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By Jay Cost

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The Return of ObamaCare, Part 1: The Legislative Context

With the Lazarus-like return of ObamaCare, liberal pundits are again touting budget reconciliation as a viable way forward. Blogger Ezra Klein offers an over-simple description of the process.

This is actually the sort of situation reconciliation was designed to address... Budget reconciliation is called "reconciliation" because it's supposed to speed the, well, reconciliation of the differences between two budget bills. That's exactly what's left to do with the health-care reform bills, which were indeed part of the 2010 budget and whose passage is expected in the 2011 budget.

It's more complicated than this, and in important ways. Here's some background on budget reconciliation.

It's a product of the 1974 Budget Act, which in turn was a product of presidential-congressional battles over fiscal responsibility. President Nixon had impounded funds to protest congressional profligacy. The courts ruled against him, but the court of public opinion ruled in favor of him. So, Congress reformed its ways by doing only what Congress can: adding another layer of complications to an already too-complicated process.

It goes like this. Early in the year, Congress passes a budget resolution that sets revenue and spending targets that instructed committees are supposed to meet. The House and Senate Budget Committees can then compile the committee-drafted products into a reconciliation bill. Reconciliation is optional, though in recent years it has become pretty regular.

Reconciliation bills have a privileged status on the Senate floor. There is no debate on whether to begin consideration of a reconciliation bill. Proposed amendments must be germane to the bill. Debate on the bill and any amendments to it is limited to 20 hours. If you've ever heard the phrase "vote-a-rama," this is where it comes from: when the time limit for debate on a reconciliation bill has been reached, remaining amendments are voted on in quick succession.

All of this is designed to facilitate Congress in making a budget plan, then actually sticking to it. Of course, determined congressional majorities, especially when given clear guidance by a determined President, have used reconciliations rules for purposes beyond the original intent. The first notable event in this history occurred in 1981 when President Reagan and the GOP Senate majority used it to cut spending and taxes by a significant amount. As legislative expert Walter Oleszek has written, "Never before had reconciliation been employed on such a grand scale."

Liberals like Klein will suggest that this justifies, in some ethical sense, the use that Harry Reid is now apparently planning for budget reconciliation. Conservatives will use words like "jam" and "ram" and phrases like "the nuclear option" to argue that there is no such justification.

When it comes to legislative procedure, I am a strict Hobbesian. There is what a Senate majority can do, and what it can't do. "Appropriate" or "inappropriate" are not applicable phrases. Congress is sovereign over its own procedures, which are the product of self-interested members working to secure reelection and/or policy goals. Morality doesn't enter into it. (See the note at the bottom of this post for another thought on this topic.)

I'll go a step further to suggest that people with strong policy preferences should rarely be listened to in a debate about appropriate procedure. People who care intensely about the final vote tally often don't care how the votes are counted, so long as they get their preferred outcome. This is why there was no hue and cry coming from most of these born-again majoritarians on the left when the Democrats were looking to filibuster judicial nominees in 2005. It is easy to find numerous examples of conservative hypocrisy on this subject, too.

The better question, then, is whether the Democrats can use reconciliation to get their health care bill through the Senate.

Can they?

Absent a filibuster-proof majority, the Democrats still have a handful of legislative options to pass the bill. They can:

(a) Negotiate with Scott Brown, Susan Collins, and/or Olympia Snowe to find a 60th vote.

(b) Prevail upon the House to agree to the Senate bill without amendment.

(c) Prevail upon the House to pass the original Senate bill, with both chambers passing a reconciliation bill resolving inter-chamber differences.

Let's think about each of these options.

Many liberals suggest that (a) is off the table because Olympia Snowe has magically become indistinguishable from Jim DeMint. I think this is a facile and self-serving argument, designed to pin the blame on polarization exclusively on increased conservatism on the GOP side. No doubt the GOP has moved rightward, but the Democratic Party has also moved leftward - so far to the left, in fact, that a true moderate like Olympia Snowe cannot cooperate with them. And, I hasten to add, ditto 38 House Democrats who defected from the party line in November. Are they part and parcel of Republican extremism?

The fact that (b) is off the table is a signal that the public is not wrong to dislike the proposal as broadly as it apparently does. From what I have gathered from media reports, House liberals are willing to sign on to the Senate bill only if their favored interest groups - labor unions - get special exemptions.

So, the preferred strategy is (c). Ezra Klein wants you to think that this is in keeping with the grandest traditions of the government's estimable budget process (stop laughing!), but that's a stretch. The "original intent" of reconciliation was to help Congress stick to its outlined budget plan, not to aid majorities in resolving inter-chamber differences on divisive, comprehensive reform of 1/6th of the United States economy.

Again, this is not to argue that the Democratic leaders are acting unethically here. The point is that, legislatively speaking, they are looking to put a square peg through a round hole.

Can they? Maybe, but it could be difficult.

I don't know how difficult it will be, and I'll suggest that in fact nobody really knows just yet. For starters, the ease or difficulty will depend on what the compromise between House and Senate Democrats actually entails, including what the House absolutely, positively must get for it to be willing to pass the Senate bill. Nobody yet knows the contents of said compromise because it hasn't been reached yet.

Assuming there is some compromise, the success or failure of the process in the Senate will come down to a simple question: how well can the Republicans use the "Byrd rule?"

The Byrd rule, named after Senator Robert Byrd (D-WV), was implemented in the 1980s because the Senate had used reconciliation to pass items that were not related to the budget. In other words, Senators were getting around the filibuster, that ancient device which is either the final protection against an extreme majority or the last recourse of a discredited minority (depending upon which side one finds oneself!). The Byrd rule puts limits on what reconciliation can be used for. Extraneous provisions are stricken from reconciliation bills, and have to be passed through the typical procedure. Here are several relevant definitions of "extraneous" (quoting a report from the Congressional Research Service by Robert Keith and Bill Heniff, Jr.):

A provision is considered to be extraneous if it fails under one or more of the following six definitions:
(1) It does not produce a change in outlays or revenues...

(4) It produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision.

(5) It would increase the deficit for a fiscal year beyond those covered by the reconciliation measure...

This suggests why smart Democrats never seriously discussed using reconciliation to pass an entire health care bill. If a provision does not alter spending or tax revenues, does so only "incidentally" (an unimportantly ambiguous word!), or adds to the deficit - it can be stricken.

The Byrd rule will set the parameters of the legislative battle, should the Democrats take this path. In that case, the Democrats will write a reconciliation bill that resolves the differences between the two chambers and, so they hope, does not include extraneous measures, as defined by the Byrd rule. The Republicans will test how well the Democrats have drafted their legislation - raising points of order in the hopes of striking provisions that they argue are extraneous.

Remember, this reconciliation bill is serving as the substitute for the amendment that would have resolved House/Senate differences had Scott Brown lost to Martha Coakley. The House needs the reconciliation bill to fix certain problems in the Senate bill, or else it will fail in the lower chamber. Mitch McConnell's goal will be to use the Byrd rule to blow a hole through the House/Senate compromise that the reconciliation bill embodies - thus creating a final product that the House cannot pass.

It's hard for me to compare this reconciliation attempt with previous ones because I am not an expert on the budget process, but I can say this. This strategy comes across as ironic when one reads the Audacity of Hope. In it, one finds then-Senator Obama preening about the horrors of Bush 43 legislative strong-arming and the assault on minority rights. Typical politicians tend to be hypocrites when it comes to the legislative process. Yet it is appropriate to hold the President to a higher standard, especially one who spent two years on the campaign trail hawking his moral superiority as a sure-fire tonic that can cure partisan division. His explanations for the lack of bipartisanship in his first 13 months are noteworthy examples of presidential sophistry. If history is any guide, expect the 44th President to earnestly explain that he really, really wanted to be bipartisan on health care - but sadly he could not find a single Republican in the United States Senate willing to negotiate in good faith. That's what this summit is all about, isn't it?

Budget reconciliation is a risky legislative strategy with much uncertainty. The Democrats are looking to use decades-old rules to do something the rule makers never envisioned. I don't know whether they can succeed - and I don't think anybody does yet, either.

As difficult as the legislative path is, the political path is much harder for Democrats. We'll discuss the politics tomorrow.

While I don't think right versus wrong properly enter into considerations of reconciliation, I have noticed one particularly ridiculous moral argument in favor of reconciliation making the rounds. We are told that it promotes the ideal of a simple majority, which most people believe is normatively appropriate. Indeed, that is the common opinion - but the Senate is not a majoritarian institution! You could have a super-majority of 82 senators whose constituents still don't amount to a majority of the United States population. So, what is the normative value of half-plus-one votes in an institution where votes are not pegged on population?

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-Jay Cost