The latest OUTRAGE is the prospect of an “up-or-down” vote in the Senate on a package of amendments to the health care reform bill that passed that body with 60 votes last December. In the current Republican parlance this is referred to as either “ramming”, “cramming” or “jamming” health care reform “down the throats” of the American people. As Richard Cohen writes in the Washington Post today:
Googling to my heart's content on a recent eve, I decided to match "health care" with "ram" to see what would happen. What I got was about 9.8 million hits, some of them right on the nose and reflecting the current conservative meme that after more than a year, several votes, countless presidential speeches and having to look upon the face of Harry Reid some 10,000 times, the health-care bill is being "rammed" through Congress -- an absurdity that now has currency through sheer repetition. It is not exactly the renowned vaunted Big Lie, just a miserable little one.Check out this segment from last night’s Colbert Report (especially the series of clips at around the 2:00 mark). As Colbert notes, “The American people don’t want anything jammed down their throats … unless it is first battered and deep-fat fried.”
The point of this exercise in OUTRAGE, of course, is to convince the American people that there is something illegitimate about passing a measure in the Senate on the basis of a mere… majority of Senators. The notion that a supermajority is required to pass anything in the Senate is even being portrayed as the will of the Founding Fathers. Here is Senator Judd Gregg (R-NH):
[U]nder the Senate rules, anything that comes across the floor of the Senate requires 60 votes to pass. It’s called the filibuster. That’s the way the Senate was structured. … The Founding Fathers realized when they structured this they wanted checks and balances. They didn’t want things rushed through. They saw the parliamentary system. They knew it didn’t work. … That’s why we have the 60-vote situation over here in the Senate to require that things get full consideration.(And to think President Obama, in a fit of delusional bipartisanship, actually nominated this clown to become Secretary of Commerce.)
There are several things wrong with this passage. Matthew Yglesias notes one:
“[J]ust to point out that Gregg is an idiot, where on earth has he gotten the idea that the Founding Fathers “saw the parliamentary system” and “knew it didn’t work?” There were no countries operating on a modern parliamentary system when the constitution was written. And why doesn’t it work? It seems to work in Australia, Belgium, Canada, Denmark, Finland, Germany, Hungary, India, Japan, Korea, etc.”The more important point is that the filibuster is not in the Constitution. As a constitutional expert who wrote a book on the filibuster notes, the filibuster is actually something of a historical accident that came into being after the Constitution was ratified and only discovered as a tool of obstructionism long after that. The Founders considered the idea of supermajority requirement and rejected it except for a few purposes specified in the Constitution like overriding presidential vetoes, ratifying treaties and impeachment. As I’ve noted a couple of times previously, it was rarely used prior to the 1970’s. But in the year since President Obama took office there have been more GOP filibusters than there were in the twenty years between 1963 and 1983. Republican use of the filibuster in the current Congress is on pace to triple the previous record. This isn’t a matter of seeking greater deliberation. It is an attempt by Senate Republicans to thwart any successful action by Senate Democrats – who despite losing the Massachusetts Senate seat still have the largest Senate majority in over 30 years (the last time either party had Senate majority larger than 59 was in 1979). Republicans are even filibustering measures that they co-sponsored.
As is typically the case, once the right-wing noise machine kicks into gear with its bogus narrative, the “mainstream” media dutifully report on the “controversy” using the Republican framing.
As Andrew Romano writes in an excellent piece at Newsweek:
On Wednesday, President Barack Obama announced at a White House gathering of health-care professionals that he wants Congress to schedule "an up-or-down vote" on health-care reform "in the next few weeks." A few minutes later The Washington Post sent out a political news alert translating his remarks for laypeople. In "a move intended to bypass a Republican caucus that remains united in its opposition to the legislation," the paper wrote, "Obama [just] endorsed the controversial legislative tactic known as reconciliation." “The controversial legislative tactic known as reconciliation": Republicans must have been delighted to read in the Post that they'd won the framing war and redefined reconciliation as some sort of abomination. The fact is, reconciliation has been around since 1974, when it was created to help lawmakers avoid filibusters on politically difficult budget legislation by allowing a simple majority vote. For the past 35 years, no one has made much of a stink about it. But last month, in a preemptive effort to sour the public on the procedure, Republicans decided to start describing it as something dirty and dishonorable. Sen. Orrin Hatch of Utah suddenly began tossing around the phrase "highly partisan nuclear option"; Sen. Lamar Alexander warned that it would lead to "the end of the Senate" as we know it. Pretty soon, what had long been considered standard Senate operating procedure began to sound downright apocalyptic.An editorial in The New Republic gives more examples of the mainstream acceptance of the Republican framing:
As the filibuster has evolved from a rarely used signal of unusually strong dissent into a routine requirement for a supermajority, reconciliation has become a vital legislative tool, embraced by both parties. And it has come into play now because Democrats need it to make health care reform palatable to both chambers of Congress. Their plan is to have the House pass the Senate bill, and then to have both the House and Senate amend the bill through reconciliation. The amendments, Democrats agree, would be limited to questions of tax and spending levels--the very sorts of issues for which reconciliation was designed.So let’s clear up some of the confusion over this radical tool of majority rule known as “reconciliation.”
In response, Republicans have exploded in indignation, and their complaints have found a sympathetic hearing in the Washington media. Here are a few select samples of the coverage--all from straight-news reporters: “Democrats have not ruled out the possibility of using a strong-arm tactic, called ‘budget reconciliation,’" (Associated Press); “Obama may be ready to play hardball and lean on filibuster-busting reconciliation rules” (Roll Call); “the hardball strategy would worsen partisan friction” (Congressional Quarterly). The New York Times, as if seized by a tic, has used the term “muscle” on at least three occasions to describe reconciliation.
This hackishness was most recently on display in a thunderous Washington Post op-ed by Senator Orrin Hatch. Lamenting the haste of simple majority votes, the great elder statesman railed that “the Constitution intends the opposite process,” a claim that is utterly ahistorical--the Constitution makes no mention of the filibuster. Indeed, the Constitution prescribes a supermajority vote for a mere handful of select purposes, ordinary legislation not among them.
As the Newsweek piece quoted above notes, reconciliation has been around for over 35 years, and it has never been particularly controversial despite having been used for everything from the Bush tax cuts, to the 1996 welfare reform, and most of the health care measures enacted during that time. Republicans even used it in 2005 to try to open up the Arctic National Wildlife Refuge to oil drilling (fortunately the measure was killed in the House). Depending on how you count, reconciliation has been used 19 times, 16 of those by Republicans.
Republicans have been saying things like, reconciliation "has never been used for this kind of major systemic reform" (Mitch McConnell) and "there's never been anything of this size and magnitude and complexity run through the Senate in this way" (Lamar Alexander). In fact, health care reform has already passed both houses of Congress. It passed the Senate with 60 votes in December. If the House adopts the Senate bill and President Obama signs it, it becomes law. And that is the plan.
Although the House has already passed its own version of the health care bill, both houses have to pass identical versions. Since Democrats no longer have the 60 votes required to overcome a Republican filibuster, the Senate bill has to be the basic bill that both houses enact. But there are changes to that bill that the House and President Obama – and even the Senate itself – would like to make. It is only those changes that would be passed through reconciliation. Most of those changes are relatively minor and unobjectionable – like getting rid of the “Cornhusker Kickback”, a provision favoring Nebraska inserted in the Senate bill to secure the support of Ben Nelson (even Nelson no longer supports it). It would also include changes offered up by President Obama to Congressional Republicans like funding for state initiatives to reduce medical malpractice costs.
It’s also worth noting that most health care reforms enacted in recent decades have been passed using reconciliation. For example, COBRA, the law that allows you to keep your health insurance if you lose your job, was a reconciliation measure signed into law by President Reagan in 1985. (“COBRA” stands for Consolidated Omnibus Budge RECONCILATION Act.) Similarly, the State Children’s Health Insurance Program (SCHIP) was passed using reconciliation.
The one major health care measure that was NOT passed using reconciliation was the massive Medicare Part D prescription drug benefit passed by Republicans in 2003 which created an unfunded liability of nearly $10 trillion dollars. Nonetheless, it passed the Senate with only 54 votes. In its initial House vote it passed by only one vote, 216-215. When it came up for a final vote at 3am, the measure was losing at the close of the standard voting period. At that point Republican leaders froze the clock and kept the vote open for over three hours as they bribed and threatened members until they reached the necessary majority. Never before or since have tactics like those been used to pass a measure in Congress. (You can read accounts of that whole sordid affair here and here.)
The most ambitious use of reconciliation was for the two major Bush tax cuts which have since added a couple of trillion dollars to the national debt. The original idea behind reconciliation was that it would be used to help reduce the deficit. The health care reform bill is consistent with that intent – the Congressional Budget Office estimates that it would reduce the deficit by over $100 billion in its first decade and upwards of $1 trillion over the next decade.
So compare the budgetary impact of the two major Bush tax cuts with the Senate health care reform bill as initially scored by the CBO:
[The first bar is the impact on the unified budget balance of the Economic Growth and Tax Relief Reconciliation Act (EGTRRA) of 2001. The second is the impact on the budget balance of the Jobs and Growth Tax Relief Reconciliation Act (JGTRRA) of 2003. The third bar is the CBO estimated impact on the deficit of the Patient Protection and Affordable Care Act proposed in the Senate on November 19, for 2010-2019.]Which of these is consistent with the original intention of the reconciliation procedure? (The 2003 tax cut resulted in a 50-50 tie in the Senate – it was only “rammed through” with the vote of the Dark One.)
The 2001 Bush tax cut entailed another twist. The arbiter of whether a measure can be passed using reconciliation is the Senate parliamentarian. In 2001, when the parliamentarian (who had been put in the job by Republicans when they gained control of the Senate in 1994) issued a series of rulings that complicated used of reconciliation to pass the Bush tax cuts, Republican Senate leaders summarily fired him. (Talk about “ramming through” a measure.) The guy they put in his place remains the parliamentarian to this day. Nonetheless, Republicans are already laying the ground for attacks on him as being biased in favor of Senate Democrats. Expect to be hearing a lot about the Senate parliamentarian in next few weeks.
All of this is beside the point, really. The Republican objective in expressing OUTRAGE over reconciliation is to sow more FUD (fear, uncertainty and doubt) over health care reform. A recent Pew poll found that 74% of Americans don’t understand what a filibuster is. They certainly aren’t going to immerse themselves in the details of the Senate’s procedural history. All they will know is that the angry guys they listen to on FOX News and talk radio are really OUTRAGED over how Democrats are going about passing health care reform. It will just join the list of apocryphal OUTRAGES like death panels, free health care for illegal aliens and government-subsidized abortions Republicans have been using to scare and anger the American people.
And the Washington media will continue to “report the controversy.”
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