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Repeal of ObamaCare in the Senate – Part II

Now that the House has passed H.R. 2, ObamaCare Repeal, by a 245-189 vote, the fight moves to the Senate.  I wrote a few days ago Repeal of ObamaCare in the Senate – How to do it and I wanted to further explain how to force a vote in a Senate on H.R. 2 or another measure to repeal every word of ObamaCare. 

Here is exactly how one member of the Senate can force a vote on ObamaCare repeal.  First, one Senator needs to use the provisions of Rule 14, to block H.R. 2 from being referred to the Senate Health, Education, Labor and Pensions Committee (HELP).  This Committee helped write one version of ObamaCare and will squash any further action on H.R 2.  For arguments sake, let’s say that a Senator has done so and H.R. 2 will be on the Senate Calendar after one legislative day has completed.

Just to be clear, the power to force a vote on full repeal of ObamaCare is fully within the power of one Senator.  Senate Majority Leader Harry Reid (D-NV) has declared that the Senate will not vote on a repeal measure, yet he does not have the power to block all debate and dissent.  The pending filibuster reform proposal may play a role in how this procedure plays out.  All one conservative has to do is follow some simple steps and the Senate will commence a debate on the House passed H.R. 2 or a Senate version of ObamaCare repeal early as next week.

Once you object to the bill being read a second time, it can sit on the Calendar for the next 2 years or until conservatives have mustered the votes to pass the bill.  Conservative have a few options.  Option one is to force a vote on H.R. 2 and option two is to use the amending process in the Senate to force a vote on full repeal.

The idea I explained was praised by some and panned by others.  Just to clarify, I did not invent this strategy.  It has been used by Republicans and Democrats alike in the past.  It is a seldom used procedure that may lead to a quick vote in the Senate on full repeal, if executed deftly.

Quin Hillyer of the American Spectator said:

Every single Republican senator should read this brilliant piece on legislative tactics by Brian Darling of the Heritage Foundation. It explains, step by step, exactly how Senate Republicans can ensure that Harry Reid can’t unilaterally bottle up repeal of Obamacare without it reaching the Senate floor. All it takes to keep repeal alive in the Senate is a simple procedural objection, followed by the support of 16 senators at the appropriate time. There will be no excuse for the repeal to be buried in a Senate committee. None. In fact, if Senate Republicans fail to follow Darling’s outline, every single one of them — especially the leaders — should slink home in shame, under a hail of metaphorical rotten tomatoes.

Dan Friedman at the Atlantic has this take:

Republican aides noted they can force a vote by offering the repeal as an amendment, or by using the Senate’s Rule 14 process to bring the bill to the floor, then filing cloture on it. The easiest course for the GOP might be to try to force a vote on the repeal as an amendment to a bill that’s likely to pass, such as an appropriations measure. Reid can block amendments to bills, but Republicans could then force a vote on a motion to suspend the rules to take up the amendment. They would need 67 votes to win such a vote. Any other course would require 60 votes. (The conservative Heritage Foundation has more on how Republicans could arrange a vote.)

 Alex Pareene of Salon was not as flattering:

It was previously thought that Harry Reid would simply block a vote on repeal and that would be the end of it, but Minority Leader Mitch McConnell always finds a way. He could use “Rule 14″ to bring it to the floor, for example. Or — and this is what he’ll probably do — he could attach repeal as an amendment to something likely to pass the Senate.  The Heritage Foundation even has a little FAQ on how the Senate can repeal Obamacare. Of course, irony of ironies, every repeal option requires either 60 or 67 votes. “This would put many Senate Democrats in the interesting situation of voicing support for so-called ‘filibuster reform’ while at the same time using the filibuster rule to block an up or down vote on Obamacare.” An interesting situation indeed! I imagine we’ll be hearing a lot about “up or down votes” over the next two years, after having heard nothing about them, at all, from the ruling party over the last two years

Any Senator could use the provisions in Rule 22 to commence debate on H.R. 2 after that Senator gets control of the floor for the purposes of moving to proceed to the bill.  If they have gathered up the signatures of sixteen Senators as early as next week, they may be able to force an elongated debate on repeal of ObamaCare. 

Please note that it is possible to force Democrats to do something that they have denounced for months — filibuster.  I am sure the liberal forces in favor of so called Filibuster Reform over at firedoglake and the Washington Post (including Ezra Klein) will call for a filibuster if Senate Majority Leader Harry Reid (D-NV) can’t table a motion to proceed to H.R. 2.  If Reid does not have 50 votes to dispense with this bill using a motion to table, he is in deep trouble and the bill may pass the Senate.  The only way Democrats could block a vote on H.R. 2, if they lose 4 votes, is for them to obstruct a vote with a filibuster.

One element of the procedure that I failed to explain in detail in my prior blog posts is the need for a Senator to get the floor to move to proceed to H.R. 2.  Any Senator can move to proceed to a bill.  It is a myth that only the Majority Leader has the power to move to proceed to bills.  It is common practice, but no rule locks in the right of the Majority Leader to have the sole power of the motion to proceed.

If Reid has 50 votes (and the presumed support of the Vice President) then he can move to table the motion to proceed to H.R. 2 after a Senator makes a motion to proceed to H.R. 2.  If he does not move to table or loses the support of 4 members of the Democrat Caucus, then Reid will have to lead a filibuster of the motion to proceed to the repeal of ObamaCare bill.  Ironically, if the Udall “Filbuster Reform” proposal becomes part of the Senate’s rules, then Democrats would be precluded from filibustering the motion to proceed to H.R. 2 and the filibuster would come on the actual bill. 

It is also a possibility that a Senator could hold H.R. 2 on the Senate calendar so it will be there for the next 2 years until conservatives can build up the support of 60 members while they force a vote on full repeal as an amendment to a bill.  It is difficult for members to offer amendments in the Senate because of Senate Majority Leader Reid’s tyrannical (according to one of Reid’s former Democrat colleagues) abuse of the Senate’s rules.

Senator Reid has abused Rule 22 to “fill the amendment tree” to block all opportunities for Republicans to offer amendments over the past four years.  At last count he has used the blocking tactic 44 times in his four years as Majority Leader.  Not surprisingly, liberal Democrats like Senators Udall of New Mexico and Merkley of Oregon have not proposed the stripping of this power from the Majority Leader as part of “Filibuster Reform.”  They do have a provision that allows the Republican Leader “two germane” amendments, yet they do nothing to prevent Reid from filling the tree on every bill for the purposes of blocking a full and fair debate on every piece of legislation that comes before the Senate.

If Reid continues abuse the rules of the Senate, then Senators will have to use the procedure of Suspending the Rules, requiring 67 votes, to force vote after vote on repeal of ObamaCare.  Then they can gaugesupport until they can secure a majority or supermajority of Senators to pass H.R. 2.

Now the million dollar question is — how do you get over the 60 vote threshold?  I say you shame the Democrats into allowing an “up or down vote.”  If they really don’t like the idea of “obstructionism” and the filibuster, then they could be shamed into an up or down vote on full repeal of ObamaCare.

It is possible, if Republicans can pick up 4 democrats, to not file cloture to force the Democrats to put up or shut up on the filibuster.  Reid will either stand down and allow an up or down vote on H.R. 2 or he will filibuster a final vote on the bill. 

Please don’t interpret my analysis to be an endorsement of filibuster reform.  I still believe that the rules should stay the same and that the right of members to filibuster should be preserved, yet it would be a true test of the word and honor of Democrat Senators who have written to Leader Reid to demand reform of the Senate’s rules to curtail filibusters. 

Conservatives and the Tea Party Nation will be watching the Senate very closely to see if one Senator will stand up and start the process of forcing one, or multiple votes, on the full repeal of President Obama’s unconstitutional health care reform law.

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