23 April 2009

On Reconciliation -- an Empty Threat?

The budget reconciliation process is the legislative mechanism by which many observers expect health care market reform to be handed down.  In short, the two houses of Congress have passed Obama's budget, but as always, there are some differences between the two chambers' bills as passed.  Representatives of the two houses will meet in conference committee to work out (or reconcile, ha ha!) the differences and present a unified bill to each house for a final approval.

Now in the modern Senate, the (bipartisan) over-use of the filibuster has resulted in a condition that it effectively takes 60 votes to get anything passed.  The Democrats currently have 58 votes, at best.   So the Senate versions of bills tend to be less progressive, more centrist/conservative than the bills from the House, in which the majority has unfettered control.  The final bill that comes out of the conference committee is not subject to amendments or cloture votes, and thus, immune from the filibuster, requires only 50 votes for final passage.   It is therefore tempting to use this to shift the bill away from the agreed-upon compromise in the Senate back towards the more ideologically driven House version.

The GOP used this trick a lot in the 2000-2006 era.  Routinely, compromises made in the Senate would be stripped out in conference, and the final bill that passed would be a lot more radically conservative than the original version.  A number of fairly controversial measures were passed (or attempted to be passed) under reconciliation instructions.   I'm kind of agnostic about parliamentary maneuvers in terms of moral value, right-or-wrong, but this is a great example of "do unto others."  It might not have been such a terrible thing if the GOP had eliminated the filibuster as they threatened to back in 2005, eh?

But I digress.   So now the House version of the budget contains instructions that health care market reform legislation shall be considered under reconciliation rules.  The Senate version does not.  What will come out of committee?   Most people think it'll be a "triggered reconciliation" in which, if a compromise has not been reached by August or so under the normal order, with a bipartisan 60+ votes, then reconciliation will be invoked.

The effect here is that of a threat to recalcitrant conservatives -- come to the table and agree to a compromise bill, or we'll steamroll you and pass our version of the bill over your objections.

Now to some progressives, this is music to our ears.  Finally, after years and years of bringing knives to the gun fights, our side will play some hardball for a change.  (Forgive the mixed metaphors, please.)  We'll use reconciliation, run roughshod over our ideological enemies, and actually, finally, get the big job done without making messy concessions.  Or, the threat of reconciliation will be so effective in changing the dynamics of the debate that the special interest groups will see the realities and make the compromises necessary for a palatable bipartisan bill.  Jonathan Cohn at TNR is one such optimist.

I hate to be a buzzkill, but reconciliation has some major drawbacks.

First of all, provisions passed under the reconciliation process are time-limited in nature.  After a certain period of time, they must be re-authorized.  I think it's ten years, but it could just be five.  That's bad but not fatal.   If universal health care were enacted under this provision, and was modestly successful, then it's pretty unlikely it would be killed down the road.  You never know who's going to be in power in a decade, so it's a serious risk to take.  The GOP has never really given up on trying to kill Social Security or Medicare, and a national health care plan would probably rank even higher on their hit list.

More concerning is the so-called "Byrd Rule."

Under this provision, Senators may raise a procedural objection to any provision of a bill brought up under reconciliation.  If the Senate Parliamentarian upholds that the provision in question is extraneous to the deficit -- meaning it does not directly impact the budget, it can be stripped from the bill, unless there are sixty votes to waive the objection.

This opens up the door to all sorts of mischief for the minority.

Say they object to the clause which requires private insurance companies to issue community rated policies with guaranteed issue?   That would blow a huge functional hole in the plan and would in effect make it possible for insurers to dump all their expensive patients onto the government plan.  Or suppose the point of order was raised in respect to the universal mandate?  And on and on and on.  Yes, the bill could be crafted in a way to try to preclude such attacks.   A lot would be riding on the rulings from the Parliamentarian, and the risks are substantial.  They might not stop the bill, but could neuter it, or at least substantially degrade its value.

So I am not champing at the bit to use this process.   Perhaps this falls into the "speak softly and carry a big stick" mode of political strategizing.   The Democrats have a credible threat that they can cut off debate and pass their bill using reconciliation.   This may be effective in bringing just enough parties together to pass a bipartisan compromise bill.   Certainly a compromise bill would be the best thing for all, depending of course on exactly which compromises are made.   The threat of reconciliation, however, is one which may not be empty, but carries significant risk and material disadvantages.  If the Democrats are wise, they will not go there unless it is absolutely necessary.

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