The Shameful Spectacle of Friday’s Coronavirus “Vote”

Ten years ago, House Speaker Nancy Pelosi (D-Calif.) infamously proclaimed that we had to pass Obamacare to find out what was in it. On Friday, she and her House colleagues enacted one of the largest pieces of legislation in American history, a more than $2 trillion bill that represented Congress’ third piece of coronavirus-related legislation, all while refusing to take a recorded position on it.

The first coronavirus bill, signed into law on March 6, provided $8.3 billion in spending to fight the virus; the second bill, signed into law on March 18, spent another $100 billion on testing, food stamps, paid family leave, and additional subsidies to to state Medicaid programs; and the third bill, which President Trump signed last Friday, contained a broader package of unemployment and economic bailouts to businesses and families.

That Pelosi would resort to such procedural chicanery should surprise few Americans. In 2010 she wanted the House to enact Obamacare without actually voting on the legislation—the so-called “deem-and-pass” maneuver—although she eventually abandoned that strategy after a massive public outcry.

But unlike the Obamacare debate, House Republican leaders and many rank-and-file members of Congress actively participated in Pelosi’s successful attempt to deny the American people a vote on the legislation. In so doing, they abdicated their responsibilities as lawmakers and leaders out of a mixture of fear and spite.

Members of Congress Are Essential

The fear came because House lawmakers did not want to travel back to Washington to vote on the “stimulus.” The combination of several representatives and senators testing positive for coronavirus (with several others in self-isolation due to potential exposure), public advisories against large gatherings and travel, the close quarters in which members congregate in the Capitol, and the advanced age of some members made them understandably nervous about a return to Washington.

But members of Congress do not have any ordinary job. Their roles as our elected lawmakers make them essential to our democracy—and Article I, Section 6 of the Constitution recognizes them as such: “They shall in all cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

While the Supreme Court has since narrowed the scope of members’ privilege from arrest, its inclusion in the nation’s founding document shows how the Framers considered full participation by all members essential to American self-rule.

Pelosi’s Incompetence Prompted the Debacle

Much of the member frustration regarding the process came not just from the fact that they had to travel to Washington, but were asked to do so on short notice—a particular difficulty given airlines’ dramatic reductions to their flight schedules. Some members could not arrive back in Washington by the time of Friday’s debate and “vote.”

But why did members have to rush back late Thursday for proceedings in the House on Friday morning? Because Pelosi mismanaged the process and then sought to blame others for her mistakes.

For starters, House members remained in their districts for most of last week only because Pelosi had sent them there. Early on March 14, House leaders dismissed members to their districts, in an attempt (ultimately successful) to force the Senate to accept the second coronavirus bill without amendments. Had the Senate made any changes to the legislation, the House would have had to return into session to ratify the Senate amendments, holding up passage. Senate Majority Leader Mitch McConnell told his colleagues to “gag and vote for it anyway.”

Ironically enough, Pelosi not three days before dismissing her colleagues claimed, “We are the captains of the ship—we are the last to leave.” Had Pelosi kept the House in session as the Senate passed the second coronavirus bill and debated the third, members would not have needed to travel back to Washington in the first place—they would have remained here.

The speaker claimed she would give members 24 hours’ notice prior to any votes, should they become necessary. But she waited until late Thursday to tell members they would have to attend proceedings in the House beginning at 9:00 Friday morning.

Following Senate passage of the third coronavirus bill early Thursday morning, Pelosi and House Minority Leader Kevin McCarthy (R-Calif.) should have instructed all members to report to Washington the following day. Instead, they wasted most of Thursday playing a game of “chicken” with the rank-and-file—daring someone to demand all members attend, and then blaming that member, Rep. Thomas Massie (R-Ky.), when he insisted the House assemble a quorum of 216 members to conduct business.

A very similar scenario happened in Congress’ upper chamber two years ago. McConnell (R-Ky.) tried to ram through a spending bill at the last minute, but miscalculated when Sen. Rand Paul (R-Ky.) raised objections. Rather than blaming McConnell for mis-managing the Senate floor, leadership staffers—and the reporters who rely on leadership staffers to spoon-feed them gossip and stories—decided to blame Paul instead.

Rep. Thomas Massie Did Not Grandstand

House leaders took the same tack with Massie last week, enlisting President Trump to attack the congressman. On Friday morning, Trump called Massie a “third rate grandstander” for insisting that members of Congress return to Washington to vote on the legislation.

But to someone well-versed in House procedure, the facts indicate otherwise. Massie had multiple other opportunities to throw sand in the proverbial gears regarding Friday’s coronavirus bill, but did not do so:

  • The House passed the rule governing debate on the bill by unanimous consent. Massie (or any member) could have objected to the House even considering the rule on Friday morning. Such an objection would have required the House Rules Committee to hold an emergency meeting, and could have postponed consideration of the bill by 24 hours. He raised no objections.
  • Massie could have demanded a vote on the rule. Demanding that vote would have required House leaders to muster a quorum of 216 members at 9:00 on Friday—a time many members were still rushing back to Washington. Massie raised no objections.
  • Massie could have demanded one or more votes on a motion to adjourn—a frequent stalling tactic the minority party in the House uses to express outrage when it feels the majority has committed a “process foul.” He never did.

If Massie truly wanted to act like a “glass-bowl,” to paraphrase a tweet by former Sen. John Kerry (D-Mass.), he could have done so. He could have wound the House in knots for much of Friday with procedural objections, parliamentary inquiries, motions to adjourn, and other dilatory tactics.

To his credit, he didn’t do any of that. Massie cared about one thing: That members of Congress have an up-or-down vote—“yay” or “nay”—on the massive, multi-trillion-dollar bill. House leaders conspired against that reasonable request.

‘Mean Girls’ Try Their Tricks in Washington

Massie, or any member of Congress, can object that the House lacks a quorum to conduct business. Article I, Section 5 of the Constitution prescribes that a majority of members (216 at present, given several vacancies) constitutes a quorum. Given Massie’s publicly stated intent to object, the House could not pass the coronavirus bill without a majority of members present in the chamber. Hence the frantic messages from congressional leaders Thursday night seeking member attendance the next morning.

But no one member can demand a roll call vote, in which each takes a recorded “yay” or “nay” position. Article I, Section 5 of the Constitution also states that “the Yeas and Nays of the Members of either House on any question shall, at the Desire of one-fifth of those Present, be entered on the Journal.”

When debate on the bill concluded Friday afternoon, Massie suggested the absence of a quorum. The presiding officer counted, and concluded that a majority of members, many sitting in the House gallery above the chamber to observe social distancing protocols, were present. But when Massie requested a roll call vote, one-fifth of members (somewhere between 43 and 85, depending on the number of congressman present in the House chamber) would not agree, meaning the $2 trillion-plus bill passed on a voice vote, with lawmakers’ positions not recorded.

Under the most charitable interpretation, members didn’t want to force a vote when at least dozens of their colleagues could not participate, either because they remained in quarantine or couldn’t get back to Washington in time. But consider Clause 10 of Rule XX of the rules of the House for the current Congress:

The yeas and nays shall be considered as ordered when the Speaker puts the question on passage of a bill or joint resolution, or on adoption of a conference report, making general appropriations, or on final adoption of a concurrent resolution on the budget or conference report thereon. [Emphasis added.]

In just about every other circumstance, House rules require a roll-call vote on an appropriations bill like the one the House passed on Friday. This requirement did not apply to Friday’s coronavirus legislation only because the House considered it as a message from the Senate, rather than as an original bill or the report of a House-Senate conference committee.

As noted above, members had to come into town anyway, to ensure the House had a quorum to conduct business. Usual practice, as indicated by the excerpt from the House’s own rules, suggests members would record their votes publicly.

They did not even need to congregate in mass groups to vote electronically on the House floor. The clerks could have engaged in an actual roll call vote, which would have allowed members sitting in the House gallery to respond verbally from their places. Rather than following this usual practice—to say nothing of giving their own voters the respect of making their positions known on a $2 trillion bill —the House instead decided to take a passive-aggressive approach, turning Friday’s session into another real-life episode of “Mean Girls.”

To put it bluntly, members did not approve a roll-call vote to spite Massie, because Massie had the temerity to force them to come to Washington and do the job they are paid to do. Pelosi, McCarthy, and their leadership teams likely instructed rank-and-file members not to “reward bad behavior” (as one senator described the McConnell-Paul incident two years ago) and to deny Massie a recorded vote.

The members, either due to their own irritation at Massie, or fear of the consequences from leadership, politely complied. In so doing, they abdicated their responsibilities as lawmakers, prioritizing revenge and anger at Massie over conducting an open, transparent, and fully recorded vote.

Do Your Job, Congress!

Early in my career, a boss of mine offered some matter-of-fact advice that members of Congress should think about: “If you don’t like the job, don’t take the check.”

As Massie noted, grocery store clerks and many others such as nurse’s aides and orderlies in hospitals get paid far less than members of Congress’ $174,000 salary. They continue to show up on the frontlines of this pandemic day-in, day-out, performing heroically in grueling conditions. But when members of the House get asked to do their duties in public for one day, they lash out like preschoolers at the individual forcing them into service.

Massie’s solitary stand against his colleagues may cost him re-election. He faces a primary challenge in June (possibly fomented by House Republican leaders), and his opponent will no doubt use Trump’s Twitter tirade against him.

But Massie acted as he did out of the belief that our elected representatives should not add more than $2 trillion to the national debt without accepting public responsibility for their actions. Of course, to many of his congressional colleagues, Massie’s actions represent a novel—and truly revolutionary—concept: Standing up for principle.

This post was originally published at The Federalist.

How Elizabeth Warren “Swift Boated” Herself on Health Care

Every four years, political analysts and commentators compare current presidential candidates to events from campaigns past. She may not want to admit it, but Sen. Elizabeth Warren’s actions on health care the past several weeks, culminating in the release of her second health plan on Friday, echo the 2004 presidential campaign of her Massachusetts colleague, former Sen. John Kerry.

During his campaign for the Democratic nomination, Kerry played up his military service at every opportunity. Howard Dean’s strident opposition to the Iraq War, coupled with his infamous on-camera implosion after the Iowa caucuses, gave Kerry an opening that he parlayed into the Democratic nomination. At the party’s convention in Boston, Kerry famously started his acceptance speech with a military salute: “I’m John Kerry, and I’m reporting for duty.”

The Swift Boat Veterans for Truth ads that ran after the Democratic convention attempted to turn Kerry’s biggest strength—his military service—into a weakness. The ads sparked controversy, and no small amount of political attention, by raising questions about Kerry’s service in Vietnam, and his activities protesting the Vietnam War following his return.

Likewise, the past several weeks have seen Warren turn her biggest strength—her wonky, “I’ve got a plan for that” persona—into a weakness. On November 1, she released her first health-care plan, replete with multiple documents highlighting supposed savings under a single-payer health-care system, and her plan for raising revenue to pay for such a system without raising taxes on the middle class.

Warren’s first plan drew mockery from her fellow Democratic candidates and conservative commentators alike for its unrealistic gimmicks and assumptions. Most notably, Warren’s plan failed to concede what one of her own advisors implicitly admitted: That an $8.8 trillion “employer contribution” would ultimately come out of the pockets of the middle class. Meanwhile, her opponents continued to hammer Warren for wanting to strip away the existing insurance of millions of Americans, including union workers who negotiated their health coverage at the bargaining table.

Her initial plan failed so badly that exactly two weeks later, Warren felt the need to reboot. She released another health plan, this one highlighting a supposed “transition period,” to get ahead of criticism from her fellow Democrats in the upcoming presidential debate.

This plan pledged that, within her first 100 days in office, Warren would work to enact “a true Medicare for All option”—one that people could select if they chose, but would not require individuals to give up their existing coverage. Only later, “no later than my third year in office,” would Warren “fight to pass legislation that would complete the transition” to a full single-payer system.

The second plan seems like a deliberate dodge, an attempt for Warren to have her cake and eat it too. The single-payer bill introduced by Sen. Bernie Sanders (I-VT)—which Warren has co-sponsored—contains a four-year transition plan in Title X of the underlying legislation. The single-payer bill introduced in the House by Rep. Pramila Jayapal (D-WA) also includes a transition, which would take place over a two-year period. Warren’s claim that Congress should pass not one but two major bills to enact her health-care agenda sounds like an excuse for her to walk away from her commitment to single payer.

On that count, who can blame her? Evidence from the midterm elections shows that support for full-on socialized medicine cost the average Democrat in a competitive district nearly 5 percentage points of support. No wonder that even Barack Obama conceded on Friday that “the average American doesn’t think we have to completely tear down the system” and cautioned Democrats against proposing “crazy stuff,” in a not-so-subtle warning about proposals by Warren and Sanders.

But Warren now remains firmly mired in a mess of her own making. Her “I’ve got a plan for that” mantra meant she had to release a detailed health care proposal at a time political expediency might have suggested vagueness. Her Democratic rivals, to say nothing of President Trump’s re-election, can now pick apart those details over many months.

And to think those details won’t matter to the American people, or lead to additional controversy, belies past experience. When House Speaker Nancy Pelosi admitted in 2010 that “We have to pass [Obamacare] so that you can find out what’s in it,” she conceded that the legislative details matter to millions of Americans—and that such public scrutiny put Democrats in political peril.

Hours before she released her first health-care platform, an article on the issue correctly claimed that “Warren did not have a plan for this.” Her initial lack of a plan, followed by her willingness to spell out in minute relief the details of her socialized medicine plan, could prove her undoing.

This post was originally published at The Federalist.

The Binary Choice Paul Ryan Doesn’t Want to Face

This time last year, House Speaker Paul Ryan (R-WI) spoke to all who would listen about the health care legislation that Republican leadership crafted: “This is the closest we will ever get to repealing and replacing Obamacare. It really comes down to a binary choice.” Now, however, Ryan faces a binary choice himself — one that he and his leadership colleagues seem intent on deflecting.

Ryan can support an Obamacare bailout, or he can support the pro-life movement. He cannot support both.

The deafening silence emanating from Republican leaders on the life issue speaks volumes to both their knowledge of the problem, and their intent of how to handle it. Ryan desperately wants to bail out Obamacare, going so far as to promote a ridiculous budgetary gimmick that should make Ryan, in his former role as Budget Committee Chairman, laugh out loud in its absurdity.

If Republican leaders considered the life issue a red line they cannot, and will not, cross, to pass an Obamacare bailout, they would have said so months ago. By and large, they have not done so, instead issuing only mealy-mouthed statements that “we have been working on it.”

Such statements constitute, in plain English, a cop-out. When the issue presents a binary choice, as here, Congress has little to “work on”—the Hyde amendment either appears in the bill, or it doesn’t. A cynic might argue that the “we have been working on it” statement means that Republican leaders consider the life issue a political problem to game their way around, rather than a moral principle that they must uphold first, last, and always.

But executive action cannot trump the statute itself. Senate Majority Leader Mitch McConnell (R-KY) said the week Obamacare passed that the law “forces taxpayers to pay for abortions,” and only another law will change that dynamic.

As Congressman Jim Sensenbrenner observed in March 2010:

This bill expands abortion funding to the greatest extent in history. I have heard that the president is contemplating an executive order to try to limit this. Members should not be fooled. Executive orders cannot override the clear intent of a statute. … If an executive order moves the abortion funding in this bill away from where it is now, it will be struck down as unconstitutional because executive orders cannot constitutionally do that.

Republican leaders may also embrace the political tactic of a “headpat vote.” This gambit would bring to the floor two separate bills — one containing the Obamacare “stability” funding, and a separate, stand-alone bill codifying pro-life protections for that funding. While that concept might sound reasonable at first blush, the pro-life community would find the outcome unacceptable — the Obamacare funding would remain on a “must-pass” bill headed straight to the president’s desk, while the pro-life restrictions would die in the Senate by failing to get the 60 votes needed to break a filibuster.

This procedural gimmick would represent the worst of the Washington “swamp,” allowing Republican politicians to echo John Kerry in 2004 by taking both sides of an issue: “I actually voted for the $87 billion before I voted against it.” Moreover, it would demonstrate that, when the chips are down, Republican leaders view the life issue and community as something to be bargained away, or appeased through meaningless political tokenism, rather than as a moral imperative and matter of first principles.

In the end, the pro-life community has witnessed enough political double-talk, most notably by Democrats attempting to claim Obamacare does not fund abortion coverage, to see through any procedural gimmicks Republican leaders might propose. The question of whether Republicans support taxpayer funding of abortion coverage in Obamacare really does come down to a binary choice. Here’s hoping that Republicans choose the side of life.

This post was originally published at The Federalist.

Messaging a Law the American People Don’t Want

Speaking on the floor a little bit ago, Senator Kerry claimed that “very effective negative branding” has contributed to the American people’s dislike of Obamacare:

We’ve got to stand up and make it clear to people why this [law] is good.  A lot of Americans have not heard enough about how this legislation works for them, works for the country, will improve our system….I think the Administration has a much better story to tell about it than has been told.  And I’m glad the President has said he looks forward to going out and talking to the country about it, because I believe that as the country learns more about it, in fact, they will say, wow, that makes sense, that seems like a pretty sensible thing to do.

The remarks echo similar comments made yesterday by Rep. Chris Van Hollen, who said that the problem with the 2700-page bill was not the legislation itself, but the messaging of same: “All of us who are supporters of the legislation should have done a better job of explaining its benefits, and we need to continue to make very clear what the benefits of [Obamacare] are.”

This tack of trying to explain away Obamacare’s unpopularity is perhaps unsurprising.  Implicit in the idea that Democrats need to do a better job explaining the legislation is that the American people need to do a better job of understanding said explanations.  And because said legislation is based upon a paternalistic premise – namely, that all individuals must be forced by their government to buy a product created and defined by a little intellectual elite in a far distant capital – it’s unsurprising that such paternalism would also creep into Democrats’ rationalizations for why the law is unpopular:  Because, they claim, the American people don’t understand it well enough.

That said, it’s interesting how strongly – and consistently – Members of Congress who are retiring, or who have been retired, disagree with the premise that Obamacare’s unpopularity is strictly a messaging problem.  Here are some quotes from an article in The Hill from last month:

Rep. Brad Miller (D-NC): “I think we would all have been better off — President Obama politically, Democrats in Congress politically, and the nation would have been better off — if we had dealt first with the financial system and the other related economic issues and then come back to healthcare.”

Rep. Dennis Cardoza (D-CA): Obamacare should have been done “in digestible pieces that the American public could understand and that we could implement.”

Rep. Barney Frank (D-MA): “I think we paid a terrible price for healthcare….I would not have pushed it as hard. As a matter of fact, after [Sen.] Scott Brown [R-Mass.] won [in January 2010], I suggested going back. I would have started with financial reform, but certainly not healthcare.”

Sen. Jim Webb (D-VA): “I’ll be real frank here…I think that the manner in which the health-care reform issue was put in front of the Congress, the way that the issue was dealt with by the White House, cost Obama a lot of credibility as a leader.”

Rep. Norm Dicks (D-WA):
“It [Obamacare] did hurt us, there’s no doubt about it. The climate out there was really ugly because of it.”

Former Rep. Artur Davis (D-AL):I think [Obamacare] is the single least popular piece of major domestic legislation in the last 70 years. It was not popular when it passed; it’s less popular now….I think the worst thing that could happen to Barack Obama’s reelection campaign would be if he had to spend four months this fall explaining what ObamaCare 2 would look like.”

The piece de resistance however, might be a quote from now-former Senator Russ Feingold: “I knew the minute I voted for [Obamacare] that that was it.”

Democrats can claim all they want that the problem with Obamacare is the messaging, but the message Senator Feingold said he received from the American people is – or should be anyway – too big to ignore.

Obamacare’s Latest Waiver

Earlier this week the White House issued a blog post calling concerns about waivers granted under the health care law a result of “confusion and deliberate obfuscation.”  Some may find these comments curious, given more recent developments.

To wit, HHS just released its final rate review regulations, and the rules include an interesting exemption – the requirements for rate review were not applied to “excepted benefits,” such as Medigap supplemental insurance policies.  Commenters on the rule specifically requested that rate review apply to excepted benefits plans, but HHS concluded that “we do not believe that rate increases for excepted benefits plans…have the same impact on individuals and small employers as rate increases for basic medical coverage.”  That statement might come as news to Senators Reid, Baucus, and Kerry, who last October wrote to HHS about “disturbing stories from beneficiaries across the country about excessive premium increases for Medigap supplemental insurance policies” – and specifically asking for rate review authority over Medigap plans.

The White House alleges that claims of favoritism have no merit.  If that’s the case, why didn’t HHS listen to senior members of the President’s own party and review Medigap premiums?  After all, if these “consumer” protections are so good for the under-65 population, shouldn’t they apply to America’s seniors?  Or is the Administration deliberately trying to exempt from additional scrutiny the largest seller of Medigap policies – which it just so happens spent millions of dollars supporting Obamacare and could make $1 billion in profit from it…?

Hatch Motion to Commit on Medicare Advantage

Senator Hatch has offered a motion to commit that would block cuts to Medicare Advantage from taking effect if more than 1,000,000 seniors are projected to lose their health coverage as a result of those cuts.
Arguments In Favor:
  • Medicare Advantage Offers a Better Value for seniors:  The Medicare Advantage program gives seniors the option of receiving their Medicare benefits from a private plan rather than the government’s fee-for-service program. Seniors have increasingly turned to Medicare Advantage plans because these plans offer a better value and a higher quality of care than traditional fee-for-service Medicare.  Medicare Advantage beneficiaries receive on average $93 per month, or more than $1,100 a year, in additional benefits above traditional fee-for-service Medicare.
  • The so-called overpayments to Medicare Advantage plans don’t go to the plans.  They go to seniors in the form of extra benefits.  Seventy-five percent of additional payments to Medicare Advantage plans are used to provide seniors with extra benefits — including chronic care management, hearing aids and eyeglasses.  The other 25 percent of any extra payments is returned the federal government.
  • Six years ago, when Congress enacted the Medicare Modernization Act (MMA), we intentionally provided new funding to stabilize the Medicare health plan program. This was one of the few issues on which there was strong bipartisan agreement during the 2003 Medicare debate.   In fact, in June 2003 several Democrats- including Senators Schumer and Kerry offered a bipartisan amendment on the Senate floor to provide additional funding for benefits under the Medicare Advantage program.
  • President Obama’s campaign promises of “If you like your current plan, you can keep it” will ring hollow to elderly beneficiaries unable to retain their existing Medicare Advantage plan.  This motion would preserve that promise made to America’s seniors.