Sense and nonsense on "reconciliation"

The legislative trench warfare of the past year has forced many of us to become more familiar with the arcane rules of the US Senate than we ever expected or desired. It is now clear that the White House and Congressional Democratic leadership are determined to finish passing the health care reform bill after all. And they have also been making it clear, without quite saying so explicitly yet, that if necessary they are prepared to use the procedural device of "budget reconciliation" (allowing majority rule in the Senate) to prevent a Republican filibuster.

Actually--and this is a key point that has received insufficient attention in recent discussions--the idea is not even to pass the bill using the budget reconciliation maneuver, since two fairly-close-but-not-identical versions of the bill have already been passed by both the House and the Senate, with a filibuster-breaking 60 votes in the Senate. To repeat, as you read what follows, bear in mind that a version of the Democrats' health care reform bill has already been passed with 60 votes in the Senate. The plan appears to be to have the House pass the Senate bill, which is procedurally straightforward, and then to use the budget reconciliation device to enact a package of fixes and revisions that will (dare I say it?) reconcile the two bills.

This might not work. But if the Democrats have recovered from their post-Massachusetts panic, and if they exhibit a minimal degree of political courage and competence, it could well happen.

=> Naturally, the Congressional Republicans, the right-wing media echo-chamber, and the Red Blogosphere have been declaring indignantly that such a use of reconciliation would be unprecedented, outrageous, "controversial," "divisive," underhanded, unscrupulous, tyrannical, a "nuclear option," and otherwise outlandish and reprehensible. As usual, a number of pundits and alleged political journalists have been willing to swallow these claims, or at least to treat them as plausible.

Well, there's no reason to pretend that this Republican whining is either surprising or unusual. What else would one expect them to do? But there's also no good reason to take this whining very seriously. As Timothy Noah carefully explained in Slate on Wednesday, it's all hypocritical nonsense.

One might or might not think that using the budget reconciliation procedure to pass major bills is a good idea. But in the real world, there is nothing new, odd, or exceptional about it--especially for Republicans. To take just one example (which Noah, for some reason, fails to highlight sufficiently), do the Republicans expect us to forget that they used reconciliation to push through the Bush tax cuts? On Thursday Ezra Klein clarified the comparison:

This morning, Lamar Alexander said that reconciliation has never been used for anything as big as health-care reform. Health-care reform has a 10-year cost of about $950 billion. The Bush tax cuts, which passed through reconciliation, had a 10-year cost of about $1.8 trillion. [JW: See here.] Lamar Alexander voted for them.

=> Noah's piece is worth reading in full, but here are some highlights:

To Republicans, it's nothing short of dishonorable that President Barack Obama would use the Senate budget reconciliation process (which doesn't allow filibusters) to try to pass health care reform.

"You know, we've witnessed the Cornhusker Kickback, the Louisiana Purchase, the Gatorade, the special deal for Florida," Senate Minority Leader Mitch McConnell said Feb. 22 on Fox News. "Now they are suggesting they might use a device which has never been used for this kind of major systemic reform." Sen. Orrin Hatch, R.-Utah, wrote Feb. 23 on USA Today's Web site that the Obama White House is engaged in "an all-out push for the highly partisan 'nuclear option' of reconciliation, special rules to circumvent bipartisan Senate opposition, to jam this bill through Congress. To be clear, this procedure was never contemplated for legislation of this magnitude." Sen. Chuck Grassley, R.-Iowa, said Aug. 23 on CBS News' Face the Nation, "If you have reconciliation, it's a partisan approach." Sen. Olympia Snowe, R.-Me., said much the same in April. "If they exercise that tool," she told the Washington Post, "it's going to be infinitely more difficult to bridge the partisan divide."

But look at the Senate roll call on the conference report for the 1996 welfare reform bill, the most momentous piece of social legislation to become law in the last 20 years [JW: passed by a Republican-controlled Congress and then signed by Bill Clinton]. The bill's formal name was the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (italics mine). It was called that because it passed the Senate through budget reconciliation, even though the bill's purpose ("ending welfare as we know it") was only peripherally about trimming the federal budget. Yet McConnell voted for the bill. So did Hatch, Grassley, Snowe, and every other Republican in the Senate. So, for that matter, did most Democrats.
[....]

Reconciliation has been used to raise taxes. It's been used to cut taxes. It was used (by a Republican-controlled Senate) to create COBRA, the program that compels employers to allow departing employees to buy into their health plan for 18 months. COBRA stands for the Consolidated Omnibus Budget Reconciliation Act of 1986 (italics mine), signed into law by President Ronald Reagan. Reconciliation was used several times to expand the Earned Income Tax Credit for the working poor during the 1990s and the early aughts. It was used (again, by a Republican-controlled Senate) to create in 1997 the beneficial Children's Health Insurance Program and the wasteful privatization experiment known as Medicare Advantage. It's been used repeatedly to set federal policy regarding higher education loans and grants. "It's done almost every Congress," Senate Majority Leader Harry Reid said on Feb. 23, "and [Republicans are] the ones that used it more than anyone else." (For a complete list of all reconciliation bills signed into law between 1980 and 2008, click here.) In a Feb. 10 essay for the New England Journal of Medicine [JW: which I discussed here], Henry Aaron, a veteran health policy expert at the Brookings Institution, argued,

Congress created reconciliation procedures to deal with precisely this sort of situation—its failure to implement provisions of the previous budget resolution. The 2009 budget resolution instructed both houses of Congress to enact health care reform. The House and the Senate have passed similar bills. Since both houses have acted but some work remains to be done to align the two bills, using reconciliation to implement the instructions in the budget resolution follows established congressional procedure.

By contrast, it was procedurally more of a stretch in 1996 when the Republican-controlled Congress used the budget reconciliation maneuver to pass a third version of a welfare reform bill, after the first two versions had been vetoed by Clinton.

The Republican leadership became increasingly confident that if it sent a third welfare reform bill to the White House electoral pressures would make it difficult for Clinton (who by now was urging Congress to send him a welfare bill he could sign) to say no yet again. But tempers were still running high and, with 53 Republicans, the Senate remained seven votes shy of a filibuster-proof Senate majority. "As in 1995," [Ron] Haskins writes in Work Over Welfare, "the major advantage of moving the bill as part of reconciliation … was that Senate rules did not allow a reconciliation bill to be filibustered." Reconciliation also helped move the bill along quickly; without it, the Senate might not have achieved final passage before the fall 1996 election season brought major legislative action to a halt.

[....] Today, partisan divisions within Congress are more pronounced, and voter preferences with regard to health reform are less clear. (Its chief provisions are quite popular, but the public is sharply divided over the whole.) The GOP doesn't seem particularly afraid of being perceived as blocking reform, despite efforts by the Obama White House to establish that narrative. That means reconciliation will likely play a more significant role this time out, if a bill is to be passed at all. More significant, yes—but not remotely novel.

=>Even some TV "journalists" seem to be able to get this basic point. It was summed up briskly by Norah O'Donnell of MSNBC (who noted, for the sake of balance, that Republicans aren't always the only ones who say misleading or implausible things on this subject).



=> Lately the Republicans have been threatening that, if the Democrats have the temerity to use this characteristically Republican procedural device to pass the health care reform bill, then Congressional Republicans will abandon all restraint and escalate their campaign of all-out obstructionism to an even higher level. We may soon get a chance to see what they can do.

Yours for reality-based discourse,
Jeff Weintraub