Defending the Filibuster, Revised and Updated Edition: The Soul of the Senate

9. Circumventing the Filibuster: Reconciliation

Circumventing the Filibuster Reconciliation SenatorLindseyGraham(R-SC)madeabrief effortinMarch2010toresurrect the “Gang of 14” senators.1 This time the tactic to be averted was the use of the budget reconciliation process to enact President Obama’s health reform bill with a simple majority vote of fifty-one senators rather than the 60 votes needed to invoke cloture and block a filibuster. Graham noted, “Many Republicans who were ready to pull the trigger on the nuclear option on judges are now glad they didn’t. This place would have ceased to function as we know it. If they do health care through reconciliation, it will be the same consequence. So if you are a moderate Democrat out there looking for a way to deliver health care reforms and not pull the nuclear trigger, there is a model to look at.”2 Of course, no “Gang of 14” rode to the rescue and Democrats did use the reconciliation process to facilitate their passage of a broad health reform bill. Unlike the early proposals that some Democrats were making in 2009 to resort to reconciliation to circumvent any filibuster and pass the whole massive health reform bill, reconciliation was used in a more modestmanner.Itwasdeployedlargelytomakebudgetaryadjustments nine ★ ★ ★ 110 · Defending the Filibuster to the massive bill that had been passed in the previous December with 60 votes in the Senate. Nonetheless Republicans were outraged. But Republican outrage over the tactic was short-lived. After the passageof healthreformwascompleted,byFebruary2011,the“brain”of the BushWhiteHouse,RepublicanstrategistKarlRove,writinginthe Wall Street Journal, argued that reconciliation could be used to repeal what he called “ObamaCare”: “Democrats harp on the 60-vote threshold and ignorethereconciliationoptionbecausetheywantAmericanstoaccept theinevitabilityof ObamaCare.Butitsrootsareclearlyinshallowsoil.”3 The Growth in the Use of Reconciliation Beyond Its Original Purpose The health reform bill was the twenty-fourth time reconciliation had been used since 1980, the eighth with Democrats in control of the Senate . Where did this process come from? Why was it used? And what was the source of the outrage? In 1974, in response to the combination of growing deficits, President Nixon’s refusal to spend money appropriated by Congress, and theWatergatescandal,CongressenactedtheCongressionalBudgetand ImpoundmentControlAct.ThisimposedonCongresstherequirement that it pass an annual concurrent budget resolution to serve as the blueprint for shaping that year’s budget policy. The president does not sign the resolution and it does not become law. It is strictly a congressional blueprint and binds only Congress. In order to facilitate the yearly passage of the budget resolution, it was established with a fast-track process, referred to as “expedited procedures .” These procedures have some significant impact on the House of Representatives, but their real effect is on the Senate. Since the expedited procedures limit debate to 50 hours, there is no need for the Rule XXII provisions to end debate. The budget resolutions come reliably to avoteandcanbepassedwithasimplemajority.Nofilibusterispossible. At the time, Senators Edmund Muskie (D-ME), Henry Bellmon (ROK ), Robert Byrd (D-WV), and others actively involved in the writing and passage of the 1974 Budget Act4 fully expected that they were cre- Circumventing the Filibuster: Reconciliation · 111 ating an ultimately bipartisan process that would bring rational debate and decision making to the annual enactment of a federal budget. For better or for worse, over the past 30 years or so, as the Senate became increasingly more polarized along partisan lines, and with only a simple majority required under the expedited procedures to fashion the budget blueprint, the budget process became only more partisan with, of course, the majority party controlling the budget resolution. The 1974 law also set up a second optional procedure known as “budget reconciliation.” Budget reconciliation was meant to be used as a minormechanism at the endof thefiscal yeartobring spending legislation passed in the interim into line with the budget resolution that had been passed the previous spring. Since changes would be made to provisions that had been signed into the law, the adjustments contained in the reconciliation bill would also require a presidential signature in order to have the force of law. The reconciliation process was given expedited procedures much like the budget resolution. Debate in the Senate was limited to 20 hours and amendments were limited to those germane in substancetothebill.Thisbook’sco-authorDoveparticipatedinwriting the reconciliation provision and now wistfully admits that if there were anything he could undo in his career, it would be helping to create the reconciliation process in the budget act. The reconciliation provision was included...