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theodore M I R A L D I mpa ... editor, publisher, writer
Tuesday, November 15, 2016
NUKE ’EM: Priming the Senate for Necessary Action
Action starts now on repealing Obamacare and replacing Justice Scalia in the face of Democrat filibustering.
If you’re puzzled by the conflict between the Democrats’ proclamations that they’re willing to give President-elect Trump a chance and the many riots against Trump taking place every night since the election, don’t be. The fact that none of the Dems’ leadership from Hillary Clinton on down have asked for calm and condemned the rioting is enough to prove that they’ve not missed a beat between Hillary’s campaign and Mr. Trump’s imminent presidency.
They’re still in the “no justice, no peace” frame of mind. Justice, to them, consisted of Hillary winning the election, and they won’t allow anything resembling political peace because she didn’t.
The Washington Post has already tut-tutted that no one — even those who voted for Trump — expects him to live up to his campaign promises. That paper, and the rest of the hyper-liberal media, are preparing us for their incipient campaign to convince the public that everything our president-elect does is radical, stupid, racist, and irresponsible.
They’re prepping the congressional battlefield for the two toughest fights the Dems will have in 2017: the repeal of Obamacare and the confirmation of Trump’s nomination of a conservative to replace the late Antonin Scalia on the Supreme Court. Those are the two most important campaign promises Trump made that have to be accomplished in the coming year if they’re going to be accomplished at all.
The Dems will mount their first round filibusters when the confirmation process begins. They will filibuster some of the cabinet and subcabinet folks as a warm-up so that they and their media allies can practice for the two bigger battles. Once Trump makes a first nomination for the Supreme Court or offers Congress a proposal to repeal Obamacare, they’ll pull out all the stops.
That can’t be blown past even if the Republican Senate invokes the “nuclear option” to revoke the filibuster rule.
When Harry Reid, the last Senate Democratic leader, nuked the Republicans by revoking the filibuster rule in 2013, he did so by simple majority vote.
The 2013 nuclear event prevented the Republicans from filibustering most of Obama’s nominees. But Reid’s new rule didn’t prevent them from filibustering Supreme Court nominees or legislation. Before this election, the Dems were rumored to be planning to extend the filibuster ban to Supreme Court nominations as well, if they’d regained control of the Senate.
Senate Majority Leader Mitch McConnell (R-KY) could do to the Dems what they were planning to do to the Republicans in 2017. But he won’t. And there’s the rub.
Congressional Republicans have been severely criticized — in this column and elsewhere — for refusing to stand up to Obama on issues ranging from the budget to the Iran nuclear weapons deal to Obama’s avalanche of executive orders and regulations that have injured the Constitution (such as amending several laws, not just Obamacare, without congressional action). They enabled him to transform the Constitutional doctrine of separation of powers into a bad joke.
Now they’ve run out of excuses. Winston Churchill once said, “It is no use saying, ‘We are doing our best.’ You have got to succeed in doing what is necessary.” It is just so for congressional Republicans, which means that McConnell will have to lead his slim 52-48 majority to get around the coming filibusters.
McConnell must begin, when the Dems start by filibustering cabinet nominations, by doing the same thing that Reid did in 2013: revoke the filibuster in a limited way. He has hinted at doing that and should at the moment they try their first filibuster of any nomination no matter how low the position the person will fill may be.
McConnell values the Senate and its traditions very highly. He will still refuse to remove the filibuster barrier to any Supreme Court nominations or to legislation. On legislation, at least, he will be right.
Which brings us back to zero on Mr. Trump’s principal campaign promises.
Mr. Trump, having said he’s willing to retain some features of Obamacare (requiring pre-existing conditions be covered and allowing adult children to be carried on their parents’ healthcare insurance up to the age of 26), has already opened the bargaining. That may not have been a wise move.
The Senate Dems, led by their new Minority Leader, Sen. Chuck Schumer (D-NY), will go on from there bargaining endlessly for more compromises with an eye on the calendar. They know Trump will be strongest in his first presidential year.
If the Republicans are uncharacteristically tough, they’ll push a bill to repeal and replace Obamacare through the House quickly. There are plenty of bills already drafted to do so.
When Obamacare was being passed — without a single Republican vote — Reid and then-House Speaker Nancy Pelosi did so without hesitation, claiming all the while that the Republicans had no alternative.
Nonsense. Several had been introduced then, including one drafted by Rep. Tom Price (R-GA), that would have accomplished healthcare reform the right way. Price’s bill would have reformed healthcare in ways that focused on patient care, not on creating a massive national system like Obamacare. In addition, it would have accomplished tort reform by capping the damages that lawyers can sue for in medical malpractice actions, among other reforms necessary to controlling the constant rise in medical costs.
Vice President-elect Mike Pence needs to go to Price, ask him to dust off the old bill and modify it as needed to repeal Obamacare and do whatever else is necessary in light of other matters that have arisen since his bill was introduced about seven years ago. Then Pence needs to push Speaker Paul Ryan to get it passed quickly. That’s the easy part.
Senate Dems will, of course, filibuster any bill that actually repeals Obamacare. They will be buying time, trying to ensure that 2017 will end without a repeal.
That can be defeated only if the Republicans use the budget reconciliation mechanism, a very complex means to the end. Budget reconciliation is supposed to be the means by which spending and revenues are made to match. It involves several committees, each of which have to pass reconciliation measures, but once the reconciliation measure is brought to the floor of the Senate, it’s not subject to a filibuster. In 2010, the Dems used it to pass Obamacare without a single Republican vote.
It’s highly unlikely that the squishes in the Republican majority — think of Sen. Susan Collins (R-Maine) who regularly sides with the Dems — will get this done. Trump — and Pence — will have to weigh in personally with each of them.
By the six-month mark in Trump’s presidency, he’ll be faced with the filibuster of his Supreme Court nominee (as well as the filibuster of an Obamacare repeal because the reconciliation measure probably can’t be done sooner). He’ll have to get around them, if he can. There’s only one way to do it, and Trump is perfectly positioned to take advantage.
I remember walking the Senate halls in 2007 when the Bush-McCain-Kennedy immigration amnesty bill was being considered. In the offices of senators who opposed it, such as Jeff Sessions (R-AL), all was quiet. The receptionists and other staff were relaxed. Walking past many others — including McCain’s office and his acolyte, Lindsey Graham’s (R-SC) — I saw the barrage of angry phone calls being answered by stressed-out staffers. It was a telling moment.
Trump will have to deal with the Senate by stirring up the same outrage among the voters. He’ll never convince Schumer to back off the filibuster of a Supreme Court nominee (and any repeal of Obamacare), but he can get the populist wave of voters who elected him to join those fights.
Trump can and must go directly to the voters in speeches, meeting personally with individual Senate Dems, using Twitter and every other means he can think of. He must persuade McConnell that no other business should be done in the Senate — not even the naming of post offices — before both are dealt with.
McConnell should agree. McConnell made the repeal of Obamacare a principal campaign promise when he ran in 2014 and that promise remains unfulfilled. He will have to understand that his priority on that issue and on Trump’s Supreme Court nominees must be the same as Trump’s. McConnell is more than wise enough to do that.
There should be demonstrations and protests around the land to push the Dems to realize that they risk even greater defeats than they suffered this year if they don’t back down.
It’s the highest of stakes game for both sides. When it comes to demanding that the Dems back down on both issues, there can’t be any retreat.
By the end of the congressional session next year, one side will be the victor and the other the vanquished. In 2018, it will be too late because we’ll again be focused on the elections. If the new President Trump wants to fulfill his two most difficult campaign promises, it’s all or nothing by the end of next year.