City of Brass

“Budget reconciliation” is a technique that lets important bills in Congress pass the Senate with immunity from the filibuster. The bill must have direct relevance to budget issues, not policy, and the Senate Parliamentarian (not an elected official) is the one who makes the call (though bills intended to pass via reconciliation are drafted with his input so there are no surprises).

The reason this matters is because prior to the election in MA of Senator Brown (a Republican), the Democrats had 60 votes (ostensibly) in the Senate which is technically a filibuster-proof majority. In practice that 60 meant that conservative Democrats had tremendous leverage in shaping the health care bill, leading to a Senate bill that was much more conservative than the House counterpart. The final compromise bill would have reflected the Senate version much more than the House, for much the same reason.

Senator Brown’s victory actually upended the Democratic 60 vote majority – with 59, they no longer can override a Republican filibuster. But in a sense, that has permitted the Democrats more freedom, not less, as they are no longer forced to pacify the most conservative members of their caucus.

As a result, the Democrats can now pursue a strategy for passing health reform despite Republican obstructionism – and even pursue more liberal reforms than they wanted previously – using reconciliation, since most of the key provisions in the reform will have a budgetary impact. And it seems possible – though hardly guaranteed – that the public option could even make a comeback (and this time I’d have no objection).

The Republican response, as ever, is total outrage. They claim that reconciliation is a “nuclear option” which is utterly beyond the pale of Senate tradition. This is extreme partisan cynicism at its worst – especially since the Bush tax cuts were passed in 2001 using reconciliation, and back then the Republicans actually fired the Senate parliamentarian to do so! And there have been numerous uses of reconciliation by other presidents, including Reagan and Clinton, to use reconciliation – and many of the Republicans decrying it today were supporters of the process back then.

Let’s also not forget that it was the Republicans back in 2005 who were advocating the real “nuclear option” – to change the Senate rules to abolish the filibuster outright raw majority rule. In contrast, today the Dems are discussing eventual filibuster reform, which wouldn’t take effect anytime soon but is more of laying the groundwork for the future.

The filibuster is definitely in need of reform, though it has its place. Retiring Senator Evan Bayh of Indiana discussed some of the need for filibuster reform in his op-ed announcing his decision not to run for re-election, citing it as one of the things he is frustrated with in Congress which prevents things from getting done:

Filibusters have proliferated because under current rules just one or two determined senators can stop the Senate from functioning. Today, the mere threat of a filibuster is enough to stop a vote; senators are rarely asked to pull all-nighters like Jimmy Stewart in “Mr. Smith Goes to Washington.”

For this reason, filibusters should require 35 senators to sign a public petition and make a commitment to continually debate an issue in reality, not just in theory. Those who obstruct the Senate should pay a price in public notoriety and physical exhaustion. That would lead to a significant decline in frivolous filibusters.

Filibusters should also be limited to no more than one for any piece of legislation. Currently, the decision to begin debate on a bill can be filibustered, followed by another filibuster on each amendment, followed by yet another filibuster before a final vote. This leads to multiple legislative delays and effectively grinds the Senate to a halt.

What’s more, the number of votes needed to overcome a filibuster should be reduced to 55 from 60. During my father’s era, filibusters were commonly used to block civil rights legislation and, in 1975, the requisite number of votes was reduced to 60 from 67. The challenges facing the country today are so substantial that further delay imperils the Republic and warrants another reduction in the supermajority requirement.

Also related are the Federalist Papers No. 62 by James Madison, which gives some historical perspective on how the Filibuster was meant to be used. And VP Joe Biden had a great quote – that “no democracy has ever survived needing a supermajority.”

As President Obama pointed out this week, there are real and severe consequences to Americans in delaying health reform further. We need to get healthcare reform done, and the filibuster is the weapon used by the Party of No to deny Americans the relief they badly need. Since filibuster reform is not going to happen for a long time, the Democrats must use reconciliation to get the job done – and they will be rewarded for it come November.

And the coming Republican freakout will be a wonder to behold!

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