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 @

KATHY GILL, Technology Policy Analyst
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Copyright 2009 The Moderate Voice
  • elrod

    I wonder if this is just a bargaining tactic, honestly. I don’t see Harry Reid ever going that route.

    I also don’t think it would be necessary. In a few weeks Al Franken will be the 59th Senator. Since Ben Nelson and Joe Lieberman back Obama on energy and health care, for the most part, all Obama needs is Snowe, Collins or Specter. I doubt he’ll have much trouble.

  • Republicans are the last people to be whining about procedural moves after all the crap they pulled when they were in the majority. Like Republican committee chairman James Sensenbrenner who closed down debate on the “Patriot” Act by shutting off Democrats’ microphones, walking off the podium, and turning the lights off in the hearing room. Or Republican Ways and Means Committee chairman Bill Thompson who actually called the Capitol police to have the Democrats ejected from a hearing room for trying to get time to read a biil the GOP leadership was trying to shove down their throats. And who can forget the snide and condescending statement by Rules Committee chairman David Dreier that the “Democrats are just crying because they’re losing on policy debates about job creation”?

    Don’t come crying to me about “bipartisanship,” especially since for the last eight years, the Republicans have defined the word to mean “do everything we want, even though we’re in the minority.” You sowed the wind, you reap the whirlwind.

  • CStanley

    Good post, Kathy- thank you for bringing this to people’s attention.

  • Hi, Elrod & JD —

    Floating the idea of limiting debate on significant policy decisions should be opposed as vigorously by Ds as by Rs.

    Complaining that “Bobby hit me first” — the rhetorical equivalent of whining about GOP behavior while they controlled Congress — is logically flawed and morally repugnant, IMO. You can’t “stop the dance” by mirroring behavior — you have to change behavior.

  • jaungalt

    republican/democrat – the stench is the same, it’s just blowing in from a different direction

  • GeorgeSorwell

    Judging the other side morally repugnant never goes out of style.

  • GeorgeSorwell

    I know you’re new and I’m sure you’re doing the best you can. But there are some questionable things about this post.

    First, it was widely reported that Obama’s “I won” comment was a joke, for goodness’ sake. Even Fox News reported it as such!! At the time, one of your TMV colleagues, Pete Abel, provided a number of links and quotes, including one from Eric Cantor saying, “There was no disrespect”. It’s possible you remember this differently, but your version doesn’t seem aligned with what really happened.

    You provided a link to RTT News claiming the President’s press secretary claimed a mandate. I do not see that in the story. What I see is the RTT writer using the word mandate. As for Gibbs, he is talking accurately about Obama’s promises on tax rates. He’s not talking about some nuclear option on the budget. The story does not provide much in the way of support for anything you claim.

    In fact, recent polling shows the stimulus package is pretty popular, with a 59% approval rating. Obama’s own approval rating last week was at 67%. (Both polls form Gallup.) I’m not sure how much popularity is required to suggest a mandate, but the results of the last election aren’t the end of the story. Obama will be judged by his performance, as George W. Bush was judged by his performance. Bush’s lack of mandate resulted from his post-reelection unpopularity. In 2000 Bush didn’t even win the popular vote, but after 9-11 he certainly had an enormous mandate, which he gradually squandered.

    By the way, you may not like the budget reconciliation process that was codified in 1974, but it’s been on the books for 35 years. It’s not some new rule Obama just made up. Right?

    Everyone knows there are sizable economic problems in this country–in the world. I’m not a fan of changing the rules as they are. But I don’t see why a 40% of the Senators should be able to stop the budget process. And I don’t see the Republicans doing anything
    but obstructing. Republicans should be negotiating. They should be calling for specific spending cuts. They should be looking to fund the increases in spending they created while they ran the government. They’re not being serious. They’re not being bipartisan.

    As I said, I’m not in favor of changing the rules.

    But I’m even less in favor of doing nothing.

    And even less in favor of one-sided spin.

  • Hi, George – I may be new at TMV but I’m not new to politics, blogging or political blogging. Various Ds have positioned the Obama win as a mandate — and neither you nor I will ever know how “jokingly” the “I won” quote was, because we weren’t there. But your FOX reference isn’t as cut-and-dried as your summary:

    Democrats called it a light-hearted moment that drew laughs around the table. Republicans said there was laughter but couldn’t recall if any of it came from their ranks.

    The polling on the stimulus reflects how the questions are worded. At the moment, Obama still has honeymoon ratings from the general public — so what? What does that have to do with twisting the reconciliation process? It was NOT devised to expand government or expand spending — it was devised to CUT spending. But if Obama’s OMB director’s trial balloon becomes their strategy, they would be perverting the process.

    I am not talking about “stopping the budget process.” The budget cannot be filibustered.

    Obama’s Administration is talking about using the budget process to get legislation passed without debate — to “slip it under the rug” so to speak. In other words, to legislate by budget, when budgets are supposed to implement legislation. If that wasn’t clear in the article, then I didn’t do my job well.

  • GeorgeSorwell

    My complaint isn’t that you don’t have a reasonable point, even if I disagree. I’m not even sure how much I disagree. My complaint is that you exaggerated, ruining what could have been a reasonable point.

    As to the Fox News report, I also referenced a post by Pete Abel, and provided a quote from someone who was there, Eric Cantor: “There was no disrespect”. Again, my point is that you’re exaggerating when you describe Obama making the I won argument. (Although it is, in fact true that Obama won and Democrats improved their numbers in both houses of Congress.) You said in your follow-up that neither you nor I can know what happened. True enough–so if you can’t know what happened, why use it to make your argument?

    And, you know, I agree that “some D’s” want to claim a mandate. Some don’t. Gibbs didn’t. At least nothing I’ve read indicates that he did -certainly not that article you linked. Your claim of a claim of a mandate is exaggerated.

    The wording of a question can have some effect on the results of the polling. It’s a pretty old trick to do that. Still, I don’t see why Gallup would want to slant results on this issue–I’d expect them to care about their credibility over the long-run. But since you feel polIs have problems no matter what, I guess you’ll never use polling data to support any point you want to make. Fair enough.

    It’s possible that some things will be hidden in the budget. Bridges to nowhere and such. It seems to me that the Republican unwillingness to engage seriously in the budget debate makes this more likely than less likely. I could be wrong.

    But Democrats are in the majority. That means they get to be in charge of the process. And as I recall, Republicans didn’t have any problem spending with no concern for revenue when they were in the majority. So I’m not sure why Republicans deserve to have automatic credibility on this.

    And judging the other side morally repugnant never goes out of style.

  • prsteve11

    Barack Obama is one of the most arrogant politicians I have ever seen. The GOP (and some more enlightened Dems) better keep their wits about them. This is going to be a rough few years.