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Senate GOP Whip Jon Kyl warns the Democrats WILL use reconciliation to jam down Obamacare

Thursday, January 28, 2010
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HH: Hour number two of the Hugh Hewitt Show begins with our favorite Senator, Jon Kyl, the Republican Whip in the United States Senate. Senator Kyl, lots to talk about, but first, I would like your reaction to the State of the Union last night, the tone, and specifically, you’re a Constitutional lawyer going way back. I have never seen the Supreme Court attacked in that setting before.

JK: No. Well, and I don’t know whether the practice of the Court was to sit back when Franklin Roosevelt decided he didn’t like the Court decisions, and decided to try to pack the Court. But this was very unseemly. They’re there as a guest of the Congress, and they’re kind enough to come and sit quietly and listen to every president. But to be attacked directly, and then wrongly, by someone who himself taught Constitutional law, supposedly, at the University of Chicago, is really more than poor taste. The President was wrong in the way he characterized the U.S. Supreme Court decision in the case. And besides that, I don’t think it’s good form to do that in a situation where he knows the Court cannot argue back.

HH: Yeah, in Chief Justice Roberts’ concurrence, he points out it’s a 20 year old decision had never been taken on before. It wasn’t a century of legal precedent, and I was just shocked that it happened.

JK: And it does not prohibit, it leaves in place existing law that prohibits foreign corporations, or foreign individuals from making contributions in American campaigns.

HH: Yeah.

JK: So the President’s just wrong.

HH: Now on spending, I have been, I’ve got lefties lined up for next hour to talk about this. But when George Bush had a budget deficit in 2007, $161 billion, and that was bad, but now it’s $1.35 trillion, and this is not the great panic year, I didn’t hear anything from the President last night about being serious about this crisis.

JK: No, I mean, his only throwaway there was that he’s going to, starting next year, for no more than three years, have a freeze of a small part of the budget. It’s the discretionary non-defense, and with a bunch of other exceptions, part of the budget which would be, I don’t know, it’s a relatively small part, maybe 15-16% of the budget. And his cohorts in the U.S. Senate today rejected an amendment to enforce that, so that it’s not enforceable. We just go ahead, if we want to violate the freeze, we just spend the money. It’s not even subject to a point of order. We had a bipartisan amendment by Jeff Sessions and Claire McCaskill that would have enforced it. So it’s not serious, and as you point out, the very first months of the Obama administration provide a deficit four times as much as the one he complained about in the Bush administration.

HH: It’s remarkable, but let’s get to the news of the day. There is some talk that the Democrats are going to try reconciliation, a jam down of their bitterly divisive, and almost certainly wrong-headed health care plan. What can you tell us about this?

JK: This is kind of breaking news. As you say, we’re just hearing it. We haven’t been formally advised, but we have it on relatively good authority. And this would be what they call the nuclear option. This would be we can’t do it with 60 votes, because now we have a new Senator from Massachusetts, so we’ll do it with 51. Now it’s called the nuclear option, because it really upsets all of the tradition and precedent within the Senate which on a really big bill on the magnitude of health care, would always have strong bipartisan support, and therefore the 60 vote requirement really doesn’t matter. But here, using an arcane part of the budget that ordinarily relates to tax cuts or tax increases, it doesn’t relate to comprehensive bills with a lot of substantive provisions in them, but just changes in the tax code, usually. They’re going to try to rewrite this bill to, where it would only need 51 votes, and still accomplish most of what the bill will accomplish. Now what this will do is let the Blanche Lincolns and Ben Nelsons and Evan Bayhs and other to say oh, I can’t go along with this now. And of course, that’s exactly what their constituents want to hear. But it doesn’t matter, because their votes in effect at this point don’t count. They don’t matter. All it takes is 51 Democrats to vote for it, and it becomes law. It remains to be seen how long the process will take, and whether, and how much of the provisions of the comprehensive health care reform that we’ve been looking at can be scooped up into this legislation. But it now appears the Democrats are going to try that.

HH: Senator, just speaking politically for a moment, the members of the House who are on the brink of being washed away in Massachusetts-like tides across the country must, they have to pass this, too, don’t they?

JK: Yes, and as always, you’re way ahead of me here. I think they could theoretically get this done in the Senate, but I am not so sure in the House, because it has to pass with 51% over there, and it barely passed with 51% the first time around over there, by only 5 votes. So if three people change their vote, it wouldn’t pass. And I think there are enough Democrats now in the House who have said we could not support a bill that used the reconciliation process, that Speaker Pelosi is really going to have to hustle to round up those votes. And by the time it actually got there, where the American people figured out what an outrageous proposition this is, it may be so toxic that she can’t get the votes.

HH: Now Senator Kyl, of course activism, people have kind of quieted down. There’s some groups out there like AMAC, the Association of Mature American Citizens, and Docs 4 Patient Care, which sprung up partly in response to big D.C. groups like AARP selling out seniors. And so AMAC comes along, and the AMA selling out doctors, so Docs 4 Patient Care come along. But they’ve gone quiet after Massachusetts. I guess they have to get back in the game.

JK: They do, and in fact, there’s a group 60+, which is a counterpart to AARP, for example, I think is the sponsor of an ad that just started running maybe two days ago, featuring C. Everett Coop. If any of your listeners have seen that, it’s quite an ad. I’ve seen it. C. Everett Coop has a lot of credibility, and as the former surgeon general, and he says this would not be a good bill for me. And he said the process is all wrong, and so he says try to stop it. And I think more of these organizations need to recognize that this is far from over. In fact, they still have 59 votes, and we’re literally hanging by a thread. A lot of people think it’s over and that we won. We didn’t. They passed it in the Senate, and they can get 51 votes, so this is a big fight.

HH: What would be the consequences in terms of fallout unrelated to health care for a Senate that sees Chicago-style politics invading its 220 years of tradition?

JK: Well, they’ve now broken tradition in several respects, and they seem not to really care. It’s the issue of the moment, it’s winning the fight that’s right in front of us, and worrying about other things later. I think that the American people, however, are in a very anxious and grumpy mood right now. And if they see them try to pull this stunt, which is appears now they’re going to do, it may be the last straw. And what you saw in Massachusetts may become the nationwide revolution that you and I have kind of seen here. But it’ll be unmistakable, and Barack Obama won’t fail to see it next time.

HH: I think your colleagues like Ron Wyden and Patty Murray in Washington…

JK: Murray…

HH: …who are not on anyone’s watch list suddenly put themselves at great risk of being caught up in this tidal wave of anger.

JK: Those are two incumbent Senators that are up for re-election this November, and do not yet have opponents, or at least not ones that I’ve heard of. There are a couple of other states as well, New York, Kristen Gillibrand does not have an opponent at this point that I know of. In Wisconsin, Russ Feingold does not. Those are the kinds of places where an opponent could easily crop up if they do try to do this reconciliation or nuclear option.

HH: And just a little tall grass stuff, Senator. Does that begin in the House, then the House would take a bunch of things, or…

JK: No, it would probably begin in the Senate. I think the House wants to see that the Senate can pass it before they walk the plank. And so it would probably start in the Senate.

HH: And you would…would the Senate leadership be committed to giving the American people as much time as possible to understand what’s happening, thus using delay?

JK: No. Do you think that they would suddenly change stripes? The only good news here is that the reconciliation process itself requires a certain amount of procedural time, during which a lot of this will come out. But there are ways they can shortcut some of that, too. There is only technically, I think it’s 50 hours of debate, that is required, and then there is an automatic vote. So that’s why you don’t have the 60 votes for cloture to stop debate. Debate is automatically cut off, and then there is a majority vote. However, as I recall it, there are an unlimited number of amendments, so we could offer a lot of amendments. The problem is you could just vote on those amendments seriatim, so that if you have 300 amendments, let’s say, you just keep taking vote after vote for, you know, 48 hours or however long it takes to march through all the votes.

HH: Wow, this is going to be fascinating. When will we get a good sense of timing and calendar, and all the rest of this, Senator Kyl?

JK: It will, it’s really unclear. It has to go back to committee. Will it be just the Budget Committee, or will it be the Finance Committee, too? How long will it be in Committee? And then how does it come out to the floor? All of those things remain to be seen. It would not be a quick process, so you’ll see this begin to unfold. But the real question is the one that you asked. When will we know the real details of the legislation? And that’s something that I can’t answer at this point.

HH: Senator Jon Kyl, we’ll talk to you frequently throughout the spring. And please keep fighting the good fight for us, Senator.

JK: Thank you, Hugh.

End of interview.

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