A Brief History of Reconciliation
With the presidential, bi-partisan health care summit rapidly approaching, anyone with a drop of political blood in their system has already heard the term “reconciliation” being tossed around as a way to ram the Democrats’ health care bill through Congress. This seems to have led to a lot of confusion and, very likely, deliberate obfuscation among the punditry class. Some Democrats are correctly pointing out that Republicans have availed themselves of the reconciliation process on many occasions in the past. Here are a few examples from the greatest hits list.
Omnibus Reconciliation Act of 1980
Omnibus Budget Reconciliation Act of 1981
Tax Equity and Fiscal Responsibility Act of 1982
Omnibus Budget Reconciliation Act of 1982
Omnibus Budget Reconciliation Act of 1983
Consolidated Omnibus Budget Reconciliation Act of 1985
Omnibus Budget Reconciliation Act of 1986
Omnibus Budget Reconciliation Act of 1987
Economic Growth and Tax Relief Reconciliation Act of 2001
Jobs and Growth Tax Relief Reconciliation Act of 2003
The Deficit Reduction Act of 2005
Tax Increase Prevention and Reconciliation Act of 2005
Careful readers will notice a recurring theme here. To help quantify precisely what that theme is, we should take a quick look at the actual definition of the reconciliation process, which you can find at www.senate.gov under the rules and procedures section. But here’s a short description:
A legislative process in the United States Senate intended to allow consideration of a contentious budget bill without the threat of filibuster. Introduced in 1974, reconciliation limits debate and amendment, and therefore favors the majority party.
A reconciliation instruction (Budget Reconciliation) is a provision in a budget resolution directing one or more committees to submit legislation changing existing law in order to bring spending, revenues, or the debt-limit into conformity with the budget resolution. The instructions specify the committees to which they apply, indicate the appropriate dollar changes to be achieved, and usually provide a deadline by which the legislation is to be reported or submitted.
In short, reconciliation is a valuable tool for taking a budget issue which both sides have, in large part, already agreed on and ironing out the differences in dollar amounts so the entire process doesn’t get bogged down over a billion dollars here and a hundred million there. Those saying that it should never be used are whistling past the graveyard, since it clearly serves an important function. But opponents of its use in the health care debate seem to be pointing out that it was not intended to be used in the proposed fashion.
Using reconciliation to summon into existence an entire new entitlement program or major change in government policy clearly is “unprecedented” as many have said. If this were a matter of both sides agreeing, for example, on having a public option, but couldn’t agree on exactly how much we were going to spend on it, then reconciliation would be a fine way to go to finish the process up. This is not, however, the case today.
Supporters of the increasingly unpopular health care reform proposals currently on the table should stop trying to hide behind this fig leaf and deal with the issue honestly. That’s not how the reconciliation process was intended to be used, and pretending that it is doesn’t do you any credit.
41 Responses to “A Brief History of Reconciliation”
I pulled this from Jay Cost:
“When it comes to legislative procedure, I am a strict Hobbesian. There is what a Senate majority can do, and what it can't do. “Appropriate” or “inappropriate” are not applicable phrases. Congress is sovereign over its own procedures, which are the product of self-interested members working to secure reelection and/or policy goals. Morality doesn't enter into it.”
If history should stand as a guide to whether the health care reform bill should be put up to a simple majority vote it would be helpful if you also pointed out that the major health care reforms of the last thirty years were passed by this measure including COBRA and CHIPs, as well as the Republicans, Medicare and Medicaid reforms in 2005 and Clinton's welfare reforms.
And since we are discussing original intent why not limit the use of the filibuster to its original intent?
Cost's articles today and yesterday on realclearpolitics.com are worth reading. I largely agree with his take. The fight about whether reconciliation is normal, unprecedented or whatever is entirely a waste of time.
The Dems can use it and the Reps can offer endless amendments because that's what the rules say. The real issue is the popularity of the underlying policy. Until this policy is popular (if it ever is), using it will bring political costs.
On a side note, I find the new Dem policy of saying the individual components of reform are popular even though the bill isn't very interesting since a few components they never mention are the higher taxes, individual mandate and penalties, and medicare reductions. So their line of argument is all the things we want to give away are individually popular so the bill is popular. Not so compelling.
If this passes, and I don't have a problem with reconciliation as a method, a foundation is thereby established that begins to improve healthcare in this country, and which could also result in improved fiscal responsibility, then 99% of Americans won't care or remember how it was passed. I am fully convinced that most republican lawmakers very simply, and very cynically, just don't want to see the democrats acheive any measure of success with this very important issue.
Actions have consequences. Just remember that when the Republicans regain control of Congress.
This would mean ANY legislation can be passed while basically ignoring and bypassing both the Parliamentary rules set by the Senate itself, and with NO input from the minority party.
Merkin beat me to it.
I doubt there will be update to this post, however.
To me, the problem isn't whether reconciliation is “appropriate”. Jazz has helpfully provided the important bits: “A legislative process in the United States Senate intended to allow consideration of a contentious budget bill “
Dems whistling past the intent puts me in mind of my daughter this morning. She's gone off wearing a dress, the hemline of which pushes the parameters of her school's dress code. When I asked her whether she was prepared to wear gym shorts for the day if she got “dinged” for the length, she said yes. And that if it happens, she'll just roll those shorts (at the waist) until they are as short or shorter then the dress was in the first place.
It's a deliberate, adolescent attempt to push the rules, in defiance of intent. The Dems' behavior doesn't look very different to me.
The only reason Reconciliation is being discussed as a parliamentary practice, is because the parliamentary practice of the Filibuster is being sorely abused.
Potato–Potatoe.
“Morality doesn't enter into it.”
It won't here. Any misuse by the GOP before now is irrelevent to whether the Dems do it now; it's wrong if the Dems do it. I've been looking at this in the increasingly larger contexts of both the need by the Dems to get a health care bill passed, and the need for two things:
* the Dems to force resumption of passage of legislation that appeals to their constituents (impatient and farther-left-demanding fraction and the less-farther-left-demanding fraction that is starting itself to be frustrated with “ineffectivity”) between now and November.
* the need to break the GOP filibuster “lock” preventing passage (advance) of any legislation.
I won't be surprised if the Dems use the device to break the lock, if they need to, in the end.
The way I view it is this:
To me what's already becoming more important is the longer term — the rest of this year until the November elections, and the need or desire to pass other legislation (immigration, labor, energy and environment, and so on). If the reconciliation filibuster-lock-breaker is to be truly effective, in using it now the Dems have to be convincing to the GOP (and to us) that they're willing to use it again as needed, and that ideally this deters and even prevents or stops the GOP from attempting future filibusters.
The real (more remote or obscure) and most intriguing related issue is what the GOP is going to do. It remains cloudy and obscure as well as dysfunctional, and largely has an opposition strategy. This is not entertaining, but is effective and in order if the Dem legislation continues to be bad, as it has been. (Some voters may switch from the Dems to the GOP in November, by default, as a result of bad bills as well as with dissatisfaction with Dem “lack of progress.” Either way, the Dems suffer and the GOP wins. It's cheap, but the GOP doesn't appear to be doing other or better, anyway, right now.)
The more intriguing and curious thing to look for is what the GOP response would be against the Dem use of reconciliation. What countermeasure(s) has the GOP? Ideally it would disable or stop the Dem strategy and deter it from trying this again. Misuse of reconciliation can be fought, and should. If this is exhausted, other than legal or procedural measures, what about leaving the Senate short of a quorum, if this is possible, by leaving Congress? Just walk out. The media will crucify them, but is it a tactic?
Just one example…
Do you catch Merkin's comment?
I did. It read (to me) like the usual “yeah, but the other guys are bad, too!”… and I'm pretty bored with that angle at this point.
If I misread it, I hope you'll help me see that.
I don't think Merkin is saying “yeah, but the other guys are bad, too!”
I think he's saying that the reconciliation process has also been used, traditionally and by both sides, to pass health care legislation.
Really? I read it to say that “simple majority vote” has been used. Perhaps the problem is on my end. Is “simple majority vote” the same thing as “reconciliation”?
Since the bill is decent to the point where GOP obstruction of it obviously is an attempt to create malaise in the public and hurt democrats (seriously, are you people still warbling about tort reform? Pathetic), reconciliation is not only not a flagrant overreach, but a moral obligation at this point. When one party is ideological to the point where it actually believes its own BS and only plays for power, you must not approach them as equals. Ram it through, ignore the mewling.
Discus has been eating my comments with links in them.
So I hope this one gets through.
It is true that Merkin used the phrase “simple majority vote” while I said “the reconciliation process”. But the reconciliation process allows the passage of legislation by simple majority vote. And I think that's what we're talking about here.
Wish me luck on that link!
“Ram it through, ignore the mewling.”
Axel, sometimes I wonder whether you fully understand the American system.
Since it looks like my link worked, I'd like to quote it:
My link also provides a link to a somewhat more comprehensive NPR story as its source.
Simple majority is the same thing as reconcilation…needs 51 votes…that is if you consider each state an entity that has two votes. I guess if corps are people…so are states?
I think he does…but why stop a good rant with facts?
jk Axel…you write well for a crazy person.
I do – it's abusable, it is being abused and right now reconciliation would stop the abuse.
Or perhaps you were talking more about the philosophy of your civics.
The vox populi can regurgitate any kind of stupidity. The masses can't always be deferred to.
Repeat after me: We don't embrace democracy because it is good and useful – we embrace it because we must.
NPR did a history of reconciliation and health care bills yesterday. All of the whining about its “true intent” is BS.
http://mediamatters.org/mmtv/201002240007
Just a brief comment here, while I don't appreciate some of the more “colorful” characterizations and generalizations occasionally made here (and I realize most of those are in venting mode) I also believe it's useful to understand the underlying rational that prompts some of those characterizations. I probably see these most often from Axel lately, but they used to be a regular feature with DLS as well. I read their posts in their entirety though because both of these guys are smart and perceptive – regardless of whether or not I happen to agree with them. As for reconciliation being appropriate or not, I'd say that given all the disingenuousness we've seen from republicans over the past decade, it's hard to take such concerns very seriously. In any case, this isn't about tit for tat, it is, as Axel pointed out, a moral obligation.
I was actually talking more about the political — and societal, for that matter — culture.
The American population is, as a general statement, very resistant to the “ramming through” of much of anything. Doesn't much matter whether the ramming is real (with passed legislation) or perceived (with ideological rhetoric). We are very cynical — a trait that's been radically enhanced in recent years. When the public doesn't trust government, then “ramming through” is self-destructive.
Since (contrary to your earlier assertion) this bill has quite a number of flaws, the Democrats are taking a tremendous political gamble if they go this route — a gamble that is not likely to pay them back nearly as much as it will cost them in the eyes of the independents and moderates. (And yes, they do still matter.)
Nice when the links work, eh? (very frustrating sometimes)
The NPR piece gives examples of reconciliation in extensions, and enhancements, and modifications to existing programs. CHIP may be a valid exception, though I think it was also an expansion.
Do you see the health care legislation currently under discussion as an enhancement or modification? Or is it a new approach that changes the parameters altogether?
If it's the former, then I agree with the NPR piece. If it's the latter, then this is a bit of an apple:orange.
Its times like these when one has to seriously wonder what goes on in the minds of each party's respective partisans. To the Repubs, look, you used reconciliation in the past because the Dems wouldn't go along with you. Jazz provided several examples. To the Dems, you all were seriously ticked when it happened, calling it an arrogant power grab and lamenting the perils of a minority with no power. Remember?
So basically what has now happened is the two parties have switched sides, adopted each others' arguments, and now partisans on both sides look like nothing more than hypocritical hacks. No wonder people are leaving the two party system.
They can use reconciliation to pass the Senate bill and maybe pay a price this year, but they'll get those seats back in 2012. Dems are going to take massive hits this year anyway…they might as well let the political dice roll and pass something.
“The American population is, as a general statement, very resistant to the “ramming through” of much of anything.”
Yeah, the health care system hasn't been ailing for a long time, and the issue only started being discussed last year.
“We are very cynical — a trait that's been radically enhanced in recent years.”
Pah, that's because you are prone to exuberance as well – invariably you will get disappointed if you get yourself in a tizzy so quickly. This is why I find the humdrum and slightly peeved response to the reform bill to be a good thing – Obama needs to have his temper rub off on the public.
“Since (contrary to your earlier assertion) this bill has quite a number of flaws”
Starting over/compromising more/bipartisanship/more republicans in either chamber is only going to increase the flaws. You can't get anything better – that is obvious, especially to a self-described cynic.
What I see is a legitimate legislative tool with an extensive history of use by both sides.
What I don't see is any basis for outrage.
Seems we'd have to know more about the conditions under which acts like COBRA were passed. I don't recall that being all that contentious, though I wasn't that politically engaged at the time so I'm willing to be corrected if I'm wrong. Isn't it possible that the condition that Jazz mentioned was met in those cases:
reconciliation is a valuable tool for taking a budget issue which both sides have, in large part, already agreed on and ironing out the differences in dollar amounts so the entire process doesn’t get bogged down over a billion dollars here and a hundred million there.
IOW, if everyone agreed on the basic principles of COBRA but there were discrepancies over the dollar amounts, then the use of reconciliation makes perfect sense. The current situation is much different because there are major differences over the policy itself, not just the budgetary parts of it. It's not that the use of it today would be unprecedented because healthcare is involved, it's because the differences of opinon aren't just about budgetary issues here.
The only eyebrow raising thing I saw about COBRA is that it did also enact into law the new policy of mandating ER treatment for all. It would seem to me that that part should have more appropriately been passed under separate legislation, but what do I know?
Originally the filibuster meant that one Senator could hold up all legislative votes, indefinitely. I doubt that's what you're calling for?
I agree with this too…it's not about whether the use of reconciliation is ethical, permissible, etc…it's what the underlying use of it means (that the bill wasn't popular enough to pass with a greater than 50+1 majority.)
Some liberals believe that the Dems should forge ahead and damn the consequences…while I and others think they'll pay a price for that (particularly since I believe the bill will have large negative consequences for a lot of people so I don't believe that people will forgive the process…quite the contrary, they'll blame the Dems for a bad bill passed in a ramrod fashion.)
The greater price will be paid if the democrats roll over and allow republicans to have their way – which is really no way at all. If they want a bill that requires no degree of sacrifice, then it will be a bill that has little effect on the problem. Magic ponies, etc.
JSpencer,
I think the Dems are in a tough spot. If they use reconciliation and the bill passes, they will probably energize a lot of voters to vote against them because the bill isn't that popular. On the other hand, they won't energize a lot of voters to vote for them because, even among its supporters, the bill is supported by many as the best possible rather than what they really want.
If they don't pass it, my expectation is that a lot of the base will stay home but they won't have people actively pushing to unseat them. It's not clear to me which is worse. It probably varies quite a lot district to district which I suspect is why the conventional wisdom is that it's the House that's the bigger barrier at this point.
It's not only the dems who are in a tough spot, the entire country is in a tough spot, and the solutions are being entrusted to the people who are now thrashing it out. If no bill is passed now, then when? Does anyone seriously think this starting out with a blank page business would ever really happen?
Jazz said, “In short, reconciliation is a valuable tool for taking a budget issue which both sides have, in large part, already agreed on and ironing out the differences in dollar amounts”
So I imagine you opposed the use of reconciliation for these highly controversial bills, all of which passed on party-line votes, without a supermajority? Note that this is just a small selection of a large list.
Economic Growth and Tax Relief Reconciliation Act of 2001 – multi-trillion dollar unfunded tax cut
Jobs and Growth Tax Relief Reconciliation Act of 2003 – another multi-trillion dollar unfunded tax cut
The Deficit Reduction Act of 2005 – Medicare and Medicaid cuts
Tax Increase Prevention and Reconciliation Act of 2005 – unfunded corporate tax cuts
Jazz also said, “Using reconciliation to summon into existence an entire new entitlement program or major change in government policy clearly is 'unprecedented' as many have said.”
Another small selection of the large list of reconciliation bills with major controversial changes in government policy, or the creation of entitlement programs:
Consolidated Omnibus Budget Reconciliation Act of 1985 – aka COBRA, the health insurance entitlement
Balanced Budget Act of 1997 – Medicare cuts
The Deficit Reduction Act of 2005 – Medicare and Medicaid cuts
You may object that COBRA wasn't a new entitlement program, but was rather the expansion of an existing one. But if you say that, then the claim that “reconciliation being used to create a new entitlement program is unprecedented” is only true because no entitlement program has been created since the invention of reconciliation in 1974. (Note that by this weasly logic, Part D was not a new entitlement program, but rather the expansion of an old one). If we don't buy this logic, (as I don't), then clearly COBRA was a new entitlement program enacted via reconciliation, along with the other major changes in government policy in the other bills.
CStanley said “Some liberals believe that the Dems should forge ahead and damn the consequences…while I and others think they'll pay a price for that (particularly since I believe the bill will have large negative consequences for a lot of people so I don't believe that people will forgive the process…quite the contrary, they'll blame the Dems for a bad bill passed in a ramrod fashion.)”
I don't think so. Just look at the 2001/2003 tax deferrals (not tax cuts, since they didn't cut spending, but rather just pushed tax collections to the future). Those were rammed through Congress via reconciliation because of major opposition. Republicans didn't get blamed for the multi-trillion dollar increases in the national debt.
That's because no matter how much the American people oppose a given bill, once it passes the law becomes sacred. Examples abound: Social Security was vilified as socialism in the 1930s, but once passed it became one of the most popular government programs; the same goes for Medicare and Medicaid; the 2001/2003 tax cuts were controversial, but now almost no one on the Hill (including the people who opposed them) wants to see them expire.
People don't vote against policies, they vote a based on a spicy mixture of their emotions and their pocketbook. The economy was bad in 2008, and they were angry about it, so they “threw the bums out” (personified as Bush). The economy is still bad in 2010, so they're still feeling strongly anti-incumbent (this time the bums are personified by Obama). But the average American doesn't base his or her vote on, say, whether he thinks the Credit Card Reform bill was a good idea. And opposition to ARRA will fade away when people see at their tax rebate checks from the stimulus.
I think it highly like that if the reset button was pushed, the outcome wouldn't be nothing. Rather I think the most likely outcome is some modest insurance reforms (purchasing coops and the like) and a medicaid expansion.
Not clear to me that that's a bad outcome. Again, only from my pov, it's preferable to both the current system and the President's most recent proposal.
The reason I think the Dems will get punished at the voting booth if they pass this one though, galtin, is that the majority of voters will not be helped by the legislation. I realize that some people may believe otherwise, but my view of the bill is that it will raise taxes AND premiums for most people while also having negative consequences on programs that are popular like Medicare and negative consequences on healthcare delivery itself (a large increase in demand for medical services without a concomitant increase in the supply of medical providers is a recipe for disaster.) The whole approach, IMO, is wrong and doomed to failure because it attempts to squeeze health insurance companies while doing nothing to reduce the actual costs of delivery of medical care.
The other examples you gave of things that were rammed through, didn't have backlash because most of the people who actually vote were given personal benefits from those legislative acts…IOW, I think you're absolutely correct when you say that people vote based on their own pocketbooks and self interest. I'm not condoning that but it is factual (and it's borne out as it applies to the current HCR efforts in the polls which show broad support for public option or other ways of expanding coverage in the abstract, but support for those things drops sharply when people realize what the cost to them personally will be for those measures.)
Again, this isn't a phenomenon that makes me happy- but as a realist I believe that when it's necessary to do tough things which require sacrifice, somehow the politicians have to get the public to buy into that and they also have to be sure they get the policy right so that the sacrifices will also bring about some benefit. I think the Dems have failed on both accounts.
You're right that the recipients of tax cuts were given immediate personal benefits, but at long-term cost. The cuts did nothing to increase growth because the economy was operating at full employment, but they certainly made people feel like they were richer (even though the tax checks came at the expense of business investment crowded out by deficits). Maybe that's why there wasn't a backlash.
However, I disagree with your assessment that HCR would cause a backlash because “the majority of voters will not be helped by the legislation” because it would “it will raise taxes AND premiums for most people.” Every independent analysis I have seen, including CBO's, shows people having better health care with lower premiums. The only exception is CBO's projected higher premiums for the individual market because people choose to purchase more luxurious plans.
I'll agree that there aren't enough in the way of serious attempts at cost control (the Cadillac tax, by discouraging overly generous health plans, is a start, and exchanges that encourage competition helps too), but every serious analysis shows that the net result is nonetheless lower health care costs. I don't know about you, but on this issue I'm going to trust the independent analysts at CBO and elsewhere who spend their lives analyzing health care policy over what some politicians on the Hill and in the media are saying.
So the evaluation that there will be a backlash from passing the bill under majority-rules because it would negatively affect most people seems to be completely wrong to me precisely because it would positively affect most people, even the people who are opposing it. You could make the same claims about Medicare, but in retrospect that's not what happened, and the program became wildly popular. You could have made the same claims about Part D, and even there the independent analysts (including CBO) vastly overestimated the costs of the program. Given this context, it would not be surprising if the same thing happens with this bill, which is a lot less ambitious than Medicare ever was.
Gatlin,
Allow me to disagree. Most people are in employer provided plans where there will be no direct effect of this bill. In the individual market, prices will go up (according to both CBO and the Medicare trustees) and average quality of coverage will go up. This is probably OK if you can't get coverage today and probably not ok if you can't.
At the same time, taxes will go up on a bunch of things. To me, most will not be affected but may think they are…they will now start blaming premium increases (which are going to happen anyway) on HCR and the government. To me, it's a losing proposition.
On cost control, you are being too nice by half. The Cadillac tax has been gutted (applies at a ridiculous level and only in 2018) and the exchanges will actually raise costs for some by disallowing certain plans as being below the minimum threshold.
As I said above, CBO basically argues no impact on prices in the group market from the baseline and a 10 to 13 percent in the individual market. The problem is the baseline is pretty substantial increases so, as I said, as a matter of politics, the bill is a loser in terms of the perception that will be created about whether it helps or hurts.
On the cost of the bill, I'll bet you a pizza that the costs have been underestimated.
“I think the Dems are in a tough spot”
They are in a tough spot, and getting increasingly desperate, as well as likely risking nearly everything on passage of health care legislation. They're not only pressed by the far Left who actually believes that the Dems' problem is from not going left enough (they're the ones often most lacking in scruples about misusing the reconciliation device), but they're starting to lose (whether from concerns or apathy that is already a concern about the farther left, at election time, not just dissatisfaction that is more vibrant and vocal, and building) among their more moderate elements, due to “ineffectiveness” more than concern about more poor legislation (at least, not yet). They'll probably force things to proceed (advance) via reconciliation, because consider the results they face if they fail to advance.
On the other hand, the GOP now benefits even more from resistance. Resisting bad legislation is credible, the worse the legislation is; they're characterized as “the opposition” and have nothing to gain themselves, just by default, if the Dems break through their (the GOP's) opposition. (It's by default due to misuse of reconciliation and due to any poor legislation that is passed.)
I'm still waiting to see [mis]use of reconciliation (expected) in addition to a bad Dem bill, and then see what the GOP does, if it has any idea for doing anything. Then we have to await the next bad Dem bill…