All About Reconciliation

           My friend Chris Rice has a blog called “Reconcilers,” which is about bringing God’s peace to a broken world (he could explain it better than I can).  Here in DC, though, where we are more in the world-breaking business, “reconciliation” is definitely not about bringing people closer to God or to each other.  As Ezra Klein observes, “it’s hard to imagine another town in which the most divisive thing you could do would be called ‘reconciliation.’”  

            In brief, reconciliation is a process that allows budgetary legislation to be considered in Congress on an expedited basis and, most importantly, to pass without being subject to a Senate filibuster.  There has been much speculation that this procedure could be used to enact health care reform if the final legislation lacks sufficient support to overcome a filibuster. 

MSNBC has a good “Cliff Notes-like” version of the reconciliation process as it would apply to a health care reform bill.  For a somewhat more detailed (and, I hope, technically accurate) summary, see here.  And for those who would like an in depth analysis of reconciliation and the Byrd Rule (which provides the grounds on which Senators can object to the improper use of the reconciliation process), this CRS report from March 20, 2008 is an excellent source.   

I have three takeaways from the materials I have read regarding reconciliation and health care reform.  First, while there is plenty of ambiguity in the Byrd Rule, it seems very likely that, fairly construed, the rule would prohibit the enactment of significant portions of any healthcare reform bill.  To begin with, the prohibition against increasing the deficit in any fiscal year beyond the budget window seems like a pretty big sticking point.  There are also serious questions as to how non-budgetary provisions like the individual mandate or the requirement that health insurers accept persons with pre-existing conditions can pass muster. 

Second, regardless of what the “correct” application of the Byrd Rule might be, it seems quite likely that the Senate Parliamentarian will in fact sustain points of order with regard to significant aspects of a health care reform bill.   After all, it is not like the Parliamentarian is a judge whose views are unknown until the case is presented to him.   Senators have access to him and have clearly spoken to him about the likely issues.  Senator Conrad, for example, has stated that “[t]he Senate parliamentarian said to us that if you try to write substantive health reform in reconciliation, you’ll end up with Swiss cheese.”  As far as I know, no one has contradicted Conrad’s understanding of the Parliamentarian’s position. 

Finally, while there is much talk about how the Republicans used (or misused) reconciliation to enact various measures in the past, most particularly the Bush tax cuts, it does not appear that these actions established any precedents which are particularly helpful to those who would use reconciliation for health care reform.  Reconciliation was problematic for the tax cuts because they increased the deficits in the “out years,” but it was for precisely this reason that the Bush tax cuts will sunset at the beginning of 2011.  Unless the Democrats plan to enact health care reform that will expire in ten years or so, this precedent is of little use to them.