“If you will not fight for the right when you can easily win without bloodshed, if you will not fight when your victory will be sure and not too costly, you may come to the moment when you will have to fight with all the odds against you and only a small chance of survival. There may even be a worse case: you may have to fight when there is no hope of victory, because it is better to perish than to live as slaves.”
— Winston Churchill
The Founding Fathers created a Republic, but 60 Senators are poised to take it away. With the pending disaster of the passage in the Senate of a bill nationalizing one sixth of the U.S. economy and our entire healthcare system at a cost of over $2.5 trillion, we are faced with a crucial question: are the Republican senators using every means at their disposal to stop this looming, tyrannical abuse of power? Unfortunately, the answer appears to be “no.”
The Senate, unlike the House of Representatives, has parliamentary rules and procedures that give the minority the ability to stall legislation. In fact, unlike the House, the minority have the ability to virtually paralyze the Senate. Doing so is not something we would want or expect for every bad bill that comes through Congress, but the proposed healthcare legislation is probably the worst piece of legislation ever considered by the United States Congress. It is the most intrusive, most damaging, most costly, most dangerous bill to the economic and personal freedom and liberty of individual Americans that Congress has ever considered. If there is any bill that deserves being stopped by shutting down the Senate, it is this one.
There are a whole series of parliamentary maneuvers that could be used by Republican senators to stop this bill. There is a hard backstop to the current process (Christmas). The Republicans’ goal should be to prevent Reid from passing the bill before that time. If he goes past Christmas and is forced to adjourn or recess, the momentum will shift in favor of those opposing the bill.
How could this be done?
To start with, they should stop constantly agreeing to “unanimous consent” requests from the Democrats. Senate Republicans, to date, have allowed Democrats, by unanimous consent, to process 10 amendments. The amendments that have been accepted – Democrat amendments – did not make the over 2000-page atrocity any better. The Republican strategy of trying to pass their own "message" amendments carries no message unless you consider “no strategy to kill the bill” a message. There are no amendments that could possibly make this bill a palatable piece of legislation – and any amendments the Republicans get passed that supposedly make the bill “better” may just make it easier for the Democrats to get final passage. If the Republicans want the news media to cover what they are doing to educate the American people even further about the atrociousness of this bill, they have to create drama on the floor of the Senate. And the only way to do that is through an all-out fight with no holds barred. They need to look like Braveheart, fighting to the end to save freedom. Because, in fact, it is our very freedom and liberty that is at stake.
The most powerful words in the Senate are "I object." Senate Republicans should have been shouting those two words on the Senate floor early and often from the moment this bill was considered, instead of the complete silence we have heard – other than to constantly agree to conduct business through unanimous consent. Here are just a few ways those words can (and should) be used in a very effective way:
The rules of the Senate require that a quorum be present to transact business. A quorum is 51 Senators. In most instances, outside of roll call votes, there are no more than 4 Senators on the Senate floor. If a Republican Senator suggested the absence of a quorum, Democrats could not transact business on the bill. It is a common courtesy to allow the quorum call to be dispensed with, without requiring 51 members to show up on the Senate floor (to get 51 Senators to appear without a roll call vote is very time consuming). When the Democrats ask unanimous consent that the quorum call be dispensed with, the Republican should immediately shout “I object.”
In 1988, when the Democrats were attempting to pass campaign finance reform, and Republicans refused to help them make a quorum, it took 53 hours for the quorum call to be dispensed with. If at any moment at least 50 Democrats are not on the floor, a Republican Senator could again suggest the absence of a quorum and start the process over again, causing huge delays in the legislative process being able to move forward.
No amendment can automatically or without substantial delay receive a roll call vote without every member of the Senate agreeing. Again, the Senate generally operates on collegial courtesy, but a $2.5 trillion courtesy is too much. Once an amendment is pending, it only takes one Senator to step in front of this freight train. If a Senator objects to ending debate on the amendment or having the amendment set aside, the majority must file cloture on the amendment. First cloture has to ripen and it cannot ripen until the next day’s session of the Senate, so that kills a day of the majority's time. Assuming 60 Senators vote in favor of ending debate, the Senate is then required to spend 30 hours of its session time before voting on final passage for the amendment. Suffice it to say, if the Republicans had continuously objected from the start, the ten amendments they allowed the majority to process would have taken more days than Harry Reid has on the Senate calendar.
Senators have an obligation to protect the Constitution and the budget and points of order can be raised on both. Many constitutional scholars have pointed out that numerous bill provisions, particularly the individual mandate, are unconstitutional. Under the Senate’s rules, constitutional points of order are debatable. The Republicans should be constantly bringing up constitutional points of order, one after another, on every questionable provision. Reid would presumably be forced to file cloture on the points of order and another three days could be burned up on each one.
The healthcare bill violates § 425(a)(2) of the Budget Act, which prohibits consideration of any legislation that contains an unfunded intergovernmental mandate in excess of $69 million per year. If the point of order is raised and sustained, a simple majority may vote to waive the point of order. But the waiver is debatable and thus would presumably require 60 votes to cloture the motion to waive. This would require them to produce 60 votes at a time when they do not have their deal wrapped up yet, once again burning up three days.
On every vote, including on constantly raised points of order, the Republicans should be objecting that the vote total is incomplete – the Democratic Chair will rule that it is complete and the Republicans then appeal and once again force a vote, delaying the process again and again.
The Republicans should be offering one amendment after another on all of their favorite issues such as guns, abortion, elimination of the death tax, ending the TARP program, and gay marriage in the District of Columbia. Nothing connotes trench warfare like non-germane amendments on hot-button social issues. When you look back at all of the great filibusters of past decades, they almost always involved non-germane, explosive amendments on contentious social and other issues. Republicans should be offering hundreds of such amendments on every topic and using the rules to force votes on every single one. And the Republicans should be forcing the reading of the bill and every single amendment, not consenting to waiving that requirement.
Some might argue that Republicans should not look "obstructionist." But they are wrong – the vast majority of Americans don’t like this bill and don’t want it to pass. The Tea Party movement was the upheaval of millions of ordinary Americans who are scared and angry about the out-of-control growth of the federal government, federal spending, and the national debt. They want to see the Republicans obstructing passage of this bill and if they think the Republicans are not fighting with every tool they have at their disposal, then any advantage that the Republicans think they will get in next year’s elections from such a bill being passed will evaporate. Conservatives will mount challenges to what they see as weak Republicans, just like what happened in New York’s special congressional race, helping Democrats eek out wins. And other conservative will stay home (like they did in 2008) rather than support GOP incumbents who did not fight.
The view coming out of the Senate of the Republicans has the appearance of business-as-usual – colloquies, speeches, and unanimous consent agreements. It does not convey the sense of urgency that should come with an issue of this magnitude and it does not provide any assurance to the public, including most especially the conservative base that is the heart of the Republican Party, that Republican Senators are willing to do everything it takes to stop this bill. If they don’t starting acting forcefully quickly and immediately, not only will they allow the country’s future to be unalterably damaged, they will be hastening the end to their own careers in the elections coming down the road faster than they can imagine.
Finally, I often hear that Senators express frustration when we dare to tell them how to fight, and that their frequent refrain is “you just don’t understand how the Senate works.” Actually some of us understand better than they do how it should work (whether they agree with every particular parliamentary tactic described or not), and the current frustration they feel with us will be nothing like what they may feel if they don’t stop this bill at all costs and act to preserve our Republic.
“A Republic, if you can keep it.”
— Benjamin Franklin