Monday, October 26, 2009

Be Careful What You Wish For (... or what precedents you establish in Congress)

It is widely believed that Congress may use the process of reconciliation to limit opposition to proposals for health insurance reform. Wikipedia explains reconciliation as "a legislative process of the United States Senate intended to allow a contentious budget bill to be considered without being subject to filibuster. Because reconciliation limits debate and amendment, the process empowers the majority party." It goes on to explain that "until 1996, reconciliation was limited to deficit reduction, but in 1996 the Senate's Republican majority adopted a precedent to apply reconciliation to any legislation affecting the budget, even legislation that would increase the deficit. ... Under the administration of President George W. Bush Congress used reconciliation to enact three major tax cuts."

The irony of this is that Republicans were warned about reconciliation's potential use against their causes in a 1996 article published in the Congressional newspaper Roll Call and the Congressional Record:
[From Roll Call, May 30, 1996]
(By Bill Dauster)

The Senate died last week. At the very least, it suffered a blow that leaves it clinging to life.

You may be forgiven if you missed it. It happened while the Senate considered the budget resolution, a budget whose fiscal priorities pretty much repeat last year’s endless budget failure.

But while most observers of Congress yawned, the Republican majority used the budget process to fundamentally alter the way the Senate works. From now on, the Senate will conduct much of its business at its hallmark deliberative pace only if the majority wants it that way.

It is the Senate’s deliberative pace that has distinguished it from the House of Representatives and other parliaments. Yes, the Senate does apportion its membership by state instead of by population, but its true uniqueness flows from the way its rules preserve the rights of determined minorities.

Once the presiding officer has recognized a Senator, the Senate’s rules allow the Senator to speak as long as humanly possible, unless 60 Senators vote to end the filibuster. The mere threat of filibuster—called a ‘‘hold’’ can detain legislation.

As well, when the Senate is considering one subject, Senators have the perfect right to offer amendments on entirely different subjects. These powers to debate and amend make every single-United States Senator a force to be reckoned with. They give dedicated groups of Senators substantial power. And they give 41 Senators the absolute right to kill a bill.

All that changed last week. Sen. Pete Domenici (R–NM), the Budget Committee chairman, brought to the Senate floor a budget resolution that markedly expanded the use of a procedure called ‘‘reconciliation.’’ The reconciliation process creates bills that the Senate considers with only limited debate and limited opportunities to amend.

Because reconciliation bills limit debate, Senators cannot filibuster them. A simple majority can pass them. Because Senators may offer only germane amendments to reconciliation bills, Senators must stick to only the subjects chosen by the majority in the committee process. Because of the reconciliation process’s power, the Senate has limited it solely to deficit reduction through the ‘‘Byrd Rule,’’ named after the Senate’s parliamentary conscience, Sen. Robert Byrd (D- WVa).

This year’s budget will generate an unprecedented three reconciliation bills—on welfare, Medicare, and tax cuts—designed to maximize partisan confrontation with the President. And in a marked departure from past practice, the Republican budget resolution devotes one of the three reconciliation bills—the one to cut taxes—solely to worsening the deficit.

On May 21, Senate Minority Leader Tom Daschle (D-SD), backed by Sens. Jim Exon (D-Neb), Emest Hollings (D-SC), and Byron Dorgan (D-ND), formally challenged the procedure. The Republican-appointed Parliamentarian gave it his blessing.

In a series of exchanges with the presiding officer, Daschle demonstrated that the new procedure has few limits. Daschle appealed the ruling, but the Senate sustained the procedure on a straight party-line vote.

From now on, the majority party can create as many reconciliation bills as it wants. And the majority can use them to increase spending or cut taxes, worsening the deficit. From now on, the majority can use the reconciliation process to move its entire legislative agenda through the Senate with simple majority votes and few distractions.

The old Senate is dead. Some may say, ‘‘Good riddance.’’ After all, as a Democratic Member of Congress once said, ‘‘In the Senate, you can’t go to the bathroom without 60 votes.’’

If a simple majority can now pass important legislation in the Senate, perhaps a lot more will get done. Democrats will recall their frustration with Republican filibusters. Indeed, then-Budget Committee Chairman Jim Sasser (D-Tenn) once tried to convince Byrd to allow the Senate to consider the Clinton health care reform bill using the reconciliation process. Byrd did not want that done.

Also, the Parliamentarian at that time advised that it would not be in order for a budget resolution to instruct the creation of a reconciliation bill that solely worsened the deficit.

One can think about efficiency and Congress in two ways. The current conventional wisdom thinks in terms of legislative efficiency: How many bills become laws?

But as Nobel Prize-winning economist James Buchanan has argued, societal efficiency may be better served by a Congress that has hard time enacting laws. Under those circumstances, laws would change less often, less frequently disrupting peoples’ lives, less often intruding into them. If you agree with Thoreau that the best government is that which governs least, then the most societally efficient government is the one with the most checks and balances.

The Republican majority may thus have served legislative efficiency at the expense of societal efficiency. Good or bad, the Senate has changed.

As Daschle warned on May 21, ‘‘What goes around comes around.’’ Democrats will remember the lessons the Republicans have taught them of how to use the power of the majority.

So say ‘‘bye, bye’’ to this slice of American pie. This’ll be the day that it dies. This’ll be the way that it dies.

Congressional Record -Senate - pages S6135-S6136 - June 12, 1996.

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