"Debating" health care reform: Party abuse of Senate procedure serves the President and concentrated power at the expense of the People

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2009 comment thread is available at that link.

Why hasn’t there been a vote on a health care-related amendment on the Senate floor since last Tuesday, although the Senate has been in public session since, on Wednesday, Thursday, Friday, Saturday and Sunday, and hundreds of amendments, from members of both Parties, have been filed on the bill, with only a dozen or so given the opportunity for a vote to date?

Premise: The leadership of the Democratic Party in Congress – especially in the Senate – is, and has been, allowing, encouraging and/or tolerating the wholesale dictation of legislative policy by the Executive Branch to the independent Legislative Branch on the health reform bill, while using extreme secrecy to try to hide their actions from the public, and even from fellow Members of Congress.

And those Party leaders are now trying to force that Executive Branch-created and blessed legislation through the Senate and House essentially unchanged, and promoting it as a Party product, rather than letting America’s federal legislature as a whole create its own product. [Cue the incredulous partisan-war-fueling "Party of No" cliches or, alternatively, the exasperated sighs of no kidding.]

You may think that such power-driven and power-motivated abuse of regular order and democratic process is a good thing, if your pet policy (or your job) happens to align with the private will of the President and/or his most-powerful appointees, but such back door, unchecked concentration of legislative power in the Executive’s hands is an extremely dangerous thing for this nation and its separation of federal powers.

Does the U.S. Senate exist to serve the President and the Party, or to serve the American people?

The most recent public manifestation of this secret process, from Friday, 12/11/09’s Congressional Record:

Mr. McCAIN. Could I ask my friend about the situation as it exists right now? Right now, no Member on this side has any idea as to the specifics of the proposal the majority leader, I understand, has sent to OMB for some kind of scoring. Is that the way we want to do business, that a proposal that will be presented to the Senate sometime next week and voted on immediately–that is what we are told–is that the way to do business in a bipartisan fashion? [Never mind a democratic fashion – a word McCain can’t quite bring himself to speak… -ed.] Should we not at least be informed as to what the proposal is the Senate majority leader is going to propose to the entire Senate within a couple days? Shouldn’t we even know what it is?

Mr. DURBIN. I would say to the Senator from Arizona, I am in the dark almost as much as he is, and I am in the leadership. The reason is, because the Congressional Budget Office, which scores the managers’ amendment, the so-called compromise, has told us, once you publicly start debating it, we will publicly release it. We want to basically see whether it works, whether it works to continue to reduce the deficit, whether it works to continue to reduce the growth in health care costs.

We had a caucus [late Wednesday afternoon] after this was submitted to the Congressional Budget Office, where Senator Reid and other Senators who were involved in it basically stood and said: We are sorry, we can’t tell you in detail what was involved. But you will learn, everyone will learn, it will be as public information as this bill currently is on the Internet. But the Congressional Budget Office has tied our hands at this point putting it forward. Basically, what I know is what you know, having read press accounts of what may be included.

Mr. McCAIN. Could I ask my friend from Illinois–and by the way, I would like to do this again. Perhaps when he can get more substance into many of the issues.

Mr. DURBIN. Same time, same place tomorrow?

Mr. McCAIN. I admit these are unusual times. But isn’t that a very unusual process, that here we are discussing one-sixth of the gross national product; the bill before us has been a product of almost a year of sausage-making. Yet here we are at a position on December 12, with a proposal that none of us, except, I understand, one person, the majority leader, knows what the final parameters are, much less informing the American people. I don’t get it.

Mr. DURBIN. I think the Senator is correct, saying most of us know the fundamentals, but we do not know the important details behind this. What I am saying is, this is not the choice of the majority leader. It is the choice of the Congressional Budget Office. We may find that something that was sent over there doesn’t work at all, doesn’t fly. They may say this is not going to work, start over. So we have to reserve the right to do that, and I think that is why we are waiting for the Congressional Budget Office scoring, as they call it, to make sure it hits the levels we want, in terms of deficit reduction and reducing the cost of health care.

It is frustrating on your side. It is frustrating here. But I am hoping, in a matter of hours, maybe days, we will receive the CBO report.

[By the way, is any reporter going to ask the White House or Majority Leader Reid whether anyone at the White House knows what Reid sent to CBO…?]

While the backroom sabotage of the public legislative process has been underway this week on a couple of fronts (because the Party needs a "win" at any cost, and doesn’t dare let representative democracy work its will if the President has other ideas), the finger-pointers of the Senate have been quarrelling about whose Party team is to blame, or who deserves more credit for the inaction on the Senate floor.

Meanwhile, those Senators actually trying to publicly legislate in the best interests of the American people are stymied and obstructed. Even, unbelievably, name-called by anonymous Senate insiders as ‘in it for themselves’ simply because they’re trying to do their jobs like adults on behalf of the American people, while privileged to be among the relative few empowered to act on our behalf in our independent Legislative Branch of government.

Byron Dorgan, whose prescription-drug-importation amendment is the most-recent Democratic amendment called up for debate from the hundreds of filed amendments that sit idling, speaking last Tuesday, 12/08/09:


(Purpose: to provide for the importation of prescription drugs)

Mr. DORGAN. Madam President, I call up amendment No. 2793, as modified, and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The bill clerk read as follows:

The Senator from North Dakota [Mr. DORGAN], for himself, Ms. Snowe, Mr. Grassley, Mr. McCain, Ms. Stabenow, Ms. Klobuchar, Mr. Brown, Mrs. Shaheen, Mr. Vitter, Mr. Kohl, Mr. Leahy, Mr. Feingold, and Mr. Nelson of Florida, proposes an amendment numbered 2793 to amendment No. 2786, as modified.

Mr. DORGAN. Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

(The amendment is printed in today’s Record under "Text of Amendments.")

Mr. DORGAN. Madam President, my understanding is that the Senator from Idaho is to be recognized next for laying down an amendment.

The PRESIDING OFFICER. The Senator from Idaho.


Mr. CRAPO. Madam President, I have a motion at the desk which I wish to call up and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The bill clerk read as follows:

The Senator from Idaho [Mr. Crapo] moves to commit the bill H.R. 3590 to the Committee on Finance with instructions to report the same back to the Senate with changes that provide that no provision of this Act shall result in an increase in Federal tax liability for individuals with adjusted gross income of less than $200,000 and married individuals with adjusted gross income of less than $250,000.


Mr. DORGAN. […] Tomorrow my hope is with my colleagues–Republicans and Democrats–we will pass this legislation at last, at long last. Many of us have been working on this issue 6, 8, 10 years. We will pass this legislation. Why? Because this is the place for it. This is the bill that should be amended. This is the time to do this. We cannot walk out of this Chamber and say something happened in that Chamber to deal with health care. But did you do something about prescription drugs? No, no, we couldn’t do that, couldn’t do that. This is not the way I want this to end, and it is not the way it has to end if enough of us have the courage to take on this fight.

As I said, I will have a lot more to say tomorrow morning. I appreciate the indulgence of my colleagues to listen tonight about why we have offered this legislation.

I started and let me finish by saying this is broadly bipartisan. It is, first and foremost, a Dorgan-Snowe bill. Senator Dorgan–myself–and Senator Snowe from the State of Maine, but many others–my colleague, Senator Grassley, who is on the floor, Senator McCain, who spent a lot of time on this issue–Republicans and Democrats have come together.

By the way, this has not happened very often on this bill. But this is a bipartisan bill with Republicans and Democrats pulling their oars together to try to get this done.

I yield the floor.

The PRESIDING OFFICER. The Senator from Iowa.

Mr. GRASSLEY. Madam President, before the Senator from North Dakota leaves and before I speak on another issue, I wish to tell him I am going to speak in support of his amendment. But I would like to ask him a question now, if he will answer it for me–a friendly question, but it is something I don’t know absolutely for sure, but I believe that pharmaceuticals are about the only thing a consumer in the United States cannot buy anywhere in the world that they want to buy. We ought to give them that same right we do on everything else. There may be some other items I am not aware of, but I think it is only pharmaceuticals that you cannot import from wherever you want to buy them.

Mr. DORGAN. Madam President, I say to the Senator from Iowa, that and Cohiba cigars from Cuba, I reckon. We have a special embargo with respect to Cuba. With that exception, I don’t think there is a legal product the American consumer cannot access anywhere else in the world.

This is about giving the American consumer the freedom that the global economy should offer everybody. The big shots got it. The big interests can do it. How about the American people having the opportunity to shop around the world for the same product and pay a fraction of the price of the charges that are imposed on them in the United States.

[Note: There, last Tuesday, as the pattern had been established from the opening of the floor debate, we had one Democratic amendment or motion, paired with one Republican amendment or motion called up as the next two measures in line for a floor vote. And then, read on…]

And again on Wednesday, 12/9/09:

Mr. McCAIN. I thank the Senator from North Dakota who has been pursuing this issue for a number of years. I believe we are on the verge of success.

I appreciate his eloquence, I appreciate his passion, but most of all, on behalf of the citizens of my State who can’t get up to Canada, who now are experiencing unprecedented economic difficulties, and who need these lifesaving prescription drugs–many of them senior citizens–I just wish to say thank you for your advocacy.

I think you have made an eloquent case, and I hope my colleagues have paid attention and will vote in the affirmative for the Senator’s amendment today.

Mr. DORGAN. Mr. President, let me say that Senator McCain has been a part of this effort for a long time. It is interesting, with all the action on floor of the Senate in recent weeks, this is one of the few examples of a significant policy that is bipartisan. We have Republicans and Democrats–over 30 cosponsors–who have worked with us to make certain we can do this, do it safely, and give the American people the opportunity they deserve. This is very bipartisan. I appreciate that a lot.

I wish to say, the National Federation of Independent Businesses supports this; the AARP supports this. We have a long list of organizations that are strong supporters of this amendment, and so I hope, today, perhaps at last–at long last, after 8 or 10 years–we might finally achieve a breakthrough and get this through the Senate.

I have said previously that the pharmaceutical industry is a formidable opponent. I understand that. We have had difficulty getting this in a piece of legislation to get it signed and give the American people freedom and give them fair pricing. When we do this–Senator McCain, myself, and others–it is suggested that somehow we have no regard for this industry. That is not the case at all. It just is not. We have no regard for a pricing policy, however, that we believe is unfair to the American people. It has been that way for too long–a long time too long. Perhaps today–with the vote on this amendment, which I expect later this afternoon–will be the first step in getting that changed.

I yield the floor.

The PRESIDING OFFICER. The Senator from Arizona is recognized.

Mr. KYL. Mr. President, I believe if I am to speak for more than 10 minutes I need to ask unanimous consent. If that is correct, I ask unanimous consent to speak for 15 minutes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. KYL. Mr. President, I wish to speak to the Crapo motion–an amendment that, hopefully, we will be voting on a little later today–and I urge my colleagues to support the motion of the Senator from Idaho.

This is about jobs and it is about taxes.

Then, later Wednesday, 12/9/09, a bit of the backroom sabotage leaks out onto the Senate floor:

Mr. REID. Mr. President, I ask unanimous consent the Senate stand in recess until 6:15 p.m. today; that upon reconvening at 6:15, the Senate continue in debate-only posture for an additional hour under the same conditions and limitations specified under previous orders.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. REID. Mr. President, I would also tell everyone here there will be no more votes tonight. I don’t think we can arrange any.

Thereupon, the Senate, at 5:06 p.m., recessed until 6:15 p.m. [for the uninformative Democratic caucus pep rally referred to by Durbin above] and reassembled when called to order by the Presiding Officer (Mr. Brown.)

Still later Wednesday, 12/9/09:

Mr. REID. Mr. President, I had a conversation earlier today with the distinguished Republican leader. It appears now that we are going to get the appropriations bill from the House of Representatives. The bill is bipartisan, and everybody has worked hard. There are some conference reports we have completed. Yet we didn’t find them to work on the floor, for reasons everyone understands. That bill will come over from the House tomorrow. We can move to that with a simple majority vote, and then if I have to file cloture on it tomorrow, we would have a Saturday cloture vote. Thirty hours after that–sometime Sunday morning–we would have a vote on the conference report.

I have indicated to the Republican leader that it would probably be to everyone’s advantage if we allow people to go home for the weekend, rather than going through all these procedural gyrations.

We have worked hard. I had a Senator come to me and say she hadn’t been home in 2 or 3 weeks, and it was not a good situation. That Senator said if we have to be here this weekend, she will be here. We need to not be doing things just to delay. I understand the Republican leader doesn’t want to do health care. I appreciate that, and we have different positions on that issue.

I see no reason to punish everybody this weekend. I hope the minority will give strong consideration to the proposal I have made. We are waiting for a score to come back from CBO anyway. Anybody who has had experience with CBO knows that will take a matter of days. So I hope the minority will allow a little bit of time to go by so that we can have our respite from the tedious work we have been doing on the Senate floor.

Thursday, 12/10/09, at about 3 p.m.:

Mr. McCONNELL. Mr. President, I say to my good friend the majority leader, we have been anxious to have health care votes since Tuesday, and we have had the Crapo amendment pending since Tuesday. You have said repeatedly, and I agree with you, that the health care issue is extraordinarily important and that we should be dealing with it and debating it.

So it is my hope that somehow, through our discussions both on and off the floor, we can get back to a process of facilitating the offering of amendments on both sides of the aisle at the earliest possible time and we can get back to the health care bill.

The PRESIDING OFFICER. The majority leader.

Mr. REID. Mr. President, I am happy to respond through the Chair to my distinguished colleague.

I think it is pretty evident to everyone here not only what has happened here on the Senate floor but the statements that have been made publicly and privately. And certainly I am not going to discuss any private conversations I have had, but based on Rush Limbaugh and Glenn Beck, which is on all the news today, they are upset at Senator McConnell because he is not opposing the health care bill enough–that in a reasonable process on this, there are no efforts being made to improve this bill, only to kill this bill.

I think the debate has come to a point that I have rarely seen in the Senate. In fact, I have never seen it. To have my friends on the other side of the aisle come to the floor and in some way try to embarrass or denigrate me by virtue of the fact that–in fact, trying to embarrass me. What they should understand is that any events I had scheduled for this weekend have been canceled. Events I had last weekend had been canceled–four or five of them. To say the least, I would never, ever intentionally come to the floor and try to talk to somebody about having had a fundraiser and that is why they are trying to get out of here.

The reason I laid out to the Senate what I thought was a reasonable schedule is because, procedurally, we are where we are. The rules of the Senate are such that once cloture is invoked, that is what you stay with [unless waived by unanimous consent, which is generally doneed.]. I thought it would be appropriate, because we have worked pretty hard here, to have a day or two off. Anything that was reasonable, I would be happy to deal with everyone. But there was no result from this. Everything that can be done to stall and to divert attention from this bill is being done. And that is too bad, because it is important legislation.

Today, 14,000 Americans will lose their health insurance. Between now and 3:30, a number of people will die as a result of having no health insurance. So we are engaged in some important stuff; as pundits have said, some of the most important legislation that has ever been in this body.

So I am going to proceed to follow the rules of the Senate, and I am sorry we haven’t been able to work with the Republicans in a constructive fashion on this health care bill, but it is obvious we haven’t.

Mr. McCONNELL. Mr. President, I ask unanimous consent to be able to respond briefly.

The PRESIDING OFFICER. Is there objection?

Without objection, it is so ordered.

Mr. McCONNELL. Mr. President, I reiterate to my good friend from Nevada, all I said was the Crapo amendment has been pending since Tuesday. We would like to vote on amendments. There has been some difficulty, apparently, in coming up with a side by side to the Crapo amendment. I understand that. But I am perplexed that it would take 2 days to come up with a side by side.

This, as has been stated by my good friend the majority leader, is the most important issue–some have said in history. It has been equated with a variety of different monumentally important pieces of legislation in American history. All we are asking is the opportunity to offer amendments and get votes. I said it in a most respectful way and meant it in a most respectful way. I think it is pretty hard to argue with a straight face that we are not trying to proceed to amend and have votes on this bill. That is what we desire to do.

The majority leader certainly has the right to move to the conference report. He has now done that–or we are about to vote on doing that. All I suggested was we would like to get back on the health care bill as soon as we can, resume the debate process on what has been described on an issue of historic importance, and let Senators vote, which is what we do here in this body.

The PRESIDING OFFICER. The majority leader is recognized.

Mr. REID. Mr. President, I say to my friend from Kentucky that I have an event I am going to now. I will vote and come back, and I will see if we can work something out.

Thursday, 12/10/09, at about 7 p.m.:

Mr. REID. Mr. President, I now ask unanimous consent that the Senate resume consideration of H.R. 3590, the health care bill, for the purposes of considering the pending Crapo motion to commit and the Dorgan amendment No. 2739, as modified; that Senator Baucus be recognized to call up his side-by-side amendment to the Crapo motion; that once that amendment has been reported by number, Senator Lautenberg be recognized to call up his side-by-side amendment to the Dorgan amendment, as modified; that prior to each of the votes specified in this agreement, there be 5 minutes of debate equally divided and controlled in the usual form; that upon the use or yielding back of the time, the Senate proceed to vote in relation to the Lautenberg amendment; that upon disposition of the Lautenberg amendment, the Senate then proceed to vote in relation to the Dorgan amendment; that upon disposition of that amendment, the Senate proceed to vote in relation to the Baucus amendment; that upon disposition of that amendment, the Senate proceed to vote in relation to the Crapo motion to commit; that no other amendments be in order during the pendency of this agreement; that the above-referenced amendments and motion to commit be subject to an affirmative 60-vote threshold and that if they achieve that threshold, then they be agreed to and the motion to reconsider be laid upon the table; that if they do not achieve that threshold, then they be withdrawn.

The PRESIDING OFFICER. Is there objection?

Mr. McCONNELL. Mr. President, reserving the right to object.

The PRESIDING OFFICER. The Republican leader.

Mr. McCONNELL. As I stated earlier today, and as the majority leader has indicated, we have waited since Tuesday to vote on additional health care amendments, including the pending Crapo motion to commit on taxes. Finally, tonight the other side gave us language on their alternative to Senator Crapo’s motion.

Senator Crapo’s motion would ensure that the bill does not raise taxes on the middle class. I understand that their alternative is sense-of-the-Senate language on that subject. This consent request now has us voting on two drug reimportation amendments from the other side–not one but two on the Democratic side–one of which we just received less than an hour ago and is 100 pages long.

We are prepared to return to the health care bill and proceed to the two tax-related votes tonight. After those votes, I would suggest we continue to work on the bill and other amendments. I assume there could be votes on the drug reimportation issue and a whole host of other amendments we have all been anxious to offer at a later time. But at this stage, regretfully, I object and propound the following alternative.

Is my objection registered?

The PRESIDING OFFICER. Objection is heard.

Mr. McCONNELL. I would say to my friend, the majority leader, could we just get in the queue the Crapo amendment and the, I believe, Baucus side by side to the Crapo amendment? I ask unanimous consent that we do that, which would give us a way to go forward on two measures that both sides seem to want to vote on.

The PRESIDING OFFICER. Is there objection?

Mr. REID. Mr. President, reserving the right to object.

The PRESIDING OFFICER. The majority leader.

Mr. REID. Just this afternoon, my friend, the Republican leader, said–and I quote–"I think it is pretty hard to argue with a straight face that we’re"–"we" meaning Republicans–"not trying to proceed to amend and have votes on this bill. That’s what we desire to do."

Mr. President, it is obvious the Republicans have said privately to their friends and publicly here and in the media that this is a bill they want to kill. To think they are interested in doing something that is positive about this stretches the imagination.

Also, let me just say this. I did not come to this body yesterday. I am not the expert with procedures in the Senate, but I am pretty good. I want everyone to understand this is a ploy procedurally to stop us from completing this bill. We are not going to have a bunch of amendments stacked up. Amendments have been offered. We are agreeing to vote on the amendments. We know the drug importation is a difficult vote for the Republicans; it is a difficult vote for the Democrats. But that is what we do around here.

Every amendment we have had so far has been 60-vote margins. This should not be any different. So I want the Record to reflect that we are ready to vote. He keeps talking about "since Tuesday." There have been quite a few things going on around here since Tuesday. It is not as if we have been sitting around staring in space. There has been good debate on the Senate floor. It is just that we have amendments that would–if we move off the motion they have filed, it creates a procedural issue that we would have difficulty getting out of. That is why they are wanting to do that. We have to clear the deck, continue offering amendments, as we have. I think that is the right way to do it.

So, Mr. President, I object.

The PRESIDING OFFICER. Objection is heard.

The Republican leader.

Mr. McCONNELL. Mr. President, could I just say, at the risk of being redundant–and I do not want to get into a spirited debate with my friend and colleague over this–the facts are we were just handed a 100-page Lautenberg amendment about an hour ago. I have 39 Members here, all interested in that issue. It is simply impossible for me to clear voting on an amendment of 100 pages in duration that I just got an hour ago.

The reason I had suggested–and I was hopeful that maybe it would be a good way forward–we vote on the Crapo amendment, which everybody understands has been out there since Tuesday, and a sense-of-the-Senate resolution that is fairly brief, I assume–a very brief sense of the Senate that Senator Baucus was going to offer–is because both sides fully understand those two measures. They are not 100 pages long and enormously complicated. We did not just receive them.

So I do not want to get into an extensive back and forth with the majority leader, but I would say to him through the Chair, sincerely, it strikes me a good way to just get started would be to vote on these two issues, the Crapo motion and the Baucus amendment that both sides fully understand.

The PRESIDING OFFICER. The majority leader.

Mr. REID. Mr. President, this is no sucker punch the Democrats have just leveled to the Republicans. This amendment was previously offered by Senator Cochran, a Republican, that Senator Lautenberg is offering. This is something people have known about for a long time. So I understand people may have forgotten what was in that. They can have the evening to look it over. But I will renew my request tomorrow. We are ready to legislate.

The PRESIDING OFFICER. The Republican leader.

Mr. McCONNELL. Mr. President, I guess I will have to prolong it just a little bit further.

I just learned something from the majority leader, that in fact this is an amendment that has been around before. We just learned that from his comments, having just received it a short time ago. Nevertheless, we will continue to talk and see if we cannot move forward and make progress and give both sides votes they are clearly interested in having.

The PRESIDING OFFICER. The majority leader.

Mr. REID. Mr. President, I appreciate the attitude of the Republican leader. I think it is fair to have a chance to look at that amendment. We will be here in the morning and try to work through this.

Saturday, 12/12/09:

Mr. McCONNELL. Mr. President, we had indicated to Senators REID and DURBIN that we wanted to see if there was a way to develop some path forward on the health care bill, and I wish to at this point propound a consent agreement that might well give us a way to move forward on some of the amendments that have been pending for quite some time, some of which are both supported and opposed on each side.

Having said that, I ask unanimous consent that after the vote on the adoption of the pending conference report [Sunday afternoon], the Senate resume consideration of H.R. 3590 under the following order; there be 2 hours of debate equally divided between the two leaders or their designees and following the use or yielding back of that time, the Senate proceed to a series of stacked votes in relation to the following amendments or motions; a Baucus sense-of-the-Senate amendment related to taxes, the pending Crapo motion–which I might add parenthetically has been out there since last Tuesday–the Crapo motion to commit the bill related to taxes, then the Dorgan amendment, which is on the drug importation issue, No. 2793, and then a McCain amendment, No. 3200, on the same subject.

I further ask unanimous consent that the above referenced motion and amendments be subject to an affirmative 60-vote threshold, and if they achieve that threshold, they become agreed to; further, if they do not achieve that threshold, they be withdrawn; finally, I ask that no amendments be in order to any of the mentioned amendments and motion.

Before the Chair rules, I wish to make a quick point. The majority leader has been proposing a series of votes, which regretfully has not held to our pattern of alternating back and forth. We have many people interested in the pending amendments, and under the agreement I put forward, each side would get two votes, as we have tried to operate throughout the health care debate, and then we would move forward.

The PRESIDING OFFICER. Is there objection?

The Senator from Illinois.

Mr. DURBIN. Mr. President, reserving the right to object, I ask unanimous consent to engage in a colloquy with the minority leader. Perhaps there will be a better understanding of his unanimous consent request before I make my final decision.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DURBIN. I wish to ask, as I understand it now, when it comes to–and let’s set aside Crapo-Baucus and assume there is commonality in that. As I understand it now, the Dorgan amendment, which would allow for the importation of pharmaceuticals and drugs into the United States, has been offered on our side as well as a Lautenberg amendment, which has some history in the Senate. It was previously offered by Senator Cochran of Mississippi and establishes a standard for certification of safety of the drugs coming in.

Could the Senator from Kentucky describe to me what the new McCain amendment No. 3200 does?

Mr. McCONNELL. Well, fortunately, Senator McCain is on the floor at this time, and I will ask him to describe it.

Mr. McCAIN. I wish to say to my colleague, first of all, as is well known, side-by-sides have been one side of the aisle and the other side of the aisle. If the Lautenberg amendment were in order on the Dorgan amendment as a side-by-side, that would obviously be a change from what we have been doing.

Basically, what my amendment does is make some perfecting changes to the underlying Dorgan amendment. It has some sense-of-the-Senate provisions and several other provisions which I think would help make it more effective. I have to be very honest with my friend from Illinois, it doesn’t undermine the Dorgan amendment. I think it supplements the Dorgan amendment, just as the Bennet amendment to Medicare costs supplemented the position we had that Medicare benefits wouldn’t be cut.

So side-by-side amendments aren’t necessarily in contrast with each other; sometimes they perfect, and I think my amendment makes it a better amendment–makes the Dorgan amendment a better proposal.

Mr. DURBIN. I ask unanimous consent to expand the colloquy to include Senator McCain.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DURBIN. Does the amendment of the Senator from Arizona, No. 3200, include the existing language of the Dorgan amendment?

Mr. McCAIN. Yes, plus some perfecting language, as far as the Senate is concerned, about other procedures that would expedite the Dorgan amendment as well.

Mr. DURBIN. Is the Senator from Arizona prepared to offer the Lautenberg language in his amendment?

Mr. McCAIN. No, obviously not, because I don’t agree with the Lautenberg language in my amendment, as you know. But what we are trying to do is, obviously, make the Dorgan amendment better, just as other amendments that are side-by-sides have tried to make amendments better. They do not necessarily cancel them out but make them better.

Mr. DURBIN. Is the Senator from Arizona a cosponsor of the Dorgan amendment?

Mr. McCAIN. Yes, a proud cosponsor.

Mr. DURBIN. Would the Senator from Arizona consider offering whatever is different in 3200 as a separate amendment to the Dorgan amendment?

Mr. McCAIN. I guess what I am not sure–if I understand my friend, I am offering an amendment as a side-by-side in order to, in my view, improve the Dorgan amendment; again, in all candor, not to undermine but to make it better.

Mr. DURBIN. Well, Mr. President, I have an obligation to not only my leader but obviously to Senator Lautenberg, who is being dealt out of the picture here with this unanimous consent request, and he has been offering an amendment which is well known and has been offered previously by Senator Cochran of Mississippi, a Republican. At this point, if Senator Lautenberg is offering–I think at this point I am constrained to object based on this new McCain amendment, and we will discuss it with Senate leadership as to whether we can find a path through this.

This is the third day we have been struggling with this. It appears there is a lot of credence put in the belief that we have to have exactly the same number of Republican and Democratic amendments, and I understand that from the minority point of view.

Mr. McCONNELL. Maybe I have a solution to the problem. It actually involves my side agreeing to a procedure we have not followed throughout this bill, but let me suggest the following, which I think would get us out of this conundrum we seem to be in: that even though we have alternated from side to side, we would agree to both Dorgan and Lautenberg in conjunction, right after Crapo and Baucus; and then we get in the queue our next two–which I believe you are already familiar with, because they have been discussed on the floor–the Hutchison-Thune amendment, and then a Snowe amendment.

Mr. McCAIN. And I withdraw, with great reluctance and great anger, my amendment, because I think the Lautenberg amendment would be in violation of what we have agreed to.

Mr. McCONNELL. In other words, Mr. President, putting it another way, we are basically conceding to what the Senator had earlier proffered as a way to get moving on the bill, and then we would get back into our process of going side to side. And we want you to know that our next two–as we have been letting each side know what the other side was going to offer–our next two would be the Snowe amendment and the Hutchison-Thune amendment.

Mr. DURBIN. Let me suggest this. I will formally object to the original unanimous consent request, and I will then take what I consider to be a good-faith offer from your side as to the next two amendments to the majority leader. We will review the amendments, and I hope even today we will be back to Senators and suggest whether that is a path out of this.

Mr. McCAIN. Could I be clear with the Senator from Illinois that what this means is we would move forward with the side-by-side Dorgan and Lautenberg–we would agree to that–and then we would also expect agreement on following amendments so that we could lock those in for debate and votes?

Mr. DURBIN. May I ask whether the two amendments the minority leader mentioned, which would be Thune and Hutchison, and the other amendment, Snowe, we would be allowed to have side-by-sides to those?

Mr. McCONNELL. Of course.

Mr. DURBIN. If you would be kind enough—-

Mr. McCONNELL. If you so chose.

Mr. DURBIN. If you are kind enough to give us time to review that proposal, we will be sure to get back to you.

Mr. McCONNELL. I understand capitulation when we do it, and we have essentially said to the majority we will go along with what you had earlier requested and we would like for you to take "yes" for an answer and for us to wrap this up and have a sense of where we are going from here.

Mr. DURBIN. I promise we will get back in a timely fashion.

I object to the initial unanimous consent request.

The PRESIDING OFFICER. Objection is noted.

The Senate is now adjourned for the night on Sunday, without, as far as I know, any agreement to vote on any more floor amendments – agreements which, in a legislative body proceeding at a deliberative pace, should be a matter of course without objection, with final passage by simple majority. Instead, at about 3 p.m. Sunday afternoon, after offering another unanimous consent request to restart the voting process that was objected to by Dick Durbin, Mitch McConnell filed a cloture motion to end debate on the Crapo motion to commit, in an effort to finally get a vote on that motion despite Democratic opposition and fear of letting the democratic process unfold on the Senate floor. That 60-vote procedural motion will be ripe for a vote on Tuesday, if no other agreement is made before then.

While Dorgan’s amendment supposedly has a "hold" on it from fellow Democrat Tom Carper, no one on the majority side has filed a cloture motion to end debate on Dorgan’s bipartisan amendment to override Carper’s corporate-sponsored hold, or done anything but duck democratic debate and amendment on the Senate floor.

All in the name – as Jay Rockefeller has lately publicly confessed – of ‘shielding’ the final procedural 60-vote cloture vote on some bill, any bill by preventing any amendment (worthy, brilliant, vital and wise, or not) with a margin of passage of less than 60 Democratic votes from passing (read: preventing anything substantive and meaningful from passing on the floor to change the pre-ordained White House-blessed end product).

But the Party sales pitches are coming hot and heavy now, because that’s all Democrats or Republicans have left once genuine legislating, and their role as legislators, in the United States Congress has been quietly ruled out of bounds by the backroom Party dictates of the White House-beholden Senate leadership.

One of the most-misplaced lessons we could (and many do) draw from the deception and deceit of our powerful "public servants," is to place the blame for the corrupt actions of the Democratic (and Republican) Parties in Congress and the White House on the venerable and crisis-tested, yet increasingly-disdained even as increasingly-unused, "deliberative debate" design of the Senate.

[See also Chuck Grassley’s recent description of how the months-long "Gang of Six" secret process unfolded, including multiple private meetings with the President, and a private Republican meeting with Harry Reid in early July, linked here; And see the language of the "Lautenberg" amendment (which is the recycled Cochran "Pharmaceutical Market Access and Drug Safety Act" of 2009) here.]

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