Truth and Reconciliation: Sidestepping the Filibuster

Editor’s Note: After a year of trying to pass health care reform, an effort highlighted by the Blair House summit on February 25, President Obama and Democratic leaders are building a case for using the Senate reconciliation process to push through legislation. Under reconciliation, bills cannot be filibustered and can thus pass the Senate by majority vote. In this article published last year, Thomas Mann, Molly Reynolds and AEI’s Norm Ornstein analyzed how reconciliation has been used to pass landmark legislation.

“Reconciliation” means “restoration of harmony.” But as a term of art in budgeting, it has become an act of war. President Obama and most Democrats in Congress hope to include health and education reform in reconciliation instructions as part of the budget process. No mystery why. The sixty vote hurdle in the Senate of the filibuster could scotch these central components of their agenda via united Republican opposition. Bills considered under reconciliation cannot be filibustered and can therefore pass the Senate by majority vote. Republicans are outraged by what they argue is an egregious partisan power grab, one that tramples on Senate rules and norms permitting extended debate and amendment.

What is the precedent for using reconciliation to enact major policy changes? Much more extensive than the architects of the Congressional Budget and Impoundment Control Act of 1974 had in mind-or than Senate Republicans are willing to admit these days. Reconciliation was designed as a narrow procedure to bring revenue and direct spending under existing laws into conformity with the levels set in the annual budget resolution. It was used initially to cut the budget deficit by increasing revenues or decreasing spending but in more recent years its primary purpose has been to reduce taxes. Twenty-two reconciliation bills were passed between 1980 and 2008, although three (written by Republican majorities in Congress) were vetoed by President Clinton and never became law.

Whether reducing or increasing deficits, many of the reconciliation bills made major changes in policy. Health insurance portability (COBRA), nursing home standards, expanded Medicaid eligibility, increases in the earned income tax credit, welfare reform, the state Children’s Health Insurance Program, major tax cuts and student aid reform were all enacted under reconciliation procedures. Health reform 2009 style would be the most ambitious use of reconciliation but it fits a pattern used over three decades by both parties to avoid the strictures of Senate filibusters.

To be sure, there is a price beyond the political one for using reconciliation. Elements in bills that are not strictly designed to have a budget impact can be removed on points of order, leaving comprehensive bills less than comprehensive. And the time frame for reconciliation bills is at most ten years, after which they expire unless explicitly renewed (the problem, of course, with the Bush tax cuts.)

The best path would be to have reconciliation as an implicit or explicit threat: if Democrats can employ it to accomplish the policy goal with only a simple majority, Republicans may be persuaded to abandon efforts to use their 41 votes to just say no and instead engage the majority constructively to find common ground. But if that is not feasible, it is perfectly reasonable for Democrats to use the process for health care reform that both parties have used regularly for other major initiatives. The result might be more piecemeal and imperfect, but it would be better than the alternative of no bill at all.