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.

Six Things about Pre-Existing Conditions Republican “Leaders” Still Don’t Get

“If at first you don’t succeed, go ahead and quit.” That might be the takeaway from excerpts of a conference call held earlier this month by House Minority Leader Kevin McCarthy (R-CA), and published in the Washington Post.

McCarthy claimed that Republicans’ “repeal and replace” legislation last Congress “put [the] pre-existing condition campaign against us, and so even people who are [sic] running for the very first time got attacked on that. And that was the defining issue and the most important issue in the [midterm election] race.” He added: “If you’ll notice, we haven’t done anything when it comes to repealing Obamacare this time.”

Problem 1: Pre-Existing Condition Provisions In Context

I first noted this dilemma last summer: Liberals call the pre-existing condition provisions “popular” because their polls only ask about the policy, and not its costs. If you ask Americans whether they would like a “free” car, how many people do you think would turn it down? The same principle applies here.

When polls ask about the trade-offs associated with the pre-existing condition provisions—which a Heritage Foundation study called the largest driver of premium increases under Obamacare—support plummets. Cato surveys in both 2017 and 2018 confirmed this fact. Moreover, a Gallup poll released after the election shows that, by double-digit margins, Americans care more about rising health premiums and costs than about losing coverage due to a pre-existing condition.

The overall polling picture provided an opportunity for Republicans to push back and point out that the pre-existing condition provisions have led to skyrocketing premiums, which priced 2.5 million people out of the insurance marketplace from 2017 to 2018. Instead, most Republicans did nothing.

Problem 2: Republicans’ Awful Legislating

The bills’ flaws came from a failure to understand how Obamacare works. The law’s provisions requiring insurers to offer coverage to everyone (guaranteed issue) and price that coverage the same regardless of health status (community rating) make insurers want to avoid covering sick people. Those two provisions necessitate another two requirements, which force insurers to cover certain conditions (essential health benefits) and a certain percentage of expected health costs (actuarial value).

In general, the House and Senate bills either repealed, or allowed states to waive, the latter two regulations, while keeping the former two in place. If Republicans had repealed all of Obamacare’s insurance regulations, they could have generated sizable premium savings—an important metric, and one they could tout to constituents. Instead, they ended up in a political no man’s land, with people upset about losing their pre-existing condition “protections,” and no large premium reductions to offset that outrage.

Looking at this dynamic objectively, it isn’t surprising that McCarthy and his colleagues ended up with a political loser on their hands. The true surprise is why anyone ever thought the legislative strategy made for good politics—or, for that matter, good (or even coherent) policy.

Problem 3: Pre-Existing Conditions Aren’t Going Away

Within hours after Sen. Thom Tillis (R-NC) introduced a bill last year maintaining Obamacare’s pre-existing condition provisions—the requirement that all insurers offer coverage at the same rates to all individuals, regardless of health status—liberals weighed in to call it insufficient.

As noted above, Obamacare encourages insurers to discriminate against people with pre-existing conditions. Repealing only some of the law’s regulations would exacerbate that dynamic, by giving insurers more tools with which to avoid enrolling sick people. Liberals recognize this fact, and will say as much any time Republicans try to modify any of Obamacare’s major insurance regulations.

Problem 4: Better Policies Exist

According to the Post, McCarthy said he wants to recruit candidates who would “find a solution at the end of the day.” A good thing that, because better solutions for the problems of pre-existing conditions do exist (I’ve written about several) if McCarthy had ever bothered to look for them.

Their political attacks demonstrate that liberals focus on supporting “insurance” for people once they develop a pre-existing condition. (Those individuals’ coverage by definition really isn’t “insurance.”) By contrast, conservatives should support making coverage more affordable, such that people can buy it before they develop a pre-existing condition—and keep it once they’re diagnosed with one.

Regulations proposed by the Trump administration late last year could help immensely on this front, by allowing employers to subsidize insurance that individuals hold and keep—that is, coverage that remains portable from job to job. Similar solutions, like health status insurance, would also encourage portability of insurance throughout one’s lifetime. Other options, such as direct primary care and high-risk pools, could provide care for people who have already developed pre-existing conditions.

Using a series of targeted alternatives to reduce and then to solve the pre-existing condition problem would prove far preferable than the blunt alternative of one-size-fits-all government regulations that have made coverage unaffordable for millions. However, such a solution would require political will from Republicans—which to date they have unequivocally lacked.

Problem 5: Republicans’ Alternative Is Socialized Medicine

Instead of promoting those better policies, House Republican leaders would like to cave in the most efficient manner possible. During the first day of Congress, they offered a procedural motion that, had it been adopted, would have instructed the relevant committees of jurisdiction to report legislation that:

(1) Guarantees no American citizen can be denied health insurance coverage as the result of a previous illness or health status; and (2) Guarantees no American citizen can be charged higher premiums or cost sharing as the result of a previous illness or health status, thus ensuring affordable health coverage for those with pre-existing conditions.

Guaranteeing that everyone gets charged the same price for health care? I believe that’s called socialism—and socialized medicine.

Their position makes it very ironic that the same Republican committee leaders are pushing for hearings on Democrats’ single-payer legislation. It’s a bit rich to endorse one form of socialism, only to denounce another form as something that will destroy the country. (Of course, Republican leaders will only take that position unless and until a single-payer bill passes, at which point they will likely try to embrace it themselves.)

Problem 6: Health Care Isn’t Going Away As An Issue

The federal debt this month passed $22 trillion, and continues to rise. Most of our long-term government deficits arise from health care—the ongoing retirement of the baby boomers, and our corresponding obligations to Medicare, Medicaid, and now Obamacare.

Any Republican who cares about a strong national defense, or keeping tax rates low—concerns most Republicans embrace—should care about, and take an active interest in, health care and health policy. Given his comments about not repealing, or even talking about, Obamacare, McCarthy apparently does not.

But unsustainable trends are, in the long run, unsustainable. At some point in the not-too-distant future, skyrocketing spending on health care will mean that McCarthy will have to care—as will President Trump, and the Democrats who have gone out of their way to avoid talking about Medicare’s sizable financial woes. Here’s hoping that by that point, McCarthy and Republican leaders will have a more coherent—and conservative—policy than total surrender to the left.

This post was originally published at The Federalist.

Three Lessons from Last Year’s Obamacare Repeal Effort

In a move virtually ignored outside Washington and largely unnoticed even within it, last December the House and Senate passed legislation repealing much of Obamacare. President Obama promptly vetoed the measure — an obstacle that will disappear come January 20. As reporters and policymakers attempt to catch up and learn the details of a process they had not closely followed, three important lessons stand out from last year’s “dry run” at repealing Obamacare.

The Senate Should Take the Lead

The legislation in question, H.R. 3762, made it to President Obama’s desk only because Republicans used a special procedure called budget reconciliation to circumvent the Senate’s 60-vote requirement to overcome a Democratic filibuster. While reconciliation allowed the bill to make it to the president’s desk, it came with several procedural strings in the Senate. Reconciliation legislation may only consider provisions that are primarily budgetary in nature; policy changes, or policy changes with an incidental fiscal impact, will get stripped from the bill. In addition, reconciliation legislation may not increase the budget deficit.

Unfortunately, the original version of the bill the House introduced did not comply with the Senate requirements. The legislation repealed Obamacare’s Independent Payment Advisory Board (IPAB) — but because that change was primarily policy-related and not fiscal in nature, it did not pass muster with the Senate parliamentarian. Likewise, according to a cost estimate by the Congressional Budget Office, the House-passed bill would have increased the deficit in the “out years” beyond the ten-year budget window, making it subject to another point-of-order challenge that would require 60 votes to overcome. Ultimately, the legislation contained enough of these procedural flaws that Senate majority leader Mitch McConnell had to introduce a completely new substitute for the bill as it came to the Senate floor, to ensure that it would receive the procedural protections accorded to a reconciliation measure.

The arcane and technical nature of the budget-reconciliation process means that the Senate will play the key role in determining what passes — simply because Senate procedure will dictate what can pass. While the House has the constitutional prerogative to originate all tax legislation, and by custom it initiates most major spending legislation, the Senate may do well to initiate action in this particular case. House Republicans proposed an Obamacare-replacement plan earlier this year, Paul Ryan’s “A Better Way,” but what good is passing that through the House if much of it ends up on the Senate’s proverbial cutting-room floor?

Personnel Matters, Because Institutional Memory Is Scarce

The original reconciliation bill was introduced in the House on October 16, during what amounted to an interval between leaders. John Boehner had announced his intention to resign the speakership, but Paul Ryan had not yet assumed that title. And while House members played another round of “musical chairs,” staff underwent their own turnover, as Speaker Boehner’s longtime health-policy adviser departed Capitol Hill a few weeks before Boehner announced his surprise resignation.

To say that relevant leaders and committee chairs have swapped places in the House recently is putting it mildly. Not one has served in his current post for more than two years. Two years ago, Paul Ryan chaired the House Budget Committee; his reign at Ways and Means lasted a brief nine months before he assumed the speakership. Elsewhere in leadership, both Majority Leader Kevin McCarthy and Majority Whip Steve Scalise assumed their jobs after the defeat of Eric Cantor in August 2014. At the committees, Budget Committee chairman Tom Price and Ways and Means Committee chairman Kevin Brady succeeded Paul Ryan in leading their respective committees last year. And the Energy and Commerce and Education and Workforce Committees will soon choose new chairmen to assume their gavels in January.

While Senate leadership has remained more stable at the member level, most of the staff in both chambers has turned over since the Obamacare debate of 2009–10. I served in House leadership during 2009, and Senate leadership from 2010 to 2012; most of my former colleagues have long since moved on, whether to lobbying jobs, grad school, or even outside Washington altogether. Both at the member level and the staff level, the critically important institutional knowledge of what happened to Democrats — and when, why, and how — during the Obamacare debacle eight short years ago is dangerously thin.

The Washington gossip circles seem most interested in playing the parlor game of who will fill what post in the new administration. But particularly if the administration defers to Capitol Hill on policy, the true action in determining what happens to Obamacare — and what replaces it — may well lie at the other end of Pennsylvania Avenue. Both reporters and would-be job applicants should react and plan accordingly.

An Influential Troika of Senate Conservatives

In addition to its procedural shortfalls, the original House reconciliation bill represented something much less than full repeal of Obamacare. While the law as enacted contains 419 sections, four of which had already been repealed prior to last October, the House’s reconciliation bill repealed just seven of them. Admittedly, much of Obamacare contains extraneous provisions unrelated to the law’s coverage expansions: nursing-home regulations, loan-forgiveness programs, and the like. But the original House reconciliation bill left intact many of Obamacare’s tax increases and all of its coverage expansions, leaving it far short of anything that could be called full repeal.

Into the breach stepped three conservative senators: Mike Lee, Marco Rubio, and Ted Cruz. The day before the House voted to pass its reconciliation bill, they issued a joint statement calling it thin gruel indeed:

On Friday the House of Representatives is set to vote on a reconciliation bill that repeals only parts of Obamacare. This simply isn’t good enough. Each of us campaigned on a promise to fully repeal Obamacare, and a reconciliation bill is the best way to send such legislation to President Obama’s desk. If this bill cannot be amended so that it fully repeals Obamacare pursuant to Senate rules, we cannot support this bill. With millions of Americans now getting health premium increase notices in the mail, we owe our constituents nothing less. 

Knowing that the bill lacked the votes to pass the chamber without support from the three conservatives, Senate leadership significantly broadened the bill’s scope. The revised version that went to the president’s desk repealed all of the law’s tax increases and all of its coverage expansions. It was not a one-sentence repeal bill that eradicated all of Obamacare from the statute books, but it came much closer to “fully repeal[ing] Obamacare pursuant to Senate rules,” as the three senators laid out in their statement.

The conservatives’ mettle will be tested once again. Already, Republican congressional sources are telling reporters that they intend to keep the law’s Medicaid expansion, albeit in a different fashion. “One of the aides said this version of the bill [that passed last year] was mostly about ‘messaging,’ and that this time, ‘We’re not going to use that package. We’re not dumb.’”

Apart from the wisdom of calling a bill that their bosses voted for less than one year ago “dumb,” the comment clarifies the obvious fissure points that will emerge in the coming weeks. Will conservatives such as Lee, Rubio, and Cruz hold out for legislation mirroring last year’s bill — and vote no if they do not receive it? Conversely, what Republican who voted for the reconciliation bill last year will object if it returns to the Senate floor? Will senators be willing to vote against something in 2017 that they voted for in 2015?

As I noted last week, Republicans’ path on Obamacare could prove more complicated than the new conventional wisdom in Washington suggests. If past is prologue, last year’s reconciliation bill provides one possible roadmap for how the congressional debate may play out.

This post was originally published at National Review.