Legal Commentary

Reconciliation And The Health Bills

By Big Tent Democrat

The new Village Dem offensive (to be clear I am fine with it) is to portray the use of reconciliation as incidental to the passage of the whole of the health bills. The argument goes the Senate passed a bill with 60 votes and the House passed a bill so ironing out the differences through reconciliation is normal. Indeed, it is precisely what reconciliation was designed for. See Henry Aaron's tip of the spear article (PDF). Aaron wrote:

The idea of using reconciliation has raised concern among some supporters of health care reform. They fear that reform opponents would consider the use of reconciliation high-handed. But in fact Congress created reconciliation procedures to deal with precisely this sort of situation — its failure to implement provisions of the previous budget resolution. The 2009 budget resolution instructed both houses of Congress to enact health care reform. The House and the Senate have passed similar but not identical bills. Since both houses have acted but some work remains to be done to align the two bills, using reconciliation to implement the instructions in the budget resolution follows established congressional procedure.

This is more than a bit disingenuous. Conference reports are the usual way House and Senate bills are "reconciled," not companion reconciliation bills. After all, before Scott Brown won in Massachusetts, there was not going to be a reconciliation bill. More . . .

What is happening now is more akin to the Schumer plan of splitting the bill into parts that could be passed by reconciliation and those that required regular order. The Schumer plan was much derided by the Village Dems. Now by necessity it is being sold as perfectly normal. It isn't. It is however perfectly compliant with the Senate rules. Just as the Schumer Plan was.

Of course, in service of a political or policy goal, all advocates will make the best argument they can to forward their objectives. And I am all for that. But Aaron's argument on reconciliation being designed just for this type of scenario is well, silly and not true. Here is the better argument Aaron presents:

[C]oming from Republicans, objections to the use of reconciliation on procedural grounds seem more than a little insincere. A Republican president and a Republican Congress used reconciliation procedures in 2001 to enact tax cuts that were supported by fewer than 60 senators. The then-majority Republicans could use reconciliation only because they misrepresented the tax cuts as temporary although everyone understood they were intended to be permanent — but permanent cuts would have required the support of 60 senators, which they did not have.

The American People do not care about the filibuster, reconciliation, Senate comity or any of that crap. They care about results. If the Senators want things to say that make them feel better - fine. But do not for a moment believe any of this is meaningful to anyone outside of the Beltway.

Speaking for me only

Full post as published by TalkLeft on February 27, 2010 (boomark / email).