Reporting on the Democrats' possible use of the reconciliation budget process to pass health care reform, media outlets have advanced the Republican criticism that reconciliation is “an end-run around the normal legislative process.” However, the procedure has been used repeatedly by Republicans, and, as NPR has pointed out, reconciliation has been used to pass major changes to health care laws.
Politico, Wash. Post, others advance Republican attacks on reconciliation
Politico advanced claim that reconciliation is “an end-run around the normal legislative process.” In a February 23 article reporting that centrist Democrats are warming to using reconciliation to pass health care reform, Politico claimed that Republicans may be able to convince voters that the procedure “is an end-run around the normal legislative process.” Politico went on to quote Sen. Lamar Alexander (R-TN) saying that reconciliation amounts to “the ultimate trick to get votes” without noting that Alexander repeatedly supported the use of reconciliation to pass parts of President Bush's budget.
From the February 23 Politico article:
To be sure, the hints on reconciliation do not signal any kind of ironclad commitment. Democrats remain hesitant about using the procedure, fearful that Republicans will be successful in convincing voters that it is an end-run around the normal legislative process.
It also remains unclear whether Democrats can even pull it off, given the strict rules governing bills passed through reconciliation, which requires the entire legislation -- down to a single line -- to have an direct impact on the federal budget. Simple policy changes, such as the president's new proposal to establish a federal review board on insurance rates, are unlikely to survive.
In a more combative tone, Reid told reporters Tuesday that Republicans should “stop crying over reconciliation as if it's never been done before.”
“It's been done by almost every Congress, and they're the ones who have used it more than anyone else,” Reid said. “Contract for America was done with reconciliation. Tax cuts, done with reconciliation. Medicare, done with reconciliation.”
Sen. Lamar Alexander (R-Tenn.) said Republicans have never used reconciliation on this scale and as a way to make changes to a Senate bill that could not pass the House on its own.
“This would be the ultimate trick to get votes,” Alexander said. “The reason for the American people rejecting the health care bill so far is because of the tricks. If Democrats try to jam the bill through this strange process to get votes, then they will just be guaranteeing themselves a political kamikaze mission in November.”
Wash. Post forwarded McConnell's criticism of reconciliation process. In a February 22 article, The Washington Post repeated Senate Minority Leader Mitch McConnell's (R-KY) comments that Democrats are being “arrogant” in their possible use of reconciliation to pass health care reform and that “his party will continue to oppose Democrats if they try to use” the procedure. However, the Post did not point out that McConnell supported the use of reconciliation to pass legislation during the Bush administration.
From the article:
Republicans have accused Obama of using Thursday's summit as political theater, and they had raised the prospect of not attending. But the Senate's top Republican promised Sunday that he and his members are “ready to participate,” while accusing Democrats of being “arrogant.”
“You know, they are saying, 'Ignore the wishes of the American people. We know more about this than you do. And we're going to jam it down your throats no matter what,' ” Senate Minority Leader Mitch McConnell (R-Ky.) said on “Fox News Sunday.”
White House communications director Dan Pfeiffer said in response that “the upcoming meeting is an opportunity to get beyond oft-repeated and completely false talking points like these.”
McConnell dismissed the idea of a GOP boycott, saying that “we're discussing the -- sort of the makeup of the room and that sort of thing, but yeah, I intend to be there and my members will be there and ready to participate.”
He said, however, his party will continue to oppose Democrats if they try to use reconciliation.
“We believe that we think a better way to go is to, step by step, move in the direction of dealing with the cost issue, targeting things like junk lawsuits against doctors and hospitals, interstate insurance competition, small-association health plans,” he added.
Wash. Post's Thiessen attacked Democrats' potential use of reconciliation as one of the Senate's “extraordinary parliamentary procedures.” On February 23, Thiessen wrote of President Obama's proposed health care summit:
The president's real objective is to paint GOP leaders as obstructionists -- so that Democrats have an excuse to ram through their health-care legislation using extraordinary parliamentary procedures. Obstructionism has been Obama's mantra ever since Massachusetts GOP Sen. Scott Brown's election. Just last week in Denver, Obama declared that “for those who don't believe in government, those who don't believe that we have obligations to each other, it's a lot easier task. If you can gum up the works, if you make things broken, if the Senate doesn't get anything done, well, that's consistent with their philosophy.” This is dishonest. Republicans have a robust health-care agenda, from health savings accounts, to association health plans, insurance portability, and medical liability reform.
Wash. Examiner: Reconciliation is “arcane” and Dems “are running a Washington con game” if they use it. In a February 23 editorial, The Washington Examiner accused Democrats of “running a Washington con game” in possibly using reconciliation to pass health reform, asserting that the process is “an arcane legislative magic act.”
From the editorial:
To gain passage of his proposal, Obama has joined Senate Majority Leader Harry Reid and House Speaker Nancy Pelosi in an arcane legislative magic act known as “budget reconciliation.” Only 51 Senate votes -- not the usual 60 required to pass major legislation -- are required to approve a reconciliation measure in the Senate, and a simple majority of 218 in the House. Reconciliation is supposed to be for tying up loose ends -- for technical, budget-balancing measures. But Democrats want to use it to put a government bureaucrat between patients and their doctors. This, despite the recent Gallup poll that, like so many other recent polls, shows a strong majority of Americans want Congress to go back to square one on health care reform and start over. The president talks bipartisanship, but his proposal and his actions this week make clear that he and congressional Democrats are running a Washington con game and hoping the American people won't figure out they're the mark, yet again, until it's too late.
IBD: It's an “abuse of power,” “arrogant” and “absurd” for Dems to consider reconciliation. In a February 22 editorial titled, "No Nuclear Option," Investor's Business Daily suggested that if Democrats use reconciliation to “ram through radical health reform,” it “would mean a new chapter on corruption for the history books,” and stated that it's “arrogant” and “absurd” for Democrats to consider its use.
From the editorial:
Abuse Of Power: The White House has threatened to ram through radical health reform by abusing the budget reconciliation process. That would mean a new chapter on corruption for the history books.
“Using reconciliation,” Senate Minority Leader Mitch McConnell charged last week, “would be an acknowledgment that there is bipartisan opposition to their bill.”
But it would actually be something far more arrogant.
Using reconciliation on health care is as absurd as using it to send a constitutional amendment to the states for ratification, or to pass a treaty, or to confirm a Cabinet secretary or Supreme Court justice.
It would be more honest for President Obama, House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid to announce the Senate's rules will now be changed: No more filibustering.
On Special Report, Wash. Post's Krauthammer referred to reconciliation as a “trick.” On February 23, Charles Krauthammer called the reconciliation process a “trick” and said that “we've never done it for a bill of this scope and size or reform revolution.”
From the February 23 edition of Fox News' Special Report with Bret Baier:
BRET BAIER (host): Well, about that -- reconciliation. I mean, it's this process. Senator Robert Byrd from West Virginia is one of the people who came up with the rule back in 1974. Here's what he wrote to his colleagues just last year about using reconciliation, this process for health care.
“I oppose using budget reconciliation 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.” That's from April of last year.
KRAUTHAMMER: Well, since he is one the inventors of this process, I think he's a pretty good authority on the spirit and intent. And it is a trick, and we've never done it for a bill of this scope and size or reform revolution in the sixth of the American economy. However, I don't -- it's not illegal. And if -- I think it's still possible.
Look, I think the reason Obama is trying this is not because he wants to placate his left and show that he gave it the college try. This is a man who believes ideologically in this deeply. He sees himself as a world historical figure, not just the first African-American president, but like Reagan, a man who changed history. He wants to be the father of national health care.
And if this is passed or jammed or rammed, ultimately we are going to end up with a Canadian system or a British system, and he'll be remembered as the man who did it. It's about ideology and politics.
Chicago Tribune called procedure a “legislative trick” and “legislative sleight-of-hand.” In an editorial titled, "ZombieCare," the Chicago Tribune wrote that Democrats should not use the “legislative trick called 'reconciliation' ” as a “back-door way to shove their much-maligned health care plans through Congress,” calling it “a complex, lightly used budget-related gambit” and a “legislative sleight-of-hand.”
From the February 19 editorial:
There's one way for Democrats to start restoring trust. They could formally swear off using the legislative trick called “reconciliation.” Right now, they're clinging to it as a back-door way to shove their much-maligned health care plans through Congress.
The House and Senate have passed different versions of health care, but they don't much like each other's bills. The public doesn't like either of the bills. While Democratic leaders were haggling over what to do next, the whole effort flatlined when Republican Scott Brown won a special Senate election in Massachusetts.
So their bills are like zombies, floating in the netherworld. Not quite dead, clinging to life only because Democratic leaders keep whispering about this legislative maneuver called reconciliation.
It's a complex, lightly used budget-related gambit that “was never designed for this purpose,” says Robert Dove, the Senate's parliamentarian emeritus who helped create the process.
Democrats no longer have 60 votes in the Senate to avoid a Republican filibuster. But reconciliation could allow them to do just that.
House Speaker Nancy Pelosi has been talking up the prospect of using this legislative sleight-of-hand. Pelosi told Roll Call that the Democrats have to convince Americans that there's nothing “extraordinary” about it. “It would be a reflection on us if we could not convince people that this is not an unusual place to go,” she said.
WSJ: Reconciliation involves “bypass[ing] the ordinary legislative rules.” From a February 13 Wall Street Journal editorial (subscription required):
Those unversed in the arcana of Congressional procedure should familiarize themselves with “reconciliation.” It's just another word for nothing left to lose -- that is, it's the tactic Democrats seem increasingly likely to use to bypass the ordinary legislative rules and railroad Obama Care into law with a bare partisan majority of 50 Senators, plus Vice President Joe Biden.
Speaker Nancy Pelosi announced this week in an interview with Roll Call that Democrats “have set the stage” for reconciliation. “It's up to us to make sure the public knows that this is not extraordinary,” she said. “It would be a reflection on us if we could not convince people that this is not an unusual place to go.”
Yet the reconciliation gambit really would be unprecedented for social legislation of this cost and scale. And as a matter of procedure, it would also be unusual, to say the least.
But reconciliation is neither “strange,” “extraordinary,” “arcane,” “lightly used,” nor “unusual”
Congressional Research Service reported that Congress used reconciliation process to pass 21 bills between 1980 and 2007. An August 10, 2005, Congressional Research Service (CRS) report lists 19 bills Congress passed that were enacted through reconciliation from FY 1981 to FY 2005 -- 16 of which became law and three of which were vetoed by President Clinton. A separate March 2008 CRS report lists an additional three reconciliation bills passed by Congress since 2005.
Congress previously used reconciliation to pass major changes to health care law
Reconciliation has repeatedly been used to reform health care. On February 24, NPR noted that many “major changes to health care laws” passed via reconciliation. Additionally, during a February 24 broadcast of NPR's Morning Edition, correspondent Julie Rovner quoted George Washington University health policy professor Sara Rosenbaum saying: “In fact, the way in which virtually all of health reform, with very, very limited exceptions, has happened over the past 30 years has been the reconciliation process.”
Congress used reconciliation to pass Medicare Advantage. As part of the Balanced Budget Act of 1997, enacted through the reconciliation process, Congress -- which was controlled by the Republicans at the time -- created the “Medicare+Choice Program,” currently known as Medicare Advantage or Medicare Part C. The program allows seniors to enroll in HMO-type plans rather than the traditional Medicare fee-for-service plan.
Congress used reconciliation to pass COBRA. As stated on the Department of Labor website, as part of the Consolidated Omnibus Budget Reconciliation Act of 1985, Congress gave “workers and their families who lose their health benefits the right to choose to continue group health benefits provided by their group health plan for limited periods of time under certain circumstances.”
Congress used reconciliation to pass Patient Self-Determination Act. As part of the Omnibus Reconciliation Act of 1990, Congress passed the Patient Self-Determination Act, which requires hospitals, nursing homes, HMOs, and other organizations that participate in Medicare or Medicaid to provide information about advance directives and patients' decision-making rights.
Republicans repeatedly attempted to use reconciliation to pass increase in Medicare eligibility age. The version of the Balanced Budget Act of 1995 introduced by then-Senate Budget Committee Chairman Pete Domenici (R-NM) using the reconciliation procedure contained a section providing for raising the Medicare eligibility age. As the CRS reported, the provision was stricken from the bill during floor consideration on the basis of a point of order that the provision was “extraneous” to matters appropriate to reconciliation.
The Balanced Budget Act of 1997 -- also introduced through the reconciliation procedure -- also included a provision to raise the eligibility age. Fifty Republicans voted in favor of waiving a point of order against the provision that it was extraneous, allowing the provision to remain in the bill. The final version of the bill signed by Clinton did not contain this provision.
GOP used reconciliation to pass Bush tax cuts, welfare reform
GOP used reconciliation to pass Bush's tax cuts. Republicans used the reconciliation process to pass Bush's 2001 tax cut, the Economic Growth and Tax Relief Reconciliation Act of 2001; Bush's 2003 tax cuts, the Jobs and Growth Tax Relief Reconciliation Act of 2003; and Bush's 2005 tax cuts, the Tax Increase Prevention and Reconciliation Act of 2005. The Congressional Budget Office estimated that the 2001 tax cuts would “reduce projected total surpluses by approximately $1.35 trillion over the 2001-2011 period” ; that the 2003 tax cuts would “reduce projected total surpluses by approximately $1.35 trillion over the 2001-2011 period” ; and that the 2005 tax cuts would “reduce federal revenues ... by $69.1 billion over the 2006-2015 period.”
Republicans repeatedly voted to use reconciliation to pass components of welfare reform. Congress employed the reconciliation process to pass welfare reform in 1996 as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Senate Republicans previously included welfare reform provisions in the Balanced Budget Act of 1995, which Clinton vetoed. As CRS reports, 46 provisions of the bill were deemed extraneous by the Senate's presiding officer. Fifty-three Republicans voted in favor of a motion to waive the point of order, but the motion -- which requires 60 votes -- failed on a 53-46 vote.
Media have repeatedly allowed GOP senators to attack use of reconciliation
Media have not challenged GOP criticisms of reconciliation process. Media Matters for America has documented a pattern of journalists uncritically quoting Republican senators criticizing the decision to use reconciliation, without noting that those same senators -- including Alexander, McConnell and Sens. Judd Gregg (R-NH), Charles Grassley (R-IA), Olympia Snowe (R-ME), and Orrin Hatch (R-UT) -- voted to allow the use of the budget reconciliation process to pass legislation during the Bush administration, including tax cuts.