Nuclear Reconciliation

In response to the many recent discussions of the use of reconciliation both on this blog and elsewhere, Columbia University professor Gregory Wawro sends along the following guest post. It’s a tad bit long by Monkey Cage standards, but well worth the read:

Following up on Sarah Binder’s excellent posts on the reconciliation process and health care reform, I felt compelled to address some issues that have arisen over the past week, especially with regard to Republican’s attempt to equate the use of reconciliation with the nuclear option. Although Democrats have responded by spinning reconciliation as majority rule, pulling off the passage of health care may require parliamentary maneuvering similar to that which constitutes the nuclear option.

First off, it is inaccurate to equate reconciliation with legislating via simple majorities—especially for the purposes of keeping score as to how parties have used reconciliation in the past. Some in the media have assumed or asserted that the use of the process invariably means the legislation has been adopted by simple majorities (e.g., see this excerpt from an MSNBC “fact check” on reconciliation).

Here is some data on final roll call votes in the Senate on the twenty-two reconciliation measures that passed between 1980 and 2007. Only nine of these measures passed with fewer than 60 votes, and three of those nine did not become law because of successful vetoes. It is entirely possible that there is a bandwagon effect here and that senators who would have voted against the legislation voted for it once it became clear that the legislation was going to pass. Still, some of the margins here are so wide, that it’s hard to believe that a bandwagon
effect explains all of what is going on.

That said, it is clear that reconciliation has been used in some circumstances to enact legislation that otherwise would not have been passed if 60 votes had been required. And this brings us to the question of the technical and political feasibility of using it to pass health care reform in the current Congress.

The history of reconciliation has been one of innovation. In several instances, reconciliation has been used in ways that it hadn’t been used in the past, and in ways that arguably were not envisioned by the framers of the Budget and Impoundment Control Act. The use of reconciliation to pass health care reform in the 111th Congress will also be innovative in important respects, but success will probably require a committed majority to be willing to use some parliamentary strong-arm tactics to reshape the reconciliation process in areas where the rules are not entirely clear on what is and what is not permissible.

Democrats will most likely have to rely on rulings from the chair/presiding officer to keep things moving along. Such rulings would need the backing of a majority of senators—that is, a majority would have to vote to table any appeals of such rulings, thereby establishing precedents that are as binding as any rule of the Senate. Thus, Democrats will have to keep 51 votes together on some decisions that will potentially have impact beyond health care reform.

A ruling from the chair may be necessary to even allow the use of reconciliation for health care reform. Republicans are likely to raise points of order against the attempt, and the presiding officer—-presumably Vice President Joe Biden would be in the chair—-would have to rule in favor of the Democrats. The Senate here would still be operating in simple majority mode, since only 51 votes would be needed to sustain the ruling and Republicans would have limited ability to obstruct. Republicans pulled off a similar maneuver in 1996, when they attempted to use reconciliation to pass three bills—one to slow Medicare spending, one to overhaul welfare, and one to cut taxes.

Tom Daschle, the minority leader for the Democrats at the time, raised a point of order against the tax bill, claiming that it should not be given reconciliation protection because it would not decrease the deficit. The chair, Republican James Inhofe, ruled against the point of order, and after Daschle appealed the ruling, it was upheld on a strict party-line vote of 53—47, clearing the way for the bill to proceed under reconciliation procedures.

Should health care reform proceed under reconciliation, Republicans have threatened to gum up the process, possibly by using Byrd Rule objections to provisions in whatever reconciliation vehicle makes it to the Senate floor. The presiding officer decides whether to sustain these points of order, consulting with the parliamentarian. Biden could ignore the advice of the parliamentarian, Alan Frumin, should he indicate that points of order against key provisions should be sustained. Republicans will cry foul and even some Democrats will feel uncomfortable proceeding in this manner, but the decision ultimately rests with the presiding officer. Note that it requires 60 votes to overturn the ruling of the chair should he sustain a point of order under the Byrd Rule. But here we are talking about the chair not sustaining the points of order in the first place.

Republicans have also threatened try to stall progress by offering numerous amendments that might force some difficult votes that could fracture the supporting coalition. It is unclear how viable this strategy is. Reconciliation limits debate
to 20 hours, but that constraint does not necessarily apply to amendments. This is uncharted territory, since there has never been an attempt to filibuster a reconciliation bill in this way. Democrats do have the tools at their disposal to stop it, however. That is, a Democrat could raise a point of order that the amendments are dilatory in nature and therefore should be ruled out of order by the chair.

As justification for doing this, Democrats could point to precedents established in 1977 to end so-called post-cloture filibusters. Then-majority leader Robert Byrd worked with Vice President Walter Mondale to establish precedents to close loopholes in the cloture rule to prevent senators from offering dilatory amendments to obstruct after cloture had been invoked. As Eric Schickler and I discuss in our book Filibuster: Obstruction and Lawmaking in the U.S. Senate, the Senate voted overwhelmingly to establish a precedent that required the presiding officer to rule dilatory amendments out of order, rather than waiting for a senator to make a point of order. In implementing the precedent, Byrd called up in rapid discussion thirty-three amendments to a bill to deregulate natural gas, and Mondale ruled each out of order as dilatory (all the while ignoring senators seeking recognition), thus swiftly dispensing with the filibuster. Democrats could adopt a similar approach to addressing dilatory amendments during the reconciliation procedure. This is likely to be highly controversial, even among Democrats, since it would establish a precedent that could severely restrict the minority’s participation in the reconciliation process in the future.

Going the reconciliation route for health care reform is far from a cakewalk. Democrats will have to hold together a majority to withstand a series of potential challenges by the minority. This will surely test the resolve of Democrats and their willingness to push the envelope on the use of reconciliation. From a political science angle, how this plays out has important implications for our understanding of legislative institutions and concerns about how rules can serve as constraints on behavior when legislators have the option to change said rules.

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