COLUMN: Reconciliation wrong in past, wrong today in health care

Tuesday, March 2, 2010 | 12:01 a.m. CST; updated 9:33 a.m. CDT, Wednesday, May 12, 2010

The yearlong congressional health care gridlock has inspired several pundits, editorial columnists and members of Congress to call for budget reconciliation as a solution to the impasse. This procedure, a provision of The Congressional Budget and Impoundment Control Act of 1974, was designed to force committees to make changes in both entitlement and mandatory spending to reduce deficits by streamlining tax and budget deals.

While the reconciliation measure limits the scope of legislation, it also enables the Senate to pass a bill approved by the House with a simple majority of 51 votes. Reconciliation has had limited use by Republicans and Democrats alike for nonbudget legislation, however, its authors never envisioned it as a fast-track system to engineer complicated social policy measures.

While gridlock is continually blamed for the inordinate time required to pass legislation and/or for the failure of its passage, that difficulty was purposely written into the Constitution by its framers. Passage of laws must be time-consuming and difficult, and this was underscored by the authors, who achieved a measure of stability by demanding an extremely high level of consensus in government action.

Further, they designed the Senate to manage and slow the pace of legislation. Explained by James Madison and Alexander Hamilton in the Constitution, the Senate would be a "temperate and respectable body of citizens," able to check the citizenry when it is "stimulated by some irregular passion." Subsequently, the Senate strengthened the intent by adopting the procedural filibuster rule, which requires the vote of 60 of 100 Senators to invoke cloture and end debate.

Although routinely condemned by the faction it appropriately restrains from ramming unpopular or damaging legislation into law, the filibuster or cloture rule acts as one of the "checks and balances" many of us learned when civics was actually taught in school. Those checks and balances serve not only as a braking mechanism for faulty legislation but also a vehicle for compromise between opposing parties.

It is indeed unfortunate that the specter of reconciliation has raised its ugly head in that its execution serves not only as a bridge to tyranny of the majority, but also opens a can of worms virtually impossible to close. So long as the Democrats held a filibuster proof Senate majority and a plus 59 number in the House, reconciliation was not an issue. However, a year with no progress and election of a Republican Senator in Massachusetts has raised the ante beyond one of cooperation and compromise.

Granted, it has been used before, notably in President Clinton's 1994 deficit reduction and President George W. Bush's major tax cuts. However, these conformed to Senate rules restricting reconciliation to budget issues. Reconciliation was never intended to be used to implement policy. In fact, President pro tem of the Senate and master of its rules, Robert Byrd, helped design a set of conditions under which any measure neither adding to nor subtracting from the deficit must garner the required 60 votes.

The most recent example of thwarted reconciliation was the Bush administration's attempt to end Democrat filibusters of Republican judicial nominations. Republicans threatened a "Nuclear Option" reconciliation to end the stalling tactics, however, cooler heads prevailed, thus averting damaging the legislative process. One may disagree with the filibuster rule when it is at odds with their purposes. Nonetheless, reconciliation is not appropriate for nonbudget policy legislation.

There is irony in today's attitude regarding reconciliation to pass health care legislation in relation to President Bush's 2005 effort. PresidentBarack Obama, then a senator, called it a "majoritarian of absolute power on either side that's just not what the founders intended." Vice President Joe Biden, then a senator, called it an arrogance of power and offered, "I pray God when the Democrats take back control, we don't make the kind of naked power grab you are doing."

Additionally, Senate Majority Leader Harry Reid accused the Republican majority of  threatening "to violate over 200 years of Senate tradition and impair the ability of Democrats and Republicans to work together on issues of real concern to the American people." Senators Dianne Feinstein, Max Baucus and Charles Schumer have joined Obama, Biden and Reid in favoring reconciliation to pass the health care bill, ignoring opposition by Republicans and, more importantly by a majority of the American people.

Finally, regardless of political affiliation, invoking reconciliation to push legislation through is as dangerous as it is wrong-headed. The somewhat exasperatingly ponderous rules of the Senate are necessary to curb the overbearing arrogance of majority rule — the Founding Fathers were correct to apply a brake on the often incautious appetite of power.

Reconciliation was wrong when attempted by Republicans in 2005 and it is equally wrong today when Democrats choose to ignore the rules for their own benefit. Hypocrisy by any other name is still hypocrisy.

 J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at

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Christopher Foote March 2, 2010 | 1:17 p.m.

I think this article contains a number of factual errors. 1) Obama's quote is in regards to the filibuster not the process of reconciliation. It is specifically in reference to filibustering Supreme Court nominees, thus it is disingenuous to conflate it with opposition to reconciliation. 2) The purpose of reconciliation is to modify a bill that impacts the budget. The bill in question, the Patient Protection and Affordable Care Act, passed the Senate with a supermajority of 60 votes (there were 39 no votes). The House of Representatives will vote on the Senate Bill. Once the bill has passed both houses, it will go through the process of reconciliation. The bill effects the budget, thus reconciliation is a perfectly legitimate means to modify its budgetary impact. In its current form, it will reduce the deficit: $132 billion over the first 10 years and approximately $1 trillion over 2019-2029, according to the CBO.
Reconciliation has been used in the past to pass health reform. Notably Cobra (allows one to keep their insurance after they leave a job) as well as expansion of the Children's Health Insurance Program were passed under reconciliation.
Lastly, I would ask the author if he thinks it was wrong to use reconciliation in 2001 and 2003 to pass large tax cuts that resulted in significant deficits? Both of these initiatives failed even to get a simple majority. The vote for each was 50-50, Dick Cheney broke the tie in each case. That they raised the deficit is why they are only in effect for 10 years, otherwise they would violate the Byrd rule. I would also note that the Republican appointed Senate Parliamentarian was fired in 2001 because he ruled that elements of the The Economic Growth and Tax Relief Reconciliation Act of 2001 could not be passed via reconciliation.

(Report Comment)
Allan Sharrock March 2, 2010 | 3:36 p.m.

Chris I think there is more to it than that. I mean all I see on TV now is how the parliamentarian has so much power if it goes though reconciliation. He esentially has to go though and cross out anything that does not directly deal with budgetary issues.

Here is a article that spells it all out.
"The restrictions laid down by the Budget Act, the annual budget resolution, and the Senate’s “Byrd Rule” prohibiting non-budgetary items combine to make Alan Frumin, the Senate Parliamentarian, the de facto editor of a reconciliation bill. In particular, he determines which parts of the bill have to be jettisoned in order to keep the bill qualified for the 51-vote fast-track instead of the 60-vote cloture process, and he determines which amendments to the bill require a simple majority for passage and which require a 60-vote supermajority."

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Don Milsop March 2, 2010 | 5:17 p.m.

GDP 2001 10.3 TRILLION
GDP 2008 14.4 TRILLION

Interesting numbers that I can not explain. How can revenue go up 1 trillion, spending go up by 1.1 trillion, but the deficit increase by .6 trillion. Doesn't make sense to me.

Of note, and both parties were responsible for this. While overall government growth went down during the Clinton years, it was because the military was cut in half. Non defense federal employment grew significantly. Much of the money spent by President G. W. Bush was to rebuild a military decimated during the Clinton and G. H. W. Bush years (remember the Peace dividend? They spent it.) And this rebuilding was done to fight in two locations. Keep in mind it has ALWAYS been our policy since the end of WW2 that we could have a military capable of handling two major engagements at once. So the scope of the Iraq and Afghanistan conflicts should be well within the strategic goals of our nation for the last 65 years.

Our problems as a nation extend well beyond the federal government. Almost all the states have far outspent their ability to service debt, just like the federal government. Likewise have cities. And this has filtered right down to the citizenry who have accumulated so much personal debt of every kind that defaults on homes, cars, credit cards, etc. have become a serious issue.

We are a nation addicted to debt and a satisfy my financial and any other need instantly mentality. Until we return to a conservative fiscal and moral mindset that feels shame, one that is both wise and ethical, we likely will not see a change in the habits of spending by persons or any level of government. It's the road to perdition. And perhaps we must follow that road and its terrible consequences to learn the lessons which common sense should otherwise provide us.

(Report Comment)
Christopher Foote March 2, 2010 | 6:43 p.m.

Oops, I made an error, the 2001 tax cuts passed with either 62 or 58 votes (the Wiki says 62, but the official Senate page says 58. I guess I'd go with the latter otherwise they wouldn't have need to go the reconciliation route). It was just the 2003 tax cuts that were 50-50.

Barring any Republicans coming on board for a new bipartisan bill, the Democratic plan is to have the House vote on the already passed Senate Bill, which was passed with 60 votes. Once they vote on the same language all that's needed is the President's signature. The reconciliation process will seek to modify the bill with respect to budgetary implications, for example allowing the Medicare Program to bargain for drug prices, etc... The Senate parliamentarian will rule on what amendments satisfy the criteria under the law. There's been some discussion about the Vice President having the authority to over-ride the parliamentarian, as was done in 1975, so the parliamentarian might not have the final say, and he can always be replaced. What's a bit ironic is that Dove, the 2001 fired parliamentarian, is quite conservative and appears opposed in principle to passing Health Care Initiatives through reconciliation :

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J Karl Miller March 3, 2010 | 8:57 a.m.

Author's Note:
Mr Foote, I fail to see the logic in your statement that "Obama's quote was in regard to the filibuster not the process of reconciliation. Then Senator Obama, as were Reid and Biden were defending the use of the filibuster to preclude bringing bills to the floor in the reconciliation process for an up or down vote. Since reconciliation, cloture and the filibuster are integral parts of the same transaction, they cannot be separated by semantics.

And, as to the claim that since the Health Bill affects the budget in that it purports to reduce the deficit, that is a dog that simply won't hunt. Very few bills reach the floors of either House of Congress that do not affect the expenditure of funds, nevertheless, that does not somehow mark them as "budget bills" subject to reconciliation. For example, the majority of domesticated animals have four legs and a tail; however, that does not make them dogs.

I believe I made it clear that there have been exceptions to the Byrd Rule, as a matter of fact, I referred to two of them. I do appreciate that you take the time to read my column and that you see fit to comment. I might also point out that if you and I agreed on every point, one of us is unnecessary.

(Report Comment)
Christopher Foote March 3, 2010 | 10:35 a.m.

@Mr. Miller,

The reference you listed for the "nuclear option" details the proposed strategy options that the Republicans could employ to overcome Democratic filibustering of judicial nominations. The strategies listed pertain to changing the rules of the Senate while it was still in session. The report states: "All these possible scenarios would require that one or more of the Senate's precedents be overturned or interpreted otherwise than in the past." Note that Senate rule XXII stipulates that 67 votes are required to change the rules of the senate, if there is opposition to the rules change.
Obama and the others were speaking out against the proposal to overturn precedence and change the Senate rules by a simple majority. They were arguing against changing the rules of the senate, and were thus defending the filibuster as well as reconciliation and every other previously established rule. To suggest that this was an argument against reconciliation is to make a political statement unsupported by the facts on the ground.
I would also note that stating: "Republicans threatened a "Nuclear Option" reconciliation to end the stalling tactics" is a clever bit of word play to confuse the reader into thinking Obama and the others were opposed to Reconciliation (the legislative process) rather than reconciliation (the noun) of judicial filibusters via unconstitutional actions to change Senate rules. You yourself appear to agree that the "nuclear option" is illegitimate, by stating "...cooler heads prevailed.." That would put you in agreement with Obama and the others on what they had to say specifically about changing the senate rules absent 67 votes.

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