in the session from 1993 to 1994, Senator Mitchell used it nine times. Then it got to be in vogue. Senator Lott used it nine times in the session from 1999 to 2000. Senator Frist then used it nine times in 2005 and 2006. Senator Reid has now used it 15 times, and it has had the consequence of precluding Senators from offering amendments [on the floor].
When I quoted Senator Reid about his denouncing the filling of the tree, his comment was that I had supported Senator Frist, the majority leader, and it is not true. I did not support him on that. I think Senator Reid was exactly right when he objected to the procedure to foreclose amendments by saying that the filling of the tree "is a very bad practice." These are Senator Reid’s words:
It runs against the basic nature of the Senate. The hallmark of the Senate is free speech and open debate.
Senator Christopher Dodd, Democrat of Connecticut, had this to say on the subject on May 11 of 2006:
….. to basically lock out any amendments that might be offered to this proposal runs contrary to the very essence of this body. ….. when the amendment tree has been entirely filled, then obviously we are dealing with a process that ought not to be. ….. the Senate ought to be a place where we can offer amendments, have healthy debate over a reasonable time, and then come to closure on the subject matter.
Majority Leader Reid has managed to set new records for the use of this deplorably-undemocratic practice even as he’s set records in the deployment of cloture motions (in the absence of actual filibusters), and made misleading public claims that shutting down Senate floor debate and amending is not his preference.
As I noted, Reid most recently "filled the tree" to silence the will of the Senate on Saturday, December 19, 2009, when he filed his Managers’ Amendment [SA 3276, text here] to the Senate health care legislation contained in his earlier merged substitute amendment SA 2786 (amending H.R. 3590). The Republicans had the Senate Clerks read the Managers’ Amendment aloud, following which Majority Leader Reid immediately filed three cloture motions – on SA 3276, then SA 2786, then H.R. 3590 (two of which were scheduled for votes by Reid at 1 a.m. in the morning) – and then Reid immediately filed and called up these subsequent second-degree amendments and motions:
SA 3277 [to SA 3276]:
At the end of the amendment, add the following:
The provisions of this Act shall become effective 5 days after enactment.
At the end of the language proposed to be stricken [from H.R. 3590 by SA 2786], insert the following:
This section shall become effective 4 days after enactment.
SA 3279 [to SA 3278]:
In the amendment, strike "4" and insert "3".
Mr. REID. Mr. President, I have at the desk a motion to commit the bill with instructions.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. Reid] moves to commit the bill to the Finance Committee with instructions to report back with the following amendment numbered 3280.
The amendment is as follows:
SA 3280 [Instructions to a Motion to Commit]:
At the end [of H.R. 3590], insert the following:
The provisions of this Act shall become effective 2 days after enactment.
Mr. REID. Mr. President, I have an amendment to those instructions.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Nevada [Mr. REID] proposes an amendment numbered 3281 to the instructions of the motion to commit.
The amendment is as follows:
SA 3281 [to SA 3280]:
Strike "2 days" and insert "1 day".
SA 3282 [to SA 3281]:
Strike "1 day" and insert "immediately".
There you have it: "Filling the tree" in action last month at the direction of the Democratic Majority Leader, as Senator Coburn immediately clarified with the Presiding Officer:
Mr. COBURN. Mr. President, reserving the right to object, and I do not intend to object [to an unrelated order-of-speaking request], but I want to make a parliamentary inquiry prior to us doing that. And the inquiry is this: Based on the second-degree amendments just filed by the majority leader, as well as the elimination of their language, is it, in fact, the effect that no other amendments will be allowed on this bill?
The PRESIDING OFFICER. There are no available amendment slots at this time.
Mr. COBURN. Further in my parliamentary inquiry, if there were amendments available, could they be filed on this bill?
Mr. REID. I am sorry, I could not hear my friend.
Mr. COBURN. If, in fact, amendments were available, could amendments be filed to this bill and made pending?
I will restate my inquiry to the Chair. Is it, in fact, a fact that because of the filling of the tree by the majority leader, the opportunity to amend the bill before us will be limited?
The PRESIDING OFFICER. The Senator is correct.
The next day, Sunday, December 20, 2009, here’s the Democratic Majority Whip, Senator Dick Durbin, speaking from the floor to the American people:
Senator Coburn of Oklahoma filed 212 amendments during the HELP Committee markup. He offered 38 amendments to the bill. Nineteen of his amendments–half of them–were agreed to. Of those that were offered, 15 were not agreed to–all by rollcall vote. So 13 amendments offered by the Senator from Oklahoma were included in the bill that is before us today.
He has questioned whether the current procedure gives him an opportunity to offer amendments. The fact is, we are now on our 21st day of considering health care reform. Exactly 4 [floor] amendments have been offered by the Republican side of the aisle, 4 substantive amendments to change provisions in this bill of 2,000 pages–in 21 days, 4 amendments. They offered six motions to stop the debate, send the bill back to committee. They were generic motions. They did not ask for specific changes. They just take on an issue in the bill and say: Send it back to the committee and tell them to solve this problem and then bring it back to the floor at a later time. Well, that is kind of a procedural and, if I might say, political statement more than a substantive statement about a provision in the bill.
Fortunately, at least some members of the Senate can count, and aren’t as invested in selling this particular incarnation of publicly-underwritten corporate profit insurance to the American people as Dick Durbin is, and has relentlessly been, on behalf of his protege, and now master, Barack Obama:
Mr. KYL. […] A final point on this. I have to say, the majority leader dictates the schedule of the Senate. All Senators are pretty much equal, but the majority leader has two things he can do and only he can do. He has the right of first recognition, and he has the right to set the schedule. By the schedule, I mean when he files a cloture motion, which is what brings this bill to the floor or this amendment to the floor [for a vote despite objection(s)]. When he files the cloture motion, that is what determines when the vote will be. He determines when to bring the Senate back in session. Under the rules, an hour after he brings us back in session, the cloture motion ripens and we have a vote.
He can set that time at any time. He can say tomorrow morning, at 9 a.m., the Senate will come back in session and we will vote at 10 a.m. The leader could do that. That is his right, and he is the only one who has the right to do that. But instead, he says we will come in at 1 minute past midnight tonight. Therefore, the vote will be 1 minute past 1 a.m. tomorrow morning. It is his right to do that.
We didn’t do that; he did that. He is the only one who has the right to set that schedule. If he wanted to set a schedule that was a little more convenient for all the Members–including our dear friend, the Senator from West Virginia, who is ill and indeed does have to get out of a bed to come in a wheelchair to this Chamber–the majority leader has it within his power to say we will do it at a more convenient time.
I guess I am going to conclude by saying I don’t believe this bill can be sold on its merits, and I think that is another reason why we have to hurry up and do it–before the public figures out what is in it. […] That is why the majority of Americans want us to start over and address the problems on a step-by-step basis.
I was amused by my counterpart, the Democratic whip, saying Republicans have only offered four amendments. I think it was seven but say it is four. Guess who determines how many amendments we get to offer? The majority leader. He sets that schedule as well. He says now it is our turn to offer an amendment. Then it is your turn. The way he managed the schedule, we only got to file either four or seven amendments. We have 200 amendments pending [filed, but never called up for debate]. We would love to get as many of these pending and voted on as possible. Believe me, it is not Republicans who don’t want to vote on our amendments. The majority leader, again, has set the schedule.
This is why we oppose the bill. It is why we don’t like the process. We respect what our constituents are telling us. We believe this bill will be bad for them, and it will be bad for our country. Our Democratic colleagues have a different position. Neither their position nor ours is malignant, nor should they be expressed vindictively.
Mr. GRASSLEY. We have been hearing repeatedly from the majority whip from Illinois that the Republican side has offered only four amendments. I found this to be rather astonishing. The majority whip should know, because they are filed at the desk, that Republicans have put forth 214 [floor] amendments. In addition to striking some of the bad ideas in the Reid bill, these amendments also contain Republican proposals that are improvements over the Reid bill. But in this rush to get it done, the majority has decided they don’t want to consider any more of the 440 [Democratic and Republican floor] amendments filed at the desk.
Let’s be clear. We keep them so people can have access to them anytime they want to, the 440 amendments that have been filed, that we are accused of not offering any suggestions or improvements. Right here in these three binders, any one of the amendments you want, it is there.
Since this happens to be the case, I would like to take them up on their interest in considering additional amendments. The majority leader and my friend, the Senator from Montana, have both said they want this bill to fill the doughnut hole in the Medicare Part D Program. I share my colleagues’ desire to provide even more protection than seniors get under Medicare. I filed an amendment that is in this binder, amendment No. 3182, that would use the savings from medical liability reform, which happens to be about the second or third thing that always comes up at my town meetings that the people in this country feel we ought to be working on if we are going to make real the word "reform." It would put that $50 billion into savings toward eliminating the doughnut hole. The amendment puts the needs of 27 million seniors ahead of the needs of trial lawyers. I can’t speak for my colleagues, but that seems like a pretty easy decision.
To my good friend from Montana, I only have one unanimous consent request. I ask unanimous consent to set aside the pending amendment in order to offer amendment No. 3182, which is at the desk.
The PRESIDING OFFICER. Is there objection?
Mr. BAUCUS. Mr. President, reserving the right to object, the doughnut hole will be filled. I have made that promise. Senator Reid has made that promise. The White House made that promise. When the bill is presented on the President’s desk, the doughnut hole will be filled but not in the way suggested by my friend from Iowa. He is one of my best friends in the Senate, and it is with regret that I must object.
The PRESIDING OFFICER. Objection is heard.
There’s actually a parallel between the unseen hundreds of amendments (and thus the unseen genuine debate and legislating) that Party deference to the White House kept off the House and Senate floors on health care reform, and the unseen real filibuster of days gone by that has been ‘disappeared’ by succeeding Majority Leaders for convenience’s sake.
Question: If both real filibusters and Rule 22‘s cloture motion option could co-exist from 1917 until 1975, as they unquestioningly did – right through Mr. Smith Goes to Washington’s fictional, and Strom Thurmond’s actual, filibuster – why couldn’t they since 1975 (when the cloture motion vote threshold was merely lowered from 67 to 60)?
Answer: They could and can still co-exist, I contend, provided only that the Senate majority wants them to (because no one makes a Majority Leader file a cloture motion with its 60-vote supermajority, in lieu of forcing a filibuster so as to maintain simple-majority passage of legislation).
In case there are a few U.S. Senators not off cavorting in Davos, who need a reminder that their struggles today are not unique, here’s a sampling of the sort of principled resistance that led another President, eager to strut the world stage, to force his Senate allies to enact the first cloture rule in 1917, as related by one member of that principled 1917 opposition, speaking on the Senate floor in 1938 (transcribed from the Congressional Record):
Senator George Norris of Nebraska (Progressive Republican, then Independent in 1936), speaking April 27, 1938:
I suppose no living man can tell with any accuracy just what would have happened [if we had stayed out of the World War]. We are all entitled to our guess.
It seems to me that, if we had stayed out of the war, we in America, the Federal Government should have been able to step in at a time when there was no victory in sight for either side, and help to make a peace which would have been an honorable one, instead of the dishonorable peace which was made by the Treaty of Versailles. That, of course, is conjecture.
We should not have had more than 100,000 graves of soldiers killed in the war, the cream of American citizenship.
We should not have had thousands of our citizens sleeping the eternal sleep under the poppies of France.
We should not have had the vast accumulation we now have of the wealth of the country, the lifeblood of the country, within the hands of a comparatively few men.
I cannot think of a single thing we got out of the World War that was good, or that helped civilization. Our participation in the war tied our hands so that we were unable to help make a peace which would have been honorable, upon which the warring nations could have based a treaty of justice and fairness.
Mr. President, whether or not anybody but myself believes the statement, I venture the assertion that it was the people of this country who went wild; that Congress would not have declared war if it had not been for the people back home, moved by propaganda spread all over the land, much of it false, nearly all of it false and unfounded, much of it exaggeration; that from home came the demand that we go into the war.
In the contest which took place here less than 2 months before we declared war, when the proposal to arm the ships of the merchant marine was killed by a filibuster, I know that while the filibuster was going on word was brought in secret to the filibusterers, from those who took part in trying to pass the bill, encouraging the filibusterers to keep on. I myself had something to do with the managment of the filibuster, and with keeping Senators here during that long, weary night, ready to take the floor at a moment’s notice. I was visited by Members who were opposed to the position we were taking who secretly said to me, "For God’s sake, do not stop the filibuster." When Senators came to me secretly urging that the filibuster be continued, I told them that what we needed was Senators to speak and occupy the floor. I said that it did not make any difference which side of the question they were on; if they would take up the time of the Senate they would help the filibuster; and at least two Members of this body, of as high standing as any other Members of the Senate at that time, assisted in the filibuster by making speeches on the other side. They came to me and said, "I cannot withstand the pressure from home. It means political death, it means political extermination if I do not continue in my present course." Some of them admitted that they thought they could at last see that they were wrong, but they said they could not withstand the awful propaganda which went over the country urging them to push us into the fight.
It was not Members of Congress who were wholly to blame for that step, regrettable as I think it was. It was the men and the women at home who were pushing them on, who were threatening them with destruction if they did not vote right on the matter. That is one of the reasons why we went into the war; and I have enumerated some of the things we have that we would not have had if we had stayed out.
I believe there is greater cause now for building a large navy than there was then; there is more reason now why there should be additional preparedness than there was then, because there are some outlaw nations in the world who respect nothing on earth but power. They have no respect for honor. They have no respect for their word. They do not hesitate to go into war if they are not afraid of meeting opposition which they cannot overcome. [Ring a bell at all, today, somewhere near a mirror, America…?]
There is a difference of opinion as to whether we would gain by building larger battleships, for we must take into consideration the ability of an enemy to drop bombs upon battleships from the air. I do not know that that question is determined; I do not believe it is; there is some doubt about it; but it may be that if we build battleships of 45,000 tons, we will find, by the time they are completed, that they are useless in combat against an enemy discharging bombs from the air and flying so high that they cannot be reached with the present antiaircraft guns on naval ships.
For one battleship of 45,000 tons costing $100,000,000 we can build a great fleet of airplanes.
Accurate predictions before both World Wars by Nebraska’s principled Senator Norris, it seems, looking back, and yet all President Wilson wanted to hear was that the U.S. was entering the World War, and later that the first cloture motion would be filed to force the Senate to vote on adopting his benighted Treaty of Versailles.
Those echoes from the actions of one man who impatiently tried to unilaterally control both the Executive and Legislative Branches of government on a matter of vital national import are not mere coincidence. They’re a stark warning to us all.