Yesterday, I noted that Republicans have a hard time defending the filibuster when they try to claim that circumventing that filibuster via reconciliation would be the crime of the century. That's largely because the filibuster is not easy to defend, particularly as it's being used today -- not as an occasional, dramatic measure to gum up the works for a principled reason, but as something they impose on every single significant piece of legislation. Republicans are now on pace to triple the previous record for filibusters in a single Congress. Yet they can't seem to make an affirmative case for it, instead using vague and confusing language about why reconciliation is bad without ever admitting that what makes reconciliation different is that it circumvents the filibuster.
Today in an op-ed in the Washington Post, Sen. Orrin Hatch brings that argumentative two-step to an almost comically dishonest level. Before we begin, let's remember that the Democrats are not proposing to pass health-care reform through reconciliation. Health care reform already passed both houses, overcoming a Republican filibuster in the Senate. What they are probably going to do is pass the Senate's bill through the House. At that point, health-care reform will be law. What they will then do is use reconciliation to pass some adjustments to that reform, like increasing subsidies to low- and middle-income Americans to buy insurance, or increasing the number of people eligible for Medicaid. Keep that in mind.
On to Hatch. After some obligatory words about the wisdom of the Founders, he says the following:
To impose the will of some Democrats and to circumvent bipartisan opposition, President Obama seems to be encouraging Congress to use the "reconciliation" process, an arcane budget procedure, to ram through the Senate a multitrillion-dollar health-care bill that raises taxes, increases costs and cuts Medicare to fund a new entitlement we can't afford. This is attractive to proponents because it sharply limits debate and amendments to a mere 20 hours and would allow passage with only 51 votes (as opposed to the 60 needed to overcome a procedural hurdle). But the Constitution intends the opposite process, especially for a bill that would affect one-sixth of the American economy.
First, what does it mean to "ram through" a piece of legislation? It's not as though this is happening in the dead of night, before anyone had an opportunity to give thought to health-care reform. We had over a year of hearings, debates, arguments, analysis, yelling, and screaming. A version of this reform passed both houses of Congress. Now adjustments to that reform might be passed through the Senate in a process by which a vote is taken, and the side with more votes prevails. That's "ramming through"?
The hilarious thing about this paragraph is the way Hatch can't even bring himself to write the word "filibuster." Note how he refers to a reconciliation bill passing with 51 votes, "as opposed to the 60 needed to overcome a procedural hurdle." Excuse me -- "a procedural hurdle"? Keep moving, folks, nothing to see here.
The last sentence of the paragraph is truly appalling. "But the Constitution intends the opposite process, especially for a bill that would affect one-sixth of the American economy." The Constitution "intends" nothing of the sort. The filibuster is not written in the Constitution. All the Constitution says is that "Each House may determine the rules of its proceedings" (read it here if you like). The commonly understood form of the filibuster -- where a member can keep talking until the Senate forces and end to debate via a cloture vote requiring a supermajority -- dates to 1917. There's no line in the Constitution saying, "If the Senate passes important legislation, it shall require a 60-vote supermajority."
Then Hatch gets histrionic:
This use of reconciliation to jam through this legislation, against the will of the American people, would be unprecedented in scope. And the havoc wrought would threaten our system of checks and balances, corrode the legislative process, degrade our system of government and damage the prospects of bipartisanship.
"Unprecedented in scope"? Um, no. Using reconciliation to make adjustments to an already-passed health-care reform is far less encompassing than, say, using reconciliation to pass the $1.8 trillion Bush tax cuts -- which, you guessed it, Hatch voted for (and yes, he has supported reconciliation bills many other times as well). "Threaten our system of checks and balances"? How's that now? "Degrade our system of government"? "Damage the prospects of bipartisanship"? Oh yeah, we were so close to getting bipartisanship -- what will happen if we throw all that comity out the window?
The op-ed goes on, with more deceptions -- for instance, he calls reform a "$2.5 trillion bill," a number that he seems to have pulled out of the air, simply because it's a lot bigger than the actual cost of the bill. The fact is that few people in Washington are better at feigning outrage than Orrin Hatch, his French cuffs fluttering madly about as he heads for the fainting couch.
Democrats need to remember that all this GOP braying about process is meaningless to voters. What matters is the result: Pass the bill and you win, fail to pass the bill and Republicans win. Simple as that.
-- Paul Waldman
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