Sen. John McCain (R-Ariz.) is a national hero.
That statement has been valid for decades, dating back to his valiant service in the Vietnam War. So, it was true before we learned of the tumor in his brain and the surgery to remove it.
It was true before he so bravely flew back to Washington, D.C. to cast a critical vote to begin debate on the effort to dismantle (and maybe replace) the Affordable Care Act.
He was a hero before he rose to his feet when he returned to the Senate floor and delivered a remarkable and, if anything, underappreciated warning to his Senate colleagues.
But, in the early morning hours of Friday, he emphatically reinforced his status as a national hero when he dramatically cast the deciding vote to defeat the potentially disastrous Republicans’ so-called “skinny repeal” of ObamaCare.
The nonpartisan Congressional Budget Office tells us that the skinny repeal would likely result in 16 million more Americans without health care. But, I call it disastrous—and cynical-- because most of the Republican senators who voted for it did not support it and did not wish it to become law.
In fact, one of McCain’s stated reasons for opposing it was the fear that the House of Representatives would see no other course to a “victory” on Obamacare repeal and would merely pass the Senate’s skinny repeal and send it on to President Donald Trump for his signature.
Skinny reform was cynical because no one really wanted it to become law.
I spent more than thirty years in senior positions on Senate staffs and I never saw this occur before. They sought passage of a terrible bill just to provide a vehicle to move it off the Senate’s plate and back to the House.
The idea, then, was to hope that what the House did with the hot potato was ask for a conference committee with the Senate so that something entirely new could be dreamed up. But, once passed by the Senate, the House could have decided to pass that hot potato on to the president.
President Trump’s performance on the issue suggests he would sign anything, whatever its substance, that he could call a “repeal” of Obamacare and a “win.”
The substance has never seemed important to him. He heralded the House bill in a Rose Garden ceremony and then weeks later called that bill “mean.”
In his clarion call to his colleagues of both parties, McCain on Tuesday, urged, “Let's trust each other. Let's return to regular order. We've been spinning our wheels on too many important issues because we keep trying to find a way to win without help from across the aisle. That's an approach that's been employed by both sides, mandating legislation from the top down, without any support from the other side, with all the parliamentary maneuvers that requires.”
By “regular order” he meant referral of legislation to a Senate committee, hearings with expert witnesses, debate and an open amendment process in the committee, and then a vote on whether to report a particular bill to the Senate floor.
But, when McCain refers to “mandating legislation from the top down… with all the parliamentary maneuvers that requires.” I believe he is (or should be) criticizing the consideration of the bill under the reconciliation process created in the 1974 Budget Act.
This provision written by great leaders like Sen. Ed Muskie (D-Maine) and Sen. Robert Byrd (D- W.Va.) has been distorted by both parties over several decades. The authors believed that the budget process would be a bipartisan effort to impose order on the passage of appropriations, the handling of entitlements, and the enactment of tax policies.
The reconciliation procedure was created to allow adjustments to align existing law with the budget blueprint being passed by Congress. The critical step was the inclusion in the law of “expedited procedures” to allow the optional reconciliation bill to move through the Senate quickly.
As a result passage of a reconciliation bill requires only a simple majority in the Senate.
This opened a loophole for majorities wishing to circumvent the possibility of a filibuster which would require 60 votes to overcome.
What the authors of failed to adequately fully consider was that foreclosing the possibility of filibuster circumvented the normal circumstance in the Senate and encouraged partisanship.
The made use of reconciliation became an almost irresistible temptation for the majority party for any number of legislative purposes.
By 2001, Byrd was alarmed by the abuse of reconciliation. He declared, “Reconciliation is a non-filibusterable ‘bear trap’ that should be used very sparingly and, I believe, only for the purposes of fiscal restraint. That was the intention in the beginning. It was not intended to be used as a fast track in order to ram through authorization measures that otherwise might entail long and vigorous debate.”
The failure of the GOP’s repeal and replace efforts was set in motion by the majority leadership when they decided to use reconciliation as a means to pass it. In effect, it turned the Senate’s consideration into a mirror of the House’s dismal performance.
No effort was made to engage members of the minority in either chamber. No efforts to arrive at bipartisan solutions were even attempted.
We are accustomed to such behavior in the majoritarian House. But, we normally expect the Senate to be the cradle of compromise.
Because under the regular order a supermajority is potentially needed to end debate and vote on a bill, members of the minority must be engage. In this case, we saw the Senate make the same kinds of partisan mistakes as the House.
There is a lesson for those, like the president, who advocate overrunning the legislative filibuster in the Senate.
Turning the Senate into another House of Representatives is not what the Framers intended and does not produce lasting legislative solutions.
Richard A. Arenberg worked for Sens. Paul Tsongas (D-Mass.), Carl Levin(D-Mich.) and Majority Leader George Mitchell (D-Maine) for 34 years and is co-author of the award-winning "Defending the Filibuster: The Soul of the Senate." He is a visiting lecturer of political science, and international and public affairs, at Brown University. His work has appeared in The New York Times, The Washington Post and The Boston Globe. Follow him on Twitter@richarenberg