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Posted by on Mar 2, 2009 in Politics | 10 comments

Obama Team Floats Controversial Procedural Move

It’s the opposite of bi-partisanship, a key element in the rhetorical formula of the Obama presidential campaign.

“It” is using the budget reconciliation process to “pass” controversial legislation by slipping it into the filibuster-proof process. And President Obama’s OMB Director, Peter Orswag, suggested Sunday that getting controversial legislation passed “this year” is so important that the means doesn’t matter.

He’s wrong.

He’s wrong because the budget reconciliation process was codified in 1974 “as a deficit-reduction tool, to force committees to produce spending cuts or tax increases called for in the budget resolution.” It was not designed as a way to circumvent policy debate or expand spending.

He’s wrong because the budget process should be used to manage federal expenditures for programs that have been enacted by Congress. It’s bad enough that enabling legislation runs hundreds of pages and that there is no requirement of nexus (relevance). The budget is not the place to shoehorn policy changes that should be the subject of their own enabling legislation.

And he’s wrong because winning 52 percent of the popular vote is not a mandate, in the political sense of the word, regardless of how the press secretary spins it. George Bush won with 51 percent of the vote in 2004 and was derided by Democrats when he talked about a mandate. With the shoe on the other foot, in January President Obama used the “I won” argument with Republicans when he was pushing his economic stimulus package. The mandate claim wasn’t valid in 2005, and it’s not valid in 2009.

The reason Obama’s team is floating this idea is that budget reconciliation bills are not subject to filibuster. Thus, in the Senate, only 50 votes are needed for passage, not the 60 required to end a filibuster and force a vote.

If Democratic leadership pursues this ill-advised plan, moderates do have an out. The out is a constraint on reconciliation that is called the “Byrd rule.” Named after Senator Robert Byrd (D-WV), the constraint means that if a Senator believes that a provision of the reconciliation bill is “extraneous” it may be subject to a point of order. After the Byrd Rule is invoked, at least 60 Senators must vote to waive the Byrd rule.

According to the Center on Budget and Policy Priorities, the Byrd Rule makes it difficult “to include any policy changes in the reconciliation bill unless they have direct fiscal implications.” The Byrd Rule prohibits changes to civil rights, employment law, and Social Security.

The more things change, the more they stay the same.

Four years ago, Democrats were grousing about a Republican threat to use the “nuclear option” to end filibuster of judicial nominees. The Senate filibuster is the main tool that the minority party has to effect legislation. In 2005, a bi-partisan group of 14 centrist Senators stepped in and defused fear of going nuclear.

It’s 2009: will moderate Democratic Senators condone the kind of chicanery embodied in using budget reconciliation to expand, rather than constrain, the size of the federal government? Will they buck their own party, like a handful of Republican Senators did in 2005? Or will they let the Obama bulldozer run them over?

This article first appeared at US Politics @ About.com

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