09.27.2013 2

Can John Cornyn count to 60?

CornynWontDefundObamacareBy Robert Romano

One of the chief objections to the continuing resolution that would defund implementation of Obamacare has been that in order for it to work, it would have to pass the Senate and be signed into law by Barack Obama.

That, in short, Sen. Ted Cruz (R-Tex.) could not count to 60, the votes needed to clear cloture requirements in the Senate. Plus, even if Republicans could get to 60, Obama would never sign it.

But Cruz never needed all of that to happen. He only ever needed to count to 41 in the Senate to block any continuing resolution that would ultimately allow Obamacare to be funded.

If that happened, there would neither be the votes to pass a continuing resolution that allowed Obamacare funding nor disallowed it. That could be the potential basis for negotiation between the House and Senate, and an opportunity for Republicans to achieve concessions chipping away at or delaying implementation of the health care law.

If Senate Republicans stuck together, Cruz may not have been able to count to 60, but then neither could Senate Majority Leader Harry Reid (D-Nev.). The alternative is to suggest that the House of Representatives actually is obliged to be little more than a rubber stamp for Reid and Obama’s decrees, whether it be on the continuing resolution or the debt ceiling, but as House Speaker John Boehner (R-Ohio) recently iterated, “It just doesn’t work that way.”

A corollary to the objection is that somehow, if the House and Senate were to negotiate over what should be in the continuing resolution, the government would be shut down, and in a shutdown, the law would still be implemented. The Medicaid expansion and the insurance subsidies under the exchanges would still be funded. Huge chunks of discretionary spending already authorized would still be spent.

That is actually true, but that is not the point. The objective is not to shut down the government — it is to defeat any continuing resolution that allows Obamacare to be funded, and then to force the Senate and the White House to come to the table to work out a resolution. There is nothing dishonest about that approach, although some critics contend that groups like Americans for Limited Government are attempting to deceive the public over what can be achieved in this process. But we shall let them deal with imaginary straw men. In these pages, we’ll simply deal with the facts.

In the meantime, Sen. John Cornyn (R-Tex.), former chairman of the National Republican Senatorial Committee, too argued against the defund strategy on the Sean Hannity program. Instead, Republicans just need to get a Senate majority in 2014, and then they could send legislation to Obama that would “delay” Obamacare.

But there’s a problem there, too, Americans for Limited Government President Nathan Mehrens noted in a statement. It ignores the fact that Senate Republicans “will still most likely lack the votes to even get to cloture on such a bill and most certainly will lack the votes to overcome a presidential veto.”

Mehrens is right. Since the advent of Rule XXII in the Senate 96 years ago, Republicans have never had a filibuster-proof majority.

And in order to get to 60 in the Senate in 2014, they’d have to knock Democrats out of seats in Alaska, Arkansas, Colorado, Illinois, Iowa, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, South Dakota, Virginia, and West Virginia. Meanwhile not lose a single seat of their own, excepting New Jersey that Republicans have briefly picked up via appointment but are not very likely to keep in a special election next month.

“Then, the argument will be that Republicans just need the presidency to undo Obamacare,” Mehrens continued. But there’s another problem. “In 2016, the GOP will be even less likely to get a filibuster-proof majority in the Senate.”

That year, the only Democrat seats up are California, Colorado, Connecticut, Hawaii, Maryland, New York, Oregon, Vermont, and Washington, none of which Republicans are likely to pick up.  Conversely, they have difficult fights keeping Illinois, New Hampshire, Ohio, Pennsylvania, and Wisconsin, making it much more likely Democrats retake the Senate in 2016 (assuming Republicans take it in 2014) than Republicans have at picking up seats.

But to be fair to Cornyn, perhaps he is banking not on 60, but instead simple majorities in the House and Senate in 2017, and control of the White House.

In that instance, Republicans would use budget reconciliation to repeal Obamacare, a parliamentary move that cannot be filibustered in the Senate. This method was advocated by Republican presidential candidates Mitt Romney and Rick Santorum in the 2012 election cycle.

So the argument goes, in March 2010, Democrats needed to make several modifications to Obamacare, but could not get to 60 in the Senate with the election of now former Sen. Scott Brown (R-Mass.), so they did it through reconciliation. Therefore, what’s good for the goose is good for the gander, and Republicans should do the same as soon as the opportunity presents itself.

But that may not be as open and shut as proponents suggest. Under the Byrd Rule, non-budgetary, “extraneous” items cannot be brought up under budget reconciliation. Reconciliation is supposed to relate to the budget process, calling into question whether things like the individual and employer mandates, the government collection and storage of health records, and higher private insurance premiums can be repealed with just 51 votes in the Senate.

Yet, even if they managed to get it through the Senate on reconciliation and signed into law by a Republican president, how the reconciliation process was used (or misused) might be subject to Democrat challenge in the judiciary, leaving it up in the air how Chief Justice John Roberts might rule. Should something go awry in the Supreme Court again, the American people would be stuck with Obamacare.

Then, the argument would be that Republicans need even more senators, this time in 2018. Again, Republicans trying to get a filibuster-proof majority — something they have never done.

“To follow the Cornyn so-called strategy to its conclusion, the earliest the American people might be able to deal with Obamacare would be in 2019, when it will have been the law of the land for almost a decade,” Mehrens noted, concluding, “In effect, the Senate Republican strategy to get rid of Obamacare is to allow it to be implemented. It accepts failure as its premise, and to call it a plan is the most cynical, condescending trick of all, when it is simply surrender.”

Sounds like Republicans might be better off listening to Ted Cruz after all in order to force Reid and Obama to the table. That is, if they really want to do something about Obamacare in the next six years or so — before it becomes a permanent fixture in American society.

Robert Romano is the senior editor of Americans for Limited Government.

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