"Major Power Brokers On The Left"

Last night, Rachel Maddow tells me broke some news.

We can report exclusively tonight that two major power brokers on the left have told MSNBC that they are encouraging a Senate strategy now in which the leadership would revoke chairmanships and other leadership positions from any Democrat who sides with a Republican filibuster to block a vote on health reform. Regardless of how individual senators would vote ultimately on the bill, committee chairmen or subcommittee chairmen who allowed Republicans to force a 60-vote requirement for passing health care...under this type of strategy would be in danger of losing their chairmanships.

I don't know what that means. "Two power brokers on the left"? Who? Senators? Fundraisers? People who want health reform? I'm encouraging this, am I one of the power brokers? If it's Senators, this isn't really news, as Tom Harkin said this about Max Baucus back in July, even before the vote. Jay Rockefeller has intimated it as well, with respect to having a vote on leadership and chairmanships instead of using seniority. And with Rockefeller and Baucus not even speaking to each other before this critical vote, I'm assuming that hasn't changed.

Mind you, I'd LOVE for this to be the strategy. It wouldn't take effect until 2011, and I don't know if it can filter down to subcommittees - Ben Nelson and Mary Landrieu don't chair any committee, for example - but it's one of the tools in the shed for the Senate caucus leadership. I hope they use it. This report doesn't convince me they will, however.

Nelson Playing Possum?

Chuck Schumer remarked yesterday on the dynamic facing moderate Dems with respect to health care and the public option:

So if you have a conference committee where the House has it strongly, almost rock solid, in their bill, and the Senate...if we don't have it in the bill there are 54, 55, 56 Democratic senators for it, how are they going to report back a bill without it?

This is the key question. Everybody wants to agree on jettisoning the public option, but the debate got so far away from the White House and Congress that the public option became synonymous with reform, and now nobody wants to be the one to excise it from the bill. You've even got Shep Smith going off script and slamming Republicans for distorting the public option debate. Nobody wants to put the stake through its heart.

But before everyone congratulates themselves on how health care reform "won" because conservaDems wouldn't dare to kill it, check out what Ben Nelson told Brian Beutler earlier today:

With a 60-seat majority in the Senate, Democrats are poised, theoretically, to prevent Republicans from filibustering key agenda items. Liberals and health care reformers see that as a potential bulwark against Republican obstruction and are pressuring party leaders to enforce unanimity on key cloture votes, so that nominations and major bills (like health care) can be decided by a simple majority. And just how are they doing on that score?

Sen. Ben Nelson (D-NE), one of the Senate's most visible centrists, tells me leadership hasn't said anything about it to him.

I asked, "Has leadership been in discussions with you and other moderates about voting with the party on procedural votes?"

In a statement that will bedevil liberals, he responded, "I don't know about others, but not with me."

There's almost no way that's true. And if it is, the Democratic leadership should collectively resign. There's almost nobody in the caucus whose vote needs to be assured OTHER than Ben Nelson. My suspicion is that Nelson is deliberately misreading what's been said to him to set himself up with the ability to leverage his opposition into concessions. With 60 Democratic votes, it really only takes one to vote down cloture. Everybody has the potential to demand something from reform. And Nelson is just allowing that to continue.

Meanwhile, he's being smartly squeezed back at home:

The Nebraska Democratic Party put the state's senior senator, Ben Nelson, in an awkward spot on Saturday by passing a resolution making support for a government-run insurance option a central aspect of its platform.

In a nearly unanimous vote at a committee meeting in Fort Omaha Metro Community College, about 70 attendees approved language that urges members of Congress "to vote for such health care reform proposals that contain a robust public option at all stages of the legislative process including conference and reconciliation, and encourage legislators to pass such reform."

Nelson remains one of the highest-profiled U.S. Senate Democratic holdouts on the public plan, even recently declining to commit to voting against a Republican filibuster of legislation that included the provision.

Officials at the Nebraska Democratic Party said the committee vote was not meant as a rebuke of the senator, who has historically taken a conservative approach to public policy issues. More an encouragement to all Democratic state legislators.

North Dakota Democrats just did the same thing, putting pressure on Kent Conrad - the resolution actually supports single payer with a public option as a "fallback". I don't know if these Senators are reachable, even by their home states, but it's worth a shot.

Point being, I don't think we can just assume that the Dems have 60 locked up for cloture just yet. There's a long way to go.

DE-Sen: Castle v. Biden

For a small state, that's going to be a big matchup. Mike Castle is considered a moderate and hasn't lost a race in Delaware since 1966. Beau Biden is the son of the Vice President, who also never lost a race in Delaware, and he's the Attorney General in his own right.

Rep. Mike Castle (R-Del.) will be running for Vice President Joe Biden’s old Senate seat in Delaware, according to two GOP sources connected to the congressman, instantly giving Republicans the opportunity to flip a traditionally-Democratic seat in their column [...]

But Attorney General Beau Biden, just back from military service in Iraq, is considering running for the seat and would be a formidable opponent.

A recently-released Rasmussen poll conducted this month showed Castle leading Biden by five points, 47 to 42 percent.

That's instantly a toss-up seat. Bad news for Democrats, although it's mitigated slightly by the fact that Castle's House seat probably flips now, as he was pretty much the only man in Delaware who could keep it.

Democrats had better do something with their 60-seat Senate majority in the next year, because they are highly unlikely to keep it or grow it.

...Jack Conway looks pretty good in Kentucky, but needless to say the trade of Ted Kaufman for a Southern Democrat is a net negative for a progressive agenda.

...Open Left sees a 3-5 seat pickup for Republicans right now, although it is early and they add some caveats.

...Interesting theory from a pollster suggesting that Castle is only ahead due to name recognition. Also, with a likely anti-incumbency mood out there, will Castle really be able to avoid charges that he's part of the problem in Washington?

Tracking The Public Option Through The Senate

Those who have been paying attention understand that today was actually a pretty good day for the public option. We learned that Sens. Wyden, Carper and Nelson (FL) support it in some form, and that there are at least 51 votes for it in the Senate. However, yesterday Chuck Schumer did acknowledge that there aren't 60 votes at this time. Ezra Klein asks the right questions:

There are two questions here. The first is "60 votes for what?" Do they not have 60 votes in favor of a health-care plan that includes a public option? Or do they not have 60 votes against a filibuster of a health-care plan that includes a public option? If it's the former, that's okay: You only need 51. If it's the latter, that's a bigger problem. But I'd be interested to hear which Democrats will publicly commit to filibustering Barack Obama's health-care reform bill. If that's such a popular position back home, why aren't more Democrats voicing it loudly?

Second, why give up the public option now? If these moderates want to kill the measure, let them get full credit for doing so on the floor. They can sponsor an amendment to strip it out of the final legislation and go home to their districts having played a clear and undeniable role in the elimination of the public option.

The former is really the question. There are definitely 51 votes for a public option. It's unclear whether there are 60 for a final bill with a public option. And more specific than that, are there 60 to allow a vote on a final bill with a public option?

Mary Landrieu has come the closest to saying that she would filibuster a bill with a public option. Ben Nelson and Joe Lieberman are probably right with her. But I'd sure like to see them try to defy the President and doom a health care bill 40 years in the making over one provision. Reconciliation is always an option, given that you would only need 51 votes, but it's highly unlikely to get a public option that way. The main reason is that the Budget Committee would control the process, and Kent Conrad just voted against public option amendments yesterday, and would be highly unlikely to allow one to go through a 51-vote process. Heck, he doesn't want reconciliation at all. So Chris Bowers surmises that Harry Reid and the White House are the real pivot points right now, when the Senate merges the bill from their two committees:

The next step in the process does not actually involve Kent Conrad's Budget Committee, as I had previously reported (the Budget Commitee only comes into play with reconciliation). Instead, a source on the Hill confirms to me the Senate HELP and Senate Finance committees will be merged by an informal, behind the scenes process involving the four major players in the Senate: Tom Harkin (Chair of HELP), Max Baucus (Chair of Finance), Harry Reid (Majority Leader), and the White House. Together, these four will meet and decide what sort of bill to send to the Senate floor for debate and amendments.

During this process, we can guarantee that Harkin will push for a HELP or Schumer-like public option to be sent the floor, while Baucus will push for no public option to be in the bill at all. Given his recent statements, the best bet is that Reid will probably push against a public option too, and instead favor either triggers (which he has called a good idea) or co-ops (which seems to be the sort of public option he likes best). With two against and one in favor, this means that the only way a public option ends up in the bill that is sent to the Senate floor will be if the fourth major player, the White House, demands it.
It is all up to the White House now. If it pushes for a public option to be included in the health care bill sent to the Senate floor, then a public option will pass as part of health care reform (at that point, all we would need are 60 votes for cloture, and from what I hear we have 57 already). However, if it allows a health care bill to go to the floor without a public option, it is pretty unlikely that a public option will pass as part of health care reform.

Bowers doesn't think any floor amendment would need less than 60 votes, and while there are conflicting reports on that, he's probably right. He also doesn't think conference committee is an option, but I'm not sure I agree there. The House will almost certainly pass a bill with a public option. So it would depend on the White House umpiring that argument in committee. And that will almost certainly be decided by what they think can pass. If the Progressive Block in the House holds firm, and looks like a higher mountain to climb than getting 3 Democrats just to flip on cloture, the White House could go the other way at any step of this process.

Igor Volsky thinks we may see a new compromise floated:

Instead, the very same Democrats who defeated the national program during mark-up, will likely resurrect a discarded idea floated by the New America Foundation and momentarily embraced by the White House. That compromise will create a network of public options modeled on state employee benefit plans. The proposal could be triggered by Snowe’s amendment if reform did not meet a low affordability measure, but any state-based proposal would lack the market clout to lower overall health care spending, reform health care delivery, or hold private health insurers accountable.

Today may have been the death of the public option and the birth of state-based public options.

State-based plans won't have the economies of scale to really pressure insurers, but neither would Schumer's "level playing field" public option. Therefore, given that we're going to have to improve whatever inevitably comes out of the legislation, I'm inclined to say this is better than nothing. Apparently Tom Carper has started floating this behind the scenes.

I'm not as optimistic as Robert Creamer, but I do think that the public option still has a chance to survive in some form, and can be improved after the fact.

The Wanker Caucus

Ben Nelson thinks that the health care crisis is worth taking our time, and we should cut focus on cutting everyone's coverage for now and wait until later to expand coverage. Because those 47 million uninsured can wait. He also offered a stirring defense of minority rule:

Nelson appeared to settle on 65 Senate votes as a figure that would provide him a comfort level in terms of establishing a level of bipartisan support for a bill.

"I think anything less than that would challenge its legitimacy," he said.

A minimum of five Republican votes would be required to reach a total of 65 senators.

Sixty votes would be sufficient to clear a Republican filibuster and win passage of the legislation.

"It would be a tremendous mistake to jam it through with 50 votes" under the Senate's arcane budget reconciliation process, Nelson said.

Yes, it would be a mistake to assert the proposition that majorities can pass legislation. That would be an assault on democracy.

As David Kurtz, notes, Ben Nelson has never received 65% of the vote in his elections, so I'm sure he'll resign.

But Nelson is practically a single-payer advocate compared to Artur Davis.

Davis, D-Birmingham, said Democratic House leaders should listen to their members and President Barack Obama, who has said there is room for compromise on the public option.

"The idea that it's the holy grail of this debate is wrong," Davis said.

"Public option can't pass the Senate," Davis said. "I'm interested in something that can pass and Barack Obama can sign." [...]

"We need a new bill. The Senate is moving in that direction," Davis said. "Unfortunately, the House is not moving in that direction. What I see in the House is some hardening of the battle lines. That's discouraging."

"I'm not for penalizing any of our small businesses or any businesses ... especially during a time when you have an ongoing recession," Bright said, a point Davis echoed.

"Frankly, the House leadership seems wedded to keeping that in," Davis said. "And the more you look at it, the more indefensible that is."

Artur Davis is running for Governor of Alabama. He'll probably introduce a bill to hang immigrants before too long.

Teddy's Replacement Coming Soon

The Massachusetts State Senate just passed the bill allowing for a temporary appointment to the US Senate seat held by Ted Kennedy. The Governor will sign and the Democrats will be back to 60 seats perhaps by the end of the week.

This is probably the best practice for Senate vacancies - a temporary appointment because of the disproportionate impact of losing one Senator out of 100, followed by a quick election within a few months. It ought to be the standard.

Most speculation on the seat has centered on former Governor Michael Dukakis, or someone with ties to the Kennedy family or Teddy himself, like a former staffer. At any rate, that vote will certainly be fairly Democratic.

Obviously this raises the possibility of demanding Democratic unity on allowing a final vote on health care to go forward, even if they don't approve of the final bill. There's the matter of Robert Byrd (who ought to resign and live the rest of his life in peace), but essentially, Democrats will have the votes to block a filibuster if they hang together. And if Harry Reid cannot figure out how to enable a vote the the overwhelming majority of his caucus supports, then he doesn't have any power whatsoever. Reid is still raising the possibility of reconciliation, but that's a bluff for Republicans. It's the Democrats in his own chamber who need the nudge, although perhaps reconciliation is a warning to them as well.

The Actual Conflict

Chris Bowers makes a very good point about what's being left unsaid in the Senate about the health care bill.

There are 59 members of the Democratic caucus in the Senate, and the only Democrat to oppose a public option is Joe Lieberman. It takes only 51 votes to pass a public option through reconciliation, and the Senate leadership has not yet decided whether to use reconciliation for the public option.

And yet, somehow, we keep being told by Democratic members of the Senate that there is no way a public option will pass through the Senate [...]

It is strange how only one Senate Democrat has stated categorical opposition to the public option, and how the Senate leadership has state reconciliation is still on the table, but that we keep hearing from multiple Senate Democrats that a public option won't pass the Senate. Unless we are dealing with number three, then there is an almost conspiratorial code of silence among the Democratic Senate leadership right now. Have they decided they are not going to pass a public option under any circumstances, but they just haven't informed the American people about this yet?

Opposition is always framed as "the public option cannot pass the Senate", as if every Senator has done the whip count by themselves, and removing the agency of that particular Senator to vote for or against a bill. It just "can't pass." Except, I've heard lots of Democratic Senators on the record supporting a public option, but nobody on the record, save Lieberman opposing it. In fact, there are 51 members of the Senate who have said, at one point or another, that they are amenable to a non co-op public option. That's enough to pass through reconciliation, and while I find the idea that a public option through reconciliation would have to be stronger than it is now to be intriguing, in reality, smart legislative staff could figure out a way to pass a ham sandwich if they wanted.

That's not the issue. The issue is that the Democratic Party is conflicted over whether standing for some kind of values and principles or getting enormous donations from corporate interests. In a nutshell.

Reconciliation To Yield Strong Public Option Or Nothing?

Brian Beutler reports:

As Senate leaders begin work on a Democrat-only health care bill, they're finding themselves confronted with an unexpected irony: Though the caucus has reached an uneasy consensus around a public option that's modeled in many ways after a private insurer, it may be necessary to make the public option more liberal, and thus, more politically radioactive, if it's to overcome a number of unique procedural hurdles [...]

"A very robust public option that scores significant savings would presumably be easy to justify doing through reconciliation," says a Senate Democratic aide. "But it is still being studied whether other, more moderate versions of a public option could pass parliamentary muster."

According to Martin Paone, a legislative expert who's helping Democrats map out legislative strategy, a more robust public option--one that sets low prices, and provides cheap, subsidized insurance to low- and middle-class consumers--would have an easier time surviving the procedural demands of the so-called reconciliation process. However, he cautions that the cost of subsidies "will have to be offset and if [the health care plan] loses money beyond 2014...it will have to be sunsetted."

And there the irony continues: Some experts, including on Capitol Hill, believe that a more robust public option will generate crucial savings needed to keep health care reform in the black--and thus prevent it from expiring. But though that may solve the procedural problems, conservative Democrats have balked at the idea creating such a momentous government program, and if they defected in great numbers, they could imperil the entire reform package.

Now this is just funny. The Democratic leadership wanted a bill called the "public option" that would essentially be a non-profit unable to reach those who get insurance from an employer. But in order to pass it through reconciliation, they'd have to pump it up significantly. In addition, this signals that a "co-op" idea wouldn't score at all and couldn't pass through reconciliation either; it would cost seed money for start-up, but wouldn't add or subtract from the budget afterwards, and so would have to be sunsetted or excised. So Senate Democrats probably figure that they'd lose too much support in the Senate on a robust public option and they should lose it altogether. But if they do that, they'll lose the support of the House, who say that they really will hold firm and not pass a bill that gives insurance companies a bailout through a forced market. So that's the space in between right now.

Judd Gregg seems to know this, and he's ready to exploit it.

Sen. Judd Gregg has hundreds of procedural objections ready for a healthcare plan Democrats want to speed through the Senate.

Gregg (N.H.), the senior Republican on the Budget Committee, told The Hill in a recent interview that Republicans will wage a vicious fight if Democrats try to circumvent Senate rules and use a budget maneuver to pass a trillion-dollar healthcare plan with a simple majority [...]

Gregg said the only way for the so-called public option to have the necessary budgetary impact to warrant procedural protection would be if the program were “very aggressive in setting rates, price controls and rationing,” an option that might cause conservative Blue Dog Democrats in the House to bolt.

Absolutely hilarious. Democrats are backed into a corner now, needing to support a real public option or none at all. And it's all up to them, since they only need 50 votes in the Senate. We'll now see pretty plainly whether Congressional Dems and the White House want to be a kept party for corporate interests or not.

I actually see the bigger problem, that insurance regulations wouldn't be able to get through in reconciliation, and would need a "sidecar" bill requiring 60 votes, and anyone bullied into passing something they didn't like in reconciliation may not be so happy about supporting the sidecar. So you'd have a public option but no exchange. Essentially, you'd have a bill made of Swiss cheese. Nevertheless, it's still worth doing to push the limits of the process obstacles in the Senate, with the overall goal of breaking them and their resistance to the change people desire.

Reconciliation began as a limited way to expedite passage of the budget bill that came at the end of each year. It did this by limiting debate and short-circuiting the filibuster. But year by year, administration by administration, it's becoming more significant. It was used to pass much of Reagan's economic agenda. Clinton expanded it to balance the budget, reform welfare and change the tax code. George W. Bush used it for tax cuts, trade authority and drilling in ANWR. Now Barack Obama might use it for health-care reform -- and if that works, for much else.

The reconciliation process's modern role has almost nothing to do with its original purpose. It doesn't reconcile budgets. It evades the filibuster. And maybe its increasing centrality is a good thing. One scenario is that reconciliation becomes a fairly common, albeit still constrained, process to pass legislation without risking the filibuster, which makes the Senate work a bit better. Another is that the need to sidestep the filibuster makes reconciliation common, but its limits begin to annoy members of both parties, and so they either unshackle reconciliation or repeal the filibuster, either of which would make the Senate work much better.

Either way, the elevation of reconciliation -- by both parties -- amounts to an admission of the problems with the filibuster, and a step towards a 51-vote Senate. The further that process advances, the better the Senate will work. In the long run, that's a good thing.

Absolutely. I support reconciliation even if it means a wacky bill, simply to highlight the inequities in the process, and hopefully, provide impetus to changing them.

The Nelson/Landrieu Conundrum

A recent AARP poll shows 79% support for a public option competing with private insurance companies, although the poll question is kind of odd and doesn't reflect what's on offer. Nevertheless, other polls that accurately depict the public option show support in that range. However, that is not equally spread throughout the country. For instance, in a conservative state like Nebraska, more people don't support a public option (by a plurality) in health care reform, for whatever reason, and Democrat Ben Nelson gets 56% support for his handling of health care thus far. We don't have hard data on Louisiana, but Mary Landrieu, who has actually more strongly opposed a public insurance option than Nelson, may also be more in line with the interests of her state than some realize.

Speaking before what was described as a friendly crowd at the Monroe Chamber of Commerce yesterday, Sen. Mary Landrieu said she was opposed to much of the Democrats' legislative agenda.

Asked under what circumstances she would support a public option, Landrieu responded, "[v]ery few, if any. I'd prefer a private market-based approach to any health care reform that would extend coverage," according to the Monroe News Star.

"I'd like to cover everyone -- that would be the moral thing to do -- but it would be immoral to bankrupt the country while doing so," Landrieu said. The public option as currently conceived is expected to be a deficit reducer.

Dishonest? Absolutely. But out of step? Perhaps not.

What can we realistically expect from Democrats like this in red states? Obviously, under a "split the bill" scenario, they could signal support for the more broadly popular elements of reform, like insurance regulations, while opting out of the more controversial elements that only require a 60-vote standard. Or, they could simply opt to allow cloture, the wish of the majority of their caucus, while voting against the final bill. Markos polled this in the case of Nelson:

If Ben Nelson joined Republican Senators in filibustering and killing a final health care bill because it had a public health insurance option would that make you more or less likely to vote for him or would it have no real effect on your vote?

	More	Less
All	21	15
Dem	7	24
GOP	31	9
Ind	19	15

We can assume Nelson will vote against any bill with a robust public option. The big question is whether he will join Republicans in filibustering such a bill. Nebraska Republicans would sure love that, but at the end of the day, they'll vote for a real Republican in a contested election. Nelson would gain a small sliver from Independents, per this poll, but his real danger is among Democrats -- where he would lose a full 17 points of support [...]

If Nelson was to play this properly, he'd vote against any robust public option (and be justified doing so, given his constituency), but allow an up-or-down vote on the bill. Given the political realities of his state, that's the best we could hope for.

How can we position this so that Nelson comes around to this reality? I would look at how Republicans are pressuring Chuck Grassley. Grassley has something only the caucus can give him - the ranking membership of the Senate Judiciary Committee or the Budget Committee. And so he feels the pull from his members to not join in any bipartisan deal. Nelson and Landrieu both have pretty low seniority at the moment, although there's been a near-historic amount of turnover in the Senate recently. But if they have any designs on better committee assignments, or eventual chairmanships, the caucus should inform them of how they would do best to stay in their good graces. This pressure, by the way, should theoretically be much stronger on a Max Baucus or Kent Conrad, who already have that seniority. In addition, Landrieu and Nelson should be asked, pointedly, if they want to go down in history as having stopped access to health care for all Americans for a generation.

The Five Month Delay

Maybe it's crass to talk about this, but Ted Kennedy's death leaves a hole in the US Senate. A figurative one, of course, one that won't likely be filled. But there's also a literal hole, one that brings the number of Senators down to 99, with 59 on the Democratic side. Because of the rules of the state of Massachusetts, there will be no replacement for the Senate seat until January 2010.

Politico reported this morning, "[I]t appears for now that Massachusetts will be without a second senator until a special election can be held early next year.... Under the 2004 law, the governor must set a special election to fill a vacant Senate seat between 145 and 160 days after the vacancy occurs - meaning, in this case, that a special election would be held in the second half of January 2010."

All of this is of the utmost importance, of course, because of a possible vote this year on health care reform, a fight Kennedy described as "the cause of my life." The prospects of overcoming Republican obstructionism were difficult enough, but with 59 votes in the Democratic caucus, defeating a GOP filibuster may prove impossible, which in turn makes the reconciliation option more appealing.

Of course, there are certain elements that cannot be achieved through reconciliation, namely the insurance regulatory reforms, among other things. And I simply don't see any Republican watching so much of the bill passed through a 50-vote process and then invoking cloture. Unless Olympia Snowe gets religion, all Senators in the GOP will obstruct and obstruct.

I know that Kennedy's death is seen by some as a rallying cry to pass health care reform. I fear it's as doomed as ever, at least until we get a replacement in Massachusetts.

(And who will that replacement be? I'd expect the entire Massachusetts delegation in the House to run for the seat.)

...Robert Byrd has called for the health care reform bill to be named after Sen. Kennedy. That tribute will only be fitting if it passes.

"In his honor and as a tribute to his commitment to his ideals, let us stop the shouting and name calling and have a civilized debate on health care reform which I hope, when legislation has been signed into law, will bear his name for his commitment to insuring the health of every American."

...Talk of Massachusetts potentially changing the law to allow a caretaker Senator to hold office for five months, and even to give that position to former Governor Michael Dukakis. I'm actually pessimistic that this will happen. Deval Patrick is unpopular, and this will look very partisan, regardless of the outpouring of sympathy for Kennedy's death. Patrick will have a tough re-election fight coming up and may not want to deal with an appointment controversy.

The Limits Of Comity

Even a "split-the-bill" strategy would require 60 votes for cloture on the more non-controversial items of health care reform. And as I noted, Republicans like Jon Kyl are objectively pro-discrimination against people with pre-existing conditions. Furthermore, expecting GOPers to go along with certain health insurance reform items after getting cut out of other elements of the bill is a fantasy. So those 60 votes will have to come from Democrats.

And all Democrats ought to stick with the wishes of their party rather than join a Republican filibuster. But there's one very sad detail - Ted Kennedy is fighting cancer. He's very sick. He didn't attend his sister's funeral. And while I believe he'd get wheeled in on a gurney if it meant the passage of his life's work, this letter shows that he's preparing for every eventuality. And here he runs up against Massachusetts state law.

A cancer-stricken Sen. Edward M. Kennedy has asked Massachusetts leaders to change state law to allow a speedy replacement of him in the Senate, fearing a months-long open seat will deny Democrats a crucial vote on President Barack Obama's health care overhaul.

In a note to Gov. Deval Patrick and other state leaders, Kennedy wrote "it is vital for this commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election." [...]

Kennedy's letter acknowledges the state changed its succession law in 2004 to require a special election within five months to fill any vacancy. At the time, legislative Democrats — with a wide majority in both chambers — were concerned because then-Republican Gov. Mitt Romney had the power to directly fill any vacancy created as Democratic Sen. John Kerry ran for president.

I'm a bit all over the map on this. I actually think the Senate appointment process for vacancies is anti-democratic and wrong. But a five-month open seat does not serve the interests of Massachusetts residents either. Also, Kennedy, mindful of his cancer fight, could have resigned months ago. It's very sad that such choices have to be made given the process we have.

The real problem, of course, is that we have a system where everybody knows Ted Kennedy's position on health care - his committee staff helped write the Senate HELP bill - and he could easily indicate his position on elements of the bill from a hospital bed or through a staffer, but his specific presence on the Senate floor is required. The Senate is supposed to be about "relationships" and "comity" but the members cannot allow a colleague of 40-plus years the ability to make his preferences known given his medical condition. Ezra Klein adds:

That is to say, where Kennedy’s great friend Orrin Hatch would have voted to uphold a filibuster, now he will vote to shut it down, as that’s how the vote would have gone if Ted Kennedy were still alive, and it is neither decent nor small-d democratic to doom health care because the bill’s greatest advocate contracted incurable brain cancer.

Such a trade would not only be a grand show of respect for Kennedy’s life work, but it would uphold the outcome that Americans chose when they voted 60 Democrats into office in 2008. Conversely, if not one Republican can be found who feels enough loyalty to Kennedy to make sure that his death doesn’t kill the work of his life, then what are all those personal relationships and all that gentility really worth?

But Hatch was specifically asked this last night, and he ignored the question, saying that "The Democrats should be able to pass it. They have overwhelming majorities in the House, and they have 60 solid votes in the Senate." But they don't. Ted Kennedy is sick. He's barred from voting. And Orrin Hatch, supposedly this great friend of his, plays dumb about it. I guess blood - or the bloody shirt of partisanship - is thicker than water.

It shouldn't come to this at all - the filibuster was not designed to automatically require 60 votes on every piece of legislation, that's a recent development. But the next time you hear some member of the Senate club go on and on about "the great civility of this chamber" and "working with my esteemed colleagues on the other side," keep in mind that it's all a bunch of horseshit.

The New Math

Remember when the right-wing started calling the nuclear option the "Constitutional option?"

Now the nuclear option equals anything less than 80 votes in the Senate.

President Grassley told me so.

7-10 Split

FTW:

The White House and Senate Democratic leaders, seeing little chance of bipartisan support for their health-care overhaul, are considering a strategy shift that would break the legislation into two parts and pass the most expensive provisions solely with Democratic votes [...]

Most legislation in the Senate requires 60 votes to overcome a filibuster, but certain budget-related measures can pass with 51 votes through a piece of parliamentary sleight-of-hand called reconciliation.

In recent days, Democratic leaders have concluded they can pack more of their health overhaul plans under this procedure, congressional aides said. They might even be able to include a public insurance plan to compete with private insurers, a key demand of the party's liberal wing, but that remains uncertain.

Other parts of the Democratic plan would be put to a separate vote in the Senate, including the requirement that Americans have health insurance. It also would set new rules for insurers, such as requiring they accept anyone, regardless of pre-existing medical conditions. This portion of the health-care overhaul has already drawn some Republican support and wouldn't involve new spending, leading Democratic leaders to believe they could clear the 60-vote hurdle.

I wouldn't call budget reconciliation, which is how the Bush tax cuts came into being, a "sleight-of-hand." It's been on the Senate rulebooks for decades. Furthermore, passing something by a majority vote should NEVER be seen as something foreign and exotic. It happens to be the prevailing law of the land. Only recently have we had this magic 60-vote requirement on all legislation. Only recently have Republican obstructionists used it in every single case they can. THAT would be the sleight-of-hand, getting the media to believe that a definitive 60-vote standard exists.

I don't think Republicans would sign on to the less controversial elements of reform knowing that the more controversial ones will go the reconciliation route, so you'll still need to convince all Democrats to support cloture on the insurance reform/individual mandate section of the bill. But if the leadership can get that done, I'd say go for it. Jim Manley, Harry Reid's spokesman, said in the article, "we are determined to get something done this year by any legislative means necessary."

This, by the way, is an absurd statement by Olympia Snowe:

The idea of using reconciliation angers even such moderate Republicans as Ms. Snowe. "At a time when we need to bolster the public's confidence in whatever we do with health care, I don't think the reconciliation process will serve the purpose of providing affordable health security for all Americans," she said.

Nobody in America cares about the process used. People aren't staying up at night angered that the Bush tax cuts used a particular Senate process to pass. They may be angry that George Bush cut taxes on the wealthiest Americans in a time of war. If the bill actually provides affordable health care for all Americans, the number of votes will not have any bearing whatsoever on public confidence. In fact, the public does get confused when they hear 58 Senators voted affirmatively for something and the bill failed. The byzantine, anti-Democratic process of the Senate is what saps the public confidence in government.

As If They Had A Choice

The NYT reports that "Democrats Seem Set to Go It Alone on a Health Bill". In plain English, this means that "Democrats want a health bill." There was never going to be Republican support for anything calling itself health reform that Democrats and the President would support. You could whittle and whittle and whittle the bill down to nothing and it wouldn't matter. Somebody in Washington finally figured this out:

Rahm Emanuel, the White House chief of staff, said the heated opposition was evidence that Republicans had made a political calculation to draw a line against any health care changes, the latest in a string of major administration proposals that Republicans have opposed.

“The Republican leadership,” Mr. Emanuel said, “has made a strategic decision that defeating President Obama’s health care proposal is more important for their political goals than solving the health insurance problems that Americans face every day.”

Ya think? Jon Kyl said yesterday that “There is no way that Republicans are going to support a trillion-dollar-plus bill.” Chuck Grassley admitted that he wouldn't vote for his own compromise and legitimized the "death panels" smear despite having voted for it in the past. You're just figuring out that Republicans view their jobs as blocking any legislation at all costs?

We're starting to hear this meme from the right that liberals are interested in negotiation and compromise with Iran and North Korea, but not with Republicans. Well, we've done the negotiations. They led to nothing for months. And the meme itself is false.

In foreign policy, liberals often believe that disputes with foreign actors can and should be settled through negotiation and compromise. That's because international relations isn't a zero-sum affair. Conflict is costly to both parties, good relations bring benefits to both parties, so disagreement is generally amenable to compromise. Ideological disagreement isn't zero-sum either. Neither conservatives nor progressives are wedded to principles that require defense of wasteful Medicare spending. But partisan politics is zero-sum. A 'win' for the Democrats is a 'loss' for Republicans. And the predominant thinking in the Republican Party at the moment is that inflicting legislative defeats on Democrats will lead to electoral defeats for Democrats. That makes the GOP hard to bargain with.

I would say "impossible." They're convinced it's 1994, and they're not needed by virtue of the numbers.

So where to go from here? Well, Democrats in the Senate could demand that their members join no Republican filibuster of any health care measure supported by a majority of their ranks. They can choose to not support the final bill if they wish. They should not keep it from a final vote. That's the simple solution. If that process winds us up with a public option in the House and a weak co-op option in the Senate, the conference committee could actually produce a positive result, provided Harry Reid puts the people on the conference with jurisdiction over the bill, like health subcommittee chair in the Finance Committee Jay Rockefeller (strong public option supporter) and retirement and aging subcommittee chair in the HELP Committee Barbara Mikulski (supporter).

That bill would easily pass the House. The Senate is trickier. But the conference report can't be amended. It can't be changed, or held up in committee. It can be filibustered, and it can be voted against. Those are the options. If three Democrats opposed the legislation and wanted to kill it, they would literally have to filibuster it (this is assuming that Democrats have 60 votes, which is not certain given Kennedy's health). That would be a very hard thing to do at that stage in the game. It would isolate the obstructionists, ensuring funded primary challenges and the enduring enmity of the Senate leadership and the White House. Kent Conrad can say that there aren't enough votes for a public option and imply that he's just protecting the final bill from defeat. But is he willing to be one of those "no" votes? Is he willing to filibuster? That's a different game indeed.

At this point, no Democratic Senator has committed to joining a Republican filibuster, an important distinction. The conservaDems should be asked if they plan to do so.

If that fails and President Nelson (who likes to shout at public option supporters in the media off camera) or some other newly elected President tries to torpedo the bill, there's the option of splitting reform into two bills, with the filibuster-able stuff in one bill, and stuff relevant to the budget packed into a bill that can be achieved with 50 votes in budget reconciliation. That makes those provisions likely to be subject to a sunset, but once a public option, expanded Medicaid, increasing subsidies and other budget-relevant things get enacted, I submit it will be hard for any Congress to allow them to expire. Failing that, there's the straight reconciliation path, which contra Chris Matthews is not "blowing up Senate rules" but part of them (someone who's never talked a word about Senate rules in his whole career should probably not start now), but which could get messy if elements not relevant to the budget got excised.

Or, Democrats could behave like Republicans and rule by fear and questioning opponents' patriotism. But that's, er, unlikely.

The point being, there are options, and lots more open up when you recognize the large majorities in both houses of Congress cancel the need for bipartisanship inside Washington.

The Actual Business Of Health Care

The teabag rallies are theater, but some actual substance has made its way into the health care debate this week.

First of all, the President has openly considered a partisan process to pass health care reform.

President Obama urged Democratic senators on Tuesday to persevere in trying to get a bipartisan deal on health care, but left open the possibility that they might have to pass a bill with only Democratic votes if Republicans stood in the way.

At lunch with Democrats at the White House, Mr. Obama vowed to respond to Republican attacks on his plan, which aims to guarantee insurance for all Americans while slowing the explosive growth of health costs.

The Senate majority leader, Harry Reid of Nevada, said there was “absolute unity” among members of the normally fractious Democratic conference.

“Everyone recognizes that we are going to do, if there’s any way humanly possible, a bipartisan bill,” Mr. Reid said. “We don’t want to do a partisan bill, and we hope our Republican colleagues acknowledge that. We’ll continue to work with them as long as we have to.”

I take the nods toward bipartisanship is simply what you say. The news here is Obama suggesting they must not be an obstacle. And frankly, it's about time. Chuck Grassley today actually referenced Ted Kennedy's brain tumor to try and whip up a fear of rationing. And he's one of the Republicans in the midst of bipartisan talks! They are simply not bargaining in good faith.

In an interview today with Chuck Todd, Obama reinforced the deadline for those talks in the Senate Finance Committee.

"I am glad that in the Senate Finance Committee, there have been a couple of Republicans--Chuck Grassley, Mike Enzi, Olympia Snowe--who have been willing to negotiate with Democrats to try to produce a bill. But they haven't yet. And I think at some point, sometime in September, we're just going to have to make an assessment."

He says he'd "prefer" a bipartisan process. And I'd prefer dinner every night at Nobu. But I can't get that. So I eat what I can get. Obama's saying the same thing. I think everyone's ready to go to war on this. And you will see arm-twisting to end cloture like you wouldn't imagine.

Meanwhile, Jay Rockefeller is doing a good job savaging the Finance Committee talks, talks which he has been shut out of even though he chairs the Health Subcommittee on the panel. Rockefeller's tough talk will push the debate in that committee to the left, just as liberals in the House are pushing Nancy Pelosi and the leadership to the left and drawing a line on the public option. And the September deadline enforces the whole process, telling Republicans like Grassley they can either have input or watch a bill get passed without them.

That's the theory, anyway, we'll see how it works in practice.

Couple other things. Health Care for America Now has a good report personalizing the health care debate and explaining what reform will bring for every type of family. And the White House has apparently secured a win in the all-important budget nerd battle:

The White House scored a point today in its ongoing battle to convince establishment Washington that health-care reform will succeed at cutting costs even as it expands coverage. The White House and budget director Peter Orszag, as well as the House Blue Dogs, are very bullish about allowing an independent board to pursue cost-cutting measures in Medicare. But when CBO scored the measure to determine if it would be succesful, they produced a very lukewarm estimate. Today, though, a group of health-care experts sent a letter [PDF] to Obama arguing that IMAC, the independent cost-cutting board, would be very effective if done right -- and nine of the signatories are members of the CBO's Panel of Health Advisers, nearly half the membership. It's a good sign for the White House, and will help push the message that, while CBO's scores are important, the assumptions made in that office are not carved in concrete.

The CBO simply should not be the final arbiter on questions that are really outside their purview.

Breaking The Dam

I'm going to have to pretty much agree with Thers' take:

Like I said over at the Cerulean Cherub's place, getting a health care bill passed through reconciliation would be great fun even if it were a crap bill [...]

From a democratic (small d) perspective, the Senate has been asking for it for a long time now. The filibuster is not a constitutional tradition, and as we've seen, amply, is a safeguard of made-up Senatorial principles, not democratic principles, and the public good be damned.

Yes, we need sane healthcare, but we need lots of sane things that we're not getting because of the absurdities that the Senate enables -- Max Baucus directly represents fewer than a million people, and has extensive power over the healthcare of over 300 million Americans. Why? Because he's a fucking healthcare maven genius! Or not! It's all amazingly silly.

A case could be made that whatever the content of any specific bill, a punch to the solar plexus of the pudgy, complacent Senate would be good for the nation. The nation's health literally rests at the whim of a very small number of individuals who are only directly accountable to a very, very small percentage of the nation's voters. Whatever this is, it's not democracy.

The Senate has basically gotten completely out of control. It was conceived as a saucer to "cool the cup" of the passions of the House, but there's a fine line between that and freezing the cup and throwing it into a meat locker. If the Senate were instituted after passage of the 14th Amendment, the Supreme Court would likely have found it unconstitutionally in violation of the equal protection clause. California has 69 times as many citizens as Wyoming, and yet their citizens get the same amount of Senate representation. The Senate was a bad compromise put in by the Blue Dogs of the 18th century.

What's more, it's gotten worse, as runaway egos and peculiar Senate rules have completely paralyzed the legislative process. The filibuster has only recently been transformed from an occasionally used temper tantrum to a de facto 60-vote supermajority requirement. This recent development is a significant intrusion to the ability of the country to govern itself.

The filibuster, however, has undergone little-noticed changes. Even as successive generations have weakened it by creating the option of cloture, the filibuster itself has become more present in everyday legislative maneuvering. The political scientist David Mayhew argues that we've misremembered our own past on this matter. He's written that Senate has never faced “any anti-majoritarian barrier as concrete, as decisive, or as consequential as today’s rule of 60."

That seems strange, of course. After all, the filibuster was stronger back in the day. But it wasn't used to create a de facto 60-vote majority. It used to be more akin to a temper tantrum. Mayhew looked at FDR's court-packing scheme as one of his examples. The filibuster hardly figured into the discussion. “General opinion is that the [bill] will pass,” wrote the conservative Portland Herald Press, “and sooner than expected, since votes to pass it seem apparent, and the opposition cannot filibuster forever.”

Its elevation to the decisive rule in the U.S. Senate is a recent development, and one that has taken a countermajoritarian institution (both in its structure and representation) and saddled it with a supermajority requirement. The product is an almost impossibly obstructed legislative body. We tend to assume this will work out fine, as we've had the filibuster forever, and we're still around. But the evidence is that the filibuster did not really exist in this form before, and so it's very hard to say whether it will work out fine. And those who think that the political system will always respond to emergency, and that countermajoritarian rules don't matter, should really take a look at what's going on right now in California.

Reconciliation may or may not be able to produce a bill worth a darn; YMMV. But if the fallout from using it produces a demystification of "Senate process" as some kind of holy writ, the effects would be profound. Process changes have often preceded substantive policy changes. Unless you want health care reform and financial regulatory reform and climate change and energy and all the rest in the tender hands of President Ben Nelson in perpetuity, it may be worth breaking the dam that's holding back the country.

The NRA Doesn't Get What It Wants?

The Senate shot down the Thune amendment to the military budget bill, which would have allowed concealed carry of firearms rules to be portable, essentially, from state to state. This amendment would have made the most forgiving state on concealed weapons - Texas, I'm guessing - the new national standard. So much for state's rights.

It got majority support in the Congress, but Democrats filibustered this time, enough to block passage. Amazingly, the NRA was denied a goodie today in the US Congress. Color me shocked.

A Small Victory

The F-22 fighter is built in 44 states. The military contractors who build it and provide supplies spend many millions in lobby costs. Armed Services Committee appropriators in particular get slathered in special interest money and reward their contributors with as many contracts as possible. The overall trajectory of military spending since World War II is that the military part of the budget is magic and we can spend whatever we want on it. As a result, we spend more on the weapons and tools of war than every other country on Earth, combined.

So it's not every day that a major weapons program gets phased out through the appropriations process. It happened today, as 58 Senators voted to cancel additional spending on the F-22 fighter, a plane which the Pentagon doesn't want, which the Air Force doesn't want, which hasn't flown a single mission in Iraq and Afghanistan, and which has been found in tests to be vulnerable to rain.

It was a parochial vote that had more to do with whether a Senator's state builds major portions of the F-22 than anything else. And it will not signal any kind of near-term sea change in the military budget, which will increase this year. A lot of the F-22 money will just re-route into other fighters like the F-35 and unmanned aerial drones. But there's a symbolic significance here. The President and the Secretary of Defense took on the military-industrial complex by threatening to veto the entire defense bill if this funding stayed intact, and in this case they won. If we're ever going to break their stranglehold on the process, we have to win this kind of vote. Over time, we may even have a President that says "hey, it's kind of insane to spend more on the military than every other country combined" - don't laugh, it could happen - and by showing the ability to cancel weapons projects like this, it will be easier for that future President to maneuver. And I particularly like some of the language Obama used in his comments about this, saying that our budget is a zero-sum game and our "citizens lose" if more money goes to unnecessary weapons systems. With all the talk from the fiscal scolds, there is an opportunity to channel that toward a military budget full of bloat and waste.

It's a good first step, nothing more. But showing we can get by without weapons systems designed for the Cold War is important.

...some additional good news here. Though he voted against stripping the funding, Robert Byrd took a vote on the bill. We've been hearing with respect to health care that Democrats really only have 58 Senators, due to two ill members. Byrd is now back and voting. And you cannot tell me that wild horses could keep Ted Kennedy from a health care vote. The Democrats will have 60 votes. What they do with them is their choice.

Blood Sausage

It's probably easier just to not parse every statement coming out of the Congress on health care. This is the sausage-making period, and it's rarely pretty. But everyone is reporting that, a day after Harry Reid asked his caucus to support the majority's goals by not supporting a filibuster and told Max Baucus to drop bipartisan efforts on the health care bill that would lose Democratic votes, he reached out to a limited group of Republicans and asked them for help on the bill. And Max Baucus and Charles Grassley, according to the LA Times, continue to move forward on their centrist bill in the Senate Finance Committee.

Well, sure. This is the talking phase, and I wouldn't expect a stonewall of silence at this point. Chasing exactly what will remain in the bill or not is like chasing a rainbow.

However, a couple elements to the chatter seem significant. Politico adds up the numbers:

But taxing health benefits to pay for an overhaul? That's still dead, Democratic leaders made clear again Wednesday.

And another thing that's increasingly in doubt: any hopes of getting a health reform bill voted out of the Senate by August, a byproduct of the leadership's decision to lay down the law on finding a new way to pay for it.

Reid's move blows a gigantic hole in efforts to find $1 trillion to pay for health reform - and set off a scramble Wednesday to come up with a replacement for the suddenly missing $320 billion over 10 years.

And if Democrats thought taxing health benefits was unpopular, the second-least-popular idea might be a tough sell, too - a straight-up income tax hike on people making more than $250,000 a year. That idea gained new currency in the Senate and the House Wednesday in part because it would not divide the Democratic base as much as taxing health benefits, which could hit the middle class, and unions strongly oppose it.

Sin taxes on sugary sodas and drinks were back on the table - despite being dismissed weeks ago as too small to be worth the fight it would take to pass them. A few Democrats were talking again about resurrecting President Barack Obama's plan to lower income tax deductions for wealthy Americans, an idea that died barely weeks after Obama first floated it earlier this year.

It does look like changing the employer deduction is right out (which is kind of a shame - I support capping that deduction). But if we're only talking about $320 billion to go, then they should just adopt the Obama Administration's plan to return the rate of deductions for charitable donations to where it was in the Reagan Administration. It's the most defensible (I envision rhetoric like "you mean you give charity for the tax break, not out of the goodness of your heart?") and has already been vetted by the White House.

Now, to get a bill that spends more than $1 trillion a year, you might need something else. But add in the charitable deduction piece and you're up to $1 trillion, which is definitely a better place than I thought.

There's also the wrangling over whether Democrats will join Republican filibusters. Dick Durbin implored the caucus on this:

If they will stick with us on the procedural votes, we at least know that we can move forward.... They may vote against final passage on a bill, they may vote with Republicans on an amendment. That's entirely their right to do. But this idea of allowing the filibuster to stop the whole Senate.... We ought to control our own agenda.

Just making this public is probably part of the strategy. Sadly, plenty of Democrats have swallowed the notion that procedural votes equal the votes themselves:

"Most Senators vote their conscience and they do what they think is right. They didn't come here to be told what to do by somebody else," moderate Sen. Evan Bayh (Ind.) said [...]

"You know how this place operates. Very often, it's the procedural votes that determine the substantive outcome. Sometimes not, but it's not uncommon that that is the case. So those votes on procedural issues will be cast as if they are the ultimate substantive vote," he said.

That's really only true if someone like Evan Bayh believes it. He can separate procedure and the final vote to his constituents if he wanted to. So we can only conclude that he'd rather not.

Good to know.

Everyone's Leaving Their Options Open

Lynn Woolsey let Rahm Emanuel have it yesterday over his comments on a trigger for the public option. I get the sense that Rahm still craves capitulating to the insurance companies on this one, but he's being invited to recognize the contours of the debate, and the fact that there aren't enough votes for a health care bill without a public insurance option.

White House Chief of Staff Rahm Emanuel reassured House Democrats on Tuesday night that President Barack Obama strongly backs a government-run health insurance plan, seeking to quell a firestorm among liberals upset at Emanuel’s comments in the Wall Street Journal that suggested such a plan could be delayed.

Progressive Caucus Co-Chairwoman Lynn Woolsey (D-Calif.) warned Emanuel that he would lose the caucus’ votes if the White House compromised on the issue and included a “trigger” that could delay a public insurance plan indefinitely. The trigger idea is backed by conservative Democrats but is anathema to liberals.

“We have compromised enough, and we are not going to compromise on any kind of trigger game,” Woolsey said she told Emanuel. “People clapped all over the place. We mean it, and not just progressives.”

House Energy and Commerce Chairman Henry Waxman (D-Calif.) said he was reassured by Emanuel. “He doesn’t stand by that trigger,” Waxman said. “He said the president and his administration and he are for a public plan as one of the options.”

Of course, Emanuel stands by the public plan as "one of the options." They have no line in the sand drawn on that, and everything's open to negotiation. Still, if the Progressive Block holds, even a weasel like Emanuel can figure out the math. They cannot take progressive votes on this for granted, and that's a good message to push.

The other message getting pushed over in the Senate by Harry Reid and the leadership is a variation on Bernie Sanders' suggestion, that all Democrats in the caucus should agree not to join Republican filibusters as a matter of course and out of respect for the majority's agenda. The most conservative Democrats don't agree, incidentally.

Landrieu:

However, she flatly refused to rule out filibustering any bill, including health care and climate change legislation. “I’m going to keep an open mind, but I am not committing to any procedural straitjackets one way or another,” she said.

Nelson:

“I’m not a closed mind on cloture, but if it’s an abuse of procedure, if it’s somebody trying to put a poison pill into a bill, or if it’s something that would be pre-emptive of Nebraska law, or something that rises to extraordinary circumstances, then I’ve always reserved the right to vote against cloture,” Nelson said.

Reid's next step should be to remind his colleagues of the tools available to him as Majority Leader. Namely - not approving any bills of individual Senators for floor votes; throwing members off of prized committees in the next session; refusing to contribute to members' re-election campaigns through the DSCC; not respecting members' holds on legislation; using manager's amendments to simply rewrite bills coming out of members' committees; and on and on. These were some of the tools of persuasion used in the 1950s and 1960s, under far more preocedural hurdles, to pass progressive legislation:

I recently read a book called "The Liberal Hour" about the Great Society. And the authors there made the point that one of the important underlying factors to Johnson's ability to move Civil Rights legislation and Medicare and Medicaid was a change House Speaker Sam Rayburn made to the Rules Committee when John F. Kennedy was president. He expanded it to give it a more liberal majority. And there have been a couple moments like this where legislative change is preceded by procedural change.

One of the things that brings up is that it's interesting how central the filibuster has become to not only how the Senate operates, but also how the House operates, as much of the legislating is done in recognition that it'll have to pass the Senate. As political scientists will tell you, of course, this centrality of the filibuster is actually a relatively recent innovation. So I'm curious how much you think it's actually possible to achieve these changes under the current system. Even with a popular new president and a large House majority and 60 Democrats in the Senate, it seems unlikely we'll actually solve these underlying problems. We might get legislation. But it's not likely to avert the existence-level fiscal threat from health-care reform or the existence level environmental threat from climate change. But if not now, then when? And if Congress can't respond to challenges of that magnitude, doesn't it suggest that something is quite wrong?

I think we need to be open-minded and think about the possibility in changes of process as well as policies. We shouldn't be so burdened by the past that we can't face the future. The seniority system in the House was traditionally dictated by members who didn't like the speaker having so much power over the committees. But when I came to Congress, if you were the senior member, you became chairman no matter how competent you were, no matter how in sync you were with the majority caucus. That was enormously advantageous for many of the Dixiecrats who remained Democrat for that reason, to take advantage of the seniority, but who aligned themselves on policy with the Republicans, and created a situation where even when Democrats had large margins, there was this sort of Southern Democrat-Republican coalition that ruled.

The fight by Sam Rayburn to allow the Rules Committee to be controlled by the leadership was an enormous and brutal fight, but a necessary one. The chairman before that time was Judge Smith from Virginia, who wouldn't let civil rights legislation go to the House floor because he was a segregationist himself. That meant that even when the Judiciary Committee proposed a bill for civil rights, members of the House couldn't vote on it.

There are anti-democratic rules that need to be changed. In some ways, the filibuster is an issue we might want to look at more closely. It is a two-edged sword. But I come from California, where to pass a budget you need a two-thirds vote. And they've been unable to pass a budget for years now able to deal with the fiscal problems. And it has thrown the state into chaos because they can't get the two-thirds vote.

The filibuster used to be a two-thirds requirement, and it wasn't until 1975 that they changed it to 60 votes. Well, that was a move in the right direction. For sure.

This speaks more to the ability to recognize the ability for procedural change, but the other story of the 1950s and 1960s was how the Master of the Senate, Lyndon Johnson, used everything at his disposal to break 2/3 majorities, unlock the strangehold from Dixiecrats over major committees, and generally pass his agenda, as Majority Leader and then as President. Political leaders have more power than most people think they realize today. So while Mary Landrieu and Rahm Emanuel and Ben Nelson and Max Baucus think they can have their way in the Senate, it's simply untrue. This begs the question as to whether the leadership WANTS to hold their conservative flank accountable. It's the question of what their priorities are.

...Evan Bayh, too.