The reconciliation option explained, again
On his blog at The New Republic, Jonathan Chait keeps trying to explain what the Democrats are actually proposing to do to pass health-care reform. Once more, for the record:
Now their plan is to have the House pass the Senate bill, and then use reconciliation to patch up the bill. That means enacting a handful of relatively modest changes to the Senate bill, changes that would be budget related. This would not be some unprecedented use of reconciliation. As uses of reconciliation go, it would actually be quite minor, applying small changes to a health care bill that’s already been passed.
Last week David Gibson called attention to reporting at NPR about past occasions when the reconciliation process has been used on issues related to health care. Valuable for putting the discussion in perspective. But before the conversation can absorb that level of detail, it has to begin with a basic understanding of what is actually being proposed.
The GOP has been working hard to obscure that understanding. For example, John McCain, in last week’s “health-care reform summit,” was willing to feign moral outrage at the suggestion that the Democrats are considering resorting to Trent Lott’s “nuclear option,” although he knows perfectly well that’s not the case. Why? Because the GOP does not want Obama and the Democrats to succeed in passing health-care reform. This is not advanced political theory; it’s basic common sense. But rather than just saying “We want Obama to fail,” Limbaugh-style, they have to finesse it into something that sounds noble, like “We are standing firm against legislative abuse.” It’s understandable that they would be taking this approach. But there’s really no excuse for reporters to be confused by it. Their job is to know what’s actually true and explain it to their audience. Right?
Yet Chait’s most recent post on the subject was occasioned by an article at Politico that gets the “reconciliation” question wrong, again — and that in an attempt to summarize a conversation on television devoted to explaining exactly what they’re wrong about. Fact-checking is not Politico’s strength, but when they even get their stenography wrong, you have to wonder what exactly their strengths might be.
Update: The Columbia Journalism Review “Campaign Desk” blog takes note of Politico’s lousy reporting. They observe that Time’s Mark Halperin passed on Politico’s distortion — Sen. Conrad was trying to explain that “passing the whole bill” via reconciliation wasn’t on the table; their reports suggested that he was personally rejecting the idea. Greg Marx of CJR explains:
Whether “comprehensive health care reform” can be passed through reconciliation is at the moment an academic debate, because both houses of Congress have already passed comprehensive reform.
More at NPR today about reconciliation – a process GOP used in the past, but not frequently.
The real question is how wil the public jusge heatlth care reform that’s truly needed?
And yet Sen Byrd says -
“I oppose using the budget reconciliation process to pass health care reform and climate change legislation…. As one of the authors of the reconciliation process, I can tell you that the ironclad parliamentary procedures it authorizes were never intended for this purpose.”
And he’s right – it never was intended for this purpose. But this shouldn’t surprise us. Whether it’s the constitution or a parliamentary procedure, liberals will ignore the actual words and purpose to get what they want.
As for the GOP did it argument – They never once did it to get around the universal opposition of the minority party – not once. The supposed example most cited as relevant, COBRA, was nothing like this. First, it was a bipartisan bill. Second, it really was a budget bill – the health care reforms had to do with the tax laws on health insurance.
Not one example of reconcilliation is remotely like what the dems are proposing. They are quickly proving themselves unable to effectively govern, even with a near free hand.
Senator Byrd (or, rather, his staff) has political reasons for saying things too. Everybody in Washington does. That’s why the crucial question is: Can the House Democrats convince enough of their colleagues that voting for this bill is in their own personal political interests? The “universal opposition of the minority party” is also a political reality. There’s nothing sacred about it.
I believe I saw that Pelosi is saying that she has the votes to pass the Senate bill.
[the Dems] are quickly proving themselves unable to effectively govern, even with a near free hand.
I am quite surprised to agree with Sean, since I rarely do.The Democrats need to pass the bill, despite all the Republican obstructions that keep them from governing.
If I understand the process correctly, there are two distinct opportunities for reconciliation. The first would be if the House and Senate tried to reconcile the differences between the bills each passed last year. (H1 and S1) That is not going to happen.
The second opportunity for reconciliation would happen if the House were to now pass a bill that is very similar to the Senate version.(H2) That bill could then be reconciled with the Senate version passed last year.(H2 and S1) I do not know the intricacies of the Senate rules, but I do not see why this could be filibustered, given that the Senate has already passed the underlying bill.
The media should be able to distinguish between these two processes, but then the Republicans seem unable to tell the difference. Do the Republicans have no idea how the legislative process works? Maybe that is why “Washington can’t govern”.
Ten minutes after the bill passes with in the reconciliation process [which makes it legal] no one but die-hards will care about die-hard uproar. Get it done Dems and come November only die-hards will still be squawking.
Mollie
That’s just the latest quote from Byrd. He opposed it the first time it was suggested – before the climate change legislation became another reconcilliation issue. Besides, does the fact that he has political reasons make him wrong? If politics makes his logic suspect – despite the fact that he wrote the rule – how much more those who want to use it in a novel way and had nothing to do with writing it?
Jim,
I can just see some in the GOP saying – throw me in that briar patch. I somehow think a Let’s ram this through and hope the dummies forget before November strategy is not an electoral winner. Maybe your right, and people will be more willing to vote for an imperious party than an incompetent one. I think they are in a lose lose situation. The only question is which choice, if any, makes them lose less?
And why are we blaming the GOP? They are in the weakest political position they have been since 1974 – which by the way when the Dems came up with the reconcilliation process. For one year the democrats have had a freeer hand than the GOP has had since the 19th century and they still can’t get anything done, and what they do get done just antagonizes the voters.
It seems the dems need an Emmanuel Goldstein to get any political traction.
If the Democrats use reconciliation as an entirely partisan means to enact a bill that is not only huge in scope, but opposed by a large portion of the American public in numerous polls, two things will result: (1) an even worse disaster for the Democrats in Congress this November (this will not be forgotten in eight months) and (2) ceding the moral high ground for eventual Republican repeal of the entire bill, which will be depicted as illegitimate due to the abuse of the reconciliation process.
This is not to say the polls are an accurate reflection of the American people’s concern, or that reconciliation is necessarily abused in this case. I’m just making a non-partisan, “political reality” point. Surely the more effective long term approach for those who are serious about healthcare reform is to move piecemeal on individual problems, as the House has already done in passing a bill removing the anti-trust exemption for health insurers.
But Sean, your take begs the question that this is, in fact, an improper usage of the reconciliation option. So we’re going around in circles. And in fact Byrd didn’t create the reconciliation option; he wrote a limitation on it, which is now known as the “Byrd Rule.”
Mike, your version of political reality strikes me as unrealistic. No one denies that what happens with health-care (among other realities, particularly the economy) will have repercussions come election time. That reality is precisely what will motivate individual Democrats to vote one way or the other. The assumption that people will generally vote against rather than for Democratic candidates who help pass reform is, I think, not a sound one. Democrats ran on this platform in the first place, remember. It’s my impression that the people warning the voters will revolt are the people who would never consider voting Democrat in the first place.
“It’s my impression that the people warning the voters will revolt are the people who would never consider voting Democrat in the first place.”
But it was Scott Brown who campaigned on being the “41st vote against ObamaCare”…and the Senate seat of Ted Kennedy went to a Republican. Now, that result might have been primarily due to independents voting for Brown, but nevertheless it’s true: if opposition to ObamaCare can win an election in Massachusetts, it can win an election anywhere. Those politicians who discount the Brown victory as an anomaly are hiding their heads in the sand, I think. And if mere opposition to ObamaCare can win an election even in a liberal bastion, that dynamic should increase in a post-reconciliation election, where the animus resulting from the bill being forced into passage by parliamentary maneuver will be even more pronounced.
where the animus resulting from the bill being forced into passage by parliamentary maneuver will be even more pronounced.
The whole point of my post is that this is not what is being proposed.
(As for the “Democrats will lose votes” thing, Chait just addressed that too.)
P.S. Everybody: Hendrik Hertzberg is having a very lucid live discussion about health care on the New Yorker Web site right now.
http://www.newyorker.com/online/blogs/ask/2010/03/questions-for-hertzberg.html
There’s nothing illegitimate about using reconciliation, says former Senate parliamentarian (at various times between 1980 and 2001) Robert Dove:
http://tpmdc.talkingpointsmemo.com/2010/03/former-senate-parliamentarian-i-would-never-use-the-term-illegitimate-with-regard-to-reconciliation.php?ref=fpblg
Mollie
Yes he wrote that limitation in 1985 AND he was one of the original drafters in 1974 when he was the Senate Majority Whip. I don’t like the guy, but he knows of which he speaks when it comes to the rules of the Senate.
As for going around in circles, if reconcilliation is available for anything that the majority says it is, then all the other rules regarding unlimited debate in the senate don’t mean anything. It is the interpretation that expands the process that must be justified – not the other way around.
Grant
It is not the size of the bill but the nature of it that matters. COBRA, for example, was a budget bill. It was a big budget bill, but it was a budget bill. This bill will establish new entitlements and new federal boards and agencies. It will enable future regulations on the content of health insurance. In short, it is not a tax and budget bill. Remember – it’s not just reconcilliation it’s BUDGET reconcilliation.
Let’s see how the dems feel about this kind of maneuver if they lose the majority.
It amuses me to see Republicans warning what a disaster it would be for Democrats to “ram through” health care reform using reconciliation. Nothing would please Republicans more than a disaster for the Democrats. Why should anyone take their warnings seriously?
By now everyone has heard the pundits explaining that polls show (a) that Americans oppose the bill and (b) that Americans like what is in the bill. So which “American people” are you betraying by passing the bill — the majority who say they oppose it, or the majority who like what’s in it? On This Week yesterday, Cokie Roberts (and others) were of the opinion that it’s not how the bill gets passed that will determine whether the American people feel about health care reform. It’s how they react to what the bill does. I think this is true. It is not the job of senators and congressional representatives to vote according to polls, in any case.
Someone pointed out — and it’s easy to forget this — that the House bill and the Senate bill have both already passed. The work that is left to be done is to iron out the differences between the House and the Senate versions. If the legislation was really that horrible, why did the American people stand by and let it pass in the House and Senate?
I think the moment things went totally off track was when Dennis Hastert killed whatever remnants remained of Republican belief in bipartisanship as Speaker of the House:
Sean –
Yes, passing a law using budget reconciliation makes mince-meat of some basic rules. But the 60 vote requirement to over-come a filibuster needs to be made mince-meatn. The Constitution we all know and love says a majority shall pas a law. Granted, it is wise to require somewhat more than a majority when a truly revolutionary bill is being voted on. But I say 55 votes should be the maximum needed to break a filibuster. Otherwise we have stalemate by the minority which is unconstitutional. Cross James Madison at your peril.
Sean — Here, again, is Chait, explaining why it’s not inappropriate to use “BUDGET reconciliation” in the manner now under consideration (and Ann is correct in noting that the whole point of the reconciliation process is for there to be a corrective to the filibuster — the original abuse, which nobody in the GOP seems upset about at the moment):
Not to mention exactly the kinds of policies that the GOP has been pointing to as examples of why they can’t support the Senate Bill.
Whether it’s the constitution or a parliamentary procedure, liberals will ignore the actual words and purpose to get what they want.
Sean,
Much as I disagree with conservatives, I at least try to refrain from the conclusion that conservatives are bad and liberals are good. You have just made a rather sweeping pronouncement that liberals will ignore the constitution to get what they want. Is your judgment really that we have two philosophical viewpoints in the United States, and that conservative respect the constitution and liberals don’t?
As Paul Krugman pointed out yesterday on This Week, when the Republicans got rulings from the House Parliamentarian that they didn’t like in 2001, they fired him:
Yes, liberals will do anything to get their way.
“Cross James Madison at your peril.”
I think we crossed him on 2 Feb 1913 and have never looked back.
“I somehow think a Let’s ram this through and hope the dummies forget before November strategy is not an electoral winner. Maybe your right, and people will be more willing to vote for an imperious party than an incompetent one. ”
The voters who will decide the November elections do not generally care about these procedural matters I reckon. Without having the benefit of the text of the final bill, I think however based on the text of the existing Senate bill, there are not many net undecided voters who will be affected enough in a material way to influence their votes come November.
MAT –
What befell us on 2-2-13 ? Income tax? Tariffs? Anti-trust laws?
One of these days I’d really like a thread or two with the conservatives on the list telling us what makes them so afraid of government. Yes, I know James Madison didn’t have a very rosy picture of human nature, but he didn’t despair of it either.
David
“I at least try to refrain from the conclusion that conservatives are bad and liberals are good.”
Really? I will remember that one.
I am not saying liberals, more commonly called progressives, are bad people, I am saying they support an approach to the law and to process that is destructive. They tend to be consequentialists more than conservatives do. That’s not to say the conservatives never behave that way, just that they are much less likely to do it. A progressive is more likely to abandon or go around an established process or rule to get the result or consequence he wants or thinks is just. I don’t think I am going out on a limb saying this – there are many liberal activists who will admit this.
As for the paliamentarian – if you look at the disagreements, they were over whether budget matters could be considered under budget reconcilliation. Also, most of what I read was that he resigned, not that he was removed. Besides – he has recently said himself that the process should never be used to implement complex policy measures.
Ann,
Where to begin?!? First, most government power is exercised for what people see at the time as good reasons. When you look at even the most disasterous government models – e.g. the Soviet Union – they don’t start from a position of “let’s do something evil.” It always starts from positive motives, the problem is that it almost never ends that way. And this isn’t just about human nature, I am positive about human nature, but human nature and human behavior changes based on the circumstances. I may think my neighbor is a fine fellow, but that doesn’t mean I want him to have the power to seize my property and trust in his good moral sense.
A progressive is more likely to abandon or go around an established process or rule to get the result or consequence he wants or thinks is just.
I will be keeping this in mind as I continue to read the OPR report and reread the related documents. Just imagine how much worse things might have been if the OLC had been filled with progressives during the Bush administration!
I have to say, I don’t think the basic point of this post — that the GOP’s complaints about the use of reconciliation on the health-care bill are generally motivated by something other than informed respect for the procedures of Congress — has been refuted in the course of this exchange.
Update: Greg Marx of CJR has a good writeup of this whole thing — where Politico screwed up, and why it matters. I updated the post with links.
Bottom line: passing the Senate bill by reconciliation will not allow for strengthening prohibitions against using our tax money to subsidize abortion (a la Stupak Amendment). The Senate bill which is pending passage by the House under reconciliation, as USCCB has made clear, is unacceptable because of its taxpayer subsidy of abortion. Abortion is not healthcare, and a faithful Catholic (even though seeing the need for true healthcare reform) cannot support passage of the Senate bill – given the inability of reconciliation to mitigate the subsidy of abortion.
Mollie
There you go again – while someone’s motivation for a position is a relevant issue, it never resolves the question of whether he or she is correct or not.
I am not saying that the GOP has no purely political motives. Of course they do, but that doesn’t make them wrong any more than the dems motivation makes them wrong.
And as for Chait’s assertion that this would not be an unprecedented use of reconcilliation is just downright false. Never before has reconcilliation been used as a means to pass major non-budgetary policy to avoid the Senate’s unlimited debate rules. That is a fact. The most cited example to show this is “no big deal” is COBRA. COBRA passed the senate 93-6 when is was reported to the house. To the extent there was health care policy involved it was tied to the tax code. No one was trying to thwart the other side – there was no other side.
Even the so-called abuse by Bush to get the tax cuts passed was not done in a situation where without the reconcilliation the cuts wouldn’t have passed. It was never under fillibuster threat and 12 democrats voted for it.
The president is fond of saying elections have consequences – OK live up to that. I voted in an election in Massachusetts – don’t change the rules of the game because you don’t like the result.
Sean, there was no election in Massachusetts to determine whether the House should pass the health-care-reform bill that had already passed the Senate. If you thought that’s what you were voting on, you were misled. Sorry. But moving forward with a bill that has already been passed is not “changing the rules,” and saying so does not make it so.
Because the Republicans have a 41 vote filibuster, the Stupak amendment is dead. In fact, all of the House health care legislation passed in the fall is dead, except to the extent that it is the basis for the bill that passed the Senate. The only way that health care can be passed at this point is if the House passes the Senate bill, meaning the House will have to pass a major overhaul of health care twice in one session.
When that agreement is established, the agreed upon bill will be reconciled with the Budget passed separately, allowing items that affect the budget to be changed. Agreement on this reconciliation will be a major factor in influencing some to support the passage of the Senate bill in the House, which is why it is being discussed now. But Health Care reform will not be passed through the Budget reconciliation process.
Apparently nothing new will pass in the Senate, so the House has to pass the Senate legislation. IOW the Republicans are keeping the Stupak amendment from being incorporated into the final bill. Policy decisions on subjects like abortion will not be changed from what the Senate passed, unless some senate Republican(s) will vote for a revised health care bill.
The choice now is the Senate bill, which limits abortion coverage to supplemental insurance sold with other insurance offered through government exchanges. Or we can opt for no health care reform, so that insurance companies can continue to offer abortion coverage at their discretion. But Stupak’s policy is simply not an option with the current bill.
Mollie
If the House passes the Senate version unchanged and leaves it that way – you are right, I have no right to complain. But that’s not what they are talking about doing. If they were, reconcilliation would be irrelevant because there’s nothing to reconcile.
I guess we will have to wait. I am betting enough House dems will refuse to commit political suicide that this will end the bill. Obviously Obama thinks so too or he wouldn’t be announcing an “alternative.”
I have no ideological problems with government addressing social needs.
But it’s useful to remember that the current bill, even if it all works as promised and passes tomorrow in a spirit of universal love and accord between parties, will not kick in in earnest for about five years.
Hillary’s stunning failure on the health care front showed that a) universal health care will not fly, and b) neither will any kind of great big overhaul of the health care system.
There are smaller, more modest steps that could be taken to help people right today. Some of these ideas have surfaced in the past, but couldn’t snare enough interest (e.g., tax rebates for medical spending, access to cheap policies for children instead of getting kids covered only as riders on adult policies that are unaffordable, and blah blah blah).
But the Democratic Party is busy positioning itself as the Party of Those Who Help People with Big Ideas (As Long as Nobody Diddles with the Right to an Abortion) and the GOP as the Party That Holds the Line on Spending (After We Waste Billions of Dollars and Thousands of Lives on Doomed Military Incursions).
I’m disgusted with both of them.
Responding to some earlier posts.
David,
You say “It amuses me to see Republicans warning what a disaster it would be for Democrats to “ram through” health care reform using reconciliation. Nothing would please Republicans more than a disaster for the Democrats. Why should anyone take their warnings seriously?”
Ah, so my warnings are merely a subterfuge concealing my true feelings that the health reform measure will result in health care nirvana, and I don’t want the Dems to get credit for it? My observations about it being a disaster are that a) it will be a disater for the country, b) that doing it this way will be a disaster for the legitimacy of the the institutions involved, and c) a disaster for the Dems – but they are in for a disaster regardless of what they do – so that’s just an observation not a hope or a warning.
My bottom line on health care has always been this. Any reform has to balance and account for three things – affordability, access, and quality. The problem is not health care, but health care financing. The key to any reform is to control costs. For those worried about access, 40 years ago a large part of the population had no access to televisions, now television ownership is virtually universal. Affordability goes a long way to resolving access just on its own.
There are two models that achieve affordability, access, and quality in different ways.
The first, a single payer approach, wiill do better on access in the short run certainly, and probably in the long run. It will do badly on affordability in one sense and well in another. In the sense of getting good basic affordable health care, probably very well. In the sense of getting the most health care for the dollar, not as much. It will acheive affordability through market control, and while market control will help you drive down costs, competition is what drives efficiency. Finally, on quality, choice and competition drive quality more effectively – that’s not a strength of a single payer system.
The second, is one that relies on market forces. But any market reform has to have at its center mechanisms that promote decision making and choice at the point of consumption – the patient. The obvious weakness of this approach is accessability in the short run. It would have to rely on efficiencies created by competition to improve accessability in the longer run. Also, it will likely be more painful in the short run.
The problem with our current system is that it is neither fish nor fowll, and the current bill just makes matters worse. I have not heard anyone claim that it will make for a more efficient and cost effective health care delivery system. This leads my to conclude that most of those who support it do so not to acheive much more than a political victory, and more importantly to get a foot in the door for a single payer system.
All I want is an honest discussion. If you want a system that is or leads to single payer – say so and let’s have the debate.
Ann,
Your point about the filibuster rules is a fine one, but that an argument to change the rule, not to ignore it. Like I said, a typical liberal attitude – I don’t like that rule, it doesn’t acheive a “just” result, but it will be too hard to change, so I’ll ignore it or interpret my way around it.
Sean — as long as you are repeating this baloney about “a typical liberal attitude” you are going to have serious trouble convincing anybody that you just want “an honest discussion.” Me especially.
I think the topic of reconciliation as it applies to this bill has been pretty well exhausted, so I’m closing comments.
[UPDATE: For posterity's sake, I will add that -- surprise! -- Robert Byrd actually didn't object to the proposed use of reconciliation under discussion here. That was a lie. And he (or his ghostwriter) had some pretty harsh words for the people who were claiming he did!]