Hiding Behind the Rules
"Rules are mostly made to be broken and are often for the lazy to hide behind," so said the great World War II General Douglas MacArthur in a comment that might well be applied today to the Republican majority in the United States Congress.
Two of the most significant battles to face the current congress are raging red hot under the capitol dome. House Speaker Paul Ryan is attempting to push a watered-down version of Obamacare through congress while the confirmation process for U.S. Supreme Court Justice-nominee Neil Gorsuch nears a vote in the U.S. Senate.
Both efforts are or could be held hostage to the rules.
In each instance one rule – the need for sixty votes to cut off debate in the U.S. Senate – is or could prevent action clearly demanded by the American people. Speaker Ryan is using a cumbersome process called "reconciliation" in his effort to reform the Affordable Care Act because Republicans do not have a 60 vote majority in the senate to pass a clean bill. Likewise, unless eight Democrats agree Judge Gorsuch will not get a floor vote on his confirmation.
All of this presumes both chambers follow the rules.
But, who makes the rules? The rules are made by the very senators and representatives who now claim they can’t get things done because of those rules. The need for 60 votes to confirm a Supreme Court Justice is not a constitutional mandate, it is a self-imposed rule. So is the need for sixty votes to cut off debate in the senate on Obamacare repeal and replacement.
As a practical matter rules are needed to run a legislative body. Otherwise there would be chaos. By the flip side to that coin is gridlock. When the rules have become so restrictive and so cumbersome that they prevent rather than foster the smooth passage of needed legislation then the time has come to change the rules.
In recent decades Republicans have tended to not tinker with the rules to advance their policy agenda (when they actually agree on an agenda), while Democrats have been willing to do whatever is necessary to accomplish their goals. Thus then-majority leader Harry Reid was willing to change the number of votes needed to confirm federal judges, except to the Supreme Court, and cabinet nominees to a simple 51 vote majority rather than a 60 vote majority.
Democrats may have felt a twinge of regret over that rule change when they attempted to block several of President Donald Trump’s cabinet nominees. But, except in rare cases, a president is entitled to pick his own cabinet so the rule change actually did foster a positive outcome.
After eight years of promising, and even passing, legislation to repeal and replace the Affordable Care Act congressional Republicans have gone wobbly. Moderates, who were happy to vote for repeal when they knew it would be vetoed by former President Obama, have now broken their promises to voters. The Ryan plan falls far short of repeal and replacement and represents only a modest improvement on some aspects of Obamacare.
Citing the rules, Republican leaders now claim they can’t pass an actual repeal bill and are using the reconciliation process to make changes. It isn’t going well and it won’t result in the types of structural changes needed to put health care on the road to recovery. The rules are preventing needed action from happening.
As the Gorsuch nomination nears a floor vote the big question is whether Democrats will choose to filibuster and whether there will be eight Democratic senators willing to vote for cloture, or to cut off that debate. If a cloture vote fails, Republicans will be faced with a decision on whether or not to deploy the so-called "nuclear option" and extend the 51-vote majority to include the Supreme Court. Even if Democrats don’t push Republicans to that point on the Gorsuch nomination, they likely will when the next Supreme Court vacancy occurs and ideological control of the high court will hang in the balance.
Aside from tradition the current roadblocks created by the rules bring new relevance to that decades old quote by General MacArthur. Are our elected representatives just following the rules, or are politically timid and lazy and simply hiding behind them?
(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. His e-mail address is [email protected].)
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