Wednesday, December 15, 2010

Might the Lame Duck Be Less Lame Than I Thought?

The Unfunded Giveaway Advances
Last week, I went through in great detail, all the reasons why I thought and still think that the deal reached between President Obama and Congressional Republicans was a bad deal for America. The deal appears inevitable at this point, receiving massive support in final passage in the Senate, by a whopping 81-19 margin, with only 13 Democrats, 5 Republicans and Independent Bernie Sanders of Vermont, who entered Senate folk lore with an impassioned eight and a half hour speech on the Senate floor this past weekend that picked apart the provisions of the deal one by one.

The measure now moves to the House, where a vote is expected early next week, and save for a few liberal holdouts (and possibly a couple of Conservatives that don't like the unemployment extension provision), it seems sure to pass by a broad margin. The one potential hiccup is that some liberal House members are vowing to vote on an amendment to modify the estate tax provision. Rich dead people are unpopular enough in a House that is still Democratic for another couple of weeks, that it could actually pass, which might break apart Republican support for the overall measure. But my guess is that House leadership ultimately whips most of the liberals in line and the measure will pass basically unmodified.

Interesting constitutional note: students of the constitution no doubt know that it states that bills impacting taxes and spending must originate in the House of Representatives, not the Senate. One might wonder who then the Senate can have first passed a bill which will now be voted on in the House that has exactly those impacts. The answer lies in technical legislative process. The Senate bill is technically an amendment to a non-controversial air travel infrastructure bill that the House had already passed. The constitution allows the Senate to amend tax and spending bills already passed by the House, so the Senate has simply amended the air travel bill to incorporate the tax and spending measures and the House will actually be voting to concur with the Senate amendment. Hardly seems like what the founders intended in terms of control of the purse strings, but it is technically within the constitutional rules.

Lots of Action Yet to Come
With the deal on taxes and spending, the deck has been cleared for all sorts of action on other fronts, as a unified Senate GOP caucus had vowed to filibuster ALL legislation until a deal was reached on taxes and spending. The Democrats have a short couple of weeks before this congress ends, but it actually appears there is the potential to do a few big things.

(1) The START Treaty
Continuing our constitution lesson, treaties require ONLY Senate approval (the House does not vote on them), but require a 2/3rds vote for ratification. The START treaty renews nuclear reduction efforts with Russia that have been through many rounds, dating all the way back to the Reagan Administration. It is a significant deal that would reduce stockpiles of the US and Russia by 25% over the coming couple of decades. And it appears that there may be sufficient bipartisan support to obtain the 67 votes that are needed for passage. The Senate just voted tonight to commence debate on the treaty. Filibuster is not at issue in this case as the 67 votes needed for ratification exceed the 60 vote requirement to cut off debate.

Odds of Passage? High.

(2) Don't Ask, Don't Tell
Amazingly, this outdated and discriminatory policy may finally die this year. The original strategy had DADT repeal tied to the Defense authorization bill, but that has been bogged down in the Senate as it is a complex bill that touches on many aspects of defense policy and even some repeal supporters didn't like it muddying the waters of other defense issues.

The new strategy, of a standalone bill that repeals the policy, seems to be bearing fruit. The House has already passed the measure today, by a 250-175 vote, mostly along party lines (15 Republicans voted for, 15 Democrats voted against, all of the rest voted the party line.) And the support seems to be there in the Senate. The last 4 Moderate Republicans standing: Susan Collins and Olympia Snowe of Maine, Scott Brown of Massachusetts (who has been quite a pleasant surprise in his willingness to work across the aisle) and newly crowned Tea-Party killer Lisa Murkowski of Alaska have all expressed support for the standalone measure (in a technical sense, she is an elected Republican until January, at which point she becomes an elected Independent who caucuses with the GOP.) It appears that at least 55 of the 56 Democrats in the Senate support repeal (Ben Nelson, as usual, is a question mark) and both Independents (Joe Lieberman and Bernie Sanders) have been vocal advocates of repeal. By my math, this gives the repeal bill the support of 61 current Senators, more than the 60 needed to stop a GOP filibuster.

Odds of Passage? Surprisingly, high.

(3) The DREAM Act
The Obama Administration-backed effort to provide a path to citizenship for people whose families came to the US illegally when they were children and who serve in the armed forces appears to potentially have the votes to pass. Passage in the House appears assured if it is brought to the floor prior to January 5th (when the new GOP majority arrives) and there appears to be 55 committed "yea" votes in the Senate, including conservative Republican Senator Orrin Hatch of Utah, who is one of two primary sponsors of the bill. If the Democratic leadership can get the fence-sitting Democrats to vote yea, Hatch's support, along with the support of Bob Bennett of Utah, Lisa Murkowski of Alaska and Dick Lugar of Indiana would potentially give the bill 62 votes, more than the 60 needed to break a filibuster.

The headwinds the bill faces are several though. Firstly, it is clearly a lower priority on the Senate category than the START treaty and DADT repeal. Secondly, 3 Democrats, Ben Nelson of Nebraska, Mark Pryor of Arkansas and Jon Tester of Montana are committed "nay" votes, meaning that at this point there really are only 59 votes for passage, not 62. And Kay Hagan of North Carolina and Max Baucus of Montana are leaning nay votes. So, now you are down to 57. This makes getting to 60 difficult, although there may be a few more Republicans (such as Susan Collins) that break for the bill.

Odds of Passage? I'm having trouble making the math work, so I'll say low-to-moderate.

Also on the docket before the end of the year is passage of a bill to fund government operations for the rest of this fiscal year (through next September.) Regrettably, once again, Congress failed to pass the requisite appropriations bills prior to the start of the fiscal year this past October, so what we have had is a cobbled-together set of continuing resolutions (I've written extensively over the past year on how destructive this process is, you can refer back to my posts from last September and October for more information), with the latest expiring this week. The House has passed a full-year continuing resolution, which basically keeps Fiscal 2011 spending at 2010 levels by a narrow 212-206 margin (Republicans felt that cut should be more significant as did some Blue Dogs, some liberals wanted a higher level), but has yet to be debated in the Senate. There is still significant disagreement over how to proceed, with many Senate Democrats preferring to pass an omnibus budget rather than simply continuing last year's funding levels (I agree in principle, although the Senate-drafted bill appears to be laden with pork not contained in the House bill.) The Senate is not scheduled to take up debate on the measure until Friday and bill opponents have threatened to force the entire bill, which nears 2,000 pages, to be read aloud prior to debate (Senate rules call for all bills to be read on the floor and while this requirement is routinely waived without objection, only 1 Senator has to object to require the reading), which could potentially push voting on the bill into the middle of next week.

So, there are still some potential significant accomplishments on the table for the lame duck congress. But there is also a lot to sort out in a few short days. Congress was attempting to be home by Christmas, but that may not be possible if they want to finish all of this business.

It should be a busy couple of weeks in Washington.

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