Posted by: reddiva | October 5, 2009

When is Reconciliation a Bad Idea?


So when all else fails, go to reconciliation.  Make no mistake about it – the Baucus plan is failing in the Budget Committee he chairs.  On September 29, 2009, Politico.com printed an article about the “discussions” going on behind those closed doors.  A portion of that article is reprinted here:

Baucus’s goal is to get a bill out of his committee by Friday. But other senators, including some in his own party, are reading from different scripts, and that’s making the process more complicated — and more contentious — than it might be otherwise.

The chairman’s biggest antagonist so far is Senate Minority Whip Jon Kyl of Arizona, who has emerged as the combative leader for the GOP, fiercely defending Republicans’ right to argue amendments at length and pushing back on Democrats’ claims that the GOP has no plan of its own.

Baucus lost his patience with Kyl more than once in the first week of the markup — lashing out at him for slowing the proceedings even as he allowed Democratic members to talk at length themselves.

“I’m going to have to recognize other senators,” Baucus told Kyl sternly at one point. “In deference to — courtesy — be courteous to other senators who also wish …”

Kyl cut him off.

“Mr. Chairman, it’s courteous if you don’t interrupt somebody right in the middle of a sentence of an important point they’re trying to make,” he said. “I have not dominated this discussion. I have not filibustered in this markup that we’ve been having.”

[…]

Two more junior GOP senators — John Cornyn of Texas and John Ensign of Nevada, the current and former chairmen of the National Republican Senatorial Committee — have used the hearings in part to score points against the Democrats.

They’re attempting to create the impression that Baucus is trying to railroad a bill through the committee before the public has time to digest it. And they point out that Democrats rejected an amendment last week that would have required the actual legislative text of the bill to be posted online with a complete analysis by the Congressional Budget Office at least 72 hours before a final vote. Democrats said that process could take weeks and that a detailed summary with a CBO scoring was sufficient before the committee vote.

“That’s the most extraordinary thing I’ve seen in a long time, after the public rage over passing trillion-dollar bills that Congress didn’t have a chance to read,” Cornyn complained.

Republicans aren’t the only ones to lodge that complaint.

“If it isn’t out there, then there’s an assumption that there is something wrong — something is being withheld,” said Nebraska Sen. Ben Nelson, a conservative Democrat who will be a key vote on the floor. “It’s pretty hard to argue against having information out there available for people, and I don’t want to tell them it’s not out there because they can’t understand it.”

But Sen. Robert Menendez, a committee member and Cornyn’s counterpart at the Democratic Senatorial Campaign Committee, says that the Republicans are just playing politics with the bill.

“It is methodical; it’s an intent to eat up as much of the clock, create as much doubt and confusion that at the end of the day — you know — there’s a lot of play there to the camera and the press,” Menendez said. “So that’s their game plan.”

Earlier in the process, Baucus might have expected some help at the markup from Iowa Sen. Chuck Grassley, the ranking Republican on the committee, or Wyoming Republican Sen. Mike Enzi, both of whom participated in the closed-door sessions that led to the bill.

Still, the Democrats do not understand why Republicans and Conservative Democrats are opposed to this monstrosity.  Instead of accusing those of us who oppose this bill truthfully because we would oppose socialized health care in any form, they accuse us of ignoring the fact that health care reform is needed.  Liberals need to understand that we are not opposed to health care reform; we are opposed to SOCIALIZED health care including government funded and operated cooperative programs.  Democrats resort to name calling of the level below Representative Joe Wilson by stating such actions Republicans are taking in their attempt to get a fair health care plan for America – one that does not include any increases to the federal deficit, pushes no socialized single-payer plan, and provides business an opportunity to grow and succeed by abolishing the penalties on companies and their employees – equate to wanting the American public “to die quickly.”

There are those who believe that Obama will issue orders to his Democrat cronies in the Senate as well as the House to use the reconciliation clause to avoid a possible Republican filibuster.   I am one of those.

I do not pretend to know all there is to know about how the American government works, is supposed to work or fails miserably.  Thank goodness for Internet search engines.

I went first to the Senate Glossary for the definition of “Reconciliation Bill.”

reconciliation bill – A bill containing changes in law recommended pursuant to reconciliation instructions in a budget resolution. If the instructions pertain to only one committee in a chamber, that committee reports the reconciliation bill. If the instructions pertain to more than one committee, the Budget Committee reports an omnibus reconciliation bill, but it may not make substantive changes in the recommendations of the other committees.

I have said it before, and I will say it again:  Why don’t they speak English in Washington, DC?

I found this definition on C-SPAN slightly more enlightening: “A RECONCILIATION BILL makes the changes in law required to meet pre-set spending and revenue levels.  The bill arises when a prior budget resolution passed by the House and Senate calls for it.  The budget committee packages the bills produced by all the other committees into one omnibus bill.”

My next stop was Wikipedia.  They usually speak English there.

Reconciliation is a legislative process of the United States Senate intended to allow a contentious budget bill to be considered without being subject to filibuster. Reconciliation also applies in the United States House of Representatives,  but since the House regularly passes rules that constrain debate and amendment, the reconciliation process represented less of a change in that body

They continue by providing a good explanation of how the Reconciliation process works.

A reconciliation instruction (Budget Reconciliation) is a provision in a budget resolution directing one or more committees to submit legislation changing existing law in order to bring spending, revenues, or the debt-limit into conformity with the budget resolution. The instructions specify the committees to which they apply, indicate the appropriate dollar changes to be achieved, and usually provide a deadline by which the legislation is to be reported or submitted.

In other words, if it doesn’t fit, fold it.

Pete Davis wrote in an article for Political Gains and Games some of the reasons many would prefer to avoid the route of reconciliation.

Number one, reconciliation is viewed by nearly all Senate Republicans and by some Democrats as (sic) nuclear attack on the rights of the minority to full and complete debate and to offer amendments.  Health reform could pass in mangled form, but the Senate’s ability to pass anything else would diminish as disaffected senators would call a halt to business as usual to express their displeasure at having health reform rammed down their throats.

Number two, only health reforms that cut spending or raise taxes would pass muster under the “Byrd Rule” prohibitions against “extraneous” measures.  That would leave out a lot of elements of any sensible health reform bill, including most insurance reforms, like outlawing pre-existing condition exclusions and requiring renewal; requiring employers to provide health insurance; preventive care; most new incentives for improved quality of care; President Obama’s proposed Independent Medicare Advisory Council (IMAC); most health workforce improvements; and most of the administrative foundations of health reform.  In theory, the Senate would pass these other essentials of health reform in a second bill subject to the normal 60 vote requirement.  However, I doubt that bill would pass if the reconciliation bill did or was about to.

Number three, it will make it more difficult to use reconciliation later on for deficit reduction, which we will sorely need once the economy is safely in recovery.  Next Tuesday, OMB [Office of Management and Budget] and CBO [Congressional Budget Office] are expected to estimate a $1.579 trillion FY09 deficit and deficits in excess of $1.0 trillion in FY10 and FY11 as well.  Those are deficits approaching 12% of GDP, a record not approached since World War II.

Like President Obama, I would much prefer a bi-partisan bill, but Republican delays and right wing disruptions of town hall meetings make it clear, that this isn’t so much about health reform, it’s about raw political power and whether our government remains broken and unresponsive to the obvious need for health reform.

I think what Mr. Davis is attempting to say is that without using reconciliation, America will not achieve health care reform.  If that is true, that would be the real shame in this entire fiasco.  However, while Conservative Americans recognize that some reform is needed, I am not certain that reconciliation would be the best route in the long run for Obama and his Democrat flunkies.  I am not alone in this appraisal.

“If Democrats use controversial insider tactics to force a proposal that the majority of Americans disagree with, not only would they guarantee bipartisan opposition, but they would also spark a new level of outrage among a huge majority of people in this country,” said a Senate Republican leadership aide.”

There is an easily understandable article although not written from a Conservative viewpoint written by NBC’s Ken Strickland which includes this opinion:  “It’s clear that reconciliation would put any health-care bill on the fast track for passage. It can’t be filibustered; it only needs 51 votes to pass; and debate is limited to 20 hours. But opponents have weapons of their own — which could potentially gut the bill and could still require 60 votes to approve key sections of the legislation.”

Yes, it seems there are ways for the Republicans and Conservatives to win a couple of small battles even during the reconciliation process on the floor of the Senate.

A Washington Monthly article quotes the opinion of Michael Steele, the RNC Chairman:  “If it means the nuclear option, it’s going to be the nuclear option,” Steele said. “And so my attitude, quite frankly, is, ‘Bring it on.’”

Senator Gregg Judd (R-NH) says he has “hundreds of procedural objections ready” for a healthcare plan Democrats want to push through the Senate.  He told an interviewer from “The Hill” that Republicans will wage a vicious fight if Democrats attempt to use reconciliation to pass what he refers to as a “trillion-dollar healthcare plan” with a simple majority.  Republicans have warned that if Democrats attempt the maneuver, their healthcare bill will end up looking like Swiss cheese.  Senator Judd says that Republicans could file “hundreds” of points-of-order objections to the bill, each one requiring 60 votes to waive.

In the previously quoted article Ken Strickland states:

Remember, reconciliation was originally created to address fiscal policy — not social policy. So every line in the bill must adhere to strict rules to ensure things stay within those boundaries. In short, if it’s not about spending government money or taxing people, an opponent can raise an objection to have that section struck from the bill.

Example #1: Expanding Medicaid or cuts to Medicare would more than likely pass muster, because those programs are run with taxpayer dollars. Example #2: A provision requiring insurance companies to issue coverage regardless of health status could be killed because there’s no obvious direct connection to spending or saving federal dollars. (These are, of course, unscientific best guesses.)

When a senator wants to challenge a section of the bill, he or she objects by raising a “budget point of order.” There are more than a dozen that could apply to a health-care bill.

During the 20 hours of debate when the bill is on the floor, the senator stands and says, “I’d like to raise a budget point of order” against a section of the bill. If the parliamentarian sustains or agrees with the objection, that section is removed from the bill or amendment. [The article contains more information about the parliamentarian’s critical role in this process than I copied for you here.] There is no limit to how many objections can be raised.

However, the parliamentarian’s decision can be appealed, with 60 votes. So if the parliamentarian rules against the senator, that senator could ask for a vote to override the decision. If there are 60 votes, the questionable item can stay in the bill. While it may take only 51 votes to pass the final bill, but there may be 60-vote hurdles en route to final passage.

The most well-known point of order is referred to as “the Byrd Rule.” Named after its creator, West Virginia Sen. Robert Byrd, the rule generally allows sections of the bill to be struck if they do not have a direct impact on deficit reduction.

If a provision violates even one of the six “Byrd Rules”, any Senator may raise a procedural objection and unless 60 Senators vote to waive the objection, the offending provision will be stripped from the bill.  So there may be hope for us from this highly partisan political effort by the Democrats.

Robert Reich wrote in his blog of September 17, 2009 that much could be lost during the process of reconciliation:  “The White House doesn’t like this scenario because the use of a reconciliation bill in the Senate poisons relations with Republicans and risks their support for financial reform and cap-and-trade. It may even make it more difficult for Obama to rely on Republican support for more troops in Afghanistan. But as we move into the gravitational pull of the 2010 midterms, congressional Republicans won’t support Obama anyway, on anything.”

And neither will the Conservative populace.

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