McConnell Plans To Pass Tax Reform With Only GOP Votes

Majority Leader Mitch McConnell has announced his intention to move forward on tax reform with no Democrat support. To advance the bill without a filibuster by Democrats, Republicans will need to use the Senate’s budget reconciliation process that requires only 51 votes for cloture.

“We will need to use reconciliation,” McConnell told reporters, adding that Democrats are “not interested in addressing” items that Republicans favor. McConnell referenced a letter signed by 45 of the 48 Senate Democrats in which they refused to consider tax plans that cut rates for “the top 1 percent” or that added to the deficit. At the same time, Democrats called for a bipartisan reform bill.

“I don’t think this is going to be 1986, when you had a bipartisan effort to scrub the code,” McConnell said. He added, “Democratic senators who did not sign the letter who may be open to pro-growth tax reform.”

Unlike healthcare reform, where no Democrats broke ranks to vote with Republicans, the failure of three Democrats to sign the letter on tax reform may represent an opening to Republicans. Joe Manchin (D-W.V.), Heidi Heitkamp (D-N.D.) and Joe Donnelly (D-Ind.) are all up for reelection in 2018 in states that Donald Trump won. They are expected to have tough re-election battles, which may inspire them to side with Republicans on the tax bill.

There are difficulties for the Republicans as well. McConnell faced heavy criticism from his own side for his heavy-handed tactics and secret drafting of the healthcare bill. The secrecy and rapid changes in the content of the bill apparently swayed some senators to vote against the Obamacare reform.

Grover Norquist, president of Americans for Tax Reform, recently told Politico that there was less disagreement among Republicans on tax reform than there had been on healthcare. Norquist claimed that the GOP was at “97 percent” agreement after the decision to drop the border adjustment tax on imports, adding, “It’s now a question of making it fit” within the rules for reconciliation bills.

Under Senate rules, reconciliations can be used to pass bills that increase the deficit, but, per the Center on Budget and Policy Priorities, senators can still block bills that are projected to raise deficits beyond the period that the budget resolution covers. Because scoring by the Congressional Budget Office often predicts that tax cuts will add to the deficit, these changes may be required to be temporary, probably less than 10 years, in order to be enacted as a budget reconciliation.

If McConnell and congressional Republicans can avoid the mistakes and division that they experienced in the run-up to the healthcare vote, they stand a slightly better chance of enacting tax reform. If Republicans can split off some Democrat votes to pass a bipartisan bill it would be a major victory for the Trump Administration and one that is sorely needed.

Originally published on The Resurgent

How Obamacare Was Passed - And Why It Can't Be Repealed By Reconciliation

A common question since President Trump took office is why Republicans can’t simply repeal the entire Affordable Care Act with a budget reconciliation. The Democrats passed it that way, the argument goes, so why should Republicans have to worry about filibusters, cloture votes and the arcane rules of the Senate when they try to repeal Obamacare?

The most obvious reason is that with the four Republican Senators who are holding out to preserve the Medicaid expansion, Republicans don’t even have a simple majority that would vote for a clean repeal. The Medicaid Four, Lisa Murkowski of Alaska, Cory Gardner of Colorado, Rob Portman of Ohio and Shelly Moore Capito of West Virginia, vowed to oppose any repeal and replace bill that did not allow a phase out of Obamacare’s Medicaid expansion.

A more technical reason is that Obamacare was not passed with a budget reconciliation. Not exactly anyway.

At the beginning of the 111^th Congress in 2009, Democrats held 58 seats in the Senate. The wave election of 2008 had given them a majority that was just short of filibuster proof. Then the Democrats got two lucky – or at least underhanded – breaks. First, in what is often considered to be a stolen election, Al Franken unseated Republican Norm Coleman in a hotly contested recount. Second, Arlen Specter (R-Pa.) switched his party affiliation to Democrat in April 2009. Suddenly, the Democrats had the 60 votes necessary to stop a Republican filibuster in its tracks.

Specter’s defection set the stage for the Senate to pass the Affordable Care Act. On December 23, 2009, the Senate voted to end debate on the bill. The next day, Christmas Eve, the Senate passed the bill in a strict party line vote with every Republican voting “no.” The bill then went to the House of Representatives.

The next month, the Democrats faced a setback when Senator Edward Kennedy (D-Mass.) died suddenly. In a special election widely interpreted to be a referendum on the health care bill, Scott Brown defeated the heavily favored Democrat candidate and broke the Democrats’ filibuster-proof majority.

What saved the Democrats was the fact that the House and Senate had negotiated most of their differences prior to the introduction of the bill into the Senate. To win over the final few House Democrats, the Democrat leadership urged them to pass the Senate bill with no changes and then pass a second bill via the reconciliation process. If the Senate bill was passed without changes, it would avoid going to conference and being subjected to a second Republican filibuster attempt before a final vote. The reconciliation bill, although its content would be restricted to tax, spending and debt limit legislation by Senate rules, would also not be subject to a filibuster.

After President Obama signed an Executive Order that purported to ensure that federal funds would not be used for abortion, Rep. Bart Stupak (D-Mich.) and the last few Democrat holdouts signed onto the bill. The promise not to fund abortion was broken almost immediately.

The Affordable Care Act was passed by the House without amendment on March 21, 2010 and went directly to the president’s desk. The Health Care and Education Reconciliation Act of 2010 was passed by both Houses of Congress on March 25, 2010. President Obama signed the Affordable Care Act into law on March 23 and the Health Care Reconciliation Act on March 30.

The bottom line is that Obamacare passed with two bills. One was a reconciliation bill and one was not. The largest part of Obamacare legislation was passed in a normal bill that Republicans did not have the numbers to filibuster. The Republicans cannot pass a clean repeal because they do not have the votes to stop the Democrat filibuster that would be certain to come.

But what about the 2015 repeal bill that was vetoed by President Obama? How could this bill repeal the entirety of Obamacare and get past the Democrat filibuster to the president’s desk if it was limited to the Senate rules on budget reconciliations?

The answer is that the bill, HR 3762, which was assigned the unwieldy name “To provide for reconciliation pursuant to section 2002 of the concurrent resolution on the budget for fiscal year 2016,” was not a clean repeal of Obamacare any more than the AHCA was. The 2015 bill, like the AHCA, begins with the statement that the Affordable Care Act is amended, not repealed.

A House Republican fact page about HR 3762 also doesn’t make the claim that the bill would have repealed Obamacare in full. The bill summary on the page says, “HR 3762 repeals the health exchange subsidies and the Medicaid expansion included in the Affordable Care Act (ACA), repeals the ‘Obamacare slush fund,’ eliminates federal funding for Planned Parenthood, repeals the individual and employer mandate penalties, and repeals the medical device and ‘Cadillac’ tax, among other provisions.” If you doubt this, you can read the text of the bill for yourself here.

HR 3762 might have been a better bill than the AHCA, but the Republican position in Congress was also better in 2015. Republicans held 54 Senate seats and 246 House seats in the 115^th Congress. In the squeaker election of 2016, President Trump’s short coattails reduced those numbers to 52 Senate seats and 241 House seats. There is still a GOP majority in both houses, but a slimmer one with less margin for defections on votes.

HR 3762 passed the Senate by a 52-47 vote. Two Republicans voted against the measure, Mark Kirk of Illinois and Susan Collins of Maine. Mark Kirk lost his reelection bid in 2016, but Susan Collins remains in the Senate as a prospective “no” vote on the AHCA.

The Medicaid Four were all in the Senate in 2015 and all voted for HR 3762. These four Senators switched their positions on the Medicaid expansion and made it necessary to present a weaker bill to Congress. It is ultimately these four Senators, along with Susan Collins, who should be held responsible for the failure of the GOP to repeal Obamacare because, without their votes, not even a reconciliation bill can pass, let alone a cloture vote on a clean repeal bill.

The failure of the Republicans to pass a clean repeal bill is not due to a lack of will on most members of the party. It is due to math. Democrats used the extremely rare and temporary 60 vote majority to force Obamacare through Congress with no Republican support. The current Republican position is much weaker than that of the Democrats in 2010.

If it is the fault of “RINOs” in Congress, it must be noted that Speaker Paul Ryan (R-Wisc.) is not the RINO to blame. Ryan and other Republican leaders worked to provide the strongest bill possible given the electoral realities of their caucus.

The blame lies with a handful of Republican Senators who are holding up the drive for a strong bill to replace Obamacare. Their names are Lisa Murkowski (Alaska), Cory Gardner (Col.), Rob Portman (Ohio), Shelly Moore Capito (W. V.) and Susan Collins (Maine).

Originally published on The Resurgent

Why the Republicans couldn’t defund DHS

It’s not lack of principles, stupid!

The failure of the Republican majority in Congress to defund President Obama’s executive amnesty this week has once again engendered bitterness among some conservatives toward the party’s leadership. Accusations that John Boehner and Mitch McConnell caved to Obama’s pressure are widespread, but the true cause of the failure to can be found within Senate traditions and the Constitution itself. The Constitution may also provide the ultimate solution to Obama’s executive overreach.

Because the authors of the Constitution distrusted a strong central government, they made it difficult to enact new laws. Because the framers worried that the majority might tyrannize a minority, they gave the president veto power over laws passed by Congress and the courts the right to strike down laws judged to be unconstitutional. Democratic filibusters must also be considered by Republican leaders, but it is the presidential veto that holds the greatest threat to the Republican agenda.

Cloture, filibusters, and vetoes! Oh, my!

Under the Constitution, the House and Senate pass bills with a simple majority vote, but the Senate has traditionally allowed unlimited debate before a vote. The strategy of a filibuster, a prolonged speech to prevent a vote, has long been used by minority senators to prevent those in the majority from passing legislation. Filibusters no longer require longwinded speechmaking. Under current Senate rules, to end debate on a bill, senators must first vote for cloture. According to the Senate website, the cloture rule was intended to give senators a means to overcome filibusters and dates back to the Woodrow Wilson Administration. Originally, the rule required a two-thirds vote to end debate on bill, but this was changed to three-fifths, 60 votes, in 1975. A filibuster is now merely the inability of the majority party to get enough votes for cloture.

What the cloture rule means to conservatives now is that, since Republicans hold 54 Senate seats, they will need at least six Democratic votes to invoke cloture and bring bills to a vote. If the Democrats remain united, they can deny the Republicans the ability to bring their agenda to a Senate vote, in which case it can never become law. This was the case with the attempt to defund DHS.

Bills that are passed by both the House and Senate face another constitutional hurdle before becoming law. According to the Constitution, bills passed by Congress then go to the president where they can become law in one of two ways. First, the president can sign the bill and it immediately becomes law. Second, the president can do nothing and the bill will become law in 10 days as long as Congress remains in session.

The president can also reject, or veto, the bill. For a regular veto, the president sends the bill back to Congress with a message describing why the bill was vetoed, as in President Obama’s veto of the Keystone pipeline. More rare is the pocket veto. If Congress adjourns before the 10 days is up and the president fails to sign the bill, the bill never becomes law.

The drive to override

Congress can override a presidential veto. When the president returns the bill to Congress, the bill can still be passed without the president’s approval. Overriding a veto requires a two-thirds vote of the members present. A bill that is subject to a pocket veto simply dies and cannot be overridden. It must be debated and passed again by the next Congress.

In the current Congress, overriding a veto would be difficult in spite of the historic Republican majority. Assuming all congressmen were present, a two-thirds majority would require 67 Senate votes and 288 House votes. This means that 13 Democratic senators and 41 Democratic representatives would have to vote against the president even if all Republicans were united. The Congressional Research Service reports that between 1789 and 2004 only 106 of 1,484 regular vetoes were successfully overridden, a seven percent success rate.

Most of President Obama’s signature pieces of legislation were passed in his first two years when the Democrats held control of both houses of Congress, but Democrats in 2009 through 2010 also had an important advantage that today’s Republicans lack: a president who would sign their legislation into law. As Republicans try to roll back Obamacare and other Obama-era legislation, they have the opposite situation, a president who will viciously wield the veto pen to preserve his legacy. Barring a major break between the Democrats in Congress and President Obama, it is unlikely that any presidential vetoes will be overridden.

Flank attacks

Two strategies have been floated by Republicans to outflank the Democratic obstruction. Rep. Mo Brooks (R-Ala.) recently called on Republican leaders to invoke the “nuclear option” and totally eliminate the filibuster. In 2013, Senate Majority Leader Harry Reid (D-Nev.) changed the rules to eliminate the filibuster for the confirmation of presidential appointments. According to the Washington Post, the filibuster still stands for bills, but not for votes on presidential nominees.

Eliminating the filibuster would allow Republicans to pass the bill in the Senate, but the plan has two major flaws. First, the larger hurdle, President Obama’s veto, would remain so any successes would be short-lived. Second, the Republicans will one day need the filibuster themselves since it is unlikely that any Senate majority will ever be permanent.

A second strategy would be to use a budget reconciliation, the tool used by Harry Reid to pass Obamacare, to pass conservative legislation. As former New Hampshire senator Judd Gregg explained in the Wall St. Journal, a budget reconciliation requires only 51 votes but the circumstances where it can be used are extremely limited. Additionally, the final budget bill would still be subject to a presidential veto.

The Keystone model for success

Sheer numbers and constitutional processes make it unlikely that a direct frontal assault against President Obama will work. A more likely strategy is for the Republicans in Congress to seek areas where they can find common ground with moderate Democrats as they did with the Keystone pipeline. Winning even a few Democratic votes would force Obama to either use his veto or allow the bill to become law, putting pressure squarely on the president.

While it is possible – or even likely – that President Obama will veto a bipartisan bill, doing so would change the dynamic in Washington. Since Republicans took control of the House in 2011, the Democrats have derided them as obstructionists who do nothing more than say “no.” When President Obama uses his veto power or Senate Democrats use the filibuster, it will be the president who is obstructing the will of the people.

The Republicans made a massive strategic blunder in the battle over DHS funding when House Republicans chose not to focus solely on President Obama’s illegal amnesty, a tactic that might have won some Democratic allies. Instead, the Wall St. Journal notes that the bill included several amendments to repeal Mr. Obama’s less controversial moves on immigration going all the way back to 2011. As a result, the Democrats were united and a few Republicans even voted against the bill.

The last line of defense

Further, as Karl Rove notes, the decision of a Texas federal court judge blocking Obama’s amnesty removed the need to defund the DHS in the first place. The courts have at least temporarily stopped Obama’s executive action where Congress could not. The possibility remains that the injunction will be made permanent and the president will suffer an embarrassing legal defeat.

Although the courts have been weakened by the appointment of judicial activists to the bench, including four to the Supreme Court, the judicial power to declare Obama’s actions unconstitutional is the best hope. The potential threat to Obama’s agenda may be why a Rasmussen poll recently found that 43 percent of Democrats feel that Obama should be able to ignore the courts.

While the election has not given Republicans a carte blanche to impose their policies and reverse Obama’s, it has given them a far stronger hand than they previously held. Republicans must decide whether to squander this advantage on a pointless and unwinnable fight or whether to build a bipartisan majority that can actually accomplish the work of the people.

Read the full article on Examiner.com