iWill Blog

Harry Reid and Democrats have violated the U.S. Constitution by changing a Senate rule without bringing the rule change to the Senate floor for a vote. Obamacare will now require a super majority to be repealed. 67 votes are required to change Senate rules. But, the Constitution and Senate rules mean nothing to Democrats as they press towards passing their partisan health-care bill.

RedState accurately points out that “Harry Reid must be remembered as the man who sacrificed the dignity of his office for a few pieces of silver.”

Section 3403 of Reid’s amendment requires that “it shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

The legislation also states, “Notwithstanding rule XV of the Standing Rules of the Senate, a committee amendment described in subparagraph (A) may include matter not within the jurisdiction of the Committee on Finance if that matter is relevant to a proposal contained in the bill submitted under subsection (c)(3).” This basically creates a rule to ignore another Senate rule which clearly is NOT constitutional.

Senator Jim Demint confronted the Democrats on this language in Reid’s amendment.

The transcript is below:

7:30 PM
PRESIDENT, I YIELD THE FLOOR. DEMINT
not. mr. president, i yield the floor. mr. demint: mr. president?

THE PRESIDING OFFICER
the senator from south carolina.

DEMINT
mr. president, i ask unanimous consent that i be allowed to speak for ten minutes.

THE PRESIDING OFFICER
without objection.

DEMINT
parliamentary inquiry, mr. president. does rule 22 of the standing rules of the senate provide that on a measure or motion to amend the senate rules, the necessary affirmative vote shall be two-thirds of the senators present and voting?

7:31 PM
THE PRESIDING OFFICER
it does.

DEMINT
further parliamentary inquiry. is it also the case that on numerous occasions, the senate has required a two-thirds cloture vote on bills that combine amendments to senate rules with other legislative provisions that do not amend the rules?

THE PRESIDING OFFICER
that would require a two-thirds vote.

DEMINT
i have numerous examples here. we did it twice this year on senate bill 2349 and i could read those but i’ll spare the chair all of these. i’m just trying to get at a concern we have here. am i correct that with respect to these bills, there was a combination of legislative provision and rules changes and the chair ruled that because they were — and i’m referring, mr. chairman, to the — earlier this year, those he

referred to where we required the two-thirds cloture. am i correct on these previous bills that with respect to the bills, there was a combination of legislative provisions and rules changes and the chair ruled that because there were rules changes, a two-thirds vote was required?

7:32 PM
THE PRESIDING OFFICER
if there were changes to the standing rules of the senate, a two-thirds vote would have been required to invoke cloture.

DEMINT
i thank the chair. mr. president, am i also correct that the senate has required a two-thirds cloture on amendments to bills where the amendments combine legislative provisions

and rules changes?

i have a number of references on bills that this was done if there’s any question, and i have given them to the parliamentarian for consideration. is there an answer? i mean, i know that there have been amendments to bills that we required two-thirds because they include rule changes. i just wanted to get a confirmation from our parliamentarian. is that, in fact, the case, where two-thirds cloture on amendments to bills have been required to have a two-thirds vote because

there were rules changes included in them?

7:34 PM
THE PRESIDING OFFICER
the chair would like to check that for a future answer.

DEMINT
okay. i believe the parliamentarian does have some of the references of times this has been done. we’re quite certain it has. but, mr. president, as the chair has confirmed, rule 22, paragraph 2, of the standing rules of the senate, states that on a measure or motion to amend the senate rules, the necessary affirmative vote shall be two-thirds of the senators present and voting. let me go to the bill before us, because buried deep within the over 2,000 pages of this bill, we find a rather substantial change to the standing rules of

the senate. it is section 3403 and it begins on page 1,000 of the reid substitute. these provisions not only amend certain rules, they waive certain rules and create entirely new rules out of whole cloth. again, i’ll skip over some examples but let me read a few of these provisions that amend the senate rules which are contained in section 3403 of the reid substitute. it’s section d, titled referral. the legislation introduced

under this paragraph shall be referred to the presiding officers of the prospective houses, to the committee on finance in the senate, and to the committee on energy and commerce, and the committee on ways and means in the house of representatives. the bill creates out of whole cloth a new rule that this specific bill must be referred to the senate finance committee. another example under section c, titled “committee jurisdiction.” and it references rule here. “notwithstanding

rule 15 of the standing rules of the senate, a committee amendment described in subparagraph a may include matter not within the jurisdiction of the committee on finance if that matter is relevant to a proposal contained in the bill submitted under subsection c-3. clearly a rule change. so there’s no pretense that this bill is being referred under the rules of the committee of jurisdiction. and now it is allowing the finance committee to add whatever matter it wants to the

bill, regardless of any rules regarding committee jurisdiction. and of good measure, the bill even specifically states that it is amending rule 15. let me just skip over a number of other examples referring to rules just to try to get to the — the point here. because it goes on and on, and i’ve got pages here. but there’s one provision that i found particularly troubling and it’s under section c, titled “limitations on changes to

this subsection.” and i quote — “it shall not be in order in the senate or the house of representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.” this is not legislation. it’s not law. this is a rule change. it’s a pretty big deal. we will be passing a new law and at the same time creating a senate rule that makes it out of order to amend or even repeal the law. i’m not even sure that it’s constitutional, but if it is, it most certainly is a senate

rule. i don’t see why the majority party wouldn’t put this in every bill. if you like your law, you most certainly would want it to have force for future senates. i mean, we want to bind future congresses. this goes to the fundamental purpose of senate rules: to prevent a tyrannical majority from trampling the rights of the minority or of future co congresses. mr. president, therefore, i would like to propound a parliamentary inquiry to the chair. does section 3403 of this

bill propose amendments to the standing rules of the standing rules of the senate? and further parliamentary inquiry. does the inclusion of these proposed amendments to the senate rules mean that the bill requires two-thirds present and voting to invoke cloture?

7:38 PM
THE PRESIDING OFFICER
the section of the proposed legislation addressed by the senator is not — does not amend the standing rules. the standing rules of the senate.

DEMINT
okay. mr. president –

THE PRESIDING OFFICER
and, therefore, its inclusion does not affect the number of votes required to invoke cloture.

DEMINT
mr. president, is the chair aware of any precedent where the senate created a new law and in doing so created a new rule — and i’m quoting from our bill — “it shall not be in order in the senate or the house of representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change the law.” is the chair aware that we have ever put this type of binding legislation on future congresses in a bill?

7:39 PM
THE PRESIDING OFFICER
it is quite common to do that.

DEMINT
i would ask the chair to get those references, if the parliamentarian would, to us. mr. president, another parliamentary inquiry. if this new law will operate as a senate rule, making it out of order for senators to propose amendments to repeal or amend it it — i’ve been in congress 11 years. i have not ever heard of an amendment being called out of order because it changes something that was done before. you know, how is that different from the types of senate rule making for which our predecessors in their wisdom provided a two-thirds cloture vote?

this seems to be a redefinition of words in my mind. mr. president, it’s clear that the parliamentarian is — is going to redefine words, as i’m afraid he has done as part of this process before, but this is truly historic, that we have included rules changes in legislation. we have included rules changes in this legislation yet we’re ignoring a rule that requires a two-thirds cloture vote to pass it. i believe that

it’s unconstitutional. it subverts the principles that — i believe it subverts the principles that we’ve operated under and it’s very obvious to everyone that it does change a rule. mr. president, it’s clear that our rules mean nothing if we can redefine the words that we use in them. and i yield the floor.

7:40 PM
THE PRESIDING OFFICER
the chair will note that it is quite common to include provisions affecting senate procedure in legislation.

7:41 PM
DEMINT
is there a difference between senate procedures and rules?

THE PRESIDING OFFICER
yes.

DEMINT
and so the language you see in this bill that specifically refers to a change in a rule is not a rule change, it’s a procedure change?

THE PRESIDING OFFICER
that is correct.

DEMINT
then i guess our rules mean nothing, do they, if they can re define them. thank you. and i do yield back.

THE PRESIDING OFFICER
the senate stands adjourned until 7:00 a.m. tomorrow.

The Heritage Foundation has an excellent post showing exactly how the Senate’s healthcare bill will actually add to the federal budget deficit. The post states the following:

According to the Congressional Budget Office (CBO), the amended Reid plan would reduce the federal budget deficit by $132 billion over the period 2010 to 2019, but that is a mirage.

For starters, as CBO notes, the bill presumes that Medicare fees for physician services will get cut by more than 20 percent in 2011, and then stay at the reduced level indefinitely. There is strong bipartisan opposition to such cuts. Fixing that problem alone will cost more than $200 billion over a decade, pushing the Reid plan from the black and into a deep red.

Then there are the numerous budget gimmicks and implausible spending reductions. The plan’s taxes and spending cuts kick in right away, while the entitlement expansion doesn’t start in earnest until 2014, and even then the real spending doesn’t begin until 2015. According to CBO, from 2010 to 2014, the bill would cut the federal budget deficit by $124 billion. From that point on, it’s essentially deficit neutral — but that’s only because of unrealistic assumptions about tax and Medicare savings provisions. By 2019, the entitlement expansions to cover more people with insurance will cost nearly $200 billion per year, and grow every year thereafter at a rate of 8 percent. CBO says that, on paper, the tax increases and Medicare cuts will more than keep up, but, in reality, they won’t. The so-called tax on high cost insurance plans applies to policies with premiums exceeding certain thresholds (for instance, $23,000 for family coverage). But those thresholds would be indexed at rates that are less than health-care inflation — forever. And so, over time, more and more plans, and their enrollees, would bump up against it until virtually the entire U.S. population is enrolled in insurance that is considered “high cost.”

Similarly, the Medicare cuts assume that hospitals, nursing homes, home health agencies and others can survive with a permanent annual cut in their payment rates for presumed productivity gains. Medicare’s chief actuary has already signaled that this reduction could push one in five hospitals into insolvency, thus forcing them out of the Medicare program.

What’s more, the benefit promises are sure to expand well beyond what CBO has assumed. There are 127 million people living in households with incomes between 100 and 400 percent of the federal poverty line, but CBO assumes that only 18 million of them will get the new subsidized insurance under the Reid plan by 2015 because of rules that make most workers ineligible for assistance. But, if enacted, employers would find ways to push more workers into subsidized arrangements, and Congress would loosen the rules to make more people eligible. Costs would grow much faster than CBO currently projects. In addition, the Reid plan continues to include a new entitlement program for long-term care that every actuary who has looked at it says is a financial disaster waiting to happen. If passed, it would only be a matter of time before another federal bailout would be necessary.