Irreconcilable

Senate Republicans are Fit to be Tied over Threatened Use of a Knotty Procedure They Perfected

Republican Senator Orrin Hatch of Utah authored an op/ed piece that appears in Tuesday’s Washington Post. In it, Hatch concedes that the Senate is a slow-moving, deliberative body, whose many rules and procedures are designed to give the minority every chance to dissent against the majority’s rasher moves. “Both Parties do it when in the minority and both find it frustrating when they are in the majority,” he chuckles.

However, he is not chuckling over one particular Senate procedure, known as “reconciliation.” Although they have been loath turning to it up to this point, Democratic legislators may now well heed President Obama’s call to use reconciliation to pass his latest proposed version of healthcare reform. Under this plan, the House would adopt the bill passed by the Senate on Christmas Eve “as is” and then utilize reconciliation to enact compromises Obama and Congressional Democrats worked out in January.

First adopted by the Senate back in 1974, reconciliation is a parliamentary procedure that limits debate on a particular bill to twenty hours maximum, followed by a vote in which only a simple majority is required for passage, thereby evading the sixty vote “supermajority” typically needed to end debate. It was revised in 1980 to apply strictly to budgetary matters. The idea behind reconciliation was to make politically tough budgetary choices, such as raising taxes or cutting spending in order to reduce the deficit.

Hatch and other Republicans say reconciliation is a bad process that “threatens our system of checks and balances, corrodes the legislative process, degrades our system of government and damages the prospects of bipartisanship.” What is more, even though reconciliation was created especially for tough budgetary choices, Republicans insist it was never intended for “a bill that would affect one-sixth of the American economy.” Senate Minority Leader Mitch McConnell of Kentucky characterizes reconciliation as “little used.” Hatch goes farther, calling the procedure “arcane”.

The GOP insists that if Democrats use reconciliation to pass healthcare reform “against the will of the American people,” they will be committing political suicide. This may well turn out to be true. However, any Republicans trying to figure out what may have inspired Democrats to tie normal Senate protocols in knots using reconciliation need look no further than the tips of their own fingers.

While Democratic healthcare reform would probably end up the largest expenditure ever to use reconciliation, the fact is that of the twenty-two bills employing this procedure since 1980, sixteen have come out of Republican-controlled Senates seeking to bypass minority opposition. What is more, many of those bills involved large monetary figures and/or dealt with high visibility/controversial issues.

Hatch paints a very different picture in his editorial. Republicans, he insists, only used reconciliation for “substantive legislation” when the legislation also enjoyed significant bipartisan support, such as the State Children's Health Insurance Program (SCHIP).

In truth, Republicans also used the procedure to pass a variety of cuts to welfare and food stamps in both the 1980s and 1990s. They used it to pass the Bush tax cuts. They tried using it, albeit unsuccessfully, to open the Arctic National Wildlife Refuge to oil drilling.

This history makes Hatch’s sudden fondness for deliberations and protection of the minority dubious at best. As an editorial in last week Washington Post proclaimed, “This is hard to take from a crowd that just a few years back was moaning about the preeminent importance of the up-or-down vote.” The same editorial also notes, “In fact, reconciliation is no more a tricky parliamentary maneuver than the filibuster.”

Republicans beat Democrats at this tactic as well. The 110th Congress of 2007-2008 had a record-setting one hundred and twelve filibusters. The current 111th Congress is on track for about seventy-five filibusters, a combined total that Jim Riddlesperger, a Political Science Professor at Texas Christian University proclaims “astonishing.” In comparison, the most Democratic filibusters were fifty-eight by the 106th Congress of 1999-2000.

Republicans are not without recourse. Reconciliation allows Alan Frumin, the Senate Parliamentarian, to recommend trimming any portion of the healthcare reform bill he considers unrelated to the budget – including barring insurers from denying coverage, creating a government-run insurance program, encouraging preventive medicine, and covering abortions. Although Vice-President Biden, as President of the Senate, has the final say, precedent favors him leaving the Parliamentarian’s recommendations in place to avoid future reprisals.

In his op/ed piece, Hatch reveals that Republicans considered using reconciliation to pass former President Bush’s prescription drug benefit program but decided against it in favor of bipartisan consensus. “That precedent should carry the day here,” he admonishes.

Yet as the Washington Post editorial board points out, reconciliation has been the precedent for passing healthcare legislation in recent years. Besides the aforementioned SCHIP program, it was also used to provide the ability to buy into employer-sponsored health insurance after leaving a job (i.e. COBRA), federal standards for nursing home care, changes to Medicare payment policies for hospitals, and expansion of Medicaid eligibility.

If Senator Hatch wants to admit Republicans have used reconciliation in the past with shameful grins to “jam through” partisan legislation and Democrats ought to do the same if they choose to exploit it now, I will agree with him. Democrats who once waxed poetic over the importance of debate and dissent when Republicans threatened use of the “nuclear option” to force confirmation votes on conservative federal judicial candidates are being plenty hypocritical now using reconciliation as a last-ditch means to pass healthcare reform.

However, Hatch’s contention that reconciliation is an almost unknown procedure within the Senate Chamber and never used for important legislation is simply an outright lie. Former Senate Parliamentarian Robert Dove told NBC News on Monday morning, “Reconciliation has been used a lot, and I would never use the term illegitimate with regard to reconciliation.”

As a certain sage from Utah once observed, “Both Parties do it when in the majority and both find it frustrating when they are in the minority” . . . or something like that.