In what can be variously described as the law of unintended consequences, a series of lucky breaks, or a sign that Congress opposes progressive legislation just to oppose the DFH's proposing it, much of the best progressive legislation in 2010 was achieved unintentionally.
To put it a different way, four of the biggest blows against corporate and Wall Street power that happened in Congress over the past three months, or appear likely to happen in the next month, were the result of conservative political pressure that resulted in unexpected outcomes. Consider (more in the extended entry):
Like the health insurance reform bill that passed into law two months ago, the Wall Street reform bill that passed the Senate last night is just another step in the process of strengthening that area of public policy. It is not, by any means, the end of the fight.
In the short term, the obvious next step for Wall Street reform is the conference committee between the House and the Senate. At least on an informal basis, negotiations between the House and Senate will start next week, if they have not begun already. During this negotiation, the focus for progressives be supporting the stronger version of those aspects of the legislation where the House and Senate bills differ. The Wonk Room has an extremely helpful guide that outlines some of the key differences. So does David Dayen.
In the medium term, once President Obama signs Wall Street reform into law, the first step in the struggle to make Wall Street reform stronger is already clear. As Simon Johnson writes this morning, the Merkley-Levin to fully reinstate the Volcker rule has enough support to pass both branches of Congress, and was only defeated for arcane procedural reasons. As such, it is the next move, and could conceivably pass into law later this year:
After nine months of hard fighting, yesterday financial reform came down to this: an amendment, proposed by Senators Jeff Merkley and Carl Levin that would have forced big banks to get rid of their speculative proprietary trading activities (i.e., a relatively strong version of the Volcker Rule.)
The amendment had picked up a great deal of support in recent weeks, partly because of unflagging support from Paul Volcker and partly because of the broader debate around the Brown-Kaufman amendment (which would have forced the biggest 6 banks to become smaller). Brown-Kaufman failed, 33-61, but it demonstrated that a growing number of senators were willing to confront the power of our biggest and worst banks.
Yet, at the end of the day, the Merkley-Levin amendment did not even get a vote. Why?
Partly this was because of procedural maneuvers. Merkley-Levin could only get a vote if another amendment, proposed by Senator Brownback (on exempting auto dealers from new consumer protection rules) got a vote. Late yesterday afternoon, Senator Brownback was persuaded, presumably by his Republican colleagues and by financial lobbyists, to withdraw his amendment.
Of course, Merkley-Levin was only in this awkward position because of an earlier lack of wholehearted support from the Democratic leadership -- and from the White House. Again, the long reach of Wall Street was at work.
But the important point here is quite different. If Merkley-Levin did not have the votes, it was in the interest of the megabanks to have it come to the floor and be defeated. That would have been a clear victory for the status quo.
But Merkley-Levin had momentum and could potentially have passed -- reflecting a big change of opinion within the Senate (and more broadly around the country). The big banks were forced into overdrive to stop it.
The extended floor fight over amendments to Wall Street reform revealed Merkely-Levin to be ripe for the plucking. Unlike the Brown-Kaufman amendment to break up the big banks, and unlike the Whitehouse amendment to allow states to cap credit card rates, Merkkley-Levin has enough support to pass Congress now. As such, it could conseivably be pushed as a standalone bill later this year.
Concurrent with, or perhaps included in, a separate bill on Merkley-Levin, the repeal of the anti-trust exemption for health insurance companies seems like the next logical step for health insurance reform. Such a bill already passed the House in overwhelming fashion. Vermont Democrat and Dark Knight co-star Patrick Leahy had attempted to attach it to the Wall Street reform bill in the Senate, but like many other amendments to this bill it was lost in the shuffle for timing and procedural reasons. Despite objections from Ben Nelson, it is likely that this policy has even more support than Merkley-Levin. The upcoming budget reconciliation bill is another possible means of improving health care, but under current Senate rules regulatory measures like this cannot be included in such a bill.
The ability of the Democratic Party to govern may be sharply diminished after the 2010 elections. If we are serious about strengthening these aspects of public policy even after the main legislative fight is over, passing Merkley-Levin and a repeal of the anti-trust exemptions for health insurance companies as a standalone bills seem like very doable goals for the next five months.
The House of Representatives passed health reform one month ago today. At that time, Democrats led the National House Ballot 41.87%--41.65%. Now, one month later, with an entirely new set of polls, all of which have the majority of their interviews conducted post-hcr passage, Republicans lead 44.92--43.44%.
This represents a net 1.7% shift toward Republicans since the passage of health reform. That is a modest, though not insignificant, improvement.
While Democrats did not receive a lasting post-health reform boost in polling, I am sympathetic to the argument that Republicans would have gained even more if health reform had not passed. Admittedly, that argument is based entirely on hypotheticals and speculation, and cannot be proven.
Perhaps even more striking than the net Republican gain is the decline in undecideds. Both Democrats and Republicans have actually seen increases in their raw support--Republicans just gained more. Overall, the number of "undecided" or "other" voters declined by 4.84% over the past month, or nearly 30% of all "undecided" and "other" voters. Not unlike a Presidential election, the health care reform fight pushed people into one camp or the other. It made people pick sides.
If you are a political news junkie, and you are looking to fill that vast, almost existential void that the passage of health care reform has created, then financial reform will prove to be a pretty weak substitute.
Even though health reform passed Congress more than a week ago, and even though financial reform has been billed as the next big fight in Congress, health reform is still generating more than ten times the interest of financial reform on Twitter. This is a crude, though still an effective, metric of grassroots engagement in the two legislative campaigns.
Here is what I found during some Twitter searches this morning:
The hashtag #hcr had 100 tweets in the 21 minute span from 11:33 am to 11:54 am eastern.
So, even though the health reform fight has been over for more than a week, and even though I searched for only a single hashtag on health reform rather than the more general "financial reform" search, there was still more than 10 times as much interest on health care reform on Twitter than there was on financial reform.
For the last several months, the big banks, who make billions of dollars trading derivatives, have tried to arrange it so that these proposals would apply to as few transactions as possible. Their efforts have been somewhat successful-the financial reform bill that passed the House in December featured a reasonably broad exemption to the new regulations (though the industry still has its share of gripes). But the language Dodd moved through his Banking Committee last month is significantly tougher, and the administration has expressed its support.
And, yet, when you talk to industry representatives, they don't appear overly troubled by the recent turn of events. Most continue to regard the derivatives provision in Dodd's bill as a placeholder, which will almost certainly be nudged aside by a compromise negotiated by Democrat Blanche Lincoln and Republican Saxby Chambliss. (The two senators run the Agriculture Committee, which shares jurisdiction over derivatives.) As one lawyer involved in the derivatives industry told me last week, "If they try to push the Dodd bill as currently written on derivatives-it can't fly."
What explains the serene confidence? "Derivatives is the tail on this dog," the lawyer continued. "It's not what's going to drive the bill through Congress. Nor is it the filibuster point. Other stuff makes a lot more noise." The bottom line, this person concluded, is that voters just aren't very invested in the details of derivatives reform, and so it's hard to believe the Democrats will be, too: "Words on the page are not that critical to the public. ... The public just wants to see something done here. ... To some extent, passing a bill [whatever the details] will be marketed as a success."
The bank lobbyists don't seem to be wrong that the public isn't engaged on the details of this fight. This gives them an upper hand in shaping the legislation.
If you want to fight back against this, sign up for a webinar featuring Professor Elizabeth Warren that will take place tomorrow, at 4:00 p.m. eastern. It is a good way to become educated about the details of, and engaged in the politics of, the financial reform fight. Here are the details:
Join us for this special discussion with Professor Elizabeth Warren and AFR Director Heather Booth! Get involved in the emerging movement for financial reform and the fight to rein in the big banks who crashed our economy.
Find out about reform efforts in Congress-including the Senate bill currently being debated, and the House bill which passed in December
Learn why we need a Consumer Financial Protection Agency to protect us from abusive financial products
Ask Professor Warren or Heather Booth your question about financial reform
Hear about ways to join the fight around the country and online
Go and sign up now! And, in the interest of full disclosure, I am helping to organize this event as part of my fellowship with the New Organizing Institute.
"The Leaders expect all House Democratic members to support this historic bill, and to do so without demanding new restrictions on women's rights" the spokesman said in an email. "There will be situations where we have some disagreement, but those Members who held the party's top legislative priority in order to send women's rights backward, it was a very serious matter and one that the Steering Committee will consider."
Pretty impressive. Good to see Democrats starting to enforce some party discipline in order to stand up for core values.
The following anecdote, from the movie Conspiracy, seems apt for the end of the health reform fight. The abusive father is a nice substitute for extended electoral or legislative fights, such as health reform:
Lange: What was that story he told you?
Heydrich: Yes, he told me a story about a man he had known all his life, a boyhood friend. This man hated his father. Loved his mother fiercely. His mother was devoted to him, but his father used to beat him, demeaned him, disenherited him. Anyway, this friend grew to manhood and was still in his thirties when the mother died. The mother, who had nurtured and protected him, died. The man stood at her grave as they lowered the coffin, and tried to cry, but no tears came. The man's father lived to a very extended old age, and withered away and died when the son was in his fifties. At the father's funeral, much to the son's surprise, he could not control his tears. Wailed, sobbed, and was apparently inconsolable. Lost. That was the story Kritzinger told me.
Eichmann: I don't understand.
Heydrich: No? The man had been driven his whole life by hatred of his father. When his mother died, that was a loss, but when the father died and hatred had lost its object, the man's life was empty - over.
This feels about right for the love / hate relationship I felt both toward the 2009-2010 health reform fight, and the 2007-2008 Presidential campaign. The campaigns are so grueling that they feel abusive, certainly compared to the life you had before the campaign. However, at some point, the abusive, grueling nature of the campaigns becomes an end in and of itself. So, when those campaigns are over, even when you win, your life becomes emptier. A great source of pathos has been removed.
Another bad campaign finance ruling: Federal Appeals Court unanimously strikes down the $5,000 contribution limit to Federal PACs.
Senate Adjourns with unfinished business: In addition to not passing an extension of unemployment and COBRA benefits, the Senate left town without passing a Medicare doc fix. This will result in Medicare doctors receiving a 21% cut in pay starting on April 1st. The Senate plans to solve this problem by passing an extension in mid-April that will restore the lost benefits and pay retroactively:
Meanwhile, COBRA benefits expire April 1; a 21-percent cut in Medicare doctor payments is scheduled to take effect that same day; and the filing deadline for UI benefits arrives April 5.
Senate lawmakers will tweak the bill to make the extensions retroactive, Reid's office said.
The money will come, but having it come late will still cause problems for a lot of people. Not good.
New foreclosure prevention program announced: The Obama administration is revamping their program to prevent foreclosures. Once again, it takes money from TARP (which is good) instead of appropriating new funds. I don't pretend to understand this policy very well, but Wonk Room is impressed. It better work, because this program is probably the last best chance for Democrats to improve the economy for average Americans before the midterm elections.
Democrats getting riled up?: Democrats might be narrowing the voter intensity gap, according to the weekly Daily Kos poll tracking poll. Whether this holds up as the year goes on, and in other polls, is another question. Kos is absolutely correct when writes, in his press release for the poll, that "this intensity gap will bear tracking the rest of this cycle."
The dangers of over-promising and relaxing on health reform: David Dayen responds to my article from earlier today touting the expansion of public health insurance and public care for low-income Americans as a major progressive accomplishment in the far from perfect health reform legislation. He is worried about complacency and overpromising:
Student loan reform is smart and 100% defensible in concept. The Affordable Care Act involved legislative compromise and must be watched carefully to ensure it achieves the promise that many liberals are touting this week. Rather than labeling it, we have to work to make it actually operate properly.
I don't disagree. In fact, analogously, I think there was far too much complacency in the center-left after the 2008 elections. Everyone was tired and happy after the election, and didn't want to work to prevent bad transition appointments like Larry Summers and Tim Geithner. Those appointments resulted in bad policies like an ineffective foreclosure prevention program that helped far to few people, and which the Obama administration has now had to entirely revamp. And, those bad policies have resulted in an economic environment that is worse than it had to be for average Americans, which has in turn resulted in an electoral environment that is far worse than it had to be for Democrats. And, that will result in even worse policies down the road, as Republicans and conservatives accrue more power.
We have to always keep pushing. I just don't think that is incommensurate with feeling good, and pointing out that we have made some gains, too.
You won't find me claiming that the health reforms that passed into law this week are great triumphs over corporate interests. Also, I agree with David Dayen that the student loan reforms that passed into law this week are clearer-cut victory for progressives than the health reform bill. Those reforms they effectively nationalize the student loan industry, by cancelling tens of billions in public subsidies to private student loan companies and replacing them with a student loan public option.
However, the claim that there is nothing progressive about the health insurance reforms that passed into law doesn't add up. Because of this legislation, it is estimated that 16,000,000 additional low-income Americans will receive public health insurance than they would have under previous law (CBO report, PDF, page 21). Millions of low-income, uninsured Americans received public health insurance is a straight-up, undeniable progressive victory.
Yet further, the $11 billion in additional funding, over five years, for Community Health Centers in the legislation will, at current rates of service, provide primary health care to an additional 17.8 million low-income patients a year. (Current funding of $2.5 million a year (PDF, page 6) treats 20.27 million patients, so funding of $4.7 billion annually projects to 38.11 patients).
It can be reasonably argued that giving private health insurance companies an estimated 16,000,000 to 21,000,000 new customers in the health insurance exchanges (24,000,000 minus the 3,000,000 people who will drop off private employer insurance, minus some of the 5,000,000 people who will drop off non-group / other insurance) is not a progressive victory. Also, the setbacks from reproductive rights, and the deals for drug companies, completely stink. However, it takes a pretty contorted argument, with a very odd definition of progressive, to deny that getting 16,000,000 additional low-income Americans public health insurance, and nearly 18,000,000 additional low-income Americans public health care, is not a big progressive victory.
The bill now heads to the House, where the Rules Committee could begin action within hours. Democratic aides said a final vote on the package could come in early evening, although if Republicans throw up procedural barriers, the vote could be delayed until later Thursday night.
The House Rules committee hearing started at 4 p.m. I think it is already over, given that it isn't on C-SPAN3.
Reconciliation bill changed, still expected to pass today As has been reported widely this morning, including by David Sirota, the Senate parliamentarian changed the reconciliation bill earlier today. This will require another vote in the House of Representatives.
The argument that any changes to the reconciliation in the bill would have defeated the bill does not appear to be holding up. However, these are minor changes, and so it could be argued that any substantial changes to the bill would have caused a more serious problem.
Public Option As far as the public option is concerned, there are good reasons to be cynical right now. Either the Democratic leadership doesn't care about it all that much, or they are actively working against it (I choose the former). House Whip James Clyburn says they have the votes to pass the public option. However, Speaker Pelosi said during a meeting last week with progressive bloggers that she was told the Senate did not have the votes (I was in attendance at that meeting), and as such did not try to add one to the reconciliation bill.
On the Senate side, Harry Reid has promised a vote on the public option, but all Democratic Senators have ruled out any strengthening amendments for this reconciliation bill, including a public option. So, the public option is therefore not allowed into the bill, and there is no public vote to verify the claim that there are not enough votes in the Senate. We are just supposed to believe that there are not enough, without any names ever being named.
Republicans still taking process to the extreme, Democrats need to respond in kind During most of March, Republicans declared that passing legislation with only 51 votes in the Senate was THE MOST TOTALITARIAN MOVE EVAH. Now, to no one's surprise, Republicans are voting to allow only 51 votes to change the reconciliation bill in many ways, including non-budgetary items that run afoul of the Byrd Rule, as long as they believe those changes help defeat the reconciliation bill. To put it bluntly, Republicans are willing to use any procedural means necessary to achieve their goals.
As such, the best move for Democrats is try and get reconciliation instructions for as much as possible in the budget bill that will be passed next month. This includes reconciliation instructions for health reform that will allow for a public option to pass in a new reconciliation bill, but it should also include things like energy and education, too.
These reconciliation bills are just about the only way Democrats can still govern. For example, Tom Coburn is going to "pull a Bunning" and filibuster an extension of unemployment and COBRA benefits. The popularity, and immediate necessity, of such benefits far exceeds anything in the health reform package. If Democrats can't even get that done on time because of frakked up Senate procedure, the budget bill needs to leave Democrats with an option to pass as much legislation as possible with only 51 votes in 2010.
Republicans are using whatever procedural options they have to achieve their ends. At this point, Democrats have to respond in kind.
This just in--Senate Democrats are finally forcing Republicans to talk all night into order to maintain their obstruction.
It isn't something they can do under "normal order," what with the painless filibuster rules and all. However, under reconciliation, it is different. In order for Republicans to keep the reconciliation bill from passing, they have to keep the floor of the Senate by offering an unlimited series of amendments. And so, Senate Democrats have now moved to force Republicans to offer their amendments all night, and into Thursday, without a break. They are going to keep going until Republicans stop offering amendments, and the reconciliation bill passes. From a restricted, insidery Twitter account:
RT @jtr1: Senate Dem leaders plan to work through the night until final vote - whether 3 a.m. or 6 a.m. BEFORE ADJOURNING.
Democrats have now forced Republicans into pulling off the "traditional" filibuster. Once they stop offering amendments, Democrats are going to pass the reconciliation bill. And there won't be any breaks:
McConnell presents options of continuing #votearama tonight or tomorrow morning- Reid asks to proceed tonight
Republicans can continue to delay the bill, and they are free to keep forcing Democrats to make votes which they will use for attack ads in the fall. However, they have to do it without taking a break. As soon as they do, the bill will pass.
Credit where credit is due. Many people online have asked Senate Democrats to make Republicans talk all night in order to maintain their filibuster. While that can't happen under normal order, at least under current Senate rules, it can happen under reconciliation. And so, the first chance Democrats get to make Republicans talk all night, they seize it.
In the spirit of kicking ass, here is a trailer for Kick-Ass (warning: not family or work friendly):
Now, they have caught a break that will allow them to cut another day off the process, and pass the bill Thursday. Senate Republicans are voluntarily limiting the number of amendments they are offering, to focus on the "substantive" one. From The Hill:
Senate Republicans had threatened to offer scores or even hundreds of amendments to keep the healthcare legislation from getting out of the chamber.
But GOP lawmakers have decided not to employ the dilatory tactic and instead call for votes on substantive amendments.
"We've decided that offering 200 or 300 amendments doesn't make sense," said Sen. Jim DeMint (R-S.C.), one of the Senate's leading conservatives. "The leadership has asked us to focus on substantive amendments."
DeMint predicted the voting could wrap up by Thursday afternoon.
"Substantive" is a subjective term, but I will avoid the semantic discussion for now.
The Senate is moving through about three Republican amendments an hour. The current plan from Harry Reid is to go until 1 a.m. tonight, and then assess how many more hours it will take to finish the bill.
The reconciliation bill will be done tomorrow. No word on whether there has been a deal made on the unemployment benefit extension, however. A Senate aide told me earlier today that they "hope" to take it up late in the week. The outcome of that process will be a good indication of whether Republicans actually are starting to buckle, or not.
No matter what happened, expect a final vote either late tomorrow, or early Friday. This is not going into the weekend again. Huzzah!
Also, no matter what happens, Democrats are going to vote, as a bloc, against all amendments. This includes any amendments that would strengthen the bill, such as a public option.
However, on a positive note, Tom Harkin has said that the next reconciliation bill, which will come pretty soon, could contain some strengthening amendments. Notably, Harkin indicated this includes the possibility of a public option (emphasis mine):
The Senate this week is debating a reconciliation bill that would modify the healthcare reform law President Barack Obama signed Tuesday. The bill on the Senate floor was written based on the current budget resolution, which will soon be replaced. Harkin indicated that the new budget could also allow for a reconciliation bill, which he believes could be used to enact the public option.
Harkin supports the public option and said the House and Senate advocates would "begin working on that immediately" but, like other Senate Democrats, rejected amending the current reconciliation bill because such a move would force the House to pass it again. Because of centrist Democratic opposition, the public option may not have enough support to pass the House. "The greater good is getting the bill passed," not waging a fight this week over the public option.
With another reconciliation bill coming up shortly, there is another opportunity to pass some good, progressive stuff.
While I wouldn't blame anyone for being dubious and cynical about actually getting a public option in the second reconciliation bill, Senate Demcorats are showing increasing weariness with Republican obstruction tactics, and Harry Reid did promise a public option vote sometime this year. I wouldn't call passing a public option in the next reconciliation bill likely, but it is an opportunity.
Here is where the process stands in the Senate right now.
Democrats shorten debate time, Friday finish now possible Senate Democrats have shortened the amount of time for debate, originally scheduled for 20 hours, to about 11.5 hours. This could potentially allow the process to be completed on Friday, instead of on Saturday. I have already heard from one Senate aide that Friday is in fact possible now.
Senate Democrats did this by splitting debate time in half between the two parties, and then yielding almost all of their half of the debate time. David Waldman:
Senate Dems have yielded back all their time on the reconciliation bill, which will cut debate time in half. Republicans still have about 8 1/2 hours remaining, so now they'll talk themselves blue for a while, and we'll start voting about 7 hours sooner than we otherwise would. I would have expected Dems to simply reserve their time and make Republicans speak all at once, and then yield back. But either way, this says to the GOP, there's nothing you can do with speeches and we have the votes, so let's let you vent and get it over with already. OK by me!
With the Senate convening today at 9 a.m. eastern, this will bring debate time to a close around 5:30 p.m., eastern. Votes on amendments will begin at that point.
Only Republicans have submitted amendments In the extended entry, I have posted a complete list of the 33 amendments Republicans have filed, along with the various motions to commit they have filed.
Only Republicans have submitted amendments--no Democrats are going to offer any. In an attempt to prevent the bill from being changed, and thus requiring another vote in the House, Democrats are pledging to vote against any and all amendments. This means that, even if Republicans offer a public option amendment, Democrats would vote against that, too:
"Democrats in the Senate are very unified that this is not going back to the House," Sen. Wyden (D-Ore.) told the Huffington Post on Tuesday, minutes before the Coburn amendment was introduced.
Just how unified? If Republicans, in a bit of legislative trickery, offer an amendment to the Senate reconciliation bill that allows for the establishment of a public option for insurance coverage, Democrats -- despite longing for the proposal for more than a year -- won't even take the bait.
"We would know it is a game," Sen. Ben Cardin (D-MD) told the Huffington Post. "We would vote against it. It is that simple."
So, just in case you were unsure, there isn't going to be a public option in the new health insurance exchanges, at least as part of this legislative effort. Democrats are not going to offer one and, even if someone broke ranks to do so, it would receive less than a handful of Democratic votes.
Final vote to occur after all amendments and motions to commit are cleared Senators get to minutes to explain their amendments, and then a vote is taken. If Republicans keep forcing roll call votes, that process will take an entire day. However, final passage on Friday still seems quite likely.
Republicans now focusing on organizing around, not defeating, the bill. Since Senate Democrats have pledged to vote against any and all amendments, the Republican strategy now focuses on getting Democrats to vote against things like denying Viagra to convicting sex offenders. The goal is to then use these votes for soundbites in attacks ads in November. Brian Beutler:
As the Senate gets closer to voting on a health care reconciliation bill, the Republican strategy to derail the Democrats' plans is getting creative--and dirty. Their strategy is clear: with Democrats determined to pass a clean bill, Republicans will force them to vote down politically juiced-up amendments, and likely turn them into political ads meant to characterize Dems as sympathetic to sex offenders and fraudsters.
A bill extending enhanced unemployment benefits for the rest of the year is backed up behind health care reconciliation and a two-week break starting after this week. "Although the Senate passed the yearlong extension, they paid for the tax extenders part of that bill with offsets the House set aside for health care," said Judy Conti, a lobbyist for the National Employment Law Project. "Sen. Reid's office has been very clear that the only way they can move it is through unanimous consent."
If anyone objects to unanimous consent for the stopgap measure, there's no time to make it happen before the break -- and on April 5, the previous extension will expire, meaning that people on unemployment will receive letters or robocalls from their state workforce agencies informing them that they will be ineligible for additional "tiers" of benefits they've been counting on.
If the Senate fails to get unanimous consent, this bill will not pass before the scheduled recess. A Senate aide told me they still hope to pass the bill this week, but that requires Jim Bunning not to object again. The plan of action if Jim Bunning denies unanimous consent, and restarts his one-man filibuster, is unclear.
That is where the process stands this morning. The Republican amendments can be found in the extended entry.