These are a few articles that taught us last week. The conversation on American imperialism between Tom Engelhardt and William Astore produces more insight into American imperial failure every month. Patrick Cockburn's examines. Britain's foolish path in the slipstream of US imperialism heedless of consequences like Manchester. Noah Feldman and Alexander Bolton offer shrewd observations about the instability in Washington DC. -- blj
Tomgram: William Astore, Back in the USSR
Back in 2011, thinking about the implosion of the Soviet Union two decades earlier and what followed, I wrote:
“In 1991, when the Soviet Union disappeared and the United States found itself the last superpower standing, Washington mistook that for a victory most rare. In the years that followed, in a paroxysm of self-satisfaction and amid clouds of self-congratulation, its leaders would attempt nothing less than to establish a global Pax Americana. Their breathtaking ambitions would leave hubris in the shade. The results, it's now clear, were no less breathtaking, even if disastrously so. Almost 20 years after the lesser superpower of the Cold War left the world stage, the ‘victor’ is now lurching down the declinist slope, this time as the other defeated power of the Cold War era.
“So don’t mark the end of the Cold War in 1991 as our conventional histories do. Mark it in the early days of 2011, and consider the events of this moment a symbolic goodbye-to-all-that for the planet’s ‘sole superpower.’”
I had long had a feeling that, of the two superpowers of the Cold War era, one had left the stage in a rush, while the other was slowly inching its way toward the exits enwreathed in self-congratulation and an overwhelming sense of triumphalism. What I hadn’t really imagined, what, even in 2011, I couldn’t have put into words, was the twist on this strange tale of imperial decline that TomDispatch regular William Astore illuminates today. What if, from its quagmire war in Afghanistan to the surveillance of its own people, that other superpower, the only one left, was not just on the declinist slope but, in an eerie act of mimicry, taking on some of the coloration of the superpower that preceded it to disaster? Tom
America’s Real Red Scare
The Slow-Motion Collapse of the American Empire
Jump into your time machine and let me transport you back to another age.
It’s May 2001 and the Atlantic Monthly has just arrived in the mail. I’m tantalized by the cover article. “Russia is finished,” the magazine announces. The subtitle minces no words: “The unstoppable descent into social catastrophe and strategic irrelevance.” Could it be that the country I had worried most about as a military officer during all those grim years of the Cold War, the famed “Evil Empire” that had threatened us with annihilation, was truly kaput, even in its Russian rather than Soviet guise?
Sixteen years later, the article’s message seems just a tad premature. Today’s Russia surely has its problems -- from poverty to pollution to prostitution to a rickety petro-economy -- but on the geopolitical world stage it is “finished” no longer. Vladimir Putin’s Russia has recently been enjoying heightened influence, largely at the expense of a divided and disputatious superpower that now itself seems to be on an “unstoppable descent.”
Sixteen years after Russia was declared irrelevant, a catastrophe, finito, it is once again a colossus -- at least on the American political scene, if nowhere else. And that should disturb you far less than this: more than a generation after defeating the Soviet Union in the Cold War, the United States of 2017 seems to be doing its level best to emulate some of the worst aspects of its former foe and once rival superpower.
Yes, the U.S. has a Soviet problem, and I’m not referring to the allegations of the moment in Washington: that the Trump campaign and Russian officials colluded, that money may have flowed into that campaign via Russian oligarchs tied to Putin, that the Russians hacked the U.S. election to aid Donald Trump, that those close to the president-elect dreamed of setting up a secret back channel to Moscow and suggested to the Russian ambassador that it be done through the Russian embassy, or even that Putin has a genuine hold of some sort on Donald Trump. All of this is, of course, generating attention galore, as well as outrage, in the mainstream media and among the chattering classes, leading some to talk of a new “red scare” in America. All of it is also being investigated, whether by congressional intelligence committees or by former FBI director -- now special counsel -- Robert Mueller.
When it comes to what I’m talking about, though, you don’t need a committee or a counsel or a back channel or a leaker from some intelligence agency to ferret it out. Whatever Trump campaign officials, Russian oligarchs, or Vladimir Putin himself did or didn’t do, America’s Soviet problem is all around us: a creeping (and creepy) version of authoritarianism that anyone who lived through the Cold War years should recognize. It involves an erosion of democratic values; the ever-expanding powers exercised by a national security state operating as a shadow government and defined by militarism, surveillance, secrecy, prisons, and other structures of dominance and control; ever-widening gaps between the richest few and the impoverished many; and, of course, ever more weapons, along with ever more wars.
That’s a real red scare, America, and it’s right here in the homeland.
In February, if you remember -- and given the deluge of news, half news, rumor, and innuendo, who can remember anything these days? -- Donald Trump memorably compared the U.S. to Russia. When Bill O’Reilly called Vladimir Putin “a killer” in an interview with the new president, he responded that there was little difference between us and them, for -- as he put it -- we had our killers, too, and weren’t exactly innocents abroad when it came to world affairs. (“There are a lot of killers. You think our country's so innocent?”) The president has said a lot of outlandish things in his first months in office, but here he was on to something.
My Secret Briefing on the Soviet Union
When I was a young lieutenant in the Air Force, in 1986 if memory serves, I attended a secret briefing on the Soviet Union. Ronald Reagan was president, and we had no clue that we were living through the waning years of the Cold War. Back then, believing that I should know my enemy, I was reading a lot about the Soviets in “open sources”; you know, books, magazines, and newspapers. The “secret” briefing I attended revealed little that was new to me. (Classified information is often overhyped.) I certainly heard no audacious predictions of a Soviet collapse in five years (though the Soviet Union would indeed implode in 1991). Like nearly everyone at the time, the briefers assumed the USSR would be our archenemy for decades to come and it went without saying that the Berlin Wall was a permanent fixture in a divided Europe, a forever symbol of ruthless Communist oppression.
Little did we know that, three years later, the Soviet military would stand aside as East Germans tore down that wall. And who then would have believed that a man might be elected president of the United States a generation later on the promise of building a “big, fat, beautiful wall” on our shared border with Mexico?
I wasn’t allowed to take notes during that briefing, but I remember the impression I was left with: that the USSR was deeply authoritarian, a grim surveillance state with an economy dependent on global weapons sales; that it was intent on nuclear domination; that it was imperialist and expansionist; that it persecuted its critics and dissidents; and that it had serious internal problems carefully suppressed in the cause of world mastery, including rampant alcohol and drug abuse, bad health care and declining longevity (notably for men), a poisoned environment, and an extensive prison system featuring gulags. All of this was exacerbated by festering sores overseas, especially a costly and stalemated war in Afghanistan and client-states that absorbed its resources (think: Cuba) while offering little in return.
This list of Soviet problems, vintage 1986, should have a familiar ring to it, since it sounds uncannily like a description of what’s wrong with the United States today.
In case you think that’s an over-the-top statement, let’s take that list from the briefing -- eight points in all -- one item at a time.
1. An authoritarian, surveillance state: The last time the U.S. Congress formally declared war was in 1941. Since then, American presidents have embarked on foreign wars and interventions ever more often with ever less oversight from Congress. Power continues to grow and coalesce in the executive branch, strengthening an imperial presidency enhanced by staggering technologies of surveillance, greatly expanded in the aftermath of the 9/11 terrorist attacks. Indeed, America now has 17 intelligence agencies with a combined yearly budget of $80 billion. Unsurprisingly, Americans are surveilled more than ever, allegedly for our safety even if such a system breeds meekness and stifles dissent.
2. An economy dependent on global weapons sales: The U.S. continues to dominate the global arms trade in a striking fashion. It was no mistake that a centerpiece of President Trump’s recent trip was a $110 billion arms deal with Saudi Arabia. On the same trip, he told the Emir of Qatar that he was in the Middle East to facilitate “the purchase of lots of beautiful military equipment.” Now more than ever, beautiful weaponry made in the U.S.A. is a significant driver of domestic economic growth as well as of the country’s foreign policy.
3. Bent on nuclear domination: Continuing the policies of President Obama, the Trump administration envisions a massive modernization of America’s nuclear arsenal, to the tune of at least a trillion dollars over the next generation. Much like an old-guard Soviet premier, Trump has boasted that America will always remain at “the top of the pack” when it comes to nuclear weapons.
4. Imperialist and expansionist: Historians speak of America’s “informal” empire, by which they mean the U.S. is less hands-on than past imperial powers like the Romans and the British. But there’s nothing informal or hands-off about America’s 800 overseas military bases or the fact that its Special Operations forces are being deployed in 130 or more countries yearly. When the U.S. military speaks of global reach, global power, and full-spectrum dominance, this is traditional imperialism cloaked in banal catchphrases. Put differently, Soviet imperialism, which American leaders always professed to fear, never had a reach of this sort.
5. Persecutes critics and dissidents: Whether it’s been the use of the Patriot Act under George W. Bush’s presidency, the persecution of whistleblowers using the World War I-era Espionage Act under the Obama administration, or the vilification of the media by the new Trump administration, the U.S. is far less tolerant of dissent today than it was prior to the Soviet collapse. As Homeland Security Secretary and retired four-star Marine General John Kelly recently put it, speaking of news stories about the Trump administration based on anonymous intelligence sources, such leaks are “darn close to treason.” Add to such an atmosphere Trump’s attacks on the media as the “enemy” of the people and on critical news stories as “fake” and you have an environment ripe for the future suppression of dissent.
In the Soviet Union, political opponents were often threatened with jail or worse, and those threats were regularly enforced by men wearing military or secret police uniforms. In that context, let’s not forget the “Lock her up!” chants led by retired Lt. General Michael Flynn at the Republican National Convention and aimed at Donald Trump’s political opponent of that moment, Hillary Clinton.
6. Internal problems like drug abuse, inadequate health care, and a poisoned environment: Alcoholism is still rife in Russia and environmental damage widespread, but consider the U.S. today. An opioid crisis is killing more than 30,000 people a year. Lead poisoning in places like Flint, Michigan, and New Orleans is causing irreparable harm to the young. The disposal of wastewater from fracking operations is generating earthquakes in Ohio and Oklahoma. Even as environmental hazards proliferate, the Trump administration is gutting the Environmental Protection Agency. As health crises grow more serious, the Trump administration, abetted by a Republican-led Congress, is attempting to cut health-care coverage and benefits, as well as the funding that might protect Americans from deadly pathogens. Disturbingly, as with the Soviet Union in the era of its collapse, life expectancy among white men is declining, mainly due to drug abuse, suicide, and other despair-driven problems.
7. Extensive prison systems: As a percentage of its population, no country imprisons more of its own people than the United States. While more than two million of their fellow citizens languish in prisons, Americans continue to see their nation as a beacon of freedom, ignoring Guantánamo Bay, Cuba. In addition, the country now has a president who believes in torture, who has called for the murder of terrorists’ families, and who wants to refill Guantánamo with prisoners. It also has an attorney general who wants to make prison terms for low-level drug offenders ever more draconian.
8. Stalemated wars: You have to hand it to the Soviets. They did at least exhibit a learning curve in their disastrous war in Afghanistan and so the Red Army finally left that country in 1989 after a decade of high casualties and frustration (even if its troops returned to a land on the verge of implosion). U.S. forces, on the other hand, have been in Afghanistan for 16 years, with the Taliban growing ever stronger, yet its military’s response has once again been to call for investing more money and sending in more troops to reverse the “stalemate” there. Meanwhile, after 14 years, Iraq War 3.0 festers, bringing devastation to places like Mosul, even as its destabilizing results continue to manifest themselves in Syria and indeed throughout the greater Middle East. Despite or rather because of these disastrous results, U.S. leaders continue to over-deploy U.S. Special Operations forces, contributing to exhaustion and higher suicide rates in the ranks.
In light of these eight points, that lighthearted Beatles tune and relic of the Cold War, “Back in the USSR,” takes on a new, and far harsher, meaning.
What Is to Be Done?
Slowly, seemingly inexorably, the U.S. is becoming more like the former Soviet Union. Just to begin the list of similarities: too many resources are being devoted to the military and the national security state; too many over-decorated generals are being given too much authority in government; bleeding-ulcer wars continue unstanched in Afghanistan, Iraq, and elsewhere; infrastructure (roads, bridges, pipelines, dams, and so on) continues to crumble; restless “republics” grumble about separating from the union (Calexit!); rampant drug abuse and declining life expectancy are now American facts of life. Meanwhile, the latest U.S. president is, in temperament, authoritarian, even as government “services” take on an increasingly nepotistic flavor at the top.
I'm worried, comrade! Echoing the cry of the great Lenin, what is to be done? Given the list of symptoms, here’s one obvious 10-step approach to the de-sovietization of America:
1. Decrease “defense” spending by 10% annually for the next five years. In the Soviet spirit, think of it as a five-year plan to restore our revolution (as in the American Revolution), which was, after all, directed against imperial policies exercised by a “bigly” king.
2. Cut the number of generals and admirals in the military by half, and get rid of all the meaningless ribbons, badges, and medals they wear. In other words, don’t just cut down on the high command but on their tendency to look (and increasingly to act) like Soviet generals of old. And don’t allow them to serve in high governmental positions until they’ve been retired for at least 10 years.
3. Get our military out of Afghanistan, Iraq, and other war-torn countries in the Greater Middle East and Africa. Reduce that imperial footprint overseas by closing costly military bases.
4. Work to eliminate nuclear weapons globally by, as a first step, cutting the vast U.S. arsenal in half and forgetting about that trillion-dollar “modernization” program. Eliminate land-based ICBMs first; they are no longer needed for any meaningful deterrent purposes.
5. Take the money saved on “modernizing” nukes and invest it in updating America’s infrastructure.
6. Curtail state surveillance. Freedom needs privacy to flourish. As a nation, we need to remember that security is not the bedrock of democracy -- the U.S. Constitution is.
7. Work to curb drug abuse by cutting back on criminalization. Leave the war mentality behind, including the “war on drugs,” and focus instead on providing better treatment programs for addicts. Set a goal of cutting America’s prison population in half over the next decade.
8. Life expectancy will increase with better health care. Provide health care coverage for all using a single-payer system. Every American should have the same coverage as a member of Congress. People shouldn’t be suffering and dying because they can’t afford to see a doctor or pay for their prescriptions.
9. Nothing is more fundamental to “national security” than clean air and water. It’s folly to risk poisoning the environment in the name of either economic productivity or building up the military. If you doubt this, ask citizens of Russia and the former Soviet Republics, who still struggle with the fallout from the poisonous environmental policies of Soviet days.
10. Congress needs to assert its constitutional authority over war and the budget, and begin to act like the “check and balance” it’s supposed to be when it comes to executive power.
There you have it. These 10 steps should go some way toward solving America’s real Russian problem -- the Soviet one. Won’t you join me, comrade?
William J. Astore, a retired lieutenant colonel (USAF) and history professor, is a TomDispatch regular. His personal blog is Bracing Views.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Book, John Dower's The Violent American Century: War and Terror Since World War II, as well as John Feffer's dystopian novel Splinterlands, Nick Turse’s Next Time They’ll Come to Count the Dead, and Tom Engelhardt's Shadow Government: Surveillance, Secret Wars, and a Global Security State in a Single-Superpower World.
The Independent (UK)
Britain refuses to accept how terrorists really work – and that's why prevention strategies are failing
There is a self-interested motive for British governments to portray terrorism as essentially home-grown cancers within the Muslim community. Western governments like to pretend that their policy blunders, notably those of military intervention in the Middle East since 2001, did not prepare the soil for al-Qaeda and Isis
The Conservative government largely avoided being blamed during the election campaign for its failure to stop the terrorist attacks. It appealed to British communal solidarity in defiance of those who carried out the atrocities, which was a perfectly reasonable stance, though one that conveniently enables the Conservatives to pillory any critics for dividing the nation at a time of crisis. When Jeremy Corbyn correctly pointed out that the UK policy of regime change in Iraq, Syria and Libya had destroyed state authority and provided sanctuaries for al-Qaeda and Isis, he was furiously accused of seeking to downplay the culpability of the terrorists. Nobody made the charge stick that it was mistaken British foreign policies that empowered the terrorists by giving them the space in which to operate.
A big mistake in British anti-terrorist strategy is to pretend that terrorism by extreme Salafi-jihadi movements can be detected and eliminated within the confines of the UK. The inspiration and organisation for terrorist attacks comes from the Middle East and particularly from Isis base areas in Syria, Iraq and Libya. Their terrorism will not end so long as these monstrous but effective movements continue to exist. That said, counter-terrorism within the UK is much weaker than it need be.
The attacks in London and Manchester come very much from the Isis playbook: minimum human resources deployed to maximum effect. Overall direction is distant and at a minimum, no professional military skills on the part of the killers are necessary, and the absence of guns makes them almost impossible to forestall. Tracing the movement of a small number of weapons is usually easier than following a large number of people.
There is a self-interested motive for British governments to portray terrorism as essentially home-grown cancers within the Muslim community. Western governments as a whole like to pretend that their policy blunders, notably those of military intervention in the Middle East since 2001, did not prepare the soil for al-Qaeda and Isis. This enables them to keep good relations with authoritarian Sunni states like Saudi Arabia, Turkey and Pakistan, which are notorious for aiding Salafi-jihadi movements. Placing the blame for terrorism on something vague and indefinable like “radicalisation” and “extremism” avoids embarrassing finger-pointing at Saudi-financed Wahhabism which has made 1.6 billion Sunni Muslims, a quarter of the world’s population, so much more receptive to al-Qaeda type movements today than it was 60 years ago.
Deliberate blindness to very specific places and people – Sunni states, Wahhabism, Saudi Arabia, Syrian and Libyan armed opposition – is a main reason why “the War on Terror” has failed since 9/11. Instead, much vaguer cultural processes within Muslim communities are targeted: President Bush invaded Iraq, which certainly had nothing to do with al-Qaeda, and today President Trump is denouncing Iran as the source of terrorism at the very moment that Isis gunmen are killing people in Tehran. In Britain the main monument to this politically convenient lack of realism is the ill-considered and counter-effective Prevent programme. This not only fails to find terrorists, but actively assists them, by pointing the security agencies and police in the wrong direction. It also poisons the waters for anybody trying to improve relations between the British state and 2.8 million Muslims in the UK by generating a mood of generalised suspicion and persecution.
Under the 2015 Counter-Terrorism and Security Act, people who work in public bodies – teachers, doctors, social workers – have a legal duty to report signs of terrorist sympathy among those they encounter, even though nobody knows what these are. The disastrous consequences of this are explained, with a wealth of devastating supporting evidence, by Karma Nabulsi in a recent article on the Prevent programme in the London Review of Books entitled ‘Don’t Go to the Doctor.’ She tells the story of Syrian refugees, a man and his wife, who sent their small son, who spoke almost no English, to a nursery school. Because of his recent traumatic experiences in Syria he spent much of his time there drawing planes dropping bombs. The staff of the nursery might have been expected to comfort the young war victim, but instead they called the police. These went to see the parents and questioned them separately, shouting questions like: “How many times a day do you pray? Do you support President Assad? Who do you support? What side are you on?”
If Isis or al Qaeda were asked to devise a programme least likely to hamper their attacks and most liable to send the police off on wild goose hunts, they would find it difficult to devise anything more helpful to themselves than Prevent and the Counter-Terrorism and Security Act. The great majority British people have as much idea about how to identify a potential terrorist as their ancestors 400 years ago did about detecting witches. The psychology is much the same in both cases and 2015 Act is in effect a crackpots’ charter in which five per cent of the British population are vaguely regarded as suspicious. Nabulsi writes that a Freedom of Information request to the police “revealed that more than 80 per cent of the reports on individuals suspected of extremism were dismissed as unfounded”.
The Government may persuade the gullible that turning everybody working for the state into a potential informant produces lots of useful intelligence. In fact, it serves to clog up the system with useless and misleading information. On the rare occasion it produces a nugget, there is a good chance that it will be overlooked.
The oversupply of information explains why many who say they reported genuinely suspicious behaviour found that they were ignored. Often this action was very blatant and revealing such as the Manchester bomber Salman Abedi shouting down a preacher in a mosque who criticised Isis. He was also associated with the extreme jihadi Libyan Islamic Fighting Group. One of three killers on London Bridge and in Borough Market, Khuram Butt, had even expressed his pro-Isis views on television and another of the three, the Italian-Moroccan Youssef Zaghba, was stopped by Italian police at Bologna Airport on suspicion of trying to go to fight for Isis or al-Qaeda in Syria. Yet none of these were picked up by the police.
In most cases, potential terrorists do not have to be sniffed out, but have made their Isis sympathies only too apparent. The government's obsessive belief that terrorists are isolated individuals “radicalised” by the internet without being a member of any network is simply untrue. Dr Peter Neumann of the International Centre for the Study of Radicalisation at Kings College London is quoted as saying that “the number of cases where people have been entirely radicalised by the internet is tiny, tiny, tiny.”
Absurdities like the Prevent programme mask the fact that Isis and al-Qaeda type terrorists are closely interlinked, mostly by participation in or sympathy for the jihadi armed opposition in the Libyan and Syrian wars. “If you start connecting the dots,” says Professor Neumann, “a very large number of those in Britain who went to Syria were connected to each other, people who had already known each other.” Contrary to conventional and governmental wisdom, terrorist conspiracies have not changed much since Brutus, Cassius and their friends plotted to murder Julius Caesar.
Noah Feldman: Comey’s Senate testimony has opened another door to investigate Trump for criminal activity
Thursday before the Senate Intelligence Committee is a potentially major new avenue for special counsel Robert Mueller’s investigation of Russia-related crimes: the possibility that President Donald Trump committed a federal crime by lying to Comey about his connections to Russia and activities on his 2013 visit there.
It’s a crime to lie to a representative of the federal government. Thus, Mueller can now investigate the possibility of a criminal charge against Trump if he had any connection to Russia.
And Trump’s denial, as reported by Comey, will also enable Mueller to do what the Federal Bureau of Investigation apparently has not done: investigate the questionable dossier claims that Trump was compromised by Russian intelligence on the basis of sexual escapades in Moscow.
The key to this analysis is one completely new piece of information in Comey’s testimony. According to Comey, Trump told him on March 30 that Trump said “he had nothing to do with Russia” and “had not been involved with hookers in Russia.” These were responses to claims raised in a dossier compiled by former British spy Christopher Steele at the behest of Trump political opponents — claims that have not been substantiated.
Trump’s denial will enable Mueller to do what the FBI has not done: investigate the questionable dossier claims that Trump was compromised by Russian intelligence
This insistence by Trump is noteworthy, especially because Comey had already told Trump more than three months previously that the FBI had not opened a counterintelligence investigation of him on the basis of the dossier.
Trump may simply have wanted to make sure that Comey didn’t believe the allegations. Or he may have wanted to emphasize his repeated request that Comey somehow announce that Trump wasn’t under FBI investigation.
Regardless, Trump potentially put himself in legal jeopardy by making the statement unbidden by Comey. Under 18 U.S. Code Section 1001, it’s a federal crime to make “any materially false, fictitious, or fraudulent statement or representation” regarding “any matter within the jurisdiction” of the U.S. government.
If Trump was lying about having nothing to do with Russia — or if he was lying about the charge that Russian intelligence had gathered compromising material about him because of a dalliance with Russian prostitute — that would constitute a federal crime.
Good, sound investigative practice would now quite reasonably focus on whether Trump’s statements were false. That’s because false statements to Comey in this context would count as a crime.
In contrast, Trump’s public statements denying any connection to Russia and disparaging the sexual allegations aren’t criminal even if they are untrue. It’s perfectly legal to lie to the public. Indeed, a president or presidential candidate’s false statements to the electorate are probably protected by the First Amendment. (God help us.)
In contrast, a statement that amounts to a denial of potentially wrongful conduct made to the nation’s chief law enforcement official, who was overseeing an investigation of related matters, would certainly count as a Section 1001 violation.
So don’t be misled by the suggestion that there is little new in Comey’s prepared testimony relative to the previously existing leaks. The outline was already known, but not the details.
And details matter, especially in criminal investigations like the one Mueller is now conducting.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
Parliamentarian threatens deadly blow to GOP healthcare bill
The Senate parliamentarian has warned Republicans that a key provision in their healthcare reform bill related to abortion is unlikely to be allowed, raising a serious threat to the legislation.
The parliamentarian, Elizabeth MacDonough, has flagged language that would bar people from using new refundable tax credits for private insurance plans that cover abortion, according to Senate sources.
If Republicans are forced to strip the so-called Hyde language from the legislation, which essentially bars federal funds from being used to pay for abortions unless to save the life of a mother or in cases of rape and incest, it may doom the bill.
MacDonough declined to comment for this article.
Unless a workaround can be found, conservative senators and groups that advocate against abortion rights are likely to oppose the legislation.
Republicans control 52 seats in the Senate; they can afford only two defections and still pass the bill, assuming Democrats are united against it. Vice President would break a 50-50 tie.
Normally controversial legislation requires 60 votes to pass the Senate, but Republicans hope to pass the ObamaCare repeal-and-replace bill with a simple majority vote under a special budgetary process known as reconciliation.
The catch is that the legislation must pass a six-part test known as the Byrd Rule, and it’s up to the parliamentarian to advise whether legislative provisions meet its requirements.
The toughest requirement states that a provision cannot produce changes in government outlays or revenues that are merely incidental to the non-budgetary components of the provision.
In other words, a provision passed under reconciliation cannot be primarily oriented toward making policy change instead of impacting the budget. Arguably, attaching Hyde language to the refundable tax credits is designed more to shape abortion policy than affect how much money is spent to subsidize healthcare coverage.
The abortion language that conservatives want in the healthcare bill may run afoul of a precedent set in 1995, when then-Senate Parliamentarian Robert Dove ruled that an abortion provision affecting a state block grant program failed to meet reconciliation requirements, according to a source briefed on internal Senate discussions.
One GOP source identified the parliamentarian’s objection to the Hyde language along with Republican infighting over how to cap ObamaCare’s Medicaid expansion as two of the biggest obstacles to passing a bill.
A Republican senator confirmed that negotiators have wrestled with the procedural obstacle facing the anti-abortion language.
“That has come up and there well could be a challenge,” the lawmaker said.
The lawmaker, however, said that the problem is surmountable, arguing “there are ways around it.”
One possibility would be to change the form of assistance to low-income people by changing it from a refundable tax credit to a subsidy filtered through an already existing government program that restricts abortion services, such as the Federal Employee Health Benefits program or Medicaid.
A second Republican senator said discussions on the topic are ongoing.
GOP negotiators picked up the pace of their discussions with the parliamentarian after the Congressional Budget Office released an updated score for the House-passed bill in late May.
President Trump is pushing the Senate to pass its version of the legislation by July 4.
If GOP leaders are forced to strip the Hyde language from the healthcare bill and cannot find an alternative way to seal off insurance tax credits or subsidies from abortion services, they would lose the support of anti-abortion rights groups, a devastating blow.
“We’ve made it clear in a lot of conversations and some letters that any GOP replacement plan has to be consistent with the principles of the Hyde Amendment,” said David Christensen, vice president of government affairs at Family Research Council, a conservative group that promotes Christian values.
“Abortion is not healthcare and the government should not be subsidizing elective abortion,” he added.
Christensen predicted that activists would be up in arms if abortion services aren’t barred under the bill.
“If the Byrd Rule were to be an obstacle to ensuring the GOP replacement plan in the Senate does not subsidize abortion, that’s something that would be a serious problem for us and the pro-life community,” he said.
Republican senators who are thought to be safe votes to support the GOP leadership’s ObamaCare repeal and replace plan may suddenly shift to undecided or opposed.
“Would that be a deal killer? I’d have to think about it. I’m inclined to think it would [be],” said Sen. Jim Inhofe (R-Okla.).
Senate Finance Committee Chairman Orrin Hatch (R-Utah), who has jurisdiction over the tax credits in the healthcare bill, acknowledged it could be tough to pass the bill without the anti-abortion language.
“I think a lot of people do think that’s essential,” he said.