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Rule by loophole

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I'm not terribly impressed with the Republican Party's sudden distaste for the budget reconciliation process. When Sen. Judd Gregg argued there was nothing strange about using one rule of the Senate (Public Law 93-344, which created the budget reconciliation process) to counter another rule of the Senate (Rule XXII, which created the filibuster), I think he had it right. At the end of the day, reconciliation is being used to ensure a majority vote, and that's a perfectly sensible way to use the procedure.

But it really would be regrettable if both parties turned to reconciliation to pass major legislation (right now, Democrats are only using it to modify legislation). Reconciliation is a strange and limited process. To use it effectively, you need to write your bill such that the legislation is maximally related to the budget, not maximally able to achieve your objectives at the lowest cost. As the omnipresent filibuster makes it more and more impossible to pass legislation through the normal Senate order, however, reconciliation will become more and more the norm. That's already happening, in fact, as Bush's tax cuts, the Balanced Budget Act of 1997, welfare reform, and much else used the reconciliation process.

But it's worth remembering that reconciliation is not the choice of the majority so much as the choice of the minority. It is the minority's decision to filibuster that forces the majority to use the reconciliation process. But that makes the minority's protestations rather tinny. We can either live in a world where the Senate runs by majority rules or we can live in a world in which the minority turns Rule XXII into a 60-vote requirement and the majority turns to the reconciliation process to counter them and we run the Senate by exploiting loopholes. The minority has every right to choose that latter path, but they can hardly complain when the majority follows them down that road.

Photo credit: Jason Reed/Reuters.

By Ezra Klein  |  March 1, 2010; 9:08 AM ET
Categories:  Senate  
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Next: The other problem with the filibuster

Comments

Ezra, every column about reconciliation for the foreseeable future should start with, "The senate already passed HCR with 60 votes. The revenue fixes to that bill are what is under consideration for reconciliation. This is what reconciliation is for." This is the truth about the stage of the process we are at now." Every time someone says reconciliation is a rare and arcane trick and that HCR is going to be jammed through using reconciliation, we buy into false the right wing talking point.

Posted by: srw3 | March 1, 2010 9:27 AM | Report abuse

My name is MosBen and I approve srw3's message above.

HCR is not going to be passed through Reconcilliation, or at least, that's not what is being proposed at this point. All that would go through reconciliation are the tweaks to the Senate bill that would be passed as a rider. It will not be the 2k page bill, but a comparatively much smaller series of fixes.

Otherwise, I agree with your post completely. And not only will a reliance on the filibuster lead to more things getting passed through reconciliation, but it will lead to more and more of the country's business being handled by administrative agencies and unelected "czars". The business of the country still needs to get done whether the Senate is in gridlock or not. If conservatives hate hazy government beaurocracies, they *should* prefer to have a more functional legislature.

Posted by: MosBen | March 1, 2010 9:51 AM | Report abuse

"Ezra, every column about reconciliation for the foreseeable future should start with, "The senate already passed HCR with 60 votes. The revenue fixes to that bill are what is under consideration for reconciliation. This is what reconciliation is for." This is the truth about the stage of the process we are at now."

I think you left out the "House has to pass the Senate bill in it's entirety before revenue fixes can be considered" part.

Posted by: bgmma50 | March 1, 2010 10:08 AM | Report abuse

Personally the Democrats using reconcilliation doesn't make me angy like it seems to do a lot of other folks and the fact that Ezra constantly defends it seems to indicate that it isn't real popular with the average American voter. Which is fine by me. I believe the Democrats will pay a political price this fall if they use reconcilliation to "fix" Obamacare. But Nancy Pelosi has already told her members that they need to man up and vote Obamcare out even if it means a lot of them don't have jobs after the 2010 elections. Course her job isn't on the line but hey do what she says not what she does. Reconcilliation is as legitimate a tool as the filibuster and I don't begrudge the Democrats taking advantage of it and I would hope they and Ezra won't have a problem when the Republicans do the same thing to them once they get the majority back. Which they will. What will be really great though is that if the Democrats abuse reconcilliation to pass aspects of Obamacare that aren't directly budget related then they will have create a permanent change to the reconcilliation process the Republicans will of course take advantage of when they get the majority back.

Posted by: RobT1 | March 1, 2010 10:13 AM | Report abuse

"HCR is not going to be passed through Reconcilliation, or at least, that's not what is being proposed at this point."

I'm a little fuzzy on the details, but I believe you are mostly correct. Use of the Budget Reconciliation process means that neither the House nor the Senate bills will survive in any recognizable fashion. Instead there will be a series of very limited provisions, subject to being sunsetted in 10 years, and hopefully subject to being reconciled out of existence once the Republicans retake Congress.

Posted by: bgmma50 | March 1, 2010 10:16 AM | Report abuse

(Democratic) Senator Kent Conrad (Chair of the Senate Budget Committee) speaking on Sunday regarding the use of reconciliation for health care reform:
"Bob, let's just un­der­stand the ques­tion of rec­on­cil­i­a­tion – ques­tion of rec­on­cil­i­a­tion. I have said all year as chair­man of the Bud­get Com­mit­tee, rec­on­cil­i­a­tion can­not be used to pass com­pre­hen­sive health care re­form. It won’t work. It won’t work be­cause it was never de­signed for that kind of sig­nif­i­cant leg­is­la­tion. It was de­signed for deficit re­duc­tion. So, let’s be clear. On the major Medi­care or health care re­form leg­is­la­tion, that can’t move to rec­on­cil­i­a­tion. The role for rec­on­cil­i­a­tion would be very lim­it­ed. It would be on side­car is­sues de­signed to im­prove what passed the Sen­ate and what would have to pass the House for health care re­form to move for­ward. So, using rec­on­cil­i­a­tion would not be for the main pack­age at all. It would be for cer­tain side­car is­sues ..."

(Democratic) Rep. Steny Hoyer speaking on Sunday regarding the procedural sequence:
"We – whether we're will­ing or not, we have to go first if we're going to cor­rect some of the things that the House dis­agrees with, cor­rect, change so that we can reach agree­ment, the House will have to move first on some sort of cor­rec­tions or rec­on­cil­i­a­tion bill,"

Posted by: rmgregory | March 1, 2010 10:18 AM | Report abuse

bgmma50, that's not my understanding. I understand the current plan to be that the House passes the Senate bill whole cloth by standard majority vote. So the Senate bill becomes law through all the regular procedures of the Legislature. Liberal in the House, however, aren't thrilled with the Senate bill, so they pass a rider along with passing the Senate bill with the understanding (and trust) that the Senate will then vote on the rider and pass it as well. Because they're not going to be able to get 60 votes for the rider in the Senate, what with Scott Brown and his truck, the only way to pass the rider will be reconciliation. So the Senate bill is passed into law and immediately modified by the companion rider, which passes through reconciliation because pretty much everything it's tweaking is directly related to the budget.

Non-budgetary things like stopping insurance companies from denying coverage based on preexisting conditions doesn't go through reconciliation. It's already part of the Senate bill and will just be approved by the House. The tweaks, as I understand, will mostly be tweaks to the subsidies, etc.

Posted by: MosBen | March 1, 2010 10:45 AM | Report abuse

"But it really would be regrettable if both parties turned to reconciliation to pass major legislation (right now, Democrats are only using it to modify legislation)."

I'm having difficulty analyzing all of the punditry out there on this subject, but I think I've worked out this much.

Using reconciliation to modify legislation will require the House to pass the Senate bill in it's entirety. And, as Ezra pointed out the other day, the House and Senate democrats do not trust each other. If Miz Nancy had the votes, if Miz Nancy herself even supported this option, it would be a done deal already.

Using reconciliation to pass legislation is subject to rulings by a parliamentarian and nobody knows what will be the result. However, it is likely that the result will be small, incremental provisions that will likely not include a mandate, a public option, exchanges, etc. In other words, whatever it will be, it will not be anything like either the House or the Senate legislation. Who knows, the Republicans may end up getting everything they want out of this thing after all. :)

Posted by: bgmma50 | March 1, 2010 10:53 AM | Report abuse

I think we understand it pretty much the same way, MosBen. It's the difference between using reconciliation to modify legislation that has passed both houses (not just the Senate, as srw3 mentioned) and using reconciliation to pass legislation that has not already been passed by both houses.

I think.

Posted by: bgmma50 | March 1, 2010 10:57 AM | Report abuse

"I'm having difficulty analyzing all of the punditry out there on this subject...it is likely that the result will be small, incremental provisions that will likely not include a mandate, a public option, exchanges, etc. In other words, whatever it will be, it will not be anything like either the House or the Senate legislation."

Yes, you are having difficulty understanding. As MosBen has already explained:

The final package will be exactly like the Senate bill, because the Senate bill will be passed, so all of the provisions of the Senate bill, including the mandate, will become law.

The sidecar package to be passed in reconciliation will simply make a number of relatively small amendments to the Senate bill, such as a phased approach to the Cadillac tax, removal of the "Cornhusker Kickback," and other small fixes to harmonize the House & Senate versions, very much in line with the compromises the two chambers had almost completed during their negotiations in January.

Everything that is in the Senate bill will stand, except for the few provisions that are tweaked by the reconciliation bill.

So it is incorrect that "it will not be anything like either the House or the Senate legislation," on the contrary, it will be very much like both of them.

Posted by: Patrick_M | March 1, 2010 11:10 AM | Report abuse

Yada yada yada. I know what happens if the House passes the Senate bill. What I'm in the process of working out is what happens if it doesn't.

Posted by: bgmma50 | March 1, 2010 11:15 AM | Report abuse

You do understand the point Ezra was making when he said

"But it really would be regrettable if both parties turned to reconciliation to pass major legislation (right now, Democrats are only using it to modify legislation)."

don't you, Patrick?

Posted by: bgmma50 | March 1, 2010 11:17 AM | Report abuse

"The sidecar package to be passed in reconciliation will simply make a number of relatively small amendments to the Senate bill, such as a phased approach to the Cadillac tax, removal of the "Cornhusker Kickback," and other small fixes to harmonize the House & Senate versions, very much in line with the compromises the two chambers had almost completed during their negotiations in January."


Small fixes. Right. Nooooo problem. Well, except for that A.B.O.R.T.I.O.N. thing. And the fact that Miz Nancy has steadfastly refused to consider passing the Senate bill unless the Senate first passes a reconciliation of legislation that doesn't exist yet.

Posted by: bgmma50 | March 1, 2010 11:41 AM | Report abuse

"Yada yada yada. I know what happens if the House passes the Senate bill. What I'm in the process of working out is what happens if it doesn't."

Nothing will happen unless the House passes the Senate bill. As Kent Conrad made clear yesterday, and as anyone who understands HCR already knows, it is impossible to pass the comprehensive bill through reconciliation, because there are too many provisions without direct fiscal impact that would not withstand challenges under the Byrd Rule.

And nobody has suggested using reconciliation alone for some fragmentary set of stand-alone HCR reforms.


"You do understand the point Ezra was making when he said

"But it really would be regrettable if both parties turned to reconciliation to pass major legislation (right now, Democrats are only using it to modify legislation)."

don't you, Patrick?"

Yes, I do.

Posted by: Patrick_M | March 1, 2010 11:41 AM | Report abuse

"Small fixes. Right. Nooooo problem. Well, except for that A.B.O.R.T.I.O.N. thing. And the fact that Miz Nancy has steadfastly refused to consider passing the Senate bill unless the Senate first passes a reconciliation of legislation that doesn't exist yet."

The "abortion thing" is almost certainly unfit for the narrow criteria of reconciliation, and it was not a part of Obama's 11 page outline for reconciliation fixes. So the expectation is that the Senate language will stand, and the Pelosi will need to convert as many of the Stupak faction members as possible to live with the Senate language and vote yes on the Senate bill.

Pelosi has never made an ultimatum that passage of reconciliation must precede the passage of the Senate bill. However, it makes sense that the House would want to see the reconciliation package, and receive some assurance that a majority in the Senate will support it, before the vote on the Senate bill that reconciliation will modify.

Again:

1. Reconciliation bill is drafted, and assurances are made to the House of majority support for the sidecar in the Senate.

2. House passes Senate bill.

3. Senate approves reconciliation sidecar bill.

4. Obama signs both into law.

Posted by: Patrick_M | March 1, 2010 11:50 AM | Report abuse

"And nobody has suggested using reconciliation alone for some fragmentary set of stand-alone HCR reforms."

Not yet.

Posted by: bgmma50 | March 1, 2010 11:52 AM | Report abuse

"So the expectation is that the Senate language will stand, and the Pelosi will need to convert as many of the Stupak faction members as possible to live with the Senate language and vote yes on the Senate bill."

Yes, I know what the expectation is. Which is why I'm rather keen on sorting out what happens if the House doesn't do it. :)

Posted by: bgmma50 | March 1, 2010 12:02 PM | Report abuse

"Yes, I know what the expectation is. Which is why I'm rather keen on sorting out what happens if the House doesn't do it. :)"


Well, nobody knows, but here is a reeasonable supposition.

On the eve of the summit, the WSJ published a piece about a possible Plan B if the Democrats could not put together the votes for comprehensive legislation. The White House stated emphatically that reform must be comprehensive, and that there is no "Plan B."

Plan A is expected to take up to six weeks for completion. If it fails, it seems unlikely that the Democrats would try to cobble together a more limited Plan B approach this year, given all of the time and energy that was invested in the reform effort thus far, the other pressing items waiting on the legislative agenda, & not least of all the fact that elections are bearing down on them in the Fall.

Nobody has a crystal ball, but I expect that if HCR is not passed by the Senate bill + sidecar strategy, The Democrats will be frustrated and exhausted by the long unsuccessful effort and (as it did in 1993) HCR will move to the back burner, for at least the rest of 2010.

Posted by: Patrick_M | March 1, 2010 12:22 PM | Report abuse

Use Senate reconciliation and expand Medicare via the Senate’s buy-in provisions. The CBO has already signed off on this as a means of saving money.

More importantly, if more Americans can do a buy-in with Medicare, it creates more cost control (because there’s a genuine “public option” competitor).

It also helps to solve the problems of pre-existing conditions, because Medicare does not deny coverage on this basis.

Allowing a Medicare buy-in to Americans under 65 would give people a genuine alternative to private insurance and thereby render the pre-existing question moot.

It would also lower Medicare costs by expanding the risk pool of patients (the great bulk of medical expenses are accounted for by a small number of people, mostly the elderly, requiring very expensive treatment).

Posted by: JourneyHomeBurke | March 2, 2010 12:35 PM | Report abuse

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