The 50-Vote Senate

It's hard to imagine another town in which the most divisive thing you could do would be called "reconciliation." But this is Washington. Last Wednesday, The Washington Post reported that "senior administration officials" were pressuring congressional Democrats to pursue health reform and energy legislation through the reconciliation process. Judd Gregg, the ranking Republican on the Senate Budget Committee, did not respond in terms that brought to mind peace and unity. "That would be the Chicago approach to governing: Strong-arm it through," he said. "You're talking about the exact opposite of bipartisan. You're talking about running over the minority, putting them in cement and throwing them in the Chicago River."

Whoa.

When my former classmates at Santa Cruz talked about "reconciliation processes," they meant something that involved sharing feelings and listening openly and empathically to others. When congressional observers talk about the reconciliation process, they mean the budget reconciliation process. Originally a way to expedite the process of merging the first budget resolution the Congress passed at the beginning of each year with the second budget resolution it passed near the end, reconciliation has drifted far from its origins and now means one thing to both sides: 50 votes. No filibuster.

That's the beauty of the reconciliation process: It restores the primacy of the up-or-down vote. In the "regular order" -- which is to say, the Senate's customary procedure -- the time for debate is unlimited, and if a minority of 40 senators refuses to stop talking, then you need 60 of them to invoke the rule that shuts the others up and allows the bill to come to vote. If you don't have 60 votes to break the filibuster, it doesn't matter if you have 50 votes to pass the bill.

The reconciliation process, by contrast, limits debate to 20 hours and bypasses the filibuster altogether. It was instituted to ensure that minority obstruction couldn't block important business like passing a budget or reducing the deficit. But it was misused. At least, Robert Byrd thought so. He saw all manner of "extraneous" amendments and legislation sneaking beneath the radar of the reconciliation process. Rather than being used to reconcile the budget or reduce the deficit, it was being used to short-circuit the filibuster (much, one might say, like the filibuster itself, which was being used not to lengthen debate on legislation but kill that legislation altogether).

Imagine you want to run health reform through the reconciliation process. Here's how it works: Congress includes reconciliation instructions in the budget. Those instructions direct certain committees -- say, the Finance Committee and the Health, Energy, Labor, and Pensions Committee -- to produce health-reform legislation hitting certain spending targets by a certain deadline. Once finished, the legislation is tossed back to the Budget Committee, which staples it together into an omnibus bill and sends it to the floor of the Senate for 20 hours of debate followed by an up-or-down vote.

This, some suggest, is too easy. By making it likelier that legislation passes, it is contradicting the Senate's proud history of implacable obstruction to progress. "If we are going to preserve the deliberative process in this U.S. Senate," Byrd thundered from the floor, "which is the outstanding, unique element with respect to the U.S. Senate, action must be taken now to stop this abuse of the budget process." So he took it, introducing, in 1985, the first version of the Byrd rule.

If you want to know why we do not today have a 50-vote Senate, the Byrd rule is the reason. The Byrd rule imposes a set of sharp constraints on the reconciliation process, limiting what is considered appropriate for reconciliation. The basic theory of the Byrd rule is that any legislation considered under the budget reconciliation process should principally affect federal revenues. A tax cut, for instance, can be considered under the reconciliation process. A new federal holiday cannot. But between those two examples sit crucial ambiguities.

The Byrd rule states that legislation is unfit for reconciliation if it "produce[s] changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision." I asked Jim Horney, a budget expert at the Center for Budget and Policy Priorities, how you define "merely incidental." And what, exactly, is a "provision"?

He sighed. A provision, he said, is "not defined anywhere. It goes well below a title or section of a bill and even below a paragraph. But exactly what it is nobody knows." And the Senate rules offer no more clarity on the definition of "merely incidental." Asked if anyone had developed an accepted meaning, Horney seemed almost apologetic. "No," he said. "Absolutely not."

The matter is not simply academic: The Byrd rule allows senators to challenge the acceptability of any provision (undefined) of a reconciliation bill based on whether or not its effect on government revenues is "merely incidental" (undefined). Thus, if you enter reconciliation with a health-reform bill, it's not clear what's left after each and every provision -- however that is defined -- is challenged and a certain number of them are deleted altogether: the tax portions, certainly. And the government subsidies. But is regulating insurers "merely incidental" to government revenues? How about reforming hospital delivery systems? How about incentives for preventive treatment? Or the construction of a public plan? An individual mandate?

It's hard to say. The ultimate decision is left up to the Senate parliamentarian, whose rulings are unpredictable. Under George W. Bush, Republicans managed to ram tax cuts, oil drilling, trade authority, and much else through reconciliation. But they were as often disappointed: The GOP leaders fired two successive Senate parliamentarians whose Byrd rule rulings angered them.

Taken as a whole, the uncertainty of the reconciliation process transforms it into a game of chicken: If Republicans refuse to cooperate with health reform and force Democrats to resort to reconciliation, no one knows what will emerge out of the other end. Republicans might have no input, but Democrats will be at the mercy of an obscure bureaucrat's interpretation of an undefined Senate rule. It's the legislative equivalent of deciding a bill on penalty kicks.

What should not be missed in all this is the absurdity that is the contemporary Senate. You need 50 votes to pass a bill. You need 60 votes to overcome a parliamentary trick that allows 40 senators to talk about cheese whiz until everyone else heads home for the night. But some priorities -- deficit reduction and the budget among them -- were judged too important to face the filibuster. There was no particular rationale given for that shortcut, but the relevant senators have clung tightly to its terms. Last week, Sen. Robert Byrd, now in his late 80s, reiterated that reconciliation was "a process intended for deficit reduction," and using it for health reform and cap and trade "is an outrage that must be resisted."

But the reconciliation process has been used for plenty that did not reduce deficits. Both of President Bush's tax-cut plans traveled through the process. And the very senators who speak reverentially of the filibuster now, voted for reconciliation then. Judd Gregg, in fact, voted for reconciliation every time it was used in the Bush era.

And even if reconciliation had only ever been used to cut the deficit, an observer might wonder what renders deficit reduction so much more pressing than, say, ending the punishing human cost of the health-care crisis, or saving the planet from catastrophic climate change. Why should cutting programs be exempt from the Senate rules but not saving lives?

Correction: Sen. Robert Byrd was described as being in his late 80s. He is actually 92 years old.

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