The U.S. Senate passed the Budget Control Act of 2011 on Tuesday, after the bill was approved Monday by the Republican-controlled House of Representatives.

Forty-five Democrats, 28 Republicans and independent Sen. Joe Lieberman voted in favor of the bill. Nineteen Republicans, 6 Democrats and independent Sen. Bernie Sanders voted against the bill.

Among those Democrats voting against the bill were Sens. Kirsten Gillibrand (N.Y.), Bob Menendez (N.J.) and Ben Nelson (Neb.), all up for re-election in 2012 (Sanders, who caucuses with Democrats, is also up for re-election). Menendez said Monday that “I cannot in good conscience support a plan where soldiers, seniors, students, and working families must endure trillions in cuts, while oil companies, billionaires, and corporate jet owners are not asked to pay their fair share.”

Sen. Dean Heller (R-Nev.) and Sen. Orrin Hatch (R-Utah) were the Republicans up for re-election in 2012 who voted against the bill. Hatch, who could be facing a primary challenge from a more tea party-friendly candidate, said on the Senate floor Tuesday that he rejected the bill because it did not sufficiently cut spending.

Two members of the “Gang of Six,” a bipartisan group of senators that proposed their own $3.7 trillion deficit reduction package containing both spending cuts and revenue increases, voted against the final bill: Tom Coburn (R-Okla.) and Saxby Chambliss (R-Ga.).

In a statement after the vote, President Barack Obama said that the bill was an important first step, but that revenue increases for further deficit reduction are necessary. He also said that he would seek a jobs bill after Congress returns from their upcoming August recess.

The new legislation is a stand-alone measure titled American Health Security Act of 2011 [PDF]; Rep. Jim McDermott (D-Wash.) filed a companion bill in the House under the same name.

In a press event announcing the bill, the two long-serving legislators were joined by Labor leaders supportive of a single-payer system, including Arlene Baker-Holt, executive vice president of the AFL-CIO; Jean Ross, co-president of the National Nurses United; and Greg Junemann, president of the International Federation of Professional and Technical Engineers.

A statement released by Sanders’ office quotes the senator as saying:

The United States is the only major nation in the industrialized world that does not guarantee health care as right to its people,” Sanders said at a press conference on Capitol Hill. “Meanwhile, we spend about twice as much per capita on health care with worse results than others that spend far less. It is time that we bring about a fundamental transformation of the American health care system. It is time for us to end private, for-profit participation in delivering basic coverage. It is time for the United States to provide a Medicare-for-all single-payer health coverage program.

The bill proposed by Sanders and McDermott is unlikely to pass; House Republicans have offered a spate of bills aimed at repealing parts of health reform that were viewed as mostly symbolic votes, since Democrats control the Senate and Oval Office.

The 188-page document is lithe for congressional standards. Patient Protection and Affordable Care Act is nearly ten times as long with 1024 pages. The American Health Security Act of 2011 explains the urgency of the bill’s passage in the first two pages:

(1) While the United States of America spends on average nearly twice as much per capita on health care services as the next most costly nation, the United States ranks 32d among all nations on life expectancy, and 41st on infant mortality.

(2) The number of uninsured Americans rose by more than 4,000,000 between 2008 and 2009 to a total of 51,000,000, or more than 1 of every 6 Americans.

(3) This rise in the number of uninsured Americans was the largest single-year increase since 1987 and was the result of a continued decline in private health coverage, primarily in employer-sponsored insurance.

(4) Small businesses around the country cannot afford to reinvest in their companies and create new jobs because their health care bills are going up 10 or 15 percent every year.

(5) American businesses are at an economic disadvantage, because their health care costs are so much higher than in other countries. Notably, auto- mobile manufacturers spend more on health care per automobile than on steel.

This was reported in dozens of blogs and online publications as a chink in the tea party armor, an admission from Bachmann that she, despite being one of the more aggressive conservatives in Congress, was willing to scrap amendments like the one defunding Planned Parenthood if it meant averting a government shutdown. Here’s what Bachmann actually said, via a (partial) transcript:

That’s why, today, I voted no on the bill, because we heard from President Obama this morning, he was going to vote no on the Republican bill. Knowing that, I think it’s important that we do what I think 100 percent of Congress should be able to vote for, and that’s ensure full paycheck protection for all of the military.

We need to do that bill alone. That’s just a policy bill, it’s not even a continuing resolution. We should pass that bill and at least take the troops off the table. From there, we can go back and fight about all the other portions of this appropriations, but I think the troops should not be a political football. That should not be a game.

Bachmann, therefore, was saying the opposite of what’s reported: She’s all for upholding the budget impasse so that the policy riders can eventually get pushed through, but she wants an entirely separate bill that would fund only military salaries so that they’re not affected by the shutdown.

Other Republicans, however, have come out and said exactly what Bachmann was inaccurately quoted as saying. On MSNBC’s Morning Joe, Sen. Pat Toomey (R-Penn.) conceded:

I’d like to defund Planned Parenthood, but I understand that Republicans don’t have complete control of the elected government. I think what we should do is cut spending as much as we can, get the policy changes that we can, but move on, because there are other, bigger battles that we are fighting.

Meanwhile, the staunchly anti-abortion, avowedly conservative Sen. Tom Coburn (R-Okla.) said to MSNBC’s Dylan Ratigan:

My recommendation to my friends in the House is, you know, it’s highly unlikely that many riders are going to get passed with a Democrat president and a Democrat Senate, so why don’t you take the spending and let’s get on to the budget?

Of course, all budget provisions must originate in the House, so no matter how conservative a given senator is, his or her words have little impact on what will actually happen with the continuing resolution. But as the shutdown looms, senators like Toomey and Coburn will need some allies in the House if the government is to run at full capacity after Friday night.

“I don’t think so,” Sen. Lisa Murkowski (R-Alaska) told the National Journal in response to whether she would comply with the resolution. She argued the moratorium was simply “about messaging” and would give a false impression about taking serious action on reducing the deficit. Sens. James Inhofe (R-Okla.) and Thad Cochran (R-Miss.) expressed similar reservations yesterday.

And Rep. Michele Bachmann (R-Minn.), for her part, attempted to backpedal on her definition of exactly what an earmark is, telling the Minneapolis Star Tribune that transportation projects should be excluded. “I don’t believe that building roads and bridges and interchanges should be considered an earmark,” Bachmann said. “There’s a big difference between funding a tea pot museum and a bridge over a vital waterway.”

On the other side of the aisle, Democratic Sens. Claire McCaskill (Mo.) and Mark Udall (Colo.) have teamed up with Republican Sen. Tom Coburn (Okla.) to press for a vote on the Senate floor on the issue. Senate Majority Leader Harry Reid (D-Nev.), however, remains a staunch proponent of earmarking and he has said he’ll block any efforts to have a floor vote on the issue should it be brought up today. He argued the Senate simply doesn’t have enough time to consider the measure right now, but would be open to a vote at another time.

Senate Minority Leader Mitch McConnell (R-Ky.) begrudgingly agreed Monday to a Republican moratorium on earmark requests. (Louie Palu/ZUMA Press)

In the lead-up to Tuesday’s vote by Senate Republicans to self-impose a two-year moratorium on earmark requests, Sen. Lindsey Graham (R-S.C.) released a statement indicating his avowed, albeit somewhat conflicted, support for the idea.

“I respect the spirit in which this moratorium has been agreed to and hope it will lead to a better use of taxpayer dollars,” Graham said. “However, I maintain the right to seek funding to protect our national security or where the jobs and economy of South Carolina are at risk. If the Obama Administration and their bureaucrats in the federal agencies take action against the best interests of South Carolina, I will take swift action to correct their wrongs.”

[Congress1] The heart of Graham’s worries is the Port of Charleston, which must be deepened to stay competitive with other ports along the Eastern seaboard, but it could just as easily stand for the pet project of any senator who now must worry about ways to ensure, and take credit for, worthy initiatives in his or her state. With the successful passage of Sen. Jim DeMint’s (R-S.C.) earmark moratorium among Senate Republicans — and a likely floor vote today on the question of whether to do away with earmarks in the next Senate altogether — Senate Republicans (and some Democrats who have signed on as well) are now facing tough choices about how to keep spending in check to better serve the national interest while still satisfying their constituents’ short-term needs.

Many of the Republican senators who ultimately signed onto DeMint’s proposal, including Senate Minority Leader Mitch McConnell (R-Ky.) — a longtime proponent of earmarks — hardly did so wholeheartedly.

“Make no mistake. I know the good that has come from the projects I have helped support throughout my state,” said McConnell during his announcement Monday that he would vote for the moratorium. “I don’t apologize for them.”

Indeed, for a speech renouncing earmarks, McConnell’s remarks struck some observers as odd for devoting long portions to the “truly vital projects” he has supported over the years in Kentucky. But to Steve Ellis, vice-president of Taxpayers for Common Sense, a group that seeks to eliminate wasteful subsidies, earmarks and corporate handouts, such difficulties in adapting to a new earmark-less world seem unlikely to begin and end with McConnell.

“There will be much wailing and gnashing of teeth and rending of garments, I’m sure,” Ellis said. “And certainly there are growing pains and adjustments that come with it.”

Many senators, who are currently quite comfortable with obtaining funding for their state through simple earmark requests, will now have to devise new ways to successfully advocate for and obtain funds for their states. There are positive and negative channels, experts say, through which this might occur.

“One is under the cloak of darkness or underground attempts at getting the agencies to do what you want them to do,” Ellis said. “The other is to work with the executive branch to develop the metrics and systems and create merit-based or competitive formulas for allocating spending.”

When House Republicans enacted an earmark ban this March, for instance, all but four members obeyed the new rule — but many found ways around it.

“There are other ways to indicate one’s preferences without technically earmarking,” said Daniel Schumann, policy counsel at the Sunlight Foundation, which advocates for greater transparency in government. “Members can talk to the federal agencies, write them a letter, and ask them to consider certain companies or folks to do certain things. It’s not technically an earmark but it functions in a similar way.”

And when the rules applied only to House members, many simply made subtle requests of their senators.

“There are rules against members of the House lobbying members of the Senate, but as a practical matter there are ways to communicate what your preferences are for earmarks,” Schumann said. “One way to do it is to put in a request even if it’s not granted, because those requests are public. This of course becomes a lot harder if there’s a moratorium in both chambers.”

Another possibility, however, is that the moratorium will help foster a system in which legislators are forced to focus on drawing up more detailed authorizing legislation in the various committees designed to oversee the federal agencies. “One of the benefits of a moratorium is it concentrates the mind,” Ellis said.

Sen. Mark Udall (D-Colo.), who announced yesterday that he was joining Senate Republicans in a self-imposed moratorium on requesting earmarks, remains optimistic about the change.

“I’m hoping to lead by example and show my colleagues that there is life after earmarks,” he told reporters on a conference call devoted to explaining his decision to forgo the practice from now on. Udall was soon subjected to tough questions, however, about how he planned to guarantee grants for research initiatives at Colorado State University that had previously enjoyed his blessing though the earmark process.

“You’re right that I do support what CSU is doing, and there are many steps that can be taken,” Udall said. “I’m going to work with the administration so that when they’re drafting their budgets they’ll include funding for the state’s highways, bridges and roads and I’ll redouble my efforts during the federal grants process to advocate for districts and municipalities in the state. I have a senior staffer who works solely on that process. Ninety-nine percent of the state’s federal funding comes through federal grants and block grants, and I can write a grant bill if any needs go unmet.”

Graham, too, spent the majority of his announcement assuring South Carolinians that he would find alternative ways to address the infrastructure needs of the Port of Charleston, arguing that he still has two options.

“1. Pass Senator DeMint’s proposed legislation reforming the way port studies and harbor deepening are funded,” he said. “Or 2. Press the Obama Administration to include the necessary funding for the port study in their budget submission to Congress.”

If neither of those works, however, Graham made clear he was reserving the right to “use every option at my disposal to ensure funding is made available.”

Giving up earmarks might be painful at times, argues Jim Harper, Director of Information Policy Studies at the CATO Institute, but it’s necessary if Congress is going to start governing in the national, and not parochial, interest.

“We’re a long way down a road that we shouldn’t be down, in which Congress gives huge authority to the executive branch to decide where money should be spent,” said Harper. “We need bills saying any community with these particular needs should get funding, not my community should get this project.”

The project of ending earmarks, in other words, is tied into a much broader project to increase congressional oversight over federal spending and rein it in in the process.

“[Arguing in favor of earmarks] is just saying we don’t want to do the oversight,” Sen. Tom Coburn (R-Okla.) said on a conference call on Monday. “Bureaucracies can’t do the spending unless we allow it. We ought to be overseeing every penny the government spends everywhere.”

It’s an ambitious plan, and it just might sink a number of local projects that senators like Graham are still counting on finding a way to get done in their home states.

“Earmarks are the easy, lazy way of doing this stuff,” said Ellis. “Maybe the Charleston project is great, but is it the best? Every port along the East Coast wants to deepen and is undergoing this race to the bottom. Charleston is looking over its shoulder at Savannah, which is looking at Baltimore and Philadelphia. The question isn’t whether it’s in Charleston’s interest, but whether it’s in the national interest. Maybe, but maybe not.”

Although the Republican Conference voted to adopt the moratorium, it’s important to remember that — currently, at least — it’s a nonbinding resolution.

“I’m going to look out for my state of Oklahoma,” Sen. Jim Inhofe (R-Okla.) told Poltico today, in apparent defiance of the upcoming decision. “Obviously, that’s what the Constitution says I’m going to do, and I’m going to do it. Let’s keep in mind this is over. I’ll be the last conservative standing.”

Whether Inhofe’s small act of civil disobedience — or Sen. Lindsey Graham’s (R-S.C) hedging — prevents Republicans from claiming the moral high ground on the issue remains to be seen.

“If [Democrats] bring up a food safety bill, we’re going to have a vote by every member of the Senate on whether or not we believe in earmarks or not,” Coburn said, alluding to a vote on a food safety bill that the Senate Majority Leader Harry Reid (D-Nev.) has scheduled for Wednesday. “And the greatest criticism I have for those that want to earmark is that they’re basically lazy. They really do not want to do the hard work of oversighting the federal budget.”

Coburn’s comments were in many ways a rebuttal directed towards his fellow Oklahoman, Sen. James Inhofe (R), who has argued that abstaining from earmarks will simply empower the executive branch and federal bureaucracy to make all the decisions about the way the federal budget gets spent.

“The reason bureaucracies can get away with what they’re going is we aren’t doing our job,” added Cobrun. “We could cut the federal government by a third and nobody would know the difference. There’s that much waste.”

DeMint, for his part, remained optimistic about the chances of his vote passing in Republican conference tomorrow, but he allowed that the secret nature of the vote could cause some members to defect silently. He argued that no conservative, however, can logically stand for limited government and still advocate earmarks.

“If we believe that it’s our job to pave local parking lots and build local sewer plants and museums, then we can’t believe in limited federal government,” he said. “Earmarks are a way for us as Republicans to show that we’ve gotten the message, and also a way to take our eyes off parochial interests and focus on national interests, the general welfare. It’s not our job to be directing money to local projects that don’t have national significance.”

The letter claims ICE releases illegal immigrants who have been arrested for sex crimes, domestic violence and driving under the influence. ICE, though, argues it must to something to address the growing backlogs in immigration courts and that it only releases non-criminal and low-level offenders — not including misdemeanor convictions involving DWI, sex crimes or domestic violence — and those with pending applications for legal status. Napolitano and ICE Chief John Morton have claimed the agency focuses on the “worst of the worst” so it can best use its limited resources.

In response, Republicans said the agency should request more money. “[W]e have not seen any efforts by ICE, your Department, or the Administration to request an increase in ICE funding sufficient to address staffing shortages, detention capacity, and coordination of enforcement efforts nationwide to achieve a streamlined and robust immigration removal system,” the senators wrote in the letter. “As a result, it appears that your Department is doing the very thing that we have raised concerns about in several letters – allowing illegal aliens to evade the law.”

The entire controversy points to the difficult balance the Obama administration must try to reach on immigration enforcement. On one side, the administration favors comprehensive immigration reform that would allow many of the 11 million undocumented immigrants already in the country to stay here and become legal residents. This would seemingly point to an immigration enforcement policy that would deport fewer people, particularly among the non-criminal illegal immigrant population. But perhaps due to heavy pressure to seem tough on immigration, the Obama administration increased enforcement to record levels, deporting more non-citizens than Republican predecessors.

The idea, according to some immigrant rights advocates, was for the Obama administration to prove its commitment to immigration enforcement and border security so it could later broker a deal on comprehensive immigration reform with the right. By the looks of the senators’ letter, the GOP is not convinced.

Here’s the full letter:

Dear Secretary Napolitano:

Recently, media reports have revealed that pending removal proceedings are being dismissed in record numbers.  That sharp increase in dismissals is the result of a directive from Immigration and Customs Enforcement (ICE) Director John T. Morton to all ICE attorneys to review pending cases and seek dismissal if the cases do not involve Level I offenders (aliens convicted of aggravated felonies or two or more felonies).  Specifically, ICE attorneys are directed to seek dismissal of cases involving Level II and Level III criminal aliens so long as the aliens have no felony convictions and no more than two misdemeanors.  As we understand it, cases involving aliens with misdemeanors involving domestic violence, sexual crimes, or driving while intoxicated would not be dropped.

Though the reports focused only on cases pending before Houston immigration judges, our understanding is that the ICE directive applies nationwide. Numerous criminal aliens are being released into society and are having proceedings terminated simply because ICE has decided that such cases do not fit within the Department’s chosen enforcement priorities.

The ICE directive, along with other recently announced detention and removal policies, raises serious questions about your Department’s commitment to enforce the immigration laws.  It appears that your Department is enforcing the law based on criteria it arbitrarily chose, with complete disregard for the enforcement laws created by Congress.  The repercussions of this decision extend beyond removal proceedings, because it discourages officers from even initiating new removal proceedings if they believe the case ultimately will be dismissed based on the new directive.

Even more disturbing is the fact that your Department has chosen to dismiss cases against criminal aliens, including aliens who have committed crimes involving moral turpitude, crimes of violence, assault, theft, fraud, drug offenses, driving under the influence, and illegal entry.

To be sure, ICE has cited a lack of resources as one of the reasons for its prioritization of cases and for its selective enforcement.  But to date, we have not seen any efforts by ICE, your Department, or the Administration to request an increase in ICE funding sufficient to address staffing shortages, detention capacity, and coordination of enforcement efforts nationwide to achieve a streamlined and robust immigration removal system.  As a result, it appears that your Department is doing the very thing that we have raised concerns about in several letters – allowing illegal aliens to evade the law while waiting, without much concern about removal, to one day obtain legal status. Though Congress has been slow to reach a comprehensive immigration solution, your Department is charged with enforcing the law as written and it should not be adopting a lax approach to immigration enforcement or selectively enforcing the laws against only those aliens it considers a priority.

We would like a detailed list of the number of cases that have been dismissed since January 2010 to the present.  If the case involved a criminal alien, we also would like you to identify which crimes the aliens were convicted of and in which jurisdiction.  In addition, we want you to detail exactly how much funding your Department would require to ensure that enforcement of the law occurs consistently for every illegal alien encountered and apprehended by ICE or U.S. Customs and Border Protection.  Please respond by November 15^th.

Sincerely,

John Cornyn, United States Senator

Jeff Sessions, United States Senator

Jon Kyl, United States Senator

Orrin Hatch, United States Senator

Chuck Grassley, United States Senator

Lindsey Graham, United States Senator

Tom Coburn, M.D., United States Senator

But, this week, Sen. Tom Coburn (R-Okla.) put the kibosh on moving the bipartisan food safety bill forward.

Why? The deficit. The bill costs $1.4 billion over five years — about $280 million a year, out of the $3.8 trillion annual federal budget. Aides say the bill actually does not break Congress’ self-set paygo rules, as Politico explains: “[T]he overall package [is] compliant…and deficit neutral because it authorizes appropriations, as opposed to setting them.” Still, Coburn says he won’t let it pass until its total cost is zero.

The same day, Sen. Mitch McConnell (R-Ky.) unveiled the Tax Hike Prevention Act, which extends the Bush tax cuts and adds something like $4 trillion to the deficit. To offset that cost, Republicans point to $300 billion from a spending freeze. They would look to the deficit commission to name cuts to make up the remaining $3.7 trillion.

Again, though the Congressional Budget Office has not yet scored the Tax Hike Prevention Act, Republicans are getting behind legislation that would putatively raise the debt by $4 trillion. But a Republican is holding up legislation that probably meets Senate paygo rules and costs about $280 million a year.

Needless to say, this is but a popular campaign gimmick. It takes 67 votes to amend the Constitution, and Democrats are not amused. It is also a terrible idea for the government to run a balanced budget during times of war and economic distress and it is not clear whether the Republicans’ amendment would include exceptions for such circumstances.

Ryan McNeely smartly notes that the Republicans did not put forward the amendment when they controlled, well, both houses of Congress and the presidency.