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Everything Is Unprecedented

The debate over the use of budget reconciliation to pass relatively small changes to a health care reform is an unusual one. Republicans keep charging that it's unprecedented. Experts on Congressional procedure keep debunking them. Here's an NPR story quoting Georgetown's Sara Rosenbaum explaining that reconciliation has been used repeatedly for health care changes. Here's a New York Times op-ed by Congressional scholars Tom Mann and Norman Ornstein showing how reconciliation has been used frequently for a multitude of purposes, often for controversial and major policies.

The conservatives response has been to simply redefine "unprecedented" in ever more narrow terms. Orrin Hatch writes, "The reconciliation process, which from the start is a rare exception to our regular process, has never been used for major social legislation that did not have wide bipartisan support. Never." That's true! It's been used for major social legislation, and it's been used for major budget legislation that did not have wide bipartisan support, but it's never been used for major social legislation that also did not have wide bipartisan support.

Meanwhile, James Joyner argues, "using reconciliation to avoid a supermajority on health care reform would simply be unprecedented." Also true! Using reconciliation to avoid a supermajority? Happened before. Using reconciliation for health care reform? Happened before. But using reconciliation to avoid a supermajority on health care reform? Unprecedented.

The question is why we should care. After all, since history almost never replicates itself in precisely every detail, nearly everything that happens is unprecedented in some way. That doesn't make it wrong. The first question we should ask ourselves in addressing a complaint about a legislative tactic is, is this within the rules? The second question is, does this tactic require changing the rules in some way that seems designed to benefit the current majority? (The Republican effort to change Senate rules in 2005 to prevent only filibusters of judicial nominees would qualify.) But if the party is question is using the existing rules, then except in highly unusual circumstances, they should be given a presumption of legitimacy.

For instance, the way in which Senate Republicans are using the filibuster this session is completely unprecedented. They're using it at three times the next highest historical rate, requiring timely cloture motions on everything, even totally uncontroversial matters. It's a brilliant partisan tactic -- Republicans knew all along that the Democrats huge majority was going to disappear after the 2010 elections, so they resolved to run out the clock on this term by grinding everything, from appointments to the tiniest piece of legislation, to a crawl. There's no point in raising a moral hue and cry over this tactic. You either have to accept that the minority party will begin acting this way, or change the rules in the future. Now Democrats are proposing to change the rule next time. That's the proper response.

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