by Eric Martin
Megan McCardle seems a bit confused about what the Democrats are proposing to achieve in terms of modifying the current health care legislation via the reconciliation process:
I have at best a passing interest in the "legitimacy" of the reconciliation process, but James Joyner pretty much dismantles the current liberal talking point that Republicans use reconciliation to pass controversial bills all the time
First of all, much to to my chagrin as a card carrying liberal, I was heretofore unaware of the liberal talking point du jour. Although perhaps the oversight was not mine alone. I can't seem to locate the "all the time" phrasing in many major liberal periodicals, and would appreciate some cited examples (that aren't provided). While I am perhaps only a low-level apparatchik, I was aware of the popular "use of reconciliation to modify certain budget-specific portions of already passed bills is not unprecedented or the nuclear option," but not the more fanciful version cited by McCardle.
Which segues to my more substantive critique of both McCardle and Joyner. That is, there is no serious discussion at this point of "passing" any bill via reconciliation. Rather, there is discussion of the House passing the exact bill that already passed the Senate by fillibuster-proof supermajority, and then modifying certain budget-specific provisions of the law via the reconciliation process – as has been done several times in the past.
Joyner argues:
Almost every act passed under reconciliation (8/15) has in fact been a budget bill.
It's unclear what calculus Joyner is using, but 8 out of 15 more closely resembles "slightly more than half" than it does "almost every." Regardless, the Dems are not proposing using reconciliation to pass the bill, just modify the bill that was already passed by supermajority in the Senate. Joyner continues:
What’s also interesting is that the vast majority of these bills were absolute slam dunks. Most (8/15) were passed by filibuster-proof supermajorities, meaning that reconciliation wasn’t used as an end-around to avoid a cloture vote.
What's also interesting is that the current bill was an absolute slam dunk – passed by a fillibuster-proof supermajority in the Senate.
The bottom line is that using reconciliation as an end-around to avoid filibusters is exceedingly rare, having happened at most 7 times since 1980. Of those 7 cases, all were budget or tax measures. So, using reconciliation to avoid a supermajority on health care reform would simply be unprecedented.
Well, it's a good thing that nobody is seriously proposing doing that at this time then. Rather, to repeat myself, there is a proposal to revise certain budget-specific portions of a bill that would pass both houses – including by a supermajority in the Senate.
Adding my two cents: PASS THE FRAKKIN BILL NOW!!!!! You fools.
Yes, “eight out of fifteen” translates to “slightly more than half,” not “almost every.”
As you point out, the bill passed by a super-majority in the Senate. The modifications are budget-specific and will please the House.
Why do those who oppose reform feel so free to lie?
You could have stopped after:
actually, you could probably stop with just:
Since confusion and a lack of familiarity with reality and reason are implied by those two words.
I think acting like this is just business as usual is a stretch. Clearly there were clearly a series of steps laid out to get this bill to a final vote in the House and Senate that had an uncertain outcome before Scott Brown was elected.
The Senate bill would NEVER have been accepted by the House and the House changes in conference would certainly have made it questionable in the Senate.
And all that was with a Democratic super majority.
To pretend that the current plan is not a unique and panic driven attempt to save a Presidency is disingenuous. It is “within the rules” and “it’s been done before”.
But, a bill that hasn’t passed, and can’t as is, has never been passed with a promise of a reconciliation bill to “fix” it in order to completely avoid the defined process that is meant for specific budget processes.
If he pulls it off it will move his agenda back to something that may have broader support and help his Presidency.
But, to pretend that health care is NOT being passed by reconciliation is working on the revisionist history before it has even happened.
“But, to pretend that health care is NOT being passed by reconciliation is working on the revisionist history before it has even happened.”
That’s kind of an exotic take on the meaning of the expression “doing A by B”. If I agree to bring my basketball to the gym by car only if my friend assures me that he will come there by bike, did we agree to get the basketball to the gym by bike?
We sure didn’t. Same with Health Care. They don’t get it passed BY reconciliation (or rather, nearly all of it).
The pretense I find most enjoyable is the Republican tizzy about “one-sixth of the economy”. How much of The Economy did Dubya’s mega-taxcut bill affect?
By the way, the law which gives you the right to keep buying into your company’s health insurance plan for a period of time after you lose or leave your job is universally known as COBRA. Now where the hell did that brand name come from? And why do Democrats treat its origin like a shameful secret which it would be improper to mention in polite company?
–TP
“The pretense I find most enjoyable is the Republican tizzy about “one-sixth of the economy”. ”
Interesting, this started with Obama citing healthcare as a place to invest to revive the US economy. In fact his top economic priorities were healthcare, clean energy and education.
Interesting, this started with Obama citing healthcare as a place to invest to revive the US economy.
Marty, how does that change what Tony wrote?
To pretend that the current plan is not a unique and panic driven attempt to save a Presidency is disingenuous. It is “within the rules” and “it’s been done before”.
I’m not sure what this means? Panic driven? Unique? Why? Because they’re using reconciliation to modify certain permitted aspects of a bill passed by supermajority in one of the houses?
But, to pretend that health care is NOT being passed by reconciliation is working on the revisionist history before it has even happened.
This is exactly wrong. To pretend that a bill that passed with 60 votes in one house, and (if it passes) a majority in the other is somehow being passed by reconciliation if certain limited, budgetary aspects are changed in reconciliation (a process used numerous times, including to pass Bush’s enormous, trillion dollar-plus, mega-impactful tax cuts) is actually quite revisionist.
Again, the bill passed. It passed without reconciliation. It passed with a supermajority. If it passes the house, it will at least be a majority. How is that not…passing?
“This is exactly wrong. To pretend that a bill that passed with 60 votes in one house, and (if it passes) a majority in the other is somehow being passed by reconciliation if certain limited, budgetary aspects are changed in reconciliation (a process used numerous times, including to pass Bush’s enormous, trillion dollar-plus, mega-impactful tax cuts) is actually quite revisionist.
Again, the bill passed. It passed without reconciliation. It passed with a supermajority. If it passes the house, it will at least be a majority. How is that not…passing?”
There were at least two votes, the cloture vote and then the passing vote in the Senate that every Democrat voted for because there was a conference bill to come.
No one expected the Senate bill to be the final product. The explanation you give is revisionist history to the process (and changes to that process required because another bill wouldn’t get through the Senate)and expected outcome by the Democrats.
I am ok if they get the votes in the House but let’s not pretend it is different than it is.
No one expected the Senate bill to be the final product.
No, many Dem Senators thought that they would have had to compromise more, give away more, concede more. When they passed their bill, leadership HOPED it would the final product because they knew how hard it would be to get the necessary votes for even more progressive changes requested by the House.
So from the Senate’s perspective, this was serendipitous, but that doesn’t make it revisionist to point out that it still counts as passed. When you get 60 votes to pass the bill, it passed. That’s still not revisionist if there was an acceptance that it might have to be compromised in committee – with fear that some compromises may go too far.
The House has compromised before, and if a a willingness to explore certain provisions in reconciliation helps them to compromise now, that is not a cataclysmic perversion of process, but quite a permitted move well within the rules. And not unprecedented either. You overstate this considerably.
And regardless, the bill would most definitely, emprically NOT pass by reconciliation. You can repeatedly claim otherwise, but you would be quite simply wrong. Empirically, demonstrably.
a unique and panic driven attempt to save a Presidency
Where you see panic, I think I might see a tactic so redonkulously clever & subtle that it can never be spoken of out loud by the people who did it, even if it might have been as much a product of circumstance as planning.
Problem: getting 60 votes in the Senate for a bill that can pass the House.
Solution: pass a bill with 60 votes in the Senate, then pass another bill changing the first one with 51 votes in the Senate to placate the House.
Second problem: if you tell Senate Democrats you are going to do this, they will cry and you will never get 60 votes for the first bill.
Solution: don’t tell them you’re going to do it, don’t tell them you are doing it, don’t tell them you did it when you’ve done it. In fact, what’s to tell? There never was any such tactic, I have no idea what you’re talking about, we never intended for it to happen this way. See?
The first constitutional problem here, though I’ll concede it has to do with that growing fraction of the Constitution that’s not being enforced, is that this revenue bill didn’t originate in the House. All the Senate did was take an old House bill they’d voted down, and replace everything but the bill number with a Senate originated bill.
But, as I say, that’s a non-starter, the courts aren’t enforcing the requirement that revenue bills actually originate in the House.
If the Senate bill passes the House, it’s passed, it goes onto the President, and reconciliation never happens. That’s the fundamental problem House members who don’t dare go to the voters this fall having passed the Senate version of health care ‘reform’ face. All this flailing around can’t evade it.
Why do those who oppose reform feel so free to lie?
it’s fun. there’s no penalty. and it works!
“And regardless, the bill would most definitely, emprically NOT pass by reconciliation. You can repeatedly claim otherwise, but you would be quite simply wrong. Empirically, demonstrably.”
You are of course correct THE BILL did not pass by reconciliation, didn’t say it did. Healthcare reform passed by reconciliation, I did say that.
All the Senate did was take an old House bill they’d voted down, and replace everything but the bill number with a Senate originated bill.
OMFG.
could you be more desperate ?
Brett, I assume you accept that the Senate has some power under the Origination Clause to amend revenue legislation. So how much? Do you accept the Supreme Court’s holdings on the question?
But, as I say, that’s a non-starter, the courts aren’t enforcing the requirement that revenue bills actually originate in the House.
And how, exactly, are “the courts” to do this? Which courts? Via which powers? In the absence of suits being brought?
You know, after reading David Brooks today, I think Marty may actually be David Brooks. It didn’t really sink in that passing HCR through reconciliation wasn’t passing HCR through reconciliation.
Now that MartyBrooks has explained it, I still don’t get it.
You are of course correct THE BILL did not pass by reconciliation, didn’t say it did. Healthcare reform passed by reconciliation, I did say that.
Ah, a distinction without much of a difference. And the Dems are the desperate, panicked ones? Heh.
Adding, that this move is entirely in keeping with the massive spike in filibusters undertaken by the GOP since they lost control of the Senate late in the Bush admin’s second term – as the graph that Marty has linked to shows so persuasively.
The GOP has been abusing filibusters in a completely unprecedented way (massively so), and the Dems are reacting by using a perfectly sound procedural countermeasure to modify certain aspects of a bill that passed with supermajorities in one house and would, presumably, pass with a majority in the other.
This is not unprecedented.
But, a bill that hasn’t passed, and can’t as is, has never been passed with a promise of a reconciliation bill to “fix” it in order to completely avoid the defined process that is meant for specific budget processes.
This is not actually true.
In fact, quelle surprise, the GOP has set the record for use of self executing rules!
Siiiigggghh.
“Ah, a distinction without much of a difference. And the Dems are the desperate, panicked ones? Heh”
huge distinction, so lets play this out. Parliamentarian says that the contents of the bill don’t meet the citeria for a budget bill, thus reconciliation. Harry Reid overrides the parliamentarian because he HAS to live up to what they promised the House. The filibuster and every other control on a 51 person majority for ANY type of legislation is gone permanently.
The next Republican Senate just doesn’t bother and every bill becomes a reconciliation bill, pointing back to the healthcare bill as the Democratic precedent.
That the Democrats are willing to risk that future is the measure of their desperation. President Obama is supposed to be the cool head with the longer view, this seems to me to be out of character for him.
On topic of reconciliation, Dave Brooks says:
“Reconciliation has been used with increasing frequency. That was bad enough. But at least for the Bush tax cuts or the prescription drug bill, there was significant bipartisan support. ”
I’m not sure I care that there was significant bipartisan support for the Bush tax cuts (which I opposed). If you get 26 Republicans and 25 Democrats to support a bill I loathe, I’m not going to have an epiphany about the beautiful powers of compromise. The contents of the bill are what they are regardless of the political breakdown of its supporters.
Similarly, I support the healthcare reform (I hope I am not misnaming it) bill because I think it’s good (but could be much better; public option please Bernie Sanders). I could care less if any Republicans support a bill which would hugely expand coverage and save us trillions of dollars, as long as we can pass the thing.
Now, I know that many conservatives, republicans, and libertarians would dispute my assertions about the bill. That’s a distinct debate, however, from reconciliation. The whole point of a democracy is that someone shoves something down someone else’s throat. Does that act become wicked when the bill being enacted is bad? If this is purely an argument against the method, then Republicans really shot themselves in the foot by using reconciliation repeatedly and not eradicating it during one of their house. If the method is only bad because the bill is bad, then the onus is on them to prove the bill is bad.
“not eradicating during one of their house.”
=
not eradicating it during one of their majorities.
“Harry Reid overrides the parliamentarian…”
Sorry, Biden has to do this.
Parliamentarian says that the contents of the bill don’t meet the citeria for a budget bill, thus reconciliation.
But reconciliation has been used on non-budget bills in the past already! By Republicans!
Besides, reconciliation can only modify budget/tax-specific features of the passed bill.
The next Republican Senate just doesn’t bother and every bill becomes a reconciliation bill, pointing back to the healthcare bill as the Democratic precedent.
But they’d still have to pass the bill initially with filibuster-proof majorities! You can’t pass a bill with reconciliation, only modify budget/tax specific features of an already passed bill!
That the Democrats are willing to risk that future is the measure of their desperation. President Obama is supposed to be the cool head with the longer view, this seems to me to be out of character for him.
This doesn’t make any sense. Risk what? The GOP using a parliamentarian technique that they have used in the past on numerous occassions to modify budget/tax provisions of bills passed with filibuster-proof supermajorities – with the modified portions still subject to majority vote?
Your concerns are misplaced.
The filibuster and every other control on a 51 person majority for ANY type of legislation is gone permanently.
No! You still have to pass the actual bill by filibuster proof supermajority.
You seem to miss that.
Although I should add that I have long opposed the filibuster, and if it died, you would not find me mourning its death.
Unfortunately, and much to my sadness, the use of reconciliation to modify bills already passed with filibuster proof majorities does not and will not kill the filibuster.
It will continue to gum up the works and make governing a mess – an anachronistic system not duplicated anywhere else in the world.
“In fact, quelle surprise, the GOP has set the record for use of self executing rules!”
Except this is a House procedure and has nothing to do with reconciliation in the Senate.
could you be more desperate ?
Not much. The Democrats appear ready to pass a healthcare bill, which, although it could have been much better, is a really good bill and a substantive improvement. Once the bill passes, the right-wing talking points are going to come apart (e.g., they’re arguing against using reconciliation to fix things like the preferential treatment for Nebraska they’ve been railing against). Can you say “against it before they were for it”? Next, they will be forced into the situation of demanding repeal of a measure where virtually every provision (recision ban, universal coverage, affordability measure for the middle class, etc.) is wildly popular, and where many of these measure will take effect well before the next election. It’s catastrophe for the right-wingers, and they know it.
Unfortunately for them, the bill can only be stopped if enough Democratic House members vote against it. And the members can see, in Nelson, in Lieberman, in Landrieu, and in Lincoln, that visibly obstructing this measure is political death for a Democrat. The right-wingers need 40 Democratic Representatives to be total idiots, or the right-wingers will spend the next generation in Sisyphean struggle against a successful and popular health care reform (it will be very popular once the people experience it, and everybody will be terrified to go back).
Yes, they’re desperate.
Except this is a House procedure and has nothing to do with reconciliation in the Senate.
Except that this is what you were complaining about the House doing upthread in order to facilitate reconciliation.
You wrote:
But, a bill that hasn’t passed, and can’t as is, has never been passed with a promise of a reconciliation bill to “fix” it in order to completely avoid the defined process that is meant for specific budget processes.
I responded with a link that should, factually and empirically, that bills have been passed with a promise of reconciliation to “fix” it.
And that promise would have to be in the House since the Senate bill already passed with no such promise.
“And that promise would have to be in the House since the Senate bill already passed with no such promise.”
It will but the promise ha to come from the Senate. I understand the mechanics of all this have all been done before in pieces.
The Parliamentarian has, as you pointed out, stated that the bill has to be passed by the House before a reconciliation bill can be considered. So, as I understand the process, the House can’t pass the reconciliation bill and then pass the Senate bill after reconciliation has passed the Senate, even by rules.
Wait, I just realized I might have misinterpreted what you are saying.
Are you saying that Senate leaders have never promised House leaders to revisit a bill in committee or via reconciliation if passed?
Really? Never?
“Are you saying that Senate leaders have never promised House leaders to revisit a bill in committee or via reconciliation if passed?”
I am saying, maybe not clearly, that, as far as I can remember, no piece of major legislation has been passed by that method.
Conference committee promises, absolutely, because they get to vote again.
Reconciliation of this type? No, I don’t think so. Also, from whatever I read, on both sides, it is precedent setting.
Off topic newsbreak: CNN has added R3dSt@te’s 3r1ck 3r1ckson (Google-proofed, because eff that dude)to their on-air team. This is the guy who, among other delights, referred to Justice David Souter as a “goat-f*cking child molestor.” His Twitter feed is among the most obscene, deranged things you will ever read. But CNN says he’s “an agenda-setter whose words are closely watched in Washington, [a] person who still lives in small-town America, . . . in touch with the very people John hopes to reach.”
Our Liberal Media strikes again.
Also, from whatever I read, on both sides, it is precedent setting.
alas, the Dems have realized they can’t let the GOP set all the precedents for procedural trickery. if the GOP wants to blow up the Senate with it’s endless list of endless, pointless, unprincipled filibusters, they have no grounds to complain if the Dems sidestep them.
want to play rough? you got it.
That’s right, I’m with Cleek.
Ever since the GOP lost the Senate (as Marty’s graph pointed out), they’ve used the filibuster FAR, FAR in excess of any historical precedent. If they’re going to break with precedent in such an extreme fashion, the Dems would be extremely foolish not to take procedurally sound countermeasures.
Conference committee promises, absolutely, because they get to vote again.
Well, just to be clear, the Senate has to vote again on the reconciliation provisions as well.
Our Liberal Media strikes again.
ho.lee.crap.
i wish i watched CNN, so i could stop, in protest.
Ugh.
I’m not willing to admit that Democrats ‘need’ to create new ‘creative’ legislative games until they actually force Republicans to really fillibuster. At least once. And no whining about how hard it is for the majority, and how they might have to stay in the Congress building for like 3 whole days in a row or something. Whaaaa. We pay you plenty. Suck it up for one or two days.
If it REALLY turns out that making Republicans read out of a phone book plays ok on YOUTUBE, then we can revisit the necessity to pretend that the health care bill is just a budget reconciliation. But we don’t need to create obvious lies like that until you’ve proven that the system is really broken. So far Democrat in Congress have proven that they don’t want to work three days in a row, ever. That is not really an excuse.
“No! You still have to pass the actual bill by filibuster proof supermajority.”
You only need 51 votes to pass any bill in the senate. what you need is 60 votes to end a filibuster. Once again the Republicans have won on the semantics. shouldn’t your sentence read:
As long as Republicans are using the filibuster to block up or down votes, you need a supermajority of 60 to proceed to a vote.
If the conservative democrats could only get to the point where they would say (along with the President) that the American people deserve an up or down vote on health care -and even though intend to vote against the bill will vote to end the filibuster- the Senate would be back on track.
As a matter of information, when the reconciliation bill passed last spring, weren’t 60 votes needed before the vote was held to adopt it?
“want to play rough? you got it.”
I am afeared that the ultimate result is that WE got it and neither of us will like it.
“I am saying, maybe not clearly, that, as far as I can remember, no piece of major legislation has been passed by that method.”
History never exactly repeats itself, and one can always find some unprecedented particular in any situation, but reconciliation is almost the traditional way of passing health care reforms.
I am afeared that the ultimate result is that WE got it and neither of us will like it.
i’m liking it just fine. i wish they’d do more of it, in fact. the GOP has convincingly shown that voters* do not care about process, so long as it gets the job done. they don’t even care about lawbreaking, if it’s done in the name of “national security”.
so, to hell with the old standards and procedures – get er done, by hook or by crook.
rules and standards are for suckers and chumps. you want to win this fight, you gotta be willing to stick your thumb in some eyes.
at least that’s what too much tea tells me.
—
* political junkies itching for reasons to be outraged at their opponents are thankfully still a tiny minority.
Ezra Klein, as usual, has a wonderful post, this one refuting David Brooks.
I am afeared that the ultimate result is that WE got it and neither of us will like it.
Marty, you’ve raised this point before, and I’ve pointed out before, that I have long criticized the Senate’s undemocratic nature – the filibuster, and the structure itself (2 from each state regardless of the population) – so this notion that I will rue the weakening of the filibuster is…well, contra my beliefs.
I’m not willing to admit that Democrats ‘need’ to create new ‘creative’ legislative games until they actually force Republicans to really fillibuster. At least once. And no whining about how hard it is for the majority, and how they might have to stay in the Congress building for like 3 whole days in a row or something. Whaaaa. We pay you plenty. Suck it up for one or two days.
Seriously. Is it too much to ask for Democrats to actually take a stand on their signature issue?
I’d be fine with requiring an actual filibuster ala Seb’s statement, but it should be noted that neither party has required such in some time, and each party has chosen – instead – to use reconciliation and self executing rules with some regularity.
And given the fact that this vote has already been delayed for so long, and part of the GOP strategy all along has been to drag it out to death, this is not the time to dally.
Is it too much to ask for Democrats to actually take a stand on their signature issue?
they are.
that’s why the “conservatives” are suddenly so concerned with procedure.
Well, it’s nice to know that even conservatives have higher expectations of democrats than they do of republicans.
cleek Wins
Flawless Victory!
Megan McCardle confused? The hell you say!