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 JKarlUSMC@aol.com.