At a recent forum on bipartisanship sponsored by National Journal, two moderate and thoughtful senators, Democrat Bob Casey of Pennsylvania and Republican Mel Martinez of Florida, had an exchange that captures the tension on the Hill, especially in the Senate.
The panel, of which I was a member, was asked about reconciliation under the budget process. In the Senate, reconciliation remains one of the few ways to circumvent Rule 22 (the so-called filibuster rule). This “expedited process” was fully developed by former Senate Budget Committee Chairman Sen. Pete V. Domenici in early 1981 in a legislative tour de force that passed the “revolutionary” Reagan budget before the end of summer in one big package.
Both Casey and Martinez agreed that using the reconciliation to pass a climate change bill would probably doom such a bill. The inability of the full Senate to debate such a fundamental change in energy policy, they concurred, needed much more debate than would be afforded under reconciliation.
However, Casey and Martinez disagreed on the use of reconciliation to pass “health reform.”
Martinez noted that such a change was just as fundamental a revision to existing institutions as a cap and trade climate change bill would be. Using reconciliation for health care reform would be wrong, he said.
Casey responded that the two issues were much different. After all, he noted, we have been debating real health care reform for 30 years in the Congress. Cap and trade and other climate change initiatives, on the other hand, have only had wide-ranging debate for four or five years. Casey concluded that reconciliation in his view was a proper legislative vehicle for health care reform.
Al From, a third member of the panel and the outgoing head of the Democratic Legislative Council, noted that he had worked on the original Budget Reform Act of 1974 in the House. In his view, reconciliation and the Budget Act had been so twisted out of shape that the original authors of the legislation would never recognize its present form. He said that the widespread use of reconciliation, as a general notion, had gone too far.
As the staff director of the Senate Budget Committee from 1981 to 1986, I was privileged to help expand reconciliation as a legislative tool. Whether future legislators will damn me or praise me remains to be seen. But I have had the opportunity to see the Senate majority decide both to use and to reject reconciliation as a device to move major legislation.
The chore we faced in 1981 was much different than that facing the Congress now, 28 years later.
Then, the Budget Committee Chairman and senior staff were just about the only people who understood what was going on. We were dramatically and intentionally broadening a part of the 1974 Budget Act. We knew that we had to limit Senate debate on the wide-ranging FY82 budget. It would never pass the Senate otherwise; it’s opponents would filibuster it to death. In 1981, under Majority Leader Senator Howard Baker, Domenici and his staff were given wide latitude to develop new procedures. The Senate Parliamentarian was always kept in the loop as staff ideas germinated. But, almost no one else in the Congress really understood what we were doing.
Now, in 2009, it is a rare senior Member or staffer who doesn’t understand reconciliation, the Budget Act, super-majorities, and recondite points-of-order. The Parliamentarian’s office has spent thousands of hours studying the Act. And, the famous “Byrd Rule,” named after Senator Robert C. Byrd, restricts materially the kinds of legislative language that reconciliation can contain.
At its core, reconciliation was our attempt to stop a filibuster on certain legislation. It wasn’t conceived as a bipartisan vehicle at all. Indeed, Leader Baker upheld reconciliation and the evolving Budget Act more than 50 consecutive times in 1981, winning each challenge by a 53-47 margin. The use of reconciliation has been fraught with overtones of its partisan beginnings ever since.
“At its core, reconciliation was our attempt to stop a filibuster on certain legislation. It wasn’t conceived as a bipartisan vehicle at all.”
Thus, the question: can a procedure that is designed to empower the majority by emasculating the filibuster ever draw significant support from the put-upon minority? Does it make a difference what legislative policy the reconciliation contains? Or, is Senator Martinez right, that the very use of reconciliation for major reform would harden minority opposition?
On balance, I think Senator Martinez is right. But, I also think that an intelligent majority in the Senate has to be seriously considering reconciliation for major initiatives. As it now stands and as so many in the media now reminds us, Majority Leader Harry Reid has 59 votes. Without reconciliation, he will need 60 votes to pass almost anything significant. With reconciliation, he will need only 5l at most. The temptation must be great, as it was to us in 1981, to resort to reconciliation and pass as much of the Obama budget as possible.
The final decision, it seems to me, will reside with the President. The House majority will do whatever it wants, using waivers and the Rules Committee. The Senate majority has no such luxuries.
Will the President and his senior staff want the glorious headlines of a major budget victory in September? Or will President Obama look a little further ahead and weigh the risks of alienation of the minority on most, if not all, of his remaining major thrusts, against the boost in popularity that a perceived grand budget victory will bring him.
Make no mistake about it — aggressive use of reconciliation makes bi-partisanship in Congress much less likely. Want proof? From 1981 forward, the Senate saw almost no bipartisanship on the budget for almost a decade.
Stephen E. Bell served on the Senate staff of U.S. Senator Pete V. Domenici (R-NM) from 1974 to 1986 and then again from 1996 to 2009. From 1981 until 1986 he was Staff Director of the Senate Budget Committee, which Senator Domenici chaired. He is now principal of Steve Bell, LLC, a consulting firm, and a Visiting Scholar at the Bipartisan Policy Center.
