The Perils of Reconciliation

On my twitter feed (which you should follow, by the way), a friend asks what I think about the potential use of reconciliation to pass health care reform.  For those of you unawares (or just need a bit more information), reconciliation is “triggered” when Congress passes a concurrent resolution (a legislative measured passed by both the House and the Senate) requiring the committee(s) in question to – by a particular date – report any changes in law which affects the budget.  If those budget instructions affect multiple committees, those committees send their recommendations to the Budget Committee, which then packages them into a single omnibus bill.  Once on the floor, debate is limited to 20 hours, and amendments are sharply limited.  What’s more – and most relevant for our discussion – reconciliation bills cannot be filibustered and only require a simple majority vote.

If that sounds a bit too simple… you’re right, it is.  In 1985, the Senate adopted the Byrd Rule which prevented senators from including into a reconciliation bill any provision which was irrelevant to the purpose of implementing budget resolution policies.  In 1990, the Congressional Budget Act was amended to include the Byrd Rule.  This rule allows any senator to raise a point of order against any provision held to be irrelevant or “extraneous” to the budget.  If the point of order is sustained, then the provision is removed from the bill.

That last point should make progressives wary of using reconciliation to pass a strong public option, or a health care bill more generally.  While there are rules describing what counts as “extraneous,” they aren’t terrible precise, and are very much open to interpretation.  For instance, according to a budget committee report on the Byrd Rule:

Subsection (b)(2) of the Byrd rule provides that a Senate-originated provision that does not produce a  change in outlays or revenues shall not be considered extraneous if the chairman and  ranking minority members of the Budget Committee and the committee reporting the provision certify that —

• the provision mitigates direct effects clearly attributable to a
  provision changing outlays or revenues and both provisions together
  produce a net reduction in the deficit; or
• the provision will (or is likely to) reduce outlays or increase
  revenues:  (1) in one or more fiscal years beyond those covered by
  the reconciliation measure; (2) on the basis of new regulations, court
  rulings on pending legislation, or relationships between economic
  indices and stipulated statutory triggers pertaining to the provision;
  or (3) but reliable estimates cannot be made due to insufficient data.

While it is possible that the public option is a perfectly legitimate part of a reconciliation bill, it’s just as likely that it isn’t.  And if it isn’t, it’s not clear whether the public option counts as an exception to the rule.  Indeed, it’s fair to say that an exception is whatever the Senate Parliamentarian (who is responsible for deciding which provisions are ineligible under the rule) says it is.  What’s more, there is a fair chance that there are plenty of measures a liberal health care bill which would run afoul of the Byrd Rule, and thus be unceremoniously stripped from the final package.  In fact, it’s entirely possible that using reconciliation could result in a bill completely stripped of anything useful.

Honestly, I think progressives should stop worrying about reconciliation, and instead, focus on trying to break the inevitable Republican filibuster.  That said, I think I’m correct to say that the legislative drama over health care reform – and the preoccupation with arcane budgetary processes – serves as another data point in favor of repealing the filibuster.  Not only is it a tremendously anti-democratic tool (situated within a fairly counter-majoritarian institution), but to paraphrase a recent Hendrick Hertzberg post, the it is a clear impediment to those “who see democratic self-government as an instrument of public action.”  At the risk of sounding a little banal, we know that the United States is a vastly different country than what existed two hundred years ago, and we have tailored or changed most of our institutions to reflect this basic fact.  It’s time for the Senate to follow suit.