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ObamaCare and the Reid Rule

Suddenly, the presidential campaign season has descended on the Senate filibuster reform debate.

A recent magazine headline declared, “Republicans begin planning to nuke filibuster and repeal ObamaCare.” This trumpets Jeb Bush’s acknowledgement that he would “certainly consider” use of what some are calling the “Reid rule” to repeal the Affordable Care Act. Scott Walker more enthusiastically endorsed the idea, declaring he would “absolutely” do it. Carly Fiorina and Rick Perry have piled on. Perry said, “I’m for using the Reid Rule to break the filibuster.” He added, “I don’t have a problem at all with breaking the filibuster.”

The Reid rule, or nuclear option, refers to the controversial parliamentary maneuver used in November 2013 to allow a simple majority (made up entirely of Democrats) to change the way the Senate’s filibuster rule was interpreted. By overturning a ruling by the Senate’s presiding officer, they created a precedent that its rule requiring a three-fifths supermajority should be interpreted to mean a simple majority can end debate on presidential nominations (except for the Supreme Court).

Republican presidential candidates with Senate experience are much less likely to be willing to dump the filibuster. Ted Cruz has already said so. When asked by conservative talk show host Hugh Hewitt, Cruz said, “I believe ending the legislative filibuster would ultimately undermine conservative principles.” Lindsey Graham, alongside former Republican presidential nominee John McCain, has been a leader in the Senate on efforts to restore the traditional filibuster rule.

The question for Republican candidates arises because ObamaCare is cemented in place, at least until 2017. The Supreme Court has acted and the president would use his veto pen to kill any legislative effort the Republican Congress might mount to repeal it.

Republican leadership in the Congress is considering the use of a provision in the Budget Act known as reconciliation this year to circumvent Democratic filibusters in an effort to repeal the Affordable Care Act. They are unlikely to succeed in completely repealing the law. Reconciliation bills, which require only a simple majority, were not intended to include comprehensive, programmatic legislation. Abuse of the procedure led to the adoption of the Senate’s “Byrd rule,” by which non-budgetary items can be stripped from reconciliation bills. Critical decisions about what can and cannot be included in reconciliation will fall into the lap of Parliamentarian Elizabeth MacDonough. This is a prospect that no Senate parliamentarian relishes. However, whatever the outcome on reconciliation, the president will be able to veto any effort to gut the Affordable Care Act.

After the 2016 presidential elections, if a Republican is elected, it is more likely than not that both houses will continue to have Republican majorities. Then the probability of Democratic filibusters in the Senate to frustrate any new president’s efforts to repeal the health reform law will come into play. Therefore, the temptation for Republican presidential candidates to promise overturning the filibuster rule in order to please the GOP base is great.

Presidential candidates often make promises outside of their ability to deliver. However, the decision on the filibuster rule will be made in the Senate, not in the White House, whoever the president.

The filibuster has played a critical role for more than 200 years. It has been used to protect the privileges of the minority, particularly the rights to debate and to offer amendments. Democracy, after all, requires a balancing of majority rule with the protection of the rights of the minority. The use of the Reid rule to change the interpretation of the filibuster rule has put the Senate on a slippery slope. Nonetheless, it will be no easy matter to abandon the legislative filibuster.

Those Republican candidates who have never served in the Senate who endorse dumping the filibuster can be forgiven for overstating the presidential role. Just this year President Obama argued that the use of the filibuster in the Senate “almost ensures greater gridlock and less clarity in terms of the positions of the parties.” He added, “There’s nothing in the Constitution that requires it.”

This invitation to eliminate the filibuster was in sharp contrast to his view when he served in the Senate. On the Senate floor in 2005, he said: “The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.”

Frustrated majorities in the Senate will always be tempted. Presidents whose party controls the Senate will always prefer simple majorities. Minorities in the Senate will always demand the traditional protections of the minority in the Senate. A Republican victory in 2016 will test that party’s loyalty to those protections.

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