A provision deep within the Senate’s 2,000-page health-care overhaul bill would make it impossible, once approved, for the legislation to be repealed or changed by future Congresses -- a provision that a Senate Republican and a conservative analyst say is unconstitutional.
On page 1,020, the bill states: “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change this subsection.”
The provision appears in Section 3403 of the Senate bill, which creates an Independent Medicare Advisory Board (IMAB). The objective of the board would be to “reduce the per capita rate of growth in Medicare spending,” which has ballooned in recent decades. The IMAB would recommend changes to the Medicare program to limit its spending growth -- recommendations that would automatically go into effect unless Congress votes to block them.
The provision would not allow Senators in future congresses to offer legislation that would change or repeal the content of the preceding subsection, which dictates how Congress would consider the recommendations of the IMAB.
Before the Senate recessed for Christmas, Sen. Jim DeMint (R-S.C.) raised a number of questions about the provision -- including its constitutionality.
In a floor speech on Dec. 21, DeMint called the provision, “a rather substantial change to the standing rules of the Senate.”
After reading it aloud, DeMint said, “This is not legislation -- it’s not law. This is a rule change. It’s a pretty big deal.”
DeMint explained that the Senate would effectively be passing health-care legislation that includes a series of rules on how Congress would handle IMAB recommendations, and simultaneously will be keeping future lawmakers from changing it as they desire.
“We will be passing a new law,” he said, “and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law.
“I’m not even sure that it’s constitutional, but if it is, it most certainly is a Senate rule (and not a law). I don’t see why the majority party wouldn’t put this in every bill. If you like your law, you most certainly would want it to have force to – for -- future Senates,” DeMint added.
“(T)his goes to the fundamental purpose of Senate rules: to prevent a tyrannical majority from trampling the rights of the minority -- or of future congresses.”
The subsection that cannot be repealed or changed contains a number of other stipulations on how Congress will handle the IMAB recommendations, even setting deadlines for specific committees to consider them, which DeMint said were also new rules. “These provisions not only amend certain rules, they waive certain rules and create entirely new rules out of whole cloth,” DeMint alleged.
Democratic Chair: Procedural Change, Not Rules Change
Sen. Jeff Merkley (D-Ore.), who was the presiding officer in the Senate at the time of DeMint’s speech, disputed the conservative senator’s allegation, on the advice of parliamentarian Alan Frumin, who interprets Senate rules. When DeMint asked if the provision on page 1,020 did indeed change the rules of the Senate -- and therefore required a separate two-thirds majority vote to pass -- Merkley disagreed.
“The section of the proposed legislation addressed by the Senator does not amend the standing rules -- the standing rules of the Senate,” Merkley said, “and therefore, its inclusion does not affect the number of votes required to (end debate on the matter).”
DeMint then asked Merkley whether rules changes had ever been included in a law before.
“Mr. President, is the chair aware of any precedent where the Senate created a law and in doing so created a new rule?” DeMint asked before again quoting the text of page 1,020. “Is the chair aware that we have ever put this type of binding legislation on future congresses in a bill?”
Merkley replied: “It is quite common to do that.”
DeMint responded: “I would ask the chair to get those references, if the parliamentarian would, to us.”
But the South Carolina Republican, meanwhile, said he had never -- in two terms in the Senate -- seen a new piece of legislation ruled out of order because it would change laws that preceded it, and contended that the proposed rule “goes to the fundamental purpose of Senate rules: to prevent a tyrannical majority from trampling the rights of the minority or of future congresses.”
After DeMint finished his speech and yielded his floor time back, Merkley repeated his response to the claims.
“The chair will note that it is quite common to include provisions effecting Senate procedure in legislation,” Merkley said.
DeMint returned to the podium and asked: “Is there a difference between Senate procedures and rules?”
“Yes,” Merkley said.
“(S)o the language that you see in this bill that specifically refers to a change in a rule is not a rule change, it’s a procedure change?” DeMint asked.
“That is correct,” Merkley said.
“Then I guess our rules mean nothing, do they, if we can redefine them,” DeMint said.
DeMint said it was “truly historic that we have included new rules changes in legislation.”
He added: “We have changes in this legislation -- yet we’re ignoring a rule that requires a two-thirds cloture vote to pass it. I believe that it’s unconstitutional.”
Bryan Darling, the director of Senate relations at The Heritage Foundation, told CNSNews.com that contrary to what Merkley had indicated, including a rule in a bill was not common.
“First of all, it doesn’t happen all the time,” Darling said “Second of all, any rules changes buried in legislation would subject the legislation to a two-thirds vote of the Senate to go into effect, because to change the rules of the Senate you need a supermajority -- a two-thirds vote.”
A specialist in Senate procedures, Darling said the provision itself would “make sure that Congress can’t overturn the decisions of the (IMAB) panel.
“It’s undemocratic. These are panels that are using (taxpayer dollars),” he added. “So to make that argument means that, basically, the Democrats can change all the rules of the Senate, and instead of using a two-thirds vote, if they bury it in legislation then they can just change the rules with 60 votes, and that really is unprecedented.”
Darling told CNSNews.com that the rules change was a reflection of the unpopularity of the health-care bill – and that the majority Democrats know it.
“Trying to bind future congresses is really -- it’s hard to do,” he said, “but it shows that they’re fearful that Republicans will in fact try to repeal (parts) of the bill.”
The Senate parliamentarian, who advised Merkley on his rulings, does not conduct interviews with the media. However, a DeMint spokesman said that the parliamentarian’s answers through the chair at the time – Merkley -- could be taken as his response.
He also said that while some prior legislation had effectively created rules changes, he had not seen any precedent from the parliamentarian on provisions that would bind the activities of a future Congress, such as in the provision on page 1,020.
Despite DeMint’s challenge, the bill cleared the Senate early Christmas Eve on a 60-39 party-line vote (one Republican, Kentucky’s retiring Jim Bunning, was absent). It now must go to a conference committee, where House and Senate conferees will work do their bvt he bill, and the product, called a “conference report,” be sent to President Obama to be signed.
Former Alaska Gov. Sarah Palin made headlines last summer for referring to the IMAB as a “death panel” because it would presumably cause cost-cuts that would affect the care of certain people.
"The America I know and love is not one in which my parents or my baby with Down syndrome will have to stand in front of Obama's 'death panel,'” she wrote in an August Facebook post, “so his bureaucrats can decide, based on a subjective judgment of their 'level of productivity in society,' whether they are worthy of health care."
The board would be required to solicit from the chief actuary at the Centers for Medicare and Medicaid a projected rate of cost growth for the following year. If the number falls outside the target rate of growth, the IMAB would submit a series of recommendations to bring costs in line.
The bill requires “the Secretary (of Health and Human Services Kathleen Sebelius) to implement such proposals unless Congress enacts legislation pursuant to this section.”The bill, however, also stipulates on page 1,004 that IMAB’s proposals “shall not include any recommendation to ration health care” or “restrict benefits.”