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Monday, March 15, 2010
Democrats Prepare To Push Health Care Using a Controversial Tactic
By Michael Coleman
Copyright © 2010 Albuquerque Journal
Journal Washington Bureau
WASHINGTON — After a year of contentious constituent meetings, complicated congressional hearings and countless closed-door negotiating sessions, Congress is poised to take a final vote on health care.
It won't be just any vote.
In the wake of Republican Scott Brown's stunning Jan. 19 election to Ted Kennedy's Senate seat in Massachusetts, Democrats no longer have the 60 votes needed to overcome a Republican filibuster and force an up-or-down vote on the controversial legislation.
That means they will pin their hopes for getting a health care bill to President Barack Obama's desk by using a controversial legislative tactic called reconciliation — a process that circumvents a filibuster and requires only a simple majority of 51 votes in the Senate.
The plan would be for the House to approve the bill the Senate passed on Christmas Eve, then use a reconciliation bill to delete some provisions — like the now-infamous "Cornhusker Kickback" — while adding others from the original House bill to make House members happy.
The process avoids melding the House and Senate versions and sending them back to each chamber for a final vote, depriving Republicans of a chance to filibuster.
The strategy, which took some time to emerge as shocked Democrats tried to recover from the loss of the Senate seat in left-leaning Massachusetts, has triggered howls of protest from Republicans.
They argue that reconciliation was designed to deal strictly with budget matters and that using it as a vehicle to pass a sweeping health care measure would be an abuse of the process that would permanently change the way the Senate does business.
Democrats, including New Mexico's two U.S. senators, counter that the GOP either has a case of collective amnesia or is blatantly hypocritical. They say the procedure has been used many times and is appropriate in this case.
Republicans think they have the upper hand politically.
An Associated Press poll last week found that more than half of Americans want health care to be changed "a lot" or "a great deal," but 68 percent oppose passing the current bill with no GOP support.
"We think that's a policy mistake, and we think resorting to these kind of tactics to thumb your nose at the American people is something that ought to be resisted, " said Senate Minority Leader Mitch McConnell, R-Ky.
Former Sen. Pete Domenici, R-N.M., said past attempts to use reconciliation originated in budget bills because the process is designed to reconcile congressional spending. He said using it as a way to pass sweeping health care overhaul goes way beyond the intent of the procedure.
"The question is the gravitas of it," said Domenici, who was chairman of the Senate Budget Committee for two decades before retiring in 2009. "These (health care proposals) are very big changes in the law, and it just makes it easier to abandon the long-standing, historically based filibuster rule."
The filibuster rule itself could be changed, but that would take 66 votes.
"Once you break it this way (as the Democrats plan through reconciliation), it's going to be more easily broken," Domenici said. "It has the potential for cheapening or weakening the filibuster. It's a big substantive change."
Democrats disagree, saying that reconciliation would be used only to make modest fixes to the current health care legislation.
Sen. Jeff Bingaman, D-N.M., supports the plan.
"It's been used to accomplish major legislation by both parties — more by Republicans than Democrats," he said. "It's one way to enact legislation. As long as the rules are followed, I don't see that anyone has a legitimate complaint."
Since its inception in 1974, reconciliation has been employed most frequently by Republicans.
Sen. Tom Udall, D-N.M., said that Americans are eager for a resolution to the health care debate and the only way to get that finality in the Senate is to use reconciliation.
"The American people deserve an up-or-down vote," Udall said. "We've debated this issue thoroughly — not just for a year, but for decades."
Two-bill strategy
The Senate parliamentarian worked overtime last week to determine the proper sequence for voting on the health care bill. Some in Congress have suggested the Senate must pass its reconciliation fixes before the House approves the Senate bill, although that notion appeared to be losing steam late last week.
Former Senate Parliamentarian Robert Dove told Time magazine that the Democrats' strategy is unprecedented.
"I've never seen a two-bill strategy" where reconciliation is used to fix another piece of legislation, Dove told the magazine. "It's permissible. I've just never seen it."
Udall is so chagrined by what he describes as a near-constant use of the filibuster threat that he has proposed a resolution to have the Senate consider changing its rules. He said his resolution is not in response to the current health care controversy, but to a long-standing frustration with Senate procedure on both sides of the political aisle.
"I think the filibuster, the way it's being used now, could use some reform," Udall said.
Udall's resolution does not suggest specific ways to change Senate rules, just that Congress consider rules at the outset of the next Congress.
Democrats in the past have condemned Republicans when they were in control and talked about changing the filibuster rule, or using the so-called "nuclear option."
Although different from reconciliation, that debate also focused on dynamics between majority and minority parties.
"I pray to God when the Democrats take back control we don't do the kind of naked power grab you are doing," then-Sen. Joe Biden said during a Senate floor speech in 2005.
Obama, a Senate colleague of Biden's in 2005, also criticized the Republicans for trying to circumvent the filibuster by invoking the nuclear option.
In a 2005 speech at the National Press Club, Obama said that invoking the nuclear option would "be a change in the Senate rules that really would change the character of the Senate forever."
Election fallout
Domenici and many other Republicans expect Democrats to pay at the polls if they pass a generally unpopular health care bill with an assist from the reconciliation procedure.
Bingaman and Udall disputed that notion. Udall, who is not up for re-election until 2014, said he's not worried about the strategy coming back to haunt Democrats in November.
"I would much rather campaign on accomplishing something than accomplishing nothing," Udall said.
Bingaman said the legislation will be a point of debate in the 2010 elections, but not for the reasons Republicans suggest.
"If we're able to pass health care, the legislation will be an issue in the fall election; there is no question about that," Bingaman said. "But I don't think the public is going to be nearly as focused on the intricacies of congressional rules as they are on the substance of what is passed."
Larry Sabato, director of the Center for Politics at the University of Virginia, told the Journal that the concept of a reconciliation bill is too arcane for most voters to even try to grasp.
"You can argue about process all day long, but what matters is the substance," Sabato said. "It's not whether they got 51 votes or 60 votes in the Senate. If people like the laws Congress is passing they'll reward them, and if they don't, they'll punish at least the majority party incumbents."
But Sabato said public sentiment seems to have veered against the current health care bills. His "Crystal Ball," a popular congressional election indicator, currently predicts that Democrats will lose seven seats in the Senate and 27 seats in the House.
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