HH: We begin when we are lucky with Jon Kyl, the number two ranking Republican in the United States Senate, himself a Constitutional lawyer, himself a former member of the House of Representatives. Senator Kyl, always a pleasure, thanks for joining us.
JK: Thanks, Hugh, always great to be with you and your listeners.
HH: What is your reaction to the proposed Slaughter solution, which I’m calling the doorway to the kangaroo Congress?
JK: Well, good description. I’m frankly very surprised that they would use it. I know they’re desperate, I know they’re trying to find all kinds of ways around doing what their constituents want them to do, but this one surprises me both because of its audacity, and the fact that it won’t work. It won’t work, because the only reason not to vote up or down on the Senate bill is to try to disguise it and say well, you didn’t really vote for the Senate bill. But everybody will appreciate in a second or two, after you start talking about well, I didn’t really vote for the bill, I voted for the rule, they’re going to say wait a minute. You voted for the matter that caused the bill to be passed, didn’t you? And the President got to sign it into law. And of course, that’s another whole Constitutional question. So I don’t think it works for them. I don’t think anybody’s going to deny that when they voted for the rule, that they weren’t also voting for the Senate bill, because the rule is deemed passed, the Senate bill is deemed passed by the rule. So I just don’t think it works for them.
HH: And clearly, every Congressional campaign out there will be running ads saying they voted for the Cornhusker kickback, they voted for the Louisiana Purchase. And when they vote for the rule, they will have done that, Jon Kyl.
JK: Exactly so. Exactly so. And, at the same time, trying to do so with a procedure under which they would ostensibly deny that they did just that.
HH: Yeah, it’s crazy. Now I am curious, though. The Senate parliamentarian has issued a ruling that they can only use reconciliation, your chamber can only use reconciliation on a bill that’s already been passed. Will the President have signed the Senate bill before you start reconciliation?
JK: Presumably, he needs to do that. In other words, when they pass the rule that includes the Senate bill, it goes immediately to the President, he signs it, and then they’re in the process debating the reconciliation bill. They eventually pass that after a day or two. But presumably, he will have already signed the Senate bill. Now if he doesn’t, that raises a very good question, because the reconciliation procedure specifically says law, not bill. So you have to amend existing law.
HH: Well let me ask you this. If for some reason some magical moment of enlightenment occurred, and ten Democrats joined with 41 Republicans to refuse reconciliation, say people just rose up and they decided, they cowered, what would the law of the land be then, Jon Kyl?
JK: It would be the Senate bill, unamended.
HH: So they are voting the Senate bill up, because that’s clearly what has to happen.
JK: Yeah, and that assumes, of course, that if they do it through this crazy Alice in Wonderland procedure of using the deeming in the rule, the scheme to deem as Mitch McConnell called it, that’s assuming that that’s Constitutional and appropriate, and nobody knows for sure whether it is.
HH: I’ll be talking with Mike McConnell a little bit later in the program, former deputy solicitor general, former 10th Circuit judge, and now a professor at Stanford Law School, who wrote a piece on this yesterday in the Wall Street Journal, in which he said it’s clearly unconstitutional. Jon Kyl, do you expect challenges to follow immediately if this passes the House?
JK: Oh, yes. Yes. There will be both challenges to the substance of the legislation, and also the procedure by which it was done, if they use this deeming procedure.
HH: Okay, now Senator, in terms of the reconciliation process, I understand it’s one of unlimited amendment. Is that in fact correct?
HH: So how long will you guys go bringing up amendments? Obviously, there will be charges of obstructionism, but I mean, you could literally do an infinite number of amendments, I assume.
JK: Well, remember, that this will only arise if the Senate bill has been passed by the House and sent to the President and he’s signed it. So in some respects, the battle will have been lost at that point, if it occurs. And I don’t think it will, by the way. But if they were to pass the Senate bill, and then they pass a reconciliation bill, and they send that over to the Senate, we will uphold points of order against it. So it’s not going to be able to pass in the same form that it passed the House of Representatives. It’ll have to go back to them. In addition, we may succeed in getting some Democrats to help us vote to amend it. And if they do that, then again, those are changes that will have to go back to the House of Representatives. So all you’re doing at that point is just throwing the bill back to the House to have them then vote on your changes, however they want to vote on it, and then send it back to the Senate again. But the Senate bill will have already become law. So to some extent, you need to try to focus amendments that will really pass. There’s no point in having three days worth of amendments, and by the way, this is around the clock, voting every ten minutes without any explanation or change in between. So at a certain point, you know, people just drop from exhaustion.
HH: One more question before we move back to the politics of this. If in reconciliation, I saw it referenced that some Republicans might bring up, because it’s related to the appropriations process, a binding resolution on Guantanamo Bay. Does that mean if that passes, and I assume it would, because no one wants to close Guantanamo Bay who has a clue, the House is going to have to vote on Guantanamo Bay?
JK: Everything that changes, the House would again have to vote on. And that’s why we’re trying to tell people in the House look, don’t assume that you can amend this Senate bill without having the Senate make any changes. The Senate will change your bill. You cannot accomplish everything you want to. A lot of it is subject to points of order, which we can sustain, because I’ve got a letter with 41 Republican signatures on it saying we will sustain the points of order. And it takes sixty votes to override a point of order.
HH: Now Senator Kyl, I’ve got a lot of the lines into Arizona, not like you do, but I’ve been watching the Gabrielle Giffords maneuvering, and the Harry Mitchell maneuvering. How do you think Obamacare is playing in these swing districts where there will be strong Republican opposition for those two Congressmen, specifically?
JK: Well, in both of those districts, it’s about two to one against the bill. And I’ve heard comments from both of them that don’t really describe where they are. Well, I’m against a process like this. Well, I’m against the Senate bill. Well, okay, fine, you can be against the Senate bill. The question is are you going to vote for the Senate bill, assuming that you can amend it in the reconciliation bill? You may not like the process, but are you going to be a party to it? Or will you vote no on the rule? Those direct questions, I don’t think, have been put to these representatives. And until they are, and until they answer them, you really don’t know where they are.
HH: Do you expect these to be issues, even if it is resolve this week, and we lose, and a disaster looms for the country, do you expect this issue to remain current and at top of mind in November of 2010?
JK: Especially if health care were to pass. It will be the dominant issue in all of these campaigns. I assure you. I mean, people who think they’re putting it behind them are living in a dreamland. This issue will be the dominant issue, and the effort to repeal the legislation will immediately begin, as well as taking it to court. So the big question is will you be part of our effort to repeal this legislation now?
HH: Now there is an unprecedented number of phone calls and e-mails flooding the Congress, so much so that the House switchboard melted down today. Are members generally aware of this, Jon Kyl, that this is one of those moments?
JK: Oh, yeah. You bet they are. Some of them are, I think, choosing to ignore their constituents, but they are aware. And that’s why they’re trying to work around all these special deals and so on, because I don’t think a lot of House Democrats are, in fact, I know they don’t like the Senate bill. Nancy Pelosi herself has said that. So both through carrots and sticks, I mean, they’ve said we’ll campaign for you, we’ll raise money for you, we’ll help you get stuff for your district, or if you don’t support us, we will get a primary candidate to run against you. That threat was made against one of the Democrats who already had voted against the bill, we’ll get a primary opponent for you in the next election if you don’t switch your vote. I mean, these are tough, Chicago-style politics threats that are being made, and all in an effort to get around the will of the American people who have expressed it very clearly. They want us to stop this legislation, or at most, stop and start over.
HH: And will the GOP caucus in the Senate hold together on the point of order motions that you’ve referred to earlier as being part of reconciliation?
JK: Yes. And there are several pieces of what the President wants that he’s got to put in that House reconciliation bill, but which are clearly subject to a point of order. And I’m sure the chair will rule that way, so that the other side will have to overturn the ruling, and that takes 60 votes. And they won’t have 60 votes, because we’ve already got a letter that says 41 of us will vote to uphold those valid points of order.
HH: Is there any particular example that jumps out, Senator Kyl?
JK: Sure, just to give you one, the President has said forget the state insurance commissioners. We’re going to have a federal insurance commissioner that’s going to rule on premium increases of insurance companies. You’ve all heard about that. Well, that doesn’t have a federal budget impact, or a significant federal budget impact, and therefore, it’s subject to a point of order. He can’t do it in the reconciliation bill.
HH: And last question. I know Robert Byrd is not, he’s under the weather a little bit, but has he spoken on this? This must appall him as the dean of the United States Senate.
JK: He spoke to it a little less than a year ago in a letter, but he hasn’t spoken from the floor of the Senate. But in the letter, he said that using the reconciliation process for either the health care legislation or the cap and trade legislation would be an outrage that must be resisted. Direct quote.
HH: Jon Kyl, good luck in resisting it, good luck in being heard by your former colleagues in the House, and good luck if it all goes to heck in a hand basket in turning it over in the courts. Good luck to all that. We’ll keep talking to you about it as we go forward.
End of interview.