Past Use of Reconciliation in Congress: Correcting the Record

Thom Lambert —  3 March 2010

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.

Thom Lambert

Posts

I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

8 responses to Past Use of Reconciliation in Congress: Correcting the Record

  1. 

    Why do we keep hearing the leftists proclaim how the public is ‘evenly divided’ on this issue? Or, better yet, how ‘most’ wanted ‘healthcare reform’? I guess if you keep repeating it, you can convince yourself “it’s true” and, you hope, convince others as well. The ONLY ‘question’ that receives generally broad support, and doesn’t come under majority opposition, is the generic concept of “healthcare reform”. YES, ‘most Americans’ want this. However, it is intellectually dishonest to represent THAT desire with THIS bill/law. That is where the truth comes off the tracks for the Democrats. The MAJORITY of Americans did not, and continue to NOT want this particular bill/law. It’s is upside down in public opinon. And has consistently been for many, many months. It is stunning to hear Dems portray the opposition as unknowning, lacking in understanding, when IN FACT the opposition has done more reading, more listening, and only GROWN in opposition. Funny how the more the Dems tried to explain it, the less people liked it. So, now they’ve boiled it down to a couple of ‘positive talking points’ (Sausage tastes good!) while deliberately avoiding the painful list of ingredients. The problem with this law is that it has the horse by the WRONG END. They are doing NOTHING to address healtcare costs.. They carefully cast the ‘villian’ to be Insurance Industry. Got news for you, go try paying in cash. The insurance industry is NOT the reason insurance costs so much. The cost of HEALTHCARE is why insurance costs so much! Duh! And this massive entitlement program, which claims to ‘reduce cost for millions’ does so by RAISING the costs for 10′s of millions (courtesy of subsidies). Nice illusion of cost-reduction, right there. Futhermore, NONE of the data we have available (Massachusetts, others) bears out the THEORY that covering ALL reduces COSTS. In fact, the data shows the OPPOSITE. OOPS! Let’s not confuse the argument with facts. Finally, ‘bending the cost curve’??? Anyone listen to the ‘how’ that is going to take place? “By changing the way America consumes healthcare”. Right you are. By discouraging use of the system, reducing access (limiting tests, raising age requirements/guidelines on when or how often things like mammograms, colon screening, etc.), and MAKING YOU USE HEALTHCARE LESS than you do/can today. THAT’s their ‘recipe’ for ‘bending the cost curve’. So, in summary: Lower costs for some by raising costs for many. Lower cost-growth by moderating consumption. Gee, thanks! Where can I sign up for that?!? Oh, wait… Obama just signed us ALL up, whether we like it or not.

    See you in November, Dimmercrats. You will NOT get away with force-feeding your Socialist agenda down the throats of an unwilling public. Use of Reconciliation was the ONLY way they were going to hijaack the system in their attempt to “remake Amerika in their own image”. Got news for you. Most Americans are STILL “independent” and, most importantly”, wanting to GOVERN THEMSELVES, not BE Governed (this adminstration takes the viewpoint that ‘governing’ and ‘leading’ means RULING — last check, we were founded based on opposition to such a notion).

  2. 
    Frank Pellegrino 23 March 2010 at 11:06 am

    Folks….it comes down to the cost. We all think reform of some kind is necessary, but at what cost. Are we going to eventually agree to 70% tax rates and rationed care….which seem to me to be the only way the costs can be met. We have unfunded liabilites in social security, Medicare, and medicaid, closing in on 100 trillion….trillion, dollars. When a government continues to promise things it eventually will not be able to deliever, riots result. Look at Greece. Irresponsible government, a desire to steal from Peter to pay Paul (in order to maintain the support of Paul), is ruining the country. The people need to take responsibility. Term limits are needed. For some reason Americans think this country will always remain a stable and comfortable democracy….be careful what we take for granted.

    Thomas Jefferson said ” A government big enough to give you everythng you need, is strong enough to take everything you have”

  3. 
    Heather Tuttle 23 March 2010 at 6:02 am

    This issue seems to be as polarizing as abortion. Half of the public want the bill to pass and half of the people don’t. Well, slightly more than half the House passed the bill. That’s still a majority.

  4. 

    Re Condon. I’m, notr sure what he means by “real Americans”. Depending on what polls you read and when the questions asked are unambiguous most Ameri cans want the bill passed wheter ny reconciliation or super majority vote. One last point, memebers on Congress who would deny some 30 million Americans health insurance while they are beneficiaries of the health insurance coverage that costs them very little, that is underwitten by the American public is betond comprehension and probably immoral also.

  5. 

    Certainly the Repubs have had plenty of opportunity to debate the bill but have chosen to pontificate instead. Maybe if they really thought about those of us working hard and paying for our own insurance at hugely inflated rates, they would get to work and find a solution, not just obstruct progress.

  6. 

    Bottom line here, folks – Should Congress pass a bill that the MAJORITY (since Obama talks about a majority vote)of real Americans don’t want?

  7. 

    If your argument against reconciliation is that this bill has not received a full and fair debate (the point of the Obama quote), then that is the weakest argument I’ve ever heard. We’ve been debating this bill since last spring. The House debated and voted to pass the bill. The Senate debated and 60 Senators voted in favor of the bill. Your entire argument hangs on fact that Senator Kennedy died! Even so, there are still 59 Senators who voted in favor of the bill after debate closed. This is not an issue of full and fair debate. It is an issue of whether 41 Senators can simply stonewall a bill that they don’t agree with.

    Whether requiring 60 votes in the Senate is good legislative policy is something worthy of debate and reflection. But to argue that a vote of 59-41 is somehow a threat to the American legislative process is ridiculous.

  8. 

    What a great piece of misleading propaganda — very well constructed! As anyone who has ever watched a bill in Congress knows, bills go through many votes in various forms. By selectively choosing a single vote (that may have been taken under very specific circumstances), it is always possible to make it look as if people voted the opposite way they really did. Let’s take a look at an alternate, equally accurate, count of past reconciliation votes quoted from “The Plum Line.” Someone could argue with some of the cases cited below, but no more or no less than they could argue with every case cited above. This is politics reduced to slogans by spin doctors concerned with propaganda, not truth.

    * Mitch McConnell and Orrin Hatch, two leading voices against the Dem use of reconciliation, along with 19 other current GOP Senators, voted for the 2001 Bush tax cuts, which passed by a simple majority (58-33) via reconciliation.

    * McConnell, Hatch, NRSC chief John Cornyn and 21 other current GOP Senators voted for the Jobs and Growth Tax Relief Reconciliation Act of 2003, which accelerated the Bush tax cuts and added new ones. This passed by a simple majority via reconciliation — 50-50 in the Senate with Dick Cheney casting the tiebreaking vote.

    * John McCain, a leading critic of Dem plans to use reconciliation, along with McConnell, Cornyn and 27 other current GOP Senators, voted to pass the 2005 Deficit Reduction Act, which reduced Medicaid spending and allowed parents of disabled children to buy into Medicaid. This passed by a simple majority (52-47) via reconciliation.

    * McCain, McConnell, Cornyn, and 28 other current GOP Senators voted for the Tax Increase Prevention and Reconciliation Act of 2005, which extended the Bush tax cuts for some tax brackets. This passed by a simple majority (54-44) via reconciliation.

    Now, Republicans argue that these uses of reconciliation pale beside the use of reconciliation being planned right now by Dems to reshape the nation’s massive health care system. However, Dems are not planning to pass their whole measure via reconciliation. It has already passed the Senate, and they would only pass the “sidecare” fix via this tactic.