As predicted, President Obama has called upon Congress to enact his health insurance reform plan using the reconciliation process, which allows the Senate to avoid a filibuster attempt and would permit enactment of the legislation without any Republican support. As I mentioned the other day, the reconciliation process was created to deal with budget-related bills, and one of the key architects of the procedure, Democratic Senator Robert Byrd, has insisted (repeatedly) that it should not be used for sweeping social legislation like the pending health care proposal. Utilizing reconciliation to enact health care reform would represent a massive change in the Senate’s procedures.
Not surprisingly, the President and his people insist that this just isn’t so. They say reconciliation has frequently been used to bypass the Senate’s effective supramajority requirement (i.e., the need for 60 votes to cut off debate and end a filibuster), even when the legislation at issue has been major social legislation. In a speech today, for example, the President, while carefully avoiding the word “reconciliation,” insisted that his health care proposal:
deserves the same kind of up or down vote that was cast on welfare reform, that was cast on the Children’s Health Insurance Program, that was used for COBRA health coverage for the unemployed, and, by the way, for both Bush tax cuts — all of which had to pass Congress with nothing more than a simple majority.
White House Press Secretary Robert Gibbs pointed to the same examples of reconciliation’s use in brushing off questions about the propriety of the process:
[R]econciliation … was the vehicle for welfare reform; it was the vehicle for the Bush tax cut in 2001, at a cost of $1.3 trillion; it was the vehicle for the tax cut in 2003 at a cost of $350 billion; it is how S-CHIP came to be, which is parlance for the Children’s Health Insurance Program; it is how COBRA came to be, which provides the ability for an individual that loses their job to continue their health care coverage when that happens.
The message of the White House is thus consistent and clear: “Move along, folks. Nothing to see here! We’ve done it before with COBRA, Welfare Reform, the S-CHIP, and the Bush tax cuts.”
Except that we haven’t. Congress has never before used the budget reconciliation process to enact broad social legislation (as opposed to focused taxing and spending legislation) that lacked bipartisan support and could not command a sixty-vote majority in the Senate. Never. Not once.
Consider, in historical order, the examples the President and his people cite.
COBRA, the Consolidated Omnibus Budget Reconciliation Act of 1985, was major social legislation in that it mandated an insurance program giving some employees the ability to continue health insurance coverage after leaving employment. But reconciliation absolutely was not needed to enact the statute. The original Senate bill passed on a 93-6 vote. The reconciled bill (the one incorporating compromises with the House bill) then passed by a voice vote, indicating that the outcome was so apparent that no tally was required. If you’re interested, the voting record on COBRA is here.
President Clinton’s welfare reform statute, officially titled the Personal Responsibility and Work Opportunity Act of 1996, was also a relatively sweeping piece of social legislation (though not nearly as sweeping as the Obama health insurance reform proposal, which mandates a reordering of one-sixth of the U.S. economy). Again, though, the statute had significant bipartisan support and did not depend on the reconciliation process for its enactment. On the final vote, there were 78 Yeas and 21 Nays, with one Democrat not voting. Twenty-five Democrats (the minority party) joined 53 Republicans in supporting the bill. The voting record is here.
S-CHIP, the Children’s Health Insurance Program, was created by the Balanced Budget Act of 1997. Again, S-CHIP involves matters beyond mere revenue issues. But, again, reconciliation played no role in ensuring passage of the legislation. The statute at issue was enacted on a vote of 85 Yeas to 15 Nays. Forty-two Democrats (the minority party) joined 42 Republicans in supporting the bill. The voting record is here.
That brings us to the first Bush tax cuts, which were accomplished by the Economic Growth and Tax Relief Reconciliation Act of 2003. This reconciliation bill passed the Senate with 58 Yeas and 33 Nays. Two senators voted “present” and 7 senators didn’t vote. (Voting record here.) Aha! A statute that wouldn’t have passed without reconciliation! Well, I’m not so sure. Two of the seven non-voting senators were Republicans (Senators Domenici of New Mexico and Enzi of Wyoming). Had they voted in favor of the bill, it would have commanded a 60-vote majority. I assume they would have done so had the reconciliation procedure not applied; each voted in favor of the second Bush tax cuts, which were far more controversial. It’s also possible that one or two of the non-voting Democrats would have voted in favor of the bill. After all, twelve Democrats joined the Republican majority in supporting the legislation. This is hardly analogous to the current proposal, where there are zero minority party Senators in favor of the pending legislation and the majority is incapable of passing the bill following the normal (non-reconciliation) procedures.
So what about the second Bush tax cuts? Well, here we have a statute that legitimately could not have been enacted outside the reconciliation process. That statute, officially the Jobs and Growth Tax Relief Reconciliation Act of 2003, passed with 50 Yeas, 50 Nays, and a tie-breaking Yea vote from Vice-President Cheney. Even that bill, though, had some bipartisan support: 2 Democrats joined 48 Republicans in supporting the bill (and 3 Republicans joined 47 Democrats in opposing it — voting record here.) That alone distinguishes the second Bush tax cuts from the pending health care proposal — unless, of course, you ascribe to Speaker Pelosi’s nonsensical view that a “bill can be bipartisan even though the votes might not be bipartisan.” (Come again?)
More significantly, though, the second Bush tax cuts were hardly sweeping social legislation. Press Secretary Gibbs mentions that they were valued at $350 billion, but that’s chump change these days — especially compared to the price tag of the Obama proposal. (If you really believe the plan will reduce the deficit because Congress will severely cut Medicare reimbursement rates, then you either just fell off the turnip truck or are on glue.) To get a sense of the difference in the scope of the bills, compare the 18-page tax cut bill with the 2407-page Senate health insurance reform bill. To be fair, the Senate bill is double-spaced, so I guess we should cut that down to 1200 pages. Still, though, there’s simply no comparison between these two statutes.
President Obama has been very careful not to talk too much about reconciliation — so much so that he didn’t use the word in his speech calling for enactment via the reconciliation process. His reticence is likely due in part to prior statements he’s made about the process. In 2005, for example, the Senate was considering reauthorization of Temporary Assistance for Needy Families using the reconciliation process. Then-Senator Obama was opposed. He explained (at 151 Congressional Record 13527):
I support Senator Carper’s motion to instruct reconciliation conferees to reject the House TANF provisions. Assisting needy families is too important an issue for this Chamber to cede its legislative authority to the House of Representatives. The TANF Program affects millions of American children and families. It deserves a full and fair debate. The reconciliation process does not permit that debate. Reconciliation is not the place for policy changes.
He was right, and he knows it. He also knows that prior uses of reconciliation are nothing like the one Congress is currently contemplating and that using reconciliation to pass the health insurance bill will mark a tremendous change in the Senate’s practice, a change that strikes at the very heart of the institution itself and that will be remarkably difficult to undo the next time a piece of controversial legislation comes along.