One of the oddities of the health care reform saga is that, amid a debate that raises profound questions about a citizen’s right to medical attention and the appropriate structuring of an entire industry, public discussion has come to focus on an issue that is both picayune and utterly phony: the legitimacy of Democrats using budget reconciliation to pass a final bill.
Reconciliation is a congressional procedure used to expedite votes on budgetary matters. Its main attraction is that it allows a bill to be passed with a majority vote in the Senate. As the filibuster has evolved from a rarely used signal of unusually strong dissent into a routine requirement for a supermajority, reconciliation has become a vital legislative tool, embraced by both parties. And it has come into play now because Democrats need it to make health care reform palatable to both chambers of Congress. Their plan is to have the House pass the Senate bill, and then to have both the House and Senate amend the bill through reconciliation. The amendments, Democrats agree, would be limited to questions of tax and spending levels--the very sorts of issues for which reconciliation was designed.
In response, Republicans have exploded in indignation, and their complaints have found a sympathetic hearing in the Washington media. Here are a few select samples of the coverage--all from straight-news reporters: “Democrats have not ruled out the possibility of using a strong-arm tactic, called ‘budget reconciliation,’” (Associated Press); “Obama may be ready to play hardball and lean on filibuster-busting reconciliation rules” (Roll Call); “the hardball strategy would worsen partisan friction” (Congressional Quarterly). The New York Times, as if seized by a tic, has used the term “muscle” on at least three occasions to describe reconciliation.
This hackishness was most recently on display in a thunderous Washington Post op-ed by Senator Orrin Hatch. Lamenting the haste of simple majority votes, the great elder statesman railed that “the Constitution intends the opposite process,” a claim that is utterly ahistorical--the Constitution makes no mention of the filibuster. Indeed, the Constitution prescribes a supermajority vote for a mere handful of select purposes, ordinary legislation not among them.
The heart of Hatch’s argument boils down to one sentence: “This use of reconciliation to jam through this legislation, against the will of the American people, would be unprecedented in scope.” There are two relevant statements of fact here, each of which has been repeated ad nauseam: (1) Reconciliation has never previously been used for major policy changes; (2) The Democrats are attempting to use reconciliation to pass a major health care bill. Both of these statements are incorrect.
First, both parties have frequently used budget reconciliation to enact major policy changes. President Reagan used reconciliation to pass a collection of tax and budgetary changes that constituted the heart of the Reagan Revolution, which conservatives to this day celebrate as a seminal inflection point in American history. It has been employed for such sundry purposes as welfare reform, drilling for oil in the Arctic National Wildlife Refuge (anwr), and most major health care reforms of the last three decades.
Second, and more important, Democrats are not using reconciliation to pass health care reform. They are planning to pass health care reform through regular legislative channels--first having overcome a filibuster in the Senate, and then passing an identical bill through the House of Representatives. That bill represents sweeping changes to health care policy. The reconciliation bill that will accompany that legislation consists of small changes to budgetary matters pertaining to health care reform. The changes it imposes would be far smaller than those brought about by many reconciliation bills.
What’s so strange is that, not only has reconciliation been used for far more sweeping purposes than those contemplated by Democrats today, it has done so with hardly any controversy. In 2005, a handful of Democratic senators objected to using reconciliation to open anwr for drilling. Republican Judd Gregg, his voice dripping with sarcasm, took to the Senate floor to reply, “The representation by the senator from Massachusetts, that somehow this is outside the rules to proceed within the rules, is a very unique view of the rules.” It was a persuasive case. Gregg, naturally, is now screaming bloody murder about reconciliation.
The health care debate, with opponents crying socialism about reform that is patterned after classic moderate Republicanism, has exposed the small-mindedness of the GOP. The party’s reconciliation hysteria may not be its worst moment of this episode, but it is its most pathetic. That opponents have had to lean so heavily on a completely trumped-up objection speaks volumes about the overall strength of their case.