The Bulldozer That Is Reconciliation

by Pejman Yousefzadeh on April 27, 2009

20090128-united-states-senateBy now, just about every policy wonk and junkie has heard that the Obama Administration is looking to use reconciliation to push health care reform through this year. For those lucky enough to have interests outside of policy wonkage, reconciliation entails instructions being issued in a budget resolution for relevant Congressional committees to report changes affecting the budget. Debate concerning a reconciliation bill can be limited to a mere 20 hours in the Senate (instead of having health care reform subject to a filibuster), and amendments may be limited as well. Thus, the bill can be passed with a simple majority instead of the three-fifths that are needed to invoke cloture and end debate. In the case of health care reform, Congress has until October 15th to pass health care reform in bipartisan fashion, before reconciliation kicks in and the Democrats are permitted to run roughshod over Republicans. (More on the reconciliation process found here, via Hot Air.)

According to the Huffington Post, part of the reason behind the Administration’s apparent resolve to pursue reconciliation is that the President is upset that except for Senators Snowe, Collins and Specter, Republicans in Congress did not vote for his stimulus package. Indeed, we are told that “the president was extremely sensitive — even ‘thin-skinned’ — to the fact that the stimulus bill received no GOP votes in the House.” Apparently, these hurt feelings are enough to threaten to subject one-sixth of the nation’s economy to extremely dubious health care “reform” with limited debate, and a limited scope of amendments. Never mind the fact that the White House is not owed Republican votes, and that rather, it has to actually earn them. Never mind that this demand that Republicans kowtow to the Administration would have been decried if it were the Bush Administration demanding Democratic genuflection towards the White house. Once again, we see that the Imperial Presidency is back in vogue, now that there is a Democrat in the White House. Anyone who doesn’t see the hypocrisy must need his/her pulse checked.

The motivations behind the push for reconciliation are easy to discern. Of course, the White House and Congressional Democrats want health care reform to be passed this year, but that’s not all. As discussed here, the White House “want[s] [the push for health care reform] to be bipartisan, of course, the same way they wanted the stimulus to be ‘bipartisan’ — i.e. the GOP getting little in return for voting yes and thereby giving the left political cover in case the program stinks.” Quite so. Republicans have sworn vengeance, but I tend to get skeptical when any party threatens to shut down the Senate. I certainly would welcome Mitch McConnell ensuring that a molasses pace prevails in the upper chamber if the Administration and Congressional Democrats actually do go forward with their effort to push Republicans over the side (again) when it comes to enacting a major policy shift like health care reform. In response to reconciliation, any number of Administration programs should be slowed down and halted in retaliation, and people like Dawn Johnsen should be invited to go home and spend more time with their families as a way of warning the Administration that there will be a price to be paid for treating Congressional Republicans as if they do not exist. But I will believe in such retaliation when I see it.

Ezra Klein seems to think that there is a greater chance that Obama might tinker with Social Security in exchange for getting Congressional support for his reconciliation plans. Social Security could use more than a mere tinkering, but much as I would like to believe that some kind of start towards genuine Social Security reform–and the ability to delight in schadenfreude over the concerns of Ezra Klein & Co.–is in the offing, I just don’t see why he ought to be worried. Ultimately, any hesitation on the part of Democrats to engage in reconciliation will be offset by the perceived policy attractions and political benefits of passing health care legislation.

Paul Krugman, of course, is deliriously happy that reconciliation is taking place, and gleefully reminds us that the Bush Administration used reconciliation too! Indeed it did, but it may plausibly and easily be argued that Bush Administration reconciliation bills had a direct effect on the budget, thus conforming with the Byrd Rule, because they “produce[d] a change in outlays or revenues” in a manner that was not “merely incidental to the non-budgetary components of the provision[s]” at issue. Does health care reform qualify for reconciliation under the Byrd Rule? Well, according to Ezra Klein, the question is hardly clear cut:

The Byrd rule states that legislation is unfit for reconciliation if it “produce[s] changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision.” I asked Jim Horney, a budget expert at the Center for Budget and Policy Priorities, how you define “merely incidental.” And what, exactly, is a “provision”?

He sighed. A provision, he said, is “not defined anywhere. It goes well below a title or section of a bill and even below a paragraph. But exactly what it is nobody knows.” And the Senate rules offer no more clarity on the definition of “merely incidental.” Asked if anyone had developed an accepted meaning, Horney seemed almost apologetic. “No,” he said. “Absolutely not.”

The matter is not simply academic: The Byrd rule allows senators to challenge the acceptability of any provision (undefined) of a reconciliation bill based on whether or not its effect on government revenues is “merely incidental” (undefined). Thus, if you enter reconciliation with a health-reform bill, it’s not clear what’s left after each and every provision — however that is defined — is challenged and a certain number of them are deleted altogether: the tax portions, certainly. And the government subsidies. But is regulating insurers “merely incidental” to government revenues? How about reforming hospital delivery systems? How about incentives for preventive treatment? Or the construction of a public plan? An individual mandate?

It’s hard to say. The ultimate decision is left up to the Senate parliamentarian, whose rulings are unpredictable. Under George W. Bush, Republicans managed to ram tax cuts, oil drilling, trade authority, and much else through reconciliation. But they were as often disappointed: The GOP leaders fired two successive Senate parliamentarians whose Byrd rule rulings angered them.

Klein does not mention that the Byrd rule can be invoked via a point of order in the Senate and that a three-fifths vote is required to waive it. Because the Democrats are short of three-fifths, it is possible for Republicans to slow down the reconciliation bulldozer. And they had better. Given the complexities of health care reform, restricting debate to a mere 20 hours and putting a cap on the nature of amendments represents rushed policymaking.

And we all recall what kinds of things happened the last time policymaking was rushed, now don’t we?

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