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Political Strategy for a Permanent Democratic Majority

Unreconciled: The Dangers of the Growing Demand for Using Reconciliation To Enact Health Reform

This item is cross-posted from the Progressive Policy Institute site.
The long-running campaign to make inclusion of a “public option” a progressive litmus test for Democrats on health care reform has entered a new and potentially dangerous phase: growing demands that congressional Democrats use the budget “reconciliation” procedure to avoid a Senate filibuster and lower the effective threshold for enactment of a bill to 50 votes.
As Brian Buetler explains at TalkingPointsMemo, two major new grassroots initiatives–one sponsored by Democracy for America (and headed up by Howard Dean) and another by a new group called CREDO Action–are asserting that reconciliation can easily be used for health reform. The clear implication is that any failure to go this route is proof of Democratic irresolution if not betrayal.
The temptation to insist on the reconciliation route is certainly understandable. Aside from making enactment of a bill by the Senate much easier, reconciliation, if successfully pursued, might make Republicans irrelevant to the process, while vastly reducing the influence of those Democrats who are obdurately opposed to the public option. It could also narrow the gap between House and Senate bills, which currently makes approval in either House of the ultimate conference committee report a difficult challenge.
But unfortunately, use of reconciliation isn’t the no-brainer it’s sometimes made out to be.
There are two major risks to the use of reconciliation which have nothing to do with fear of Republican shrieks about “cramming through a bill” or with fading hopes of bipartisanship.
The first involves the arcane budget provision called “the Byrd Rule,” which creates a point of order in the Senate against material in reconciliation bills that is not germane to budgeting. If the Senate parliamentarian (to whom the chair invariably defers on such matters) rules in favor of such a point of order–and Republicans will raise them constantly–it requires 60 votes to override such a ruling, which eliminates the entire advantage of taking this route to begin with. Nobody seems entirely confident that, say, creation of health care exchanges would be judged as germane.
The second problem is that it’s almost impossible to enact permanent changes in law via reconciliation; provisions can only operate within limited-time “windows.” This problem is best illustrated by the consequences of the GOP decision to enact the big Bush administration tax cuts via reconciliation. The “limited window” requirements of the Budget Act explains why there is still a federal estate tax, even though Congress voted in 2001 to phase it out; and why the remainder of the Bush tax cuts haven’t been made permanent. Creating an elaborate new system for health care on a temporary basis could be more than a little hazardous.
There’s a deeper problem, too, which is reflected in the evolution of the “Byrd Rule,” named after the famously imperious appropriator, the senior senator from West Virginia: non-Budget Committee senators in both parties naturally resist the routinization of reconciliation as a way to bypass the authorizing and appropriating committees. This isn’t a matter of party or ideology, but of institutional prerogatives that are zealously defended even by senators who might favor the kind of health reform legislation that reconciliation would be designed to enact.
It’s entirely possible that the potential payoff of using reconciliation is worth all the risks, particularly if hard-core Republican opposition to health reform makes it the only viable option, and/or if Democratic opponents of a public option refuse to vote for cloture to allow an up-or-down vote. But the key point right now is this: the decision isn’t easy, and the White House and congressional leaders may decide against reconciliation for reasons that should not expose them to angry charges of timidity or subservience to the health care industry.
UPDATE: The indispensible Jonathan Cohn has a post up at The New Republic on reconciliation and health care that makes a similar warning about its perils.

4 comments on “Unreconciled: The Dangers of the Growing Demand for Using Reconciliation To Enact Health Reform

  1. Mike Stagg on

    Reconciliation might not be the best solution, but politics is the art of the possible. Republican opposition to healthcare reform on any of the various bills that have been produced in the House and the Senate has been solid.
    Reconciliation is not just about Republicans, either. It is also about being able to wrest the issue out of the hands of those Democrats (including my own Senator Mary Landrieu) who confuse the interests of the insurance industry with those of their constituents.
    Reforming the behavior of the insurance industry (through the elimination of pre-existing conditions and recision) does nothing on the prime barrier to care — cost. The public option goes to the heart of that matter.
    Mandating coverage without that option is mandating a wealth transfer to insurance companies from the rest of us.
    As a Democrat, I believe our members of Congress need think more about the various constituencies that elected them rather than obsess over the sensitivities of their obstructionist colleagues or the poor, little insurance companies that deny folks access to care as a matter of business.

    Reply
  2. Derek on

    The 60 vote route is the only one they can use now, to stop the public option, which may explain the fear mongering on reconciliation. I still don’t understand why the centrists want to risk driving liberals out of the party, given the complete lack of support on the right.

    Reply
  3. pjcamp on

    Two points merit two responses.
    When Tom Delay didn’t like the Parliamentarian’s ruling, he got himself a new Parliamentarian. The Parliamentarian isn’t a deity, even a minor one.
    Once a health care system is established and running for 10 years, especially if it is a good one, it isn’t going away. Even a mediocre one that prevents denial of service or loss of coverage isn’t going away. They can’t even get rid of Medicare and this constituency is even larger. Once in place, the pressure to keep it in place would be irresistible.

    Reply
  4. gdb on

    I don’t recall agonizing debates about using the reconcilaiation process by Senate Republicans some years ago to pass tax cuts with less than 60 votes. Do Senate Democrats lack brains, cajones, or both???

    Reply

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