Friday, October 14, 2011

Could Repealing ACA Produce Superbill!?

I have a column over at Solon today giving Harry Reid some grief over his op-ed earlier this week about Senate reform, which Reid continues to not be very interested in. I also mentioned my big legislative reform proposal, Superbill! -- or, Leadership bill. The idea is that the majority party would get one shot a year at a bill that only needed a simple majority. They could pack into that one bill whatever they wanted, with the only constraint that it would, of course, have to pass -- but that the price would be that it would also be open to amendments that could also pass by a simple majority. The idea behind it is that the chief imbalance in the current 60 vote Senate is that there are no protections for intense majorities -- and that a Leadership bill would keep in place the advantages for intense minorities over indifferent majorities on lots of things, but give intense majorities a better chance to act.

This all relates to the discussion sparked I suppose by Tuesday's debate about whether Republicans would be able to use reconciliation to pass ACA repeal. Sarah Kliff has an excellent rundown of why it would be difficult under standard procedures, including the important point that since reconciliation requires a budget to be passed first, there's obviously no way that reconciliation could be passed quickly. But as she points out, others are speculating that Republicans wouldn't respect standard procedures. Jonathan Chait speculates:
The only thing keeping a party from using reconciliation to pass non-budget things is the Senate parliamentarian. By social custom, the parliamentarian’s rules are always followed. When he struck some parts from the Democrats’ reconciliation bill, they abided his ruling. But Republicans could decide to use reconciliation to repeal the entire Affordable Care Act, and when the parliamentarian rules against them, simply overrule him.
Or, as Kliff says, Republicans could just hire a parliamentarian who will give them the rulings that they want.

That would leave us with something a lot like Superbill!, right? A bill that would (more or less) be available once a year and that could contain anything, and only needed a simple majority. It would still be tied to the budget process, which in my conception the Leadership bill wouldn't be, and there might be differences in how amendments are handled, but still -- Superbill! is a souped-up reconciliation bill, and that's what we're speculating about here.

Would that, as Chait says, "essentially...end the filibuster"? In my view, no, not at all. In a narrowly divided Senate, the need to fit everything into one bill is going to be a serious constraint on the majority party, because they might lose different Senators over different provisions. And anything not included would be subject to the normal legislative process. What might happen, however, is that the threat to include something in Superbill! might help get it through the legislative process even if it's not included. That is, if the 55-Senator majority party has, say, 53 solid votes for a bill, they might be able to cut a deal with the minority party, which could settle for bargaining down the size or scope of the bill in return for not including it in Superbill! (and the majority might be happy to do so, because it wouldn't want to lose two votes from its final Superbill! vote). And of course a bill with a sub-60 majority but little intense support would probably still not be folded into the Leadership bill anyway.

That is, reconciliation weakens but doesn't destroy the filibuster, and a stronger reconciliation would further weaken the filibuster but would not, I don't think, create a true majority-party-rules Senate.

What all this means, as I said over at Salon, is that people who really care about the Senate -- and especially those who don't want a future reformed Senate that looks like the current reformed House -- should get to work now on a well-designed Leadership bill or a sliding scale that would really work or some other means of moving from the current disaster of a system to one that could actually work.



  1. I can appreciate those who don't want the Senate to function like the House. However, isn't the dysfunction in today's Senate a bigger problem for effective governance than the way the House operates?

    As longer-serving Senators leave office, the institutional nostalgia will decrease, and fairly soon we'll have a large majority of Senators whose only experience of the Senate is of the current "filibuster anything that might move" Senate culture.

    At that point, aren't we likely to end up with a Senate that is increasingly incapable of playing its constitutional role in the country? And how far away from that are we now?

  2. Jonathan, isn't this proposal misjudging what a majority of senators seem to want? The majority of senators opposed to filibuster reform right now don't seem to be in good faith flummoxed by how to come up with a better rules-based democratic system for organizing intensity and preference.

    There's a small group of centrists Democrats who cling to a senate culture focused on individual senator power, who relish their leverage and who all things considered have no problem with less rather than more stuff happening in the senate. And then there's an entire group of Republican senators who's main concern seems to be that they get first dibs on breaking norms and rules of senatorial culture, so that they can benefit from it.

  3. Apologies if you've written on this before, but do you tend to like or dislike the reforms that strengthened the House leadership?

    A lot of my thinking on the Constitution is informed by what you write (separate institutions sharing powers, the Madisonian system), and it seems to me that it's appropriate for at least one venue in our constitutional scheme to be a pure expression of majority will, and may only be possible by concentrating power in the party leadership.

    I agree however that the Senate should be a complementary body and not a mirror of the House, and I like the three reforms you propose as a means for the majority party to still express intense preferences while recognizing the Senate's different constitutional role. Here's hoping Reid or his successor takes up the challenge.

  4. PF,

    I don't disagree with you. I'm pushing what I want, and what I think people who care about the Senate should want -- and I think (naturally, and perhaps correctly) that my proposal is better than the other ones out there.

    I guess what I'd say is that to the extent that all Senators have at least partially self-interested (and not partisan) motives, they should be trying to figure out a way to preserve the importance of individual Senators. Whether there's any chance of that impulse beating out the partisan motive...well, I'm not especially optimistic about that.

  5. Bryan,


    I don't know...I think dictatorship by White Supremicists was a lousy way to run the House, so anything is better! I'm really not sure what I would have thought was ideal if I had been been blogging in 1959-1975. I do think that keeping some sort of balance between the leadership and the committees is a good thing, and I think Pelosi and (perhaps?) Boehner have been better at it than everyone from Wright through Hastert.

  6. An interesting analogue to Superbill: a few years back, Mexican president Felipe Calderón proposed a series of constitutional reforms to the structure of the Mexican government. One of them was that the president would be able to propose two initiatives in each session which the Congress would have to vote on.


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