On Wednesday, President Barack Obama announced at a White House gathering of health-care professionals that he wants Congress to schedule "an up-or-down vote" on health-care reform "in the next few weeks." A few minutes later The Washington Post sent out a political news alert translating his remarks for laypeople. In "a move intended to bypass a Republican caucus that remains united in its opposition to the legislation," the paper wrote, "Obama [just] endorsed the controversial legislative tactic known as reconciliation."
This, as it turns out, is too bad—at least for those of us who still respect the role of reason in politics. Republicans happen to have a case to make against relying on reconciliation to finalize health-care reform. But to make it, they'd have to abandon the ludicrous talking points they're currently parroting and indulge in something called logic instead. Here are the seven things they should stop saying if they want anyone but diehard partisans to take them seriously.
1. Legislation needs 60 votes to pass the Senate.
On Fox News earlier this week, anchor Megyn Kelly provided viewers with a novel interpretation of reconciliation. "It means," she said, "that the bill will be pushed through the senate with 50 votes instead of the usual 60." Unfortunately, the Constitution implies that a simple majority (51 votes) is all it takes for legislation to pass the Senate. The number 60 refers to the supermajority required to break a filibuster, i.e., the extraconstitutional procedure that allows a single senator to delay whatever legislation he or she chooses. It's true that there have been more GOP filibusters (154) since Obama took office than there were between 1963 and 1983, and that this tactic has effectively created a situation where 60 votes are required to pass routine proposals as well as major programs. But that doesn't mean 60 votes are "usually" necessary. The current gridlock is a historical anomaly—the exception rather than the rule.
2. Democrats are threatening to use reconciliation to pass health-care reform.
In a Feb. 23 USA Today op-ed, Hatch wrote that the dastardly Dems were planning to use "special rules to circumvent bipartisan Senate opposition" and "jam this bill through Congress." But that's not true, and Hatch knows it. Why? Because he was actually in the Senate on Dec. 24 when Obama's bill passed. Here’s the CNN story to prove it. See? Sixty yea votes, 39 nay—which is nine votes more than the Dems needed, at least according to the U.S. Constitution. (A few weeks earlier, the House passed its own version of the bill, 220–215.) Furthermore, the opposition in the Senate was hardly bipartisan: every one of the 39 senators who voted against the bill was a Republican, and every one of the 60 senators who voted for it was a Democrat.
So Obama doesn't need to resort to reconciliation to pass health-care reform. He's already passed it. What he does need it for, however, is passing the revisions necessary to get the House and the Senate to agree on a single version of the legislation. This means that after the House passes the Senate version of the bill, the Senate will approve what's known as a "sidecar"—a small package of budget-related tweaks designed to make the House happy. These revisions represent the only part of health-care reform that Senate Democrats are seeking to pass through reconciliation, i.e., with a simple majority rather than a supermajority. This is less ambitious than the usual reconciliation process, which typically applies to entire bills, not more.
3. Reconciliation has never been used for health-care legislation.
In February, Hatch wrote a letter to President Obama urging him to renounce the possibility of trying to pass a bill using reconciliation. As Hatch put it, "the use of expedited reconciliation process [sic] to push through more dramatic changes to a health-care bill of such size, scope and magnitude is unprecedented." But as it turns out, every major health-care innovation of the last three decades has been done through reconciliation, including COBRA, the popular law that allows people to keep their health insurance after losing their jobs, and the Children's Health Insurance Program, which, together with Medicaid, provides access to health care for one third of American children. And remember: these bills were passed in their entirety through reconciliation. Obamacare, on the other hand, passed the Senate with a 60-vote supermajority; it's only the sidecar that Democrats plan to pass with less.
4. Reconciliation has never been used for legislation this substantial.
Last month, Senate Minority Leader Mitch McConnell said reconciliation "has never been used for this kind of major systemic reform"; later, Lamar Alexander told ABC's This Week that "there's never been anything of this size and magnitude and complexity run through the Senate in this way." But unfortunately, as I wrote last week, reconciliation has not only been used to pass major health-care initiatives, it's actually been used to pass major initiatives of all sorts, including the Republicans' favorite "major systemic reform" of the last 20 years (the 1996 welfare-reform bill) and at least two bills (Bush's 2001 and 2003 tax cuts) that cost about twice as much over 10 years ($1.8 trillion) as health-care reform is estimated to cost ($950 billion).
Secondly, it hasn't even been Democrats using reconciliation most of the time. It's been Republicans. Ezra Klein has reported that, according to data uncovered by political scientist Joshua Tucker, there were 19 reconciliation bills between 1981 and 2005, "11 of which were signed by Republican presidents, five of which were signed by Democratic presidents, three of which were vetoed by Democratic presidents, and none of which were vetoed by Republican presidents." Klein quotes Tucker as saying, "This would suggest that 14 of the 19 times reconciliation was used between FY 1981–FY 2005, it was used to advance Republican interests." Both McConnell and Alexander supported welfare reform and the Bush tax cuts. At the time, neither seemed to mind that both measures required reconciliation to pass.
5. Reconciliation has only been used for bipartisan bills.
Not so. As Ezra Klein also reported, "The 1995 Balanced Budget Act was passed in reconciliation. The final vote was 52 to 47. The 2001 Bush Tax Cut was passed in reconciliation. The final vote was 58 to 33. The 2003 Bush Tax Cut was passed in reconciliation. The final vote was 50 to 50, with Dick Cheney casting the tie-breaking vote. The 2005 Deficit Reduction Act was also passed in reconciliation with a 50 to 50 vote and a Cheney intervention. The 2006 Tax Relief Extensions Act was passed in reconciliation. The final vote was 54 to 44."
Incidentally, the GOP controlled the Senate during each of these battles. They never got more than 58 reconciliation votes. The Dems, meanwhile, will likely get 59 for health-care reform. And again, that's only for the sidecar. The actual bill already passed with 60 votes.
6. As a senator, Obama himself was opposed to reconciliation.
It's true that when Democrats were in the minority, Obama railed against "simpl[e], majoritarian, absolute power on either side" of Congress, saying, "that's just not what the founders intended." But he wasn’t referring to reconciliation. Rather, he was responding to a Republican effort, known as the "nuclear option," to outlaw filibusters of judicial nominees. The GOP, in other words, wanted to create a new Senate rule to get President Bush's nominees approved. Reconciliation was a longstanding rule of the Senate. Obama spoke out against altering the rules. He wasn't objecting to the rules as they already existed.
7. The referee is biased.
In interviews with Politico earlier this week, several Republican senators and aides attempted to portray Senate Parliamentarian Alan Frumin, a 33-year veteran, as a partisan who will inevitably side with the Democrats if they attempt to use reconciliation. As South Carolina's Jim DeMint put it, "I think clearly the majority leader has his ear, and I've got concerns." The only problem? Frumin was chosen for the post in 2001 by Republican leadership after they fired his predecessor, Robert Dove, for blocking their efforts to (surprise!) pass aspects of the Bush tax cuts and budgets through reconciliation. At the time, Republicans explained their move by saying Frumin was widely known for putting his personal beliefs aside and sticking to the rules. "It's going to be pretty hard for anybody to be too critical of it," Majority Leader Trent Lott said of the appointment. Until now, that is.
Without these seven talking points, would there be anything left for responsible Republicans to say about reconciliation? Actually, yes. The fact remains that reconciliation, as defined in Public Law 93-344, is really only meant to be used for budget-related legislation; the Byrd rule later limited the process to provisions that directly affect federal spending. With that in mind, Republicans should take a hard look at Obama's 11 pages of suggested modifications—the document that will eventually shape the sidecar bill. And they should battle against any revisions that aren't directly related to the budget or federal spending. They may win some of these skirmishes, they may lose some. There's a tiny chance that they will force a wedge between House and Senate Democrats and derail the entire process. There's a greater chance they won't. They can remind voters that Obama once rejected a "50-plus-one governing strategy" and argue that including new, big-ticket items at this stage would be hypocritical. But throughout, Republicans should restrict their fight to the one bill that Obama is actually attempting to pass through reconciliation—the Senate sidecar—and work to prevent the Dems from sneaking anything through.
Will this happen? Not a chance. Expect the shouting to continue. But just because it's too late for logic in Washington doesn't mean the rest of us should ignore it too.