New Year’s Resolution
At several points in the legislative process, health reform has been perilously close to failure. Indeed, we are not out of the woods even now. The negotiations over the final bill may become ensnared in any of several sticking points: the revenue mechanism (excise tax on high-priced plans vs. surtax on high earners), Medicare cost containment (too much or too little?), Medicaid expansion (fiscal burden on the states), abortion, and the public option. In addition, at least one poll in Massachusetts suggests—with cruel irony—that Teddy Kennedy’s Senate seat could go to a Republican in a special election next week, an outcome which would give Republicans 41 votes and a cloture-proof super-minority sufficient to block a vote on the negotiated bill.1
Other highly contentious issues are in the queue for 2010: climate, financial reform, immigration. The prospects of legislative action on any of these major national problems are looking grim. And this is at a time when Democrats control a “filibuster-proof” 60-vote majority in the Senate and 256 out of 435 seats in the House (58.9%).
What do you call a legislature that is incapable of addressing urgent needs of the polity, even at a time when broad majorities of the elected legislators agree (by and large) on what the solutions to those problems should look like? I call it dysfunctional.
The legislative process is broken, and the country is facing dire consequences as a result. The cause of our collective dysfunction lies in the combination of two factors. The first is our toxic, hyper-partisan politics. For good or ill, toxic partisanship is probably here to stay. The second factor is the United States Senate, its rules and its customs. Those rules and customs are things we should be able to fix. But, for reasons related to the first factor, it won’t be easy.
The filibuster is public enemy number one.2 The requirement of 60 votes to invoke cloture now operates as a de facto supermajority requirement for Senate action on just about any bill other than the budget. The result is that duly elected majorities are unable to enact the programs which they have been elected to enact.
That’s why my New Year’s resolution is to contact my senators and to urge them to restore majority rule in our national legislature. I am convinced that the filibuster poses a greater danger to our long-term interests than anything else—far greater than terrorism. If we cannot fix the process by which we make decisions about national policy, we will lose the capacity to act collectively where collective action is urgently needed.
- However, even if Republican obstructionists gained a 41-seat minority, a flawed-but-decent piece of health-reform legislation could still be enacted if the House and the President simply adopted the bill the Senate passed on Christmas eve. [↩]
- In addition to the filibuster, there’s the indefensible Senate tradition of allowing individual members to place “holds” on bills and nominations. Here’s an example from Matthew Yglesias. [↩]
How Would the IMAB Work?
Tim Jost gives a nice précis of the Senate bill’s IMAB provisions here:
A signature feature of the Senate bill is the creation of a new 15-member independent Medicare Advisory Board composed of health care, health policy, and health economics experts as well as representatives of employers, third-party payors, consumers, and the elderly appointed by the President that is responsible for presenting Congress with proposals for reducing excess Medicare cost growth. In years when Medicare costs are projected to exceed a target rate, the Board will be required to make a proposal to reduce cost growth, which will go into effect unless Congress, following expedited procedures develops an alternative proposal. The Board’s proposals cannot ration care; raise taxes or Part B premiums; change Medicare benefit, eligibility, or cost-sharing standards; or reduce payments for providers whose payments have already been reduced by the market-basket adjustments, which will limit the Board largely to reducing Part C or Part D expenditures. The CBO scored the Board as saving $23.4 billion over 10 years.
There has been some confusion, as Slate’s Mickey Kaus illustrates, about the significance of the fast-track mechanism under which Congress would consider revisions to the IMAB’s cost-cutting proposals. Kaus quarrels with the notion that the procedural mechanism will place any real limits on the ability of future Congresses to reject the IMAB proposals:
Congress could reject its proposals without substituting equivalent savings anytime it wanted to ([as long as it] could obtain the President’s approval or override his veto). The Reid bill simply says Congress would have to substitute equivalent savings if it wanted to use a ‘fast track’ filibuster proof legislative pathway it sets up (a pathway that still allows a presidential veto). Future Congress’ [sic] don’t have to use that fast-track and no law Congress passes this year can make them, as far as I can see . . . .
Actually, that’s not quite right. In fact Reid’s bill says that any future bill to repeal or modify IMAB recommendations is “not in order” unless it achieves the targeted savings. (See the Act, p. 1019-20.)
That means that any bill, fast track or slow, that fails to meet the savings target will be subject to an objection, or point of order. (Note that we’re really just talking about the Senate here. House rules permit sweeping waivers of such procedural niceties.) If the point of order is sustained by the Chair, the bill is dead—unless there are 60 votes to waive the requirement or appeal the Chair’s ruling. No doubt some parliamentary chicanery will be available in some circumstances to evade the requirements, but similar procedural mechanisms are effective in other contexts (notably, the budget process) and are by no means an empty gesture.
But couldn’t a future law simply change the rules and axe the IMAB recommendations? Not without 60 votes in the Senate. Any bill proposing to repeal or modify the IMAB procedures would be out of order under Reid’s bill—and thus would have to overcome the 60-vote waiver threshhold.
Kaus also misreads the bill’s (admittedly odd) provision giving Congress an opportunity in 2017 to discontinue the IMAB by joint resolution. Kaus writes that Congress could kill the IMAB “by joint resolution, without the President’s approval.” In fact, joint resolutions do require presidential approval; concurrent resolutions do not. And this joint resolution will require three-fifths majorities—not exactly a sure thing.
The real innovation here—and what makes the IMAB different from MedPAC (that’s the Medicare Payment Advisory Commission that Congress so loves to ignore today)—is the bill’s “default” mechanism: if Congress fails to enact substitute legislation within 7 months1, then the IMAB proposals will take effect automatically, without need of congressional or presidential approval.
- The IMAB would be required to submit its proposals by January 15 of the year prior to implementation. If superseding legislation were not enacted by August 15, the Secretary of HHS would implement the proposals . See the bill, the Patient Protection and Affordable Care Act, pages 1000-53 of the pdf. [↩]
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