Dewonkify – Filibuster

The Word: Filibuster

Definition: A filibuster is a procedural tactic that is used to extend debate, delay a vote, or prevent legislative action. It is used in the U.S. Senate to require 60% of members to vote in favor of “cloture” to bring legislation up for consideration.  The House can cut off debate with a simple majority vote.

Used in a Sentence: “Senate leaders reached a deal on Tuesday morning to preserve the filibuster in exchange for Senate confirmation of President Obama’s long-sought first director of the Consumer Financial Protection Bureau, as well as other stalled nominees.” from “Senators Reach Agreement to Avert Fight Over Filibuster,” by Jonathan Weisman, New York Times, July 16, 2013

History:  The word “filibuster” is derived from the Spanish term filibustero which means “freebooting” and the Dutch word vrijbuiter meaning “pirate.”

Ezra Klein of the Washington Post walks through history of the filibuster and the increasing frequency with which it has been used in his May 15, 2012 article, “The History of the Filibuster in One Graph.”

Senate Advances LHHS Appropriations

The Senate Labor, Health and Human Services, and Education (LHHS) Appropriations Subcommittee met on Tuesday, July 9, 2013 to mark up their fiscal year (FY) 2014 legislation (S. 1284). The bill passed by voice vote.

On Thursday, July 11th, the full Senate Appropriations Committee took up the FY 2014 LHHS bill for consideration. S. 1284 passed the full Committee with a vote of 16-14. The bill and accompanying report are included below.

Senate Fiscal Year (FY) 2014 Labor, Health and Human Services, and Education (LHHS) Appropriations Bill by DrinkerBiddle

Senate Labor, Health and Human Services, and Education (LHHS) Appropriations Fiscal Year (FY) 2014 Committe… by DrinkerBiddle

It is unclear what will happen next. Senate Appropriations Chairwoman Barbara Mikulski (D-MD) made it clear that she would like to see this bill, and the others that have been approved by the Committee, considered on the Senate Floor. She stated in her introductory statement:  “I was dismayed to hear comments recently that we should not even consider Appropriation bills on the Senate Floor until there is a Conference Agreement on the Budget Resolution. But at the same time, six Senators have objected to a conference on the budget resolution, where this problem should be resolved.” Her full statement is available on the Appropriations website.

To date, the House has been silent on the LHHS bill. The most likely scenario is a Continuing Resolution (CR) before September 30th.

While the Senate bill may never become law, it will be used to negotiate the CR. The report is also a clear message to agencies and in many cases, agency responses to the report language are included in President’s budget the following year.

Senate Progress on FY 2014 LHHS Appropriations

The Senate Labor, Health and Human Services, and Education (LHHS) Appropriations Subcommittee met yesterday, July 9th, to mark-up its version of their fiscal year (FY) 2014 bill. The bill now heads to the full Senate Appropriations Committee for a mark-up on Thursday, July 11th at 10:00 am in Room 106 of the Dirksen Senate Office Building. The complete bill and report will likely be posted to the Senate Appropriations website after the full Committee meets (and likely approves the bill). There is still no word from the House regarding language or a mark-up.

The Senate Committee has posted a summary and chart of their bill on their website.

Red, White, Blue, and LHHS Appropriations

When Congress returns after the July 4th holiday, it is expected that the Labor, Health, and Human Services (LHHS) Subcommittee of the Senate Appropriations Committee will meet to mark up their bill. It is likely that the bill will pass by a party line vote and then be quickly considered at the Full Committee level.

Rumor has it that the House LHHS Subcommittee is drafting a bill but there is no word if it will ever go to mark up.

It is also unclear how the two sides of the Capitol plan to rectify their dramatically different 302(b) allocations, as discussed in a previous Capitol Health Record post. The Senate LHHS Committee received an allocation of $164.330 while the House cut down their spending cap to $121.797 billion to account for sequestration.

Without an end game in sight the clock seems to be counting down towards an omnibus or continuing resolution before September 30th. Stay tuned!

House Chairmen Selected for 113th Congress

House Republicans took an organizing step forward for the 113th Congress by selecting Committee Chairmen this week. Many of the key players did not change – Fred Upton (Michigan) is still at the helm of Energy and Commerce Committee, Harold Rogers (Kentucky) will be in charge of the full Appropriations Committee, Paul Ryan (Wisconsin) will lead Budget, and Dave Camp (Michigan) will continue to head up Ways and Means. One big change is with Rules Committee leadership – David Dreier (California) is moving on and Pete Sessions (Texas) will be taking over. It also is notable that with Ileana Ros-Lehtinen (Florida) leaving the top spot on the Foreign Affairs Committee due to term limits, there will be no women leading House Committees.

Even though there is great speculation about Subcommittee Chairs (particularly the Labor, Health, and Human Services Appropriations Subcommittee), they have yet to be announced.

In addition, the House Republican Steering Committee today approved Republican committee assignments for some committees.

New Republican Appropriations Committee members:

Rep. Jaime Herrera Beutler (WA-3)

Rep. Chuck Fleischmann (TN-3)

Rep. Jeff Fortenberry (NE-1)

Rep. David Joyce (OH-14)

Rep. Thomas Rooney (FL-16)

Rep. David Valadao (CA-21)

New Republican Energy & Commerce members:

Rep. Gus Bilirakis (R-FL)

Rep. Renee Ellmers (R-NC)

Rep. Ralph Hall (R-TX)

Rep. Bill Johnson (R-OH)

Rep. Billy Long (R-MO)

New Republican Ways & Means members:

Tim Griffin (AR)

Mike Kelly (PA)

Tim Scott (SC)

Todd Young (IN)

Severability…What Severability?

For months we heard that health reform could collapse in one piece if the individual mandate was found to be unconstitutional as Congress—by accident or intent—did not include a severability clause in the final version of the Affordable Care Act (ACA).

So what happened? Why isn’t anyone focused on severability now?

Well… as you now know, the individual mandate was upheld as a tax rather than under the Commerce Clause so severability became irrelevant for the mandate. Where severability could have been necessary is in the courts ruling of the Medicaid expansion.  However, Chief Justice Roberts officially took the issue out of play in the Majority Opinion stating that due to the severability clause in the underlying Medicaid law rendered the issue null and void.

That fully remedies the constitutional violation we have identified. The chapter of the United States Code that contains §1396c includes a severability clause confirming that we need go no further. That clause specifies that “[i]f any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.”§1303.

Of course, this did not stop Justices Scalia, Kennedy, Thomas, and Alito from elaborating their own view in the Dissent that the law did not include a severability clause and therefore absolutely should fall as one piece. Not only did they discount the Majority’s rationale regarding the Medicaid statute, they took one step further in a separate “Severability” section of the Dissent making it very clear that if they had been in the majority and ruled that the individual mandate and/or Medicaid provisions should fall that the entire law would come down.

So, the bottom line is that while the severability issue was essentially moot in the courts decision, it could have been a game changer had Roberts sided with the minority and the court ruled 5-4 against the mandate.  Given the minority opinion on severability, there is little doubt the entire law would have been thrown out completely.

Written by Rebecca McGrath and Erin Will Morton

Senate LHHS Mark Up Today

The Senate Appropriations Labor, Health, and Human Services (LHHS) Committee will meet today at 2:30 pm for a much anticipated markup of the Fiscal Year (FY) 2013 Appropriations bill. The Full Appropriations Committee is expected to meet on Thursday to consider (and likely pass) the bill. The House LHHS Subcommittee is rumored to markup their version of the bill later this month.

The fact that we may even see two versions of this bill, and possibly accompanying reports, will be progress as compared to last year’s situation. As you remember, in FY 2012, the Senate completed their work on the bill – which includes health and education programs and is often the most contentious of all 12 appropriations bills – but the House could not reach an agreement. A bill was never voted out of the House Committee and a report was never issued. This gave Senate staff a negotiating advantage when the bill was rolled into an omnibus and many provisions and report language that were “House priorities” never had a chance to make it into the larger package.

Given that this still stings for House staff, there seems to be a renewed investment in moving bills forward this year. That being said, there is no end game in sight. It seems to be almost a done deal that there will be continuing resolution that will keep funding at FY 12 levels from September through the election into a likely ugly lame duck session. But then what? The Supreme Court decision on health reform, LHHS bills with different bottom lines, a desire to cut and save, and sequestration looming means that it will likely be quite an interesting holiday season!