Monday, November 21, 2016

The future of the filibuster: Part V (Legislation edition)

In Part IV of "The future of the filibuster," I addressed the basic deadness of the filibuster on court nominations, but here, let's talk about the complexity of the filibuster on legislation.

The Senate already has a way around the filibuster on a lot of legislation.  It is called "budget reconciliation."  The Senate can cut off debate automatically on any bill classified as a budget reconciliation bill.  The catch is that the bill must be budgetary (i.e., it can't be on stuff like abortion restrictions, or, well, telling insurance companies they can't discriminate against people with pre-existing conditions...), and it can't increase the deficit for more than ten years.  The Senate can do a lot with budget reconciliation bills.  Just not everything.  Tax cuts galore!  As long as they expire in 10 years.  Spending cuts galore with no expiration!

Notice, though, that they can't do a full Obamacare repeal, and that's the catch.  Or the benefit.

So, do the Republicans really want to repeal Obamacare?  I speculated on this recently, and I've been wavering.  The problem is that repealing it before the subsidies went into effect would have been a hell of a lot easier than doing it now, which takes away health insurance from a lot of people.  Ted Cruz pushed a government shutdown before the subsidies kicked in fully because he said that a full repeal would be harder once they did kick in.  He's full of shit on a lot of stuff, but that?  That was kind of right.  A full repeal now could cause some backlash.

But, if the Republicans bring a full repeal to the Senate, let the Democrats filibuster, and strategically avoid going nuclear even though we know they can because Reid used the tactic in 2013 on judicial confirmations, then by pretending the nuclear option isn't there, the Republicans use the filibuster as cover to avoid the political backlash they don't want to face.

Or, maybe they really do want to do a full repeal.  In that case, the House votes for a full repeal, it passes easily, they bring the bill to the Senate, the Democrats filibuster, McConnell uses the nuclear option, and the filibuster is gone for all legislation because that's the only way to pass a full Obamacare repeal.  It can't be done through budget reconciliation.

The point is that filibusters exist at the sufferance of the majority.  If they want it to continue to exist on legislation, it will.  If they don't, it won't.  If Schumer's caucus shuts down all legislation the way McConnell blockaded the Third Circuit, McConnell will be forced to use the nuclear option to eliminate the filibuster entirely.  That would be stupid at this point, though.

Otherwise, we find out just how badly the Republicans want a full Obamacare repeal.  If they are serious about wanting to repeal it as badly as they say, they go nuclear.  If they don't press the button, then their Obamacare hatred is just theater at this point.

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