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Unprecedented
Reconciliation ought not to be used for controversial, sweeping legislation.


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With the dust settled on the health summit, it is clear that the president and his allies on Capitol Hill intend to plow forward with their sweeping proposal to overhaul the nation’s health sector. As the Los Angeles Times observed, it is also clear that “they will have to do it by themselves.”

And there’s only one way they can “do it by themselves”: an arcane budgetary procedure known as “reconciliation.” Reconciliation lets lawmakers “expedite” consideration of proposals to reduce projected budget deficits, and it allows Senate leaders to circumvent the filibuster — which normally enables a determined minority of 41 or more senators to block legislation. Under reconciliation, a simple majority rules the Senate.

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Speculation that Senate Majority Leader Harry Reid will advance Obamacare in this manner has incited fevered debate over the procedure itself. Is it appropriate to use reconciliation on such a controversial and consequential bill?

Senator Reid says it is. He argues that the reconciliation process has been used many times over the last three decades — usually, he claims, at the instigation of Republicans. House Majority Whip Rep. James Clyburn (D., S.C.) chimes in that reconciliation “is a normal thing to do in the Congress. It’s just simply a majority vote. It is nothing out of the ordinary.” Sen. Barbara Boxer (D., Calif.) characterizes reconciliation simply as “the way to govern with a majority.”

The Congressional Research Service reports that 19 reconciliation measures have been enacted into law since the procedure’s first use in the twilight of the Carter administration. It was attempted, but failed, a couple of times more. Reconciliation has been used for virtually all imaginable scenarios — save one: There is no precedent for using it to enact a once-in-a-generation rewrite of the relationship between Americans and their government that appeals exclusively to one side of the aisle.

Even the current Senate concurs that reconciliation ought not to be used for such mega-bills. Last April, 67 senators — including 26 Democrats and then-Republican Arlen Specter of Pennsylvania — supported a resolution to prohibit reconciliation from being used to advance that other mega-bill lurking out there, the cap-and-trade climate-control bill.

Our custom has always been to subject such bigger-than-life bills to a rigorous vetting process that allows affected parties to scrutinize the pros and cons and examine alternatives before ultimately arriving at a broad and bipartisan consensus. For good or ill, this process produced such landmark legislation as our civil-rights laws, Medicare and Medicaid, the Clean Air Act, the North American Free Trade Agreement, welfare reform, and the Kemp-Roth tax cuts. On final reading, each of these legislative milestones received over 60 votes in the Senate and a comparable majority in the House.

NO PARTISAN PATTERN
“The party of reconciliation,” Sen. Sheldon Whitehouse (D., R.I.) maintains, “is the Republican party.” Not so. Past reconciliation actions reveal absolutely no pattern in this regard.

With reconciliation, it takes two branches to tango — Congress and the president. In its first use (1980), a defeated Pres. Jimmy Carter and a lame-duck Democratic Congress pushed through a modest package of tax hikes and spending cuts. Since then, reconciliation bills have been enacted under every conceivable combination of Republican and Democratic control.


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