Steve Bannon Declares War On Republicans

With a call for one sitting Republican senator to resign and announcement that he plans to back primary challengers for nearly every sitting Republican in the Senate, Steve Bannon, former White House strategist and past and present chairman of Breitbart News, has effectively declared war on the Republican Party. While ostensibly still backing President Trump, Bannon’s effort also includes challengers to some Trump allies.

Bannon’s primary target at the moment is Sen. Bob Corker (R-Tenn.). After Corker and Trump engaged in a flame war on Twitter over the weekend, Bannon called for the Tennessean to resign for his disloyalty to President Trump. In a tweet, Corker, who is not running for re-election,  likened the White House to a “day care center” and said in a New York Times interview that President Trump acted “like he’s doing ‘The Apprentice’ or something” and that his lack of diplomatic skills could put the world “on the path to World War III.”

“If Bob Corker has any honor, any decency, he should resign immediately,” Bannon told Sean Hannity on Fox News.

“This is what they think about President Trump behind closed doors,” Bannon added. “He happened to tell The New York Times exactly what he thought, it's totally unacceptable. In a time of war, we have troops in Afghanistan, in the Northwest pacific and Korea. We have a major problem that could be like World War I in the South China Sea. In the Persian Gulf, we have American lives at risk every day.”

That Bannon equates Corker’s comments with all Republican incumbents provides insight into why he plans to try to unseat practically every Republican senator. The Washington Post notes that Sen. Ted Cruz (R-Texas) is reportedly the only senator who will not be fending off a Bannon-backed challenger, but a CNN source said, “Nobody’s safe.” Cruz was a favorite of Bannon’s Breitbart until Donald Trump usurped that role. Cruz angered many Trump supporters with his long-delayed endorsement of Donald Trump and his heated exchanges with Trump in the primary.

Breitbart quotes Andy Surabian, a senior adviser to the Great America Alliance and ex-White House aide, who said, “We’re planning on building a broad anti-establishment coalition to replace the Republican Party of old with fresh new blood and fresh new ideas.” The site notes that the Great America Alliance is a “pro-Trump Super PAC.”

The Breitbart article also quotes Family Research Council president Tony Perkins, who said, “The conservative tidal wave that carried Donald Trump into the White House may soon be eclipsed by what appears to be a conservative tsunami that threatens the [Republican] establishment death grip on the U.S. Senate.”

Much of the antipathy to the “establishment” Republicans seems to stem from Majority Leader Mitch McConnell’s (R-Ky.) refusal to end the filibuster and change Senate rules to allow passage of bills with a simple majority, commonly referred to as the “nuclear option.” President Trump urged McConnell to change Senate rules in a tweet in August. Mr. McConnell told Politico in April, “There’s not a single senator in the majority who thinks we ought to change the legislative filibuster. Not one.”

Surabian hinted at the “nuclear option” when he noted, “The group of candidates we are looking to support in 2018 are all bound together in their agreement that the new Republican Party must be bold in their thinking and aggressive in their tactics.”

Bannon’s tactics have potential downsides. If his candidates defeat Republican incumbents in the primary, they still must win the general election. This could present a problem for some Bannon-backed candidates, particularly in moderate states. President Trump alluded to this risk in deep red Alabama when he campaigned for incumbent Luther Strange (R-Ala.) against primary challenger Roy Moore, who was supported by Bannon. With a slim majority of only two seats, Bannon’s war against Republican incumbents could tip the Senate to the Democrats.

A second problem is that, if Bannon’s plan succeeds and the filibuster is killed permanently, Democrats would have the same advantages the next time they are in power. President Trump’s agenda could be passed more easily without the cloture rule, but it would also be easier for the next Democrat majority to repeal Trump’s reforms and enact their own leftist agenda.

Bannon’s frontal assault on sitting Republicans brings the GOP civil war into the open. Trump supporters like Bannon are attempting to purge the party of traditional Republicans who represent the “establishment,” regardless of voting records or conservative credentials. CNN notes that even John Barasso (R-Wy.), typically considered a Trump ally, is a target of Bannon’s effort.

It is normally very difficult to unseat incumbents, but 2018 may be different. There may be additional retirements that leave open seats vulnerable to Bannon’s candidates. Further, polling shows that President Trump is far more popular among Republicans than congressional leaders. If Republican voters back primary challengers supported by Bannon and President Trump over party incumbents, it will signal a permanent shift in the direction of the Republican Party. 

Originally published on The Resurgent

AHCA is best chance to replace Obamacare in our lifetime

The House of Representatives finally passed a bill to gut Obamacare and many conservatives are upset. Admittedly the bill is not full repeal. It is far from perfect. If I was going to write a health care reform plan, the American Health Care Act would not be it. Still, I’m very glad that the House passed the bill and I fervently hope that the Senate moves the legislation forward. Why? Because it is the only health care reform that has any chance of passing.

Many myths have grown up around Obamacare and the Republican repeal and replace effort. Over time, we have forgotten that Obamacare was not passed by a budget reconciliation. “HR 3590, the Patient Protection and Affordable Care Act,” was passed on Christmas Eve 2009 after a cloture vote by 60 Democrats ended a Republican filibuster. It was a traditional bill that requires a traditional bill to repeal.

So, what was the controversy about the budget reconciliation? After Scott Brown (R-Mass.) was elected to the Senate, the Democrats could no longer break Republican filibusters. If the Democrat-controlled House amended the ACA, it would be subject to another cloture vote, which the Democrats would lose. The answer was to have the House pass the bill unchanged and use the budget reconciliation process to pass a second bill, “HR 4872, The Healthcare and Education Reconciliation Act,” by a simple majority vote. This bill was subject to the same limitations that the GOP now faces in passing their own budget reconciliation.

Even though Republicans hold the presidency and control both houses of Congress, they were not granted a blank check by voters. A full repeal would require 60 votes for cloture in the Senate and there are only 52 Republicans. The mathematical problem is obvious.

But what about the 2015 repeal bill that was vetoed by President Obama, you may ask. Republicans didn’t have 60 votes in 2015 either, but they passed a repeal bill then. Why can’t they do it now?

The answer is that the 2015 repeal bill was not a full repeal either. The 2015 bill, was also a reconciliation bill that carried the unwieldy title, “HR 3762 To Provide for Reconciliation Pursuant to Section 2002 of the Concurrent Resolution on the Budget for Fiscal Year 2016.” The text of the bill states in Section 102 that the ACA “is amended,” not repealed.

If the 2015 bill was better that the AHCA of 2017, it is for two reasons. First, there were 54 Republicans in the 114^th Congress where there are only 52 now. The GOP could afford to lose more votes in the Senate in 2015 that it can today.

Second, four Republican senators who voted for the 2015 bill now say that they won’t vote for a bill that does not provide for a phase out of the Medicaid expansion. Sens. Rob Portman (Ohio,) Shelley Moore Capito (W.Va.), Cory Gardner (Colo.) and Lisa Murkowski (Alaska) refuse to back the same bill that they voted for two years ago. Sen. Susan Collins (R-Maine) voted against the 2015 bill and would presumably do so again. Other Republicans are reluctant to repeal the popular provision concerning pre-existing conditions. It is these five senators and House moderates, not the Republican leadership or President Trump that are forcing a more watered-down version of the bill.

Some conservatives suggest that Republicans should get rid of the filibuster to pass a repeal. We wouldn’t need 60 votes then and the Democrats will probably kill it anyway the next time they have a majority, they argue.

The problem with this strategy is that full repeal could not even win a simple majority vote. The five Republican defectors in the Congress and the Tuesday Group of 50 Republican moderates in the House would kill it.

Removing the filibuster would also mean that Democrats would only need simple majorities to replace Republican health care reform with a national single-payer system the next time they control both houses of Congress and the presidency. It would also usher in a host of other bad ideas from gun control to a higher minimum wage to higher taxes to onerous regulations on practically everything. It is true that Democrats might one day choose to remove the filibuster, but it is certain that if Republicans remove it now, for no strategic reason, Democrats will have a field day when they return to power.

What, then, are the options for Republicans on Obamacare? One option is to wait and hope for a filibuster-proof majority. If you favor this option, be aware that the last time that Republicans had a 60-vote majority was the 61^st Congress from 1909 to 1911. It is extremely likely that before the Republicans get a supermajority, Obamacare will implode, health insurance premiums will skyrocket, insurance companies will cancel policies and hell will freeze over. I have little doubt that if Republicans hold out for the perfect, full repeal bill that I will die of old age with Obamacare still intact. (I’m only 45.)

Waiting until 2018 might give the Republicans a few more votes to craft a better compromise. It is also possible that two years into the Trump Administration, voters might deliver a rebuke to Republicans in the form of Democrat majority in either the House or Senate that makes any sort of conservative impossible. In any event, it is doubtful that the numbers would change enough in the GOP’s favor to justify putting off a cornerstone promise of the campaign for two years. The longer Republicans wait to take action, the more entrenched Obamacare will become.

A better option is to take baby steps toward the full repeal of Obamacare starting now with the AHCA. The current bill has the support of moderates as well as the Freedom Caucus and has decent chance of becoming law. While far from ideal, it is a reasonable bill that can hopefully be improved further in its journey through the Senate. Even if it became law in its current form it would mark a vast improvement over Obamacare.

The Republican reform bill should not be viewed as a final step, but as a first step toward total repeal. Without a supermajority, it may take years of nibbling at the edges of Obamacare to fully repeal the behemoth, but conservatives have to start somewhere. The logical place to start is the bill that has the support of the two disparate factions of the GOP. The only bill that has a chance of becoming law.

Conservatives must decide whether it is worth trading a chance to gut Obamacare now to wait for a perfect bill in the distant future. The answer should be obvious. We should not allow the perfect to be the enemy of good and the possible.

Seize the day and start saving American healthcare!

Originally published by 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

Filibuster's days may be numbered

Many are assessing the future after last night’s Trump victory, an outcome that few expected. There are many questions about the future and the upcoming Trump Administration. One question involves the future of the filibuster.

The Senate filibuster rule requires a majority cloture vote to end debate on legislation before it can take a final vote on a bill. The filibuster rule is not specified in the Constitution but has been a part of Senate rules since 1841 according to the Senate website. In 1917, the Senate passed a rule requiring a two-thirds vote for cloture to end debate on a bill. The requirement was reduced to three-fifths, 60 votes, in 1975. Majority Leader Harry Reid ended the filibuster on many presidential appointments in 2013.

Since Republicans took control of the Senate in 2014, Democrats have successfully used the filibuster rule to deny cloture on a number of Republican bills. There were 54 Republicans in the Senate, six short of the 60 vote requirement to end debate and move a bill forward. This Democratic road block led many conservatives to call for an end to the filibuster. Under President Obama, this would have been a strategic error because Republicans still would not have had the votes to override President Obama’s veto.

In 2017, when Donald Trump becomes president, he will have a Republican majority in both the House of Representatives and the Senate. Even with those majorities, Democrats still retain enough votes to block cloture on Republican bills. The road block will still exist.

To avoid Democrats bottling up legislation, the new Republican Senate may invoke the “nuclear option” and choose to eliminate or weaken the filibuster rules. Since the filibuster is not specified in the Constitution, it can be easily changed at the beginning of a Senate session by the majority party.

Democrats had already signaled a change to the filibuster if Hillary Clinton had won the election. Sen. Harry Reid (D-Nev.) told Talking Points Memo, “If the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told 'em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.”

Opinions of the filibuster vary depending on which party is in power. The filibuster protects the minority party so Democrats, who were critical of Republican use of the filibuster, can be expected to defend it fiercely with Republicans in the majority. The reverse is also likely to be true.

After six years of Democrat obstructionism in Congress, the temptation to eliminate the filibuster may be too much for Republicans to ignore. With a broad mandate and angry Republicans eager to start rolling back President Obama’s legacy, the filibuster’s days are likely numbered. 

Originally published in The Resurgent

Congress is the key to stopping Hillary

A major argument for Donald Trump has been that “He’s not a great candidate or a conservative, but we need him to prevent Hillary from picking Supreme Court justices who will gut the Second Amendment.” Given the numerous questionable characters that Trump has chosen to work on his campaign, the idea that he knows how to “hire the best people” is dubious at best. Now, as the “Trump train” goes off the rails three weeks before the election, it is becoming apparent that conservatives need to find an alternative strategy to save the Court and block Hillary. The key to stopping the liberal agenda for the next four years is Congress, specifically the Senate. 

Let’s face it. Depending on Trump to appoint strict constructionists to the Supreme Court was always a long shot. The possibility that Trump might appoint good judges outweighs the certainty that Hillary won’t, Trump supporters argue. If one ignores all the other arguments against Trump, it might even be convincing. Yet as Trump goes rogue on the campaign trail, even that slim possibility seems to be vanishing as a Clinton victory grows more and more likely.

The only certain way to stop Hillary’s agenda before it starts is to make sure that the Republican majority in the Senate is preserved. Many Trump supporters will say that the Republicans in Congress didn’t do much to stop Obama for the past six years. They are wrong. The truth is that Republicans in Congress were very successful at stopping Obama’s legislative agenda.

After the Tea Party wave election of 2010, the Democrats did not pass any major legislation for the next six years. Obama’s landmark laws, the stimulus, the Affordable Care Act and the Dodd-Frank financial reform bill, were passed with Democrat majorities in both houses. Not a single Republican voted for Obamacare or the stimulus.

The Republicans in Congress were remarkably successful at stopping President Obama’s legislative agenda. Obama tried to push through gun control in the wake of the Newtown massacre. Republicans stopped him. They actually cut spending in terms of real dollars in consecutive years for the first time since the administration of Dwight Eisenhower. After the death of Antonin Scalia, Republicans in the Senate tabled President Obama’s nomination of Merrick Garland to fill the vacant seat on the Supreme Court. How much credit did Republicans get for these victories? Approximately zero.

Much of the confusion over the Republican Congress “surrendering” to Obama, as many claim, is the difference between stopping Obama and passing legislation to roll back what Obama has already done. Congress is set up so that it is easier to prevent a bill from becoming a law than to enact a new law. This is particularly true in the Senate.

In the Senate, the first hurdle that a bill must pass to become a law is a cloture vote. Cloture is a gentleman’s filibuster. Rather than speaking for hours on end as they did in the old days, today’s Congressmen can block a bill from coming to a vote by rallying 41 opponents to vote against cloture, or ending the filibuster. Therefore, the 46 Democrats in the Senate could effectively block any Republican bill from ever coming to a vote and that is precisely what they did.

The cloture rule is not part of the Constitution. Senators could decide to eliminate it in favor of a straight majority vote. The problem is that there is an even greater hurdle. If a bill passes both houses of Congress, it still faces a presidential veto. To override a veto requires 67 votes in the Senate. Logically, if a bill can’t pass a cloture vote, the veto can’t be overridden.

When the Republicans blocked Obama legislatively, he began issuing expansive Executive Orders and having regulatory agencies issue rulings with the force of law. Because these tactics bypassed Congress, Republicans could not block them. Stopping these abuses would require passing new laws, but the 54 Republicans could not pass new laws without Democratic support. That reality doesn’t change even with a government shutdown. The situation has effectively been a stalemate with neither side willing to compromise on most issues.

Because of the number of Republican Senate seats up for reelection in swing states this year, it was generally assumed that the Republican majority would be smaller for the next Congress. As recently as a few weeks ago, it looked like Republicans would retain control of the Senate, even if they lost some seats. Then came Trump’s implosion.

Not only have the Trump scandals hurt down ballot Republicans, but Trump and his supporters have attacked his fellow GOP candidates. At this point, it seems increasingly likely that the Democrats will win control of the Senate. Even the large Republican majority in the House may be threatened.

While retaining the House would allow Republicans to block legislation such as gun control measures from becoming law, losing the Senate would mean that Democrats could easily appoint extremist liberal judges to the courts with a simple majority vote. There is no filibuster for most judicial appointees thanks to Sen. Harry Reid’s (D-Nev.) use of the “nuclear option” in 2013. With a Democrat Congress and a Democrat president, the filibuster might be eliminated entirely.

On the other hand, retaining control of the Senate would allow Republicans to stop Hillary’s agenda right out of the gate. Appointments to the Supreme Court could theoretically be blocked until after the 2020 elections, if necessary. The Senate has already shown its willingness to stop bad treaties and liberal legislation in its tracks.

There should be no illusions, however, that Republicans can roll back eight years of Obama under Hillary. Even if they retain a majority, they will almost certainly be weaker, at least until the midterm elections. Historically, the opposition party gains seats in the midterms, but even then there is almost no chance of a 67 vote Republican majority.

While it would be preferable to have a Republican president to help pass conservative reforms, Donald Trump is no conservative and has shown little inclination to work with his party. If Trump becomes president and Republicans lose Congress, he could not be trusted to nominate constructionist judges or veto gun control bills. He cannot be trusted to support religious liberty. There is a high probability that he would act with liberal Democrats like Bernie Sanders to scuttle free trade agreements and military alliances.

With Trump falling to the 30 percent range in many polls and trailing in most swing states, there is little chance of a recovery. Republican funds would be better spent on tossup congressional races to preserve the Republican majority than in attempting to shore up a candidate who is biting the hand that feeds him.

If the choice is between an unreliable President Trump and a Republican Senate that has shown its mettle, I’ll throw in my lot with the congressional Republicans.

Originally published on The Resurgent

Winning Republican strategies for 2015

Since the recent failure of the Republican attempt to defund President Obama’s executive immigration amnesty, much has been written, most of if it unflattering, about the future of the Republican Party. Many on the Tea Party right doubt the “backbone” of the Republican leadership and question their commitment to opposing President Obama’s policies.

What these critics do not provide is an answer to how the Republicans can overcome the Democratic filibuster that derailed the attempt to defund the amnesty. The problem was not “lack of backbone” on the part of the Republican leadership. The problem was mathematics. The Republicans lacked the 60 votes required by Senate procedural rules to end a filibuster.

The Republicans have a majority in both houses of Congress, but the majority is only meaningful if conservatives understand that it is a limited majority. Voters vested control of the Senate and House of Representatives with the Republicans, but they did not issue them a carte blanche to impose a conservative agenda.

The Republican majority is limited in two important ways. First, Senate rules require 60 votes for cloture to end debate on a bill. The Republicans have only 54 votes so it is axiomatic that a cloture vote will require at least six Democrats. Second, the Republicans are limited by President Obama’s veto. Even if a bill passes both houses of Congress, the president can veto it. Congress can override a presidential veto, but this requires 67 votes in the Senate and 288 in the House. Democratic votes (13 in the Senate and 41 in the House) would be required. To avoid wasting two years of a majority, Republicans need to take these limitations to heart and adapt a strategy to defeat them.

The first step is in casting aside unworkable strategies of the past. Defunding is a dead idea that should not be considered in the future. As with any other legislation, the idea is unworkable without a bipartisan majority. If Republicans have the votes to defund something, it would be better to simply repeal it outright.

Shutting the government down as a consequence of the House’s “power of the purse” has also proved unsuccessful in the past. A government shutdown is useful only as leverage if Democrats want to keep the government open. With a president who relishes the idea of using a shutdown to pummel Republicans, the strategy of a shutdown is pointless masochism. Republican leaders have quite sensibly rejected this course.

A successful Republican strategy will require one thing above all: a bipartisan majority. No conservative legislation can become law without Democratic votes. Republicans must peel off at least six Democratic senators for cloture and 13 to override Obama’s veto. This is a mathematical and constitutional fact. The question is how to do so.

The answer is to learn from the Democrats themselves. The Democrats in Congress have been successful because they stay united and split the Republicans over divisive issues like immigration. Republicans should ask themselves what issues can be used to divide the Democrats.

One such issue is the medical device tax imposed by Obamacare. This very unpopular tax is imposed on the manufacturers of such items as prosthetic limbs and pacemakers. It threatens thousands of American jobs as well as hurting the sick and disabled. There is bipartisan support for a repeal of the medical device tax, if not for Obamacare in its entirety.

If Republicans bring a repeal of the medical device tax to vote in Congress, Democrats would be forced to choose between voting to tax the sick or deserting to the Republican side. If the vote passes, Obama must allow it or publicly defend a veto. In either case, a vote to sustain the tax would be fodder for campaign ads by Republican challengers.

A second method for creating a bipartisan majority is to sweeten the pot with a compromise. Bill Clinton famously said that the Constitution could be subtitled “let’s make a deal.” If Republicans want to pass their agenda, they must induce the Democrats to vote with them, rather than simply expecting them to bow down before superior numbers.

One area where such a concession could be made is on the minimum wage. The minimum wage is an issue where the public supports the Democratic position. Recent polling has found strong support for raising the minimum wage, even in red states. In the 2014 elections, voters in four states that sent Republicans to the Senate enacted increases to their state minimum wages.

Trading a modest increase in the federal minimum wage for Democratic votes on Republican bills is a compromise that would defuse a popular Democratic issue while, at the same time, helping to advance conservative policies. The Republicans should not give in to a sharp increase in the minimum wage to $10 or $15 per hour, but a modest increase to the $8 to $9 range could be phased in over time.
Numerous studies, including one that looks at unemployment during the Great Recession, have shown that raising the minimum wage hurts low-skilled workers, but the economic effects of a modest increase to the minimum wage would be negligible. Thirty states already have minimum wages that are higher than the federal minimum wage according to the National Conference on State Legislatures. At least 14 states have already enacted or scheduled minimum wages that are $9.00 per hour or higher. Further, a 2013 study of minimum wage earners by the Bureau of Labor Statistics found that only 4.3 percent of workers earn the minimum wage. An increase to the minimum wage would affect few workers in a small number of states.

Negative effects on the economy could be further minimized by incorporating a separate minimum wage for teenagers. The BLS study reports that only three percent of workers over age 25 earn the minimum wage, compared with 20 percent of teenagers. Instituting a lower minimum wage for teens would protect their ability to find entry-level, part-time jobs.

For Obama’s executive immigration amnesty, the contentious issue that led to the almost-shutdown of the Department of Homeland Security, there is the low-yield nuclear option. In the Wall St. Journal, Curt Levey, a constitutional attorney with the Committee for Justice, called on Republicans to block Mr. Obama’s judicial nominees until he reneges on his executive action.

Blocking Obama’s appointees has many advantages that defunding lacked. First, it is possible. The Democrats cannot block the Republicans from blocking confirmations. There is no cloture or veto of a blocked confirmation. This strategy negates the two weapons that the Democrats hold.

Second, blocking confirmations is a win-win for Republicans. The optimal outcome would be that Obama reverses his executive action, which would be tantamount to surrender. If he stands firm, however, his nominees will never be seated as judges. This means that there will be more judicial openings for the next president, hopefully a Republican, to fill.

Finally, the potential for blowback is small. With a government shutdown, Republicans always take a hit in public opinion and lose support. That’s why Democrats try to goad them into that course of action. Blocking nominees is much lower profile and would not be noticed by most Americans. There would be no closed offices or parks and no furloughed workers to show on television. Lawyers who cannot get appointed to cushy jobs in federal courts are not sympathetic figures.

Many critics of the Republicans ask, “What was the point of winning the election?” if the Republicans can’t enact their agenda. The election gave the Republicans an advantage; it did not give them the ability to dictate terms to the Democrats.

The Republicans can use their majority over the next two years to further the conservative agenda and roll back pieces of Obama’s legacy, but to do so they must adopt realistic strategies that play to their strengths and work around those of the Democrats. Winning Republican strategies divide the Democrats, not themselves.

 

Read the full article on Examiner.com

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