Washington is abuzz these days with talk of “reconciliation” a word in our usual lexicon that suggests bringing people together. In this case, however, it is a larceny of language. It is divisive and not conciliatory and it is, understandably, creating anguish and outrage among those who understand the subterfuge at play here. Political mischief is about to run amok as this corruption of Senate rules becomes the strategic center piece President Obama and the Democratic majority in Congress will utilize to ram their health care bill into law.
To be sure, the reconciliation process has been used a number of times during the past thirty years, usually without much angst or controversy. It has, essentially, been used in the past to remove legislative stumbling blocks to initiatives with fairly strong bi-partisan support. American tradition as well as old-fashioned common sense has generally dictated that consequential legislation enjoy broad bipartisan consensus and, in fact, the most ambitious reconciliation bills of the past have been, more often than not, popular on both sides of the aisle. In these cases, reconciliation was used for procedural reasons, not to force through a bill that couldn’t get 60 votes. It has, however, never been used to advance legislation that a substantial majority of Americans have said they do not want. Nor should it be.
It was one of the wisest and most respected of Democrats, the late Senator Daniel Patrick Moynihan, who warned his colleagues, “Never pass major legislation that affects most Americans without real bipartisan support. It opens the door to all kinds of political trouble.” It appears that the Administration and the congressional Democrats are, indeed, going to open the door to all kinds of political trouble. To paraphrase Professor Harold Hill who once bellowed in the musical comedy Music Man, “There’s trouble right (there) in River City”…the river now being the Potomac and the city being our nation’s capital, Washington, D.C.
To better understand this, we need to take a quick look at the rules of the United States Senate. Back in 1789 both the House and Senate allowed debate to be ended and a vote taken upon the vote of a simple majority when the question was called. That changed during the Jefferson Administration in 1804 when the Senate dropped the rule opting instead for unlimited debate, a practice that in one form or another has been used in other western democracies. This non-stop talkathon is known as a filibuster. The actual filibuster is no longer required. The declared intent to use it is enough under current Senate rules to stop the advance of contentious legislation.
We can always expect sanctimonious protests from either side of the aisle that “a few are thwarting the will of the majority,” when the proponents of contentious legislation are stymied by the 60-vote rule. In practice, however, the opposite is often true. For instance, what is being stymied by the threat of a filibuster in the current health care debate is an extreme makeover of a major segment of our economy that most Americans have said, repeatedly, they do not want.
In 1917 President Wilson, angry about Congress’ failure to vote on certain war measures, convinced the Senate to adopt a rule cutting off debate by a two-thirds vote. In 1975 the required vote was reduced to three-fifths or sixty percent.
Nevertheless, even with a reduction to a three-fifths vote the Senate also adopted a new process intended to allow consideration of contentious budget bills by a mere majority pursuant to reconciliation instructions in a budget resolution. The process was further refined by adoption of a rule in 1985 (the so-called Byrd Rule) that explains what kind of fiscal bill is subject to reconciliation. Since that time both parties have invoked the reconciliation process over 20 times, but never on anything resembling such a massive change in the relationship between government and private citizens and never without even a modicum of bipartisan support.
Senator Byrd, considered by many to be the dean of parliamentary law and the man who penned the Byrd rule mentioned above, stated in a written opinion at the outset of the healthcare debate, “I oppose using the budget reconciliation process to pass health care reform and climate change legislation. Such a proposal would violate the intent and spirit of the budget process, and do serious injury to the Constitutional role of the Senate.”
Rule changes often push the envelope and test the limits of legislative propriety. In the case of the reconciliation process, who advocates its use depends on whose ox is being gored. Back in 2005 when President Bush’s judicial nominees were being filibustered, making a mockery of the “advise and consent” process, the frustrated GOP majority threatened to invoke reconciliation to get up or down votes on the nominees, a threat which the Democrats named “the nuclear option.” Ironically, the very same Democrats who were so outraged by the Republican threat to use the reconciliation process to allow an up or down vote on judicial nominees now refer to its use as “nothing extraordinary.”
Then Senator Obama said “he [President Bush] hasn’t gotten his way and that is now prompting a change in the Senate rules that really, I think, would change the character of the Senate forever and what I worry about is that you essentially have … two chambers … but you have…absolute power on either side and that’s not what the Founders intended.” No, it certainly wasn’t what the Founders intended, but it does seem to be what President Obama intends now that he is in the White House and not merely in the Senate.
Now comes current Majority Leader Harry Reid, the poster-boy for hypocrisy, who noted back then “the right to extend a debate is never more important than when one party controls both Congress and the White House. The filibuster serves as a check on power [to] preserve our limited government.” Perhaps, someone should remind Senator Reid that limitation on government is particularly important when the people are sending clear messages that they are strongly opposed to what the Congress is doing.
Current Secretary of State, but then Senator, Clinton then called on her GOP colleagues to go to Bush and tell him reconciliation is “a bridge too far” that “you have to restrain yourself Mr. President.” Senator Charles Schumer then spoke of using reconciliation as bringing us to “the precipice of a constitutional crisis” saying to the majority that if “you didn’t get your way 100% of the time [it is like] throwing a temper tantrum.” However, in 2005, a bipartisan group of senators avoided testing the limits of reconciliation by agreeing to an up or down vote on several of the nominees and the issue died down.
Backing away from the brink on health care may prove more difficult. The better part of a year has been devoted to what is seen as President Obama’s signature issue. Moreover, in 2008, the Democrats were handed, by recent historical standards, very significant majorities in Congress. They interpreted this not as a rejection of the exorbitant spending during the Bush Administration or weariness with an unpopular war, but as a mandate to make unprecedented changes to enlarge the role of government in our lives. Then candidate Obama boasted, “We are going to fundamentally transform America.” With regard to health care, the President and the Democratic Congress now propose to take over more than 17% of our economy just at a time when the public has become far more attuned to the enormous danger the country faces as a result of our ever-growing budget deficits and our gargantuan national debt.
Moreover, public opinion polls in the last year, along with several off-year elections, town hall meetings and the growing anti-incumbent sentiment make it clear that the American public does not want the 2,700-page bill now before Congress. In the face of this evidence, however, and because of the election of Scott Brown to the Senate, thereby denying the Democrats a veto proof majority, the majority party proposes to undo over 200 years of Senate procedure to narrowly enact into law a 2.5 trillion dollar measure. It is a proposal of no less importance or long lasting implications to our society than the enactment of Social Security and Medicare…. and it is being pushed down the throats of the American People under the entreaties of the same Democratic politicians who in 2005 railed against expansion of the reconciliation procedure on an issue nowhere near as far reaching. Is it any wonder, Americans have lost faith in their elected leaders?
Leave aside the merits, or lack thereof, of the health care legislation. The use of reconciliation to pass a bill of such magnitude and over the objections of most Americans represents what may be the greatest display of arrogance by Congress in American history. It shows a complete disregard for the Senate’s own rules whenever it suits them. If this process is used, can anyone give us an example of any legislation when it would be improper? Actually, come to think of it we can: whenever Harry Reid, Nancy Pelosi or Barack Obama find it to their partisan advantage. Does anyone see a resemblance, however, faint it might still be, to Hugo Chavez’s brand of democracy?
To add insult to injury, if the Democrats use reconciliation to advance their health care bill they would also have to engage in other legislative chicanery. The Senate, it seems, would have to pass a new and separate bill containing only amendments to its original bill in order to satisfy the House, which opposes the Senate bill as it stands. The House would then have to pass the Senate amendment bill and send that bill to the president for signature. Then the House would have to pass the first Senate bill and send it to the president for signature. The president would then have to sign the separate amendment into law first and then sign the original bill, in effect enacting into law an amendment to a law that did not yet officially exist. This sleight of hand would cross the eyes of any legitimate parliamentarian. Of course if the Senate Parliamentarian nixes the procedure, Vice President Biden, as the presiding officer of the Senate, can over-rule the Parliamentarian and the proverbial fix would be in.
We would argue that the elites of the liberal left believe they are smarter than everyone else and that the rest of the public simply won’t notice their perversion of acceptable procedure. But, the public does notice and it resents being steamrolled and taken for fools. The entire country ultimately sees and takes into account all the abuses of power that a tyrannical majority tries to get away with no matter who is in power.
Thus, the importance of this arcane little rule may have far more profound consequences than jamming a terrible and unpopular health care bill into law as bad and costly as that may be to the nation. What may very well be far worse is the price we pay in the loss of respect Americans have for their government. For more than two centuries this American experiment has endured, and indeed, strengthened in times of crisis because we trust its basic premise that it is founded on the rule of law. When that trust is stretched to the breaking point, we risk the emergence of even more fringe groups, conspiracy theorists, dangerous demagogues and the emergence of a segment of the population that simply will justify the evasion of what they perceive to be unjust law. Our system, at its core, depends upon the trust of the people. Loss of that trust would free a genie we may never be able to get back in the bottle.
by HAL GERSHOWITZ AND STEPHEN PORTER
Of Thee I Sing 1776
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