One Year Ago On Reconciliation
[Today's column is going to be a reprint of a column I wrote exactly one year ago. This is somewhat of a coincidence, since today I will be taking care of some previous commitments in the non-online world and will be too busy to write a new column. So I went looking for an old column on healthcare reform, just to see where we were a year ago. I read a few columns from last March, and picked one out on not just healthcare reform, but the concept of reconciliation in the Senate. After I had read it and decided to use it, I realized it was posted one year ago to the day, so it serendipitously works as a good reprint article, since it looks pre-planned (even though it isn't).
Anyway, here is the column I wrote one year ago. Since that time, the budget passed without having to use reconciliation (picked up a few Republican votes), and health reform legislation is still waiting. The funniest part in the article is the bit about Max Baucus wanting "80 votes" for health reform in the Senate... since we all know how that one worked out. In any case, "live" columns will return tomorrow, and we apologize for the re-run today.]
Why Won't Harry Reid Kill Budget Filibusters?
[Originally published: 3/9/09]
Senate Majority Leader Harry Reid has a very powerful tool at his disposal, but (true to form) he's not even admitting it exists, much less threatening to use it. The tool is called "reconciliation" and means (as I have written about previously) that budget bills which go through a certain committee process cannot be filibustered when they reach the Senate. Democrats would only need 50 votes (and Joe Biden's tiebreaker, if they couldn't get 51) to pass budget bills. Senate Republicans would be denied using their favorite obstructionist tactic, the cloture vote (the modern equivalent of the filibuster). Which may be the only way to pass President Obama's budget without significant parts of it being removed by balky Republicans.
So why isn't Reid brandishing this weapon in his rhetoric? Why isn't he using the phrases "give us an up-or-down vote" and painting every single cloture vote as "massive Republican obstructionism," every chance he gets?
A few braver Democrats who understand what the word "leadership" means (as Reid patently does not) have already hinted that upcoming health care bills and cap-and-trade legislation may use this reconciliation process to avoid such Republican obstructionism. House Majority Leader Steny Hoyer takes the "leader" part of his title seriously when talking to The Hill recently:
Hoyer said he has spoken to White House budget director Peter Orszag about using the budget reconciliation process to win passage for the healthcare and climate change bills. Any legislation attached to reconciliation bills would need only a simple majority to pass through the Senate. Republicans, who still have enough votes for a filibuster, would likely recoil at the use of a special process to push through items they oppose.
Hoyer said that while he's open to using the reconciliation process, Senate Democrats are still holding out hope that they can get broad support for their agenda. He noted that Sen. Max Baucus (D-Mont.) has said he wants a huge majority -- as many as 80 votes -- for healthcare reform.
"If he has 80 votes, then we don't need reconciliation," Hoyer said.
But the flip side of that statement is: "If we use reconciliation, then we don't need 80 votes, or 60 votes, or even 51 votes." And you can sill get 80 votes, even with reconciliation -- nothing stands in the way of doing so. So why not use it?
Over in the Senate, the New York Times reports that California Senator Barbara Boxer knows how to use the reconciliation possibility as a threat:
The chairwoman of the Environment and Public Works Committee is considering a bold budget move aimed at passing global warming legislation in the Senate without having to deal with an expected Republican filibuster.
Sen. Barbara Boxer (D-Calif.) said that she is researching the use of the budget reconciliation process as an avenue for passing cap-and-trade legislation now considered a key agenda item for President Obama.
"We're certainly exploring it as a possibility," Boxer said of budget reconciliation, a bill that cannot be filibustered and therefore does not require meeting the 60-vote threshold that has consistently been a key hurdle to passage of global warming legislation.
Debate over use of the reconciliation process for key policy items is always controversial in the Senate. Former President George W. Bush and Hill Republicans tried unsuccessfully to use it as a way to open up the Arctic National Wildlife Refuge to oil and gas drilling.
But Boxer insisted that reconciliation should not prompt an outcry because the process is a part of the Senate rulebook. "That's not circumventing anything," she said. "I'm saying that we have a process here called reconciliation. It's sometimes used. It's sometimes not used. We're looking at that as a possibility. We're looking at all the options right now."
Later in the same article, Maryland Democratic Senator Ben Cardin backs up Boxer's play:
"I think it's a clear possibility. I think the bottom line is we're looking for ways to make sure these issues are considered. And there's an ability for the majority to enact policy in the Senate. There's a lot of ways to do it. And reconciliation is one of the tools."
Democrat Senate Budget Chairman Kent Conrad of North Dakota seems to suggest that it'll be used as a second (rather than first) resort:
"No decisions have been made on reconciliation," he told reporters. "We've got to go through the consultation process with our colleagues and determine the best course."
Even if the Senate opts against using reconciliation now, Conrad explained that lawmakers could return to the issue later this year with a second attempt. "I just laid that out there not because I have a plan to use it, but it seems to me as people think about this, they ought to know what the rules provide."
Republicans (not surprisingly), and Democratic Senator Ben Nelson of Nebraska, were quoted as being against the idea.
It is not as if this tactic were never used. Bush used it at least once to pass tax cuts for the wealthy. Wikipedia lists 23 instances where it has been used since 1980. Meaning it is a valuable and viable tool in the toolchest of parliamentary procedures available to Congress. Most especially in the Senate. So why is Harry Reid refusing to even talk about it? From the same article:
Democratic leaders were careful to avoid any commitments on the topic. Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.), declined to comment.
Why this timidity? Why not start talking about reconciliation as a very real possibility, since Republicans aren't exactly flocking to support President Obama's budget priorities? There is a clear choice between (1) watering down the budget to court two or three Republican votes in the Senate, as was done during Obama's stimulus plan, therefore passing something weaker than it could have been; or (2) openly annoying Republicans by saying "we don't need your votes, but if you'd like to be part of the process, you're certainly welcome to participate." So why should option (2) be off the table from the start of the negotiating process? Why isn't Harry Reid telling Republicans "if you can guarantee five Republican votes for this bill, then we will not use reconciliation, but if you don't deliver on your promise, then every single budget bill will go through reconciliation," just to see what they say?
Reconciliation is a powerful tool in the Senate Majority Leader's toolbox. While used sparingly over the years, historical precedents should be tossed out. Because what they are trying to prevent -- cloture votes -- used to be historically rare as well. Until Democrats took over the Senate in 2006. Since then, virtually every piece of meaningful legislation has had to cross the 60-vote barrier in order to move. This is due to the Republicans sole remaining political strategy: "Obstruct everything, and sooner or later the voters will love us again." Meaning threats of using reconciliation should be framed as a reaction to Republican obstructionism, at every turn.
"Since Republicans have decided that they are going to filibuster everything in the Senate, in total defiance of the way cloture votes were used in the past, we are forced to use the Senate's rules ourselves in order to get something done. The American people are tired of Republican obstructionism, so we are fully prepared to use every method available to us to get a budget passed. Republicans can either join in the negotiations, or they can get out of the way, because the American people elected us to get some important things done, and that is fully what we intend to do -- with or without the Republicans' help."
Of course, it's kind of hard to see Harry Reid saying something like that. But that is exactly what needs to happen. Harry Reid has to start standing up for his own party's interests a lot more strongly, or the Senate Democrats need to start looking for a better leader in the Senate.
My vote, at this point, would go to Senator Barbara Boxer. Even while Reid is undercutting her efforts, she is showing what leadership truly looks like in the United States Senate.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
As I mentioned previously, I don't think there will be any reconciliation..
Simply because the House has to pass the Senate Bill AS IS before the Senate can even take up the reconciliation "trick"...
Pelosi doesn't have the votes, nor is she likely to get them by the White House imposed deadline.
If the House misses the Easter deadline, that will be all she wrote.
The fat lady will have sung.
Elvis will have left the building.
Michale.....
Looks like my point made above is being re-iterated on Drudge.. Ya know, the same Drudge Report that Sentate Dems tried to "ban"?? :D
'END' OF THE 'END GAME' OR 'THE END'?
TODAY: Obama pushing on health care end game (AP)
Last year:
July 28: Healthcare endgame on Capitol Hill (Reuters)
August 21: Analysis: Health care endgame near but uncertain (AP)
October 14: Senate, administration begin healthcare endgame as Dem leaders express unity (Hill)
October 25: Senators say health care bill endgame is in sight (Politico)
October 27: End Game: So When Will Health Care Really Happen? (TPM)
October 30: Health reform inches closer to endgame (WaPo)
November 23: The Health Care Endgame (NPR)
How many "end games" must Dems have before they realize that CrapCare is simply NOT a good idea??
Michale.....
Boxer's idea of using reconciliation for cap and trade is controversial since the underlying policy aspects of the bill haven't been passed in the Senate yet, so reconciliation isn't really an option. It's hard to argue that the bill, as a whole, relates purely to the budget (it clearly doesn't) so the policy aspects must still pass using the normal procedures, including cloture.
With healthcare the Senate bill deals with the substantive aspects of healthcare reform, and if the House passes it and it's signed by Obama, it's validly passed law. Reconciliation can then be used to pass a sidecar bill that relates solely to aspects that impact on the federal budget; no policy amendments are allowed.
Cap & Trade is deader than CrapCare..
The science behind it is, at best, a joke and, at worst a con/fraud..
But you are dead on ballz accurate.. The US Senate can't pass any "side car" legislation without the main legislation being signed into law first.
Hence, the reason why CrapCare will die.
House Democrats do not trust Senate Democrats. And Senate Democrats will have no reason to pass any sidecar legislation, once the House approves CrapCare..
God, I love politics!! :D
Michale.....
I actually agree; I can't see the House passing the Senate bill. They know that if they do, the Senate has no reason, as you say, to pass the sidecar legislation.
As for Cap and Trade, I've been a Global Warming sceptic for a long time, if for no other reason than the insistence that "the debate was over". Thankfully Prof. Jones recently admitted (having been forced to) that this simply isn't true.
Science requires healthy scepticism. AGW cannot be considered legitimate until healthy scepticism is not only allowed, but encouraged. Until then, it's bunkum.
At best the science is ambiguous and unclear, at worst it's a policy-driven con.
Here is the whole problem with the AGW politics.
It's not evidence-based decision making.
It's decision-based evidence making.
http://network.nationalpost.com/np/blogs/fpcomment/archive/2009/06/16/junk-science-week-terence-corcoran-decision-based-evidence-making.aspx
Michale.....
As for CrapCare??
Anyone wanna lay down some quatloos as to whether or not the House will pass the Senate's version of CrapCare As-Is?? :D
Pelosi doesn't have the votes and is unlikely to get them.
I lay down 1000 quatloos that CrapCare will not pass the House As-Is..
Michale.....
Furthering the discussion of CrapCare, we now have the "Slaughter Solution"...
http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/House-Democrats-looking-at-Slaughter-Solution-to-pass-Obamacare-without-a-vote-on-Senate-bill-87267402.html
As if the Democrats have convoluted and warped the "rules" of Congress, we now have a plan where the House has "deemed" it that the Senate Plan has passed, even without a vote!!
Get that?? House Democrats will "deem" that the Senate version of CrapCare has passed, but without an actual vote..
Can anyone say, "DESPERATION"???
Michale.....
Looks like the "Slaughter Option" is a non-option..
The Senate Parliamentarian has ruled that President Barack Obama must sign Congress’ original health care reform bill before the Senate can act on a companion reconciliation package
http://cdn.rollcall.com/media/44110-1.html?CMP=OTC-RSS
In other words...
Sorry Dems... You can't throw in unconstitutional procedures on a whim, simply because you can't keep your house in order...
I have to wonder what part of NO CRAPCARE does the Democratic Party not understand???
Michale.....
Michale -
While I have to admire your diligence in digging out the "endgame" quotes, I have to admit I've lost count of the times you've pronounced HCR deader than a doornail. Methinks I smell a tinge of worry wafting from your direction... heh.
Moderate -
I think you're misunderstanding reconciliation. Granted, it's easy to do, because where else in the Universe than Washington is a word whose normal definition is "a coming together" used as a blunt partisan weapon to drive parties apart? But reconciliation bills don't have to "change" another already-passed bill (although that is the case for HCR currently), they just have to deal directly with the budget. And the "budget" is actually a process. This process starts with a "budget outline" bill at the beginning of the legislative year, and then is followed by around a dozen "appropriations" bills. The "reconciliation" is with the original budget outline, which sets dollar-amount targets, but does not give details, which are done in the appropriations bills. When Dems passed their 2009 outline bill, they included a few things for possible reconciliation -- HCR was one, and (from what you say) cap and trade might have been another. So Boxer could be right -- I'd check your facts. Search around late spring last year for the budget outline that passed, and the word "reconciliation." It did make the news, although briefly.
Michale -
As for what the Senate Parliamentarian rules (interestingly, for Moderate, we don't have a "parliament" but we do have a "parliamentarian" even though we follow the much more sedate Robert's Rules Of Order in our legislative branch rather than let everyone scream at each other like kindergarten children... heh... couldn't resist that one...), two points: (1) only the Senate is bound to follow the Senate Parliamentarian's rulings, meaning the House (who has their own Parliamentarian) is free to do whatever they feel like, and (2) the President of the Senate, VP Biden, is free to make his own rulings on points of order and rules, and is totally free to ignore the parliamentarian whenever he feels like it. None of it rises to "Constitutional" in any way shape or form, as the Constitution itself is silent on Senate procedure, other than to say that the Senate can decide for itself what procedures to use.
And yes, I'll take your bet -- 1,000 quatloos on the Senate bill passing the House. And another 1,000 that says the reconciliation sidecar bill (no matter what it eventually contains) will go through both houses. But I'm not stupid enough (after the past year) to bet on WHEN either of these takes place! Could be the next week or so... could be longer than that... heh. The deadline is next January, when a new Congress is sworn in, as bills have to be reintroduced at that point, and start all over.
-CW
While I have to admire your diligence in digging out the "endgame" quotes, I have to admit I've lost count of the times you've pronounced HCR deader than a doornail. Methinks I smell a tinge of worry wafting from your direction... heh.
Touche' :D Fair enough..
But I am the original Alfred E Neumann in this case.. :D
Because, as I have pointed out ad nasuem, either way CrapCare turns out, it will mean hell for Democrats in the mid-terms..
I used to think that it would be a lot worse for Dems if CrapCare failed and Dems didn't get anything done. But I am actually coming around to the perspective that it will be much worse for Dems if CrapCare passes the House. Because then it will force Dems to either put up or shut up when it comes to reconciliation.
By passing CrapCare that the vast majority of Americans do NOT want, Democrats will prove that they are out of touch with Joe Q Public and this will all but assure GOP majorities in the mid-terms.
two points: (1) only the Senate is bound to follow the Senate Parliamentarian's rulings, meaning the House (who has their own Parliamentarian) is free to do whatever they feel like, and
True..
However, what the House does in this case affects the Senate procedures. The Senate Parliamentarian has stated that the Senate can't create the side car legislation unless the original legislation is signed into law.
Therefore, it doesn't matter if the House "deems" the original legislation passed. The Senate still won't be able to create the side car legislation unless Obama signs the original bill into law. And, if Obama signs the original bill into law, the House loses it's leverage for forcing the Senate to act. It will also negate the "cover" that the House leadership wanted to give struggling Democrats by using this trick.
(2) the President of the Senate, VP Biden, is free to make his own rulings on points of order and rules, and is totally free to ignore the parliamentarian whenever he feels like it.
True, but that would ALSO be a political win for the GOP as it would provide more proof of how Democrats are willing to bend and break the rules to force passing of legislation that the American people are against, 4 to 1.
But I am curious as to what ya'all feel about this?
And yes, I'll take your bet -- 1,000 quatloos on the Senate bill passing the House. And another 1,000 that says the reconciliation sidecar bill (no matter what it eventually contains) will go through both houses.
Woot!!! I might actually win some quatloos this year!! :D
Now that the Dem leadership in the House as told anti-abortion Democrats to go frak themselves, I think I just might have an extra 2K quatloos within the next week or so.. :D
Michale.....
I think you're misunderstanding reconciliation.
Wouldn't be the first time ;-)
But reconciliation bills don't have to "change" another already-passed bill (although that is the case for HCR currently), they just have to deal directly with the budget.
Oh, I know. What I meant was that aspects of the American Clean Energy And Security Act wouldn't fall under the remit of reconciliation. Such as:
1) Requiring electric utilities to meet 20% of their demand through renewable energy sources.
2) Protections against energy price increases.
3) Targets for reductions in emissions.
None of those impact federal spending or debt, so they wouldn't be suitable for reconciliation. My understanding is that comprehensive reform falls foul of the Byrd Rule. Those provisions would have be enacted the usual way. So whilst Boxer could get the subsidy portions of the act through reconciliation, the substantive aspects would have to be passed by a recalcitrant Senate.
(Actually, Kent Conrad, Senate Budget Chairman, agrees with me, and said that if Cap and Trade were passed through reconciliation you'd have a bill that looked like "Swiss cheese".)
When Dems passed their 2009 outline bill, they included a few things for possible reconciliation -- HCR was one, and (from what you say) cap and trade might have been another.
WaPo confirms that the budget outline that passed didn't authorise the use of reconciliation for cap and trade:
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/29/AR2009042901033.html
we follow the much more sedate Robert's Rules Of Order in our legislative branch rather than let everyone scream at each other like kindergarten children... heh... couldn't resist that one...
Fair enough. They do act like kindergarten children. Personally I find it adds to the enjoyment of the occasion, and it's precisely why I'd venture that our PM Question Time gets more viewership compared to anything on C-span at the same sort of time (12 noon). Many visitors love watching PMQs.
(Our normal debates actually tend to be much more sedate than PMQs).
I saw some footage from the Senate the other day and it was like watching paint dry. Call me old fashioned but I like my politicians to be passionate.
Michale: Like you I think the Democrats are damned if they do and damned if they don't. If they don't pass healthcare reform the same old "the Democrats can't govern effectively" arguments come home to roost.
If they do, it could be a disaster of epic proportions. The CBO projects that the spending under the Senate bill will only outstrip the cuts elsewhere by the year 2016. In other words, pay now, "benefit" later. People will see the cuts before they see any increase in spending. That'll hurt in November.
So what do ya'all think about the "Slaughter Solution"???
Isn't anyone seeing red (no pun intended) over the fact that the House Democrat leadership will try and "deem" the Senate CrapCare as passed, because they don't have the votes to actually PASS it for real??
Imagine the outcry from the Left if Republicans had the majority and they "deem" that Patriot Act Severe will pass, even though there isn't any votes to pass it..
Hell, why not do away with voting all together?? Since the majority party can "deem" any legislation they want as passed, it makes no sense to even HAVE a vote, right??
What is it about Democrats?? Is CrapCare SOOO important that they are willing to destroy the democratic process to get a law that 4 out of 5 Americans do NOT want??
And, imagine the precedence that Dems will be setting.. When the GOP returns to Majority status, what's to stop THEM from "deeming" legislation as passed??
Michale.....
So what do ya'all think about the "Slaughter Solution"???
It's actually perfectly in keeping with the Democrats' approach on this so far.
From day one they have refused to "stand by" their legislation, first trying to claim the bill is "bipartisan" because it has Republican ideas (watered down beyond recognition, of course), then claiming that even using reconciliation to pass it wouldn't stop the bill being "bipartisan", and now they want to be able to claim they voted for a "rule" not a "bill". Plausible deniability.
To me it seems like they want to have their cake and eat it too. If HCR passes and is a success, it'll be lauded as a great Democratic achievement, but were it to fail (as I suspect it will) they want to blame the Republicans for passing a bad bill. They want to have it both ways, proving they're too weak to lead.