By David Watkins
In his State of the Union address yesterday, Barack Obama said the following: "And if the Republican leadership is going to insist that sixty votes in the Senate are required to do any business at all in this town, then the responsibility to govern is now yours as well." This has become all the more true since the election of Republican Scott Brown in a special election to fill out the remainder of Ted Kennedy's term in the Massachusetts. This gives the Republican party the 41st vote necessary to sustain a filibuster in the Senate. The good news, for Obama and the Democrats, is that the Senate already passed a health care reform bill. the bad news is the House hasn't, and many members of the Democratic coalition in the house are unlikely to vote for the Senate's bill. (Prior to Brown's election, the path forward had been for the house to pass its own bill, and go through the reconciliation process to produce a compromise bill. Now, with going back to the Senate no longer a viable option due to a likely Republican filibuster, the House must pass the exact same bill as the Senate to avoid that final step).
If you've been following the news, however, you've probably heard people talk about another option--the house passes the Senate bill, and certain features of the Senate bill objectionable to house members are "fixed" in reconciliation. Reconciliation is the process by which congress "reconciles" (that is, changes, adds, or eliminates) parts of the law in order to conform with the budget. Since a significant portion of the current health care reform legislation has an impact on the budget, this could, in theory, work. Why can't republicans just filibuster the reconciliation changes? Political Scientist Sarah Binder provides the answer in her thorough post on reconciliation:
The Congressional Budget Act limits Senate consideration of reconciliation to 20 hours of debate and to 10 hours of debate on a reconciliation conference report. With a time certain for a vote, that means a minority cannot filibuster the effort to get to a vote. Why did senators create a fast-track for reconciliation in 1974? Chalk this one up to unanticipated consequences. Reconciliation was originally intended as a cleaning up mechanism to make the two congressional budget resolutions consistent with one another. When the Budget Act was revised and the second resolution dropped, reconciliation came to be used more aggressively for securing controversial policy changes.
Be sure to click through and read the post for more details about the history and details of reconciliation. Is this likely to happen with health care reform? It's very hard to see. It would require, at a minimum, 50 out of 59 Democratic Senators willing to go along with this plan. Why wouldn't they? One reason might not is that they are nervous about setting a precedent--that major legislation can avoid the Senate's 60 vote requirement potentially weakens their power to effect legislation in the future. Some might object because they genuinely value the Senate's unique set of rules. Others might not be willing to go along with the plan because they strongly oppose the changes the House might demand in reconciliation. Whether the Democrats can get 50 votes in the Senate for reconciliation or 218 votes in the house for the Senate bill, will determine whether health care reform succeeds.
As a more general observation, as Scott noted in his most recent post, the current status quo in congress--strong party discipline (especially for the minority party) and polarization, coupled with the routine, everyday use of the filibuster--is not conducive to successful governing. Eventually, it will probably change. That change might come through the routinization of reconciliation, a change to the usage patterns or rules governing the filibuster, or less party polarization and discipline. Until those changes occur, expect Presidents to have an ever harder time enacting their domestic policy agenda.
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