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Sunday, February 28, 2010

Reconciliation is Not an Acceptable Approach for Passing Comprehensive Health Reform

According to multiple news reports President Obama and Congresional Democrats will seek to pass health reform via the reconciliation process - bypassing the possibility of a filibuster and thereby needing only 51 votes in the Senate. Many reform advocates have been urging the use of the reconciliation process and several experts on Congress have come forward to argue that reconciliation is an appropriate process for the creation of comprehensive new programs. According to the Center for Budget and Policy Priorities “Congress has employed reconciliation many times to make major policy shifts.”

These shifts in policy included the passage of the Personal Responsibility and Work Opportunity Act of 1996 (welfare reform), the Economic Growth and Tax Relief Act of 2001 (tax cuts), the Jobs and Growth Tax Relief Reconciliation Act of 2003 (more tax cuts), and the creation of several health programs such as the health portability changes contained in the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), and the creation of the State Children’s Health Insurance Program passed as part of the Balanced Budget Act of 1997. Indeed, each of those measures were enacted via the budget reconciliation process, but contrary to what the Center for Budget and Policy Priorities as well as Thomas Mann and Molly Reynolds of the Brookings Institution and Norman Ornstein of the American Enterprise Institute have explained, using reconciliation to enact health reform would NOT be consistent with past congressional practice.

I have argued many times in favor of enacting comprehensive health reform, including the need for a single payer system - but I cannot endorse the use of the reconciliation process and will explore prior uses of the procedure to argue that they do not, in fact, support the use of the process to enact comprehensive reform.

  • The Consolidated Omnibus Budget Reconciliation Act of 1985 amended existing tax law to deny employers the ability to deduct health insurance costs unless it allowed employees and their immediate family members to maintain their coverage if for up to 18 months if they were to lose coverage. COBRA initially passed in the Senate in November on 1985 by a 93-6 margin. A subsequent vote on the conference report reconciling differences between the House and Senate passed with 78 votes, additional changes were then made to appease the House and the final bills was passed in the Senate with no recorded vote – meaning there was no serious opposition. So COBRA passed the Senate with a filibuster proof majority, reconcilation was a procedural not a strategic choice.
  • The Personal Responsibility and Work Opportunity Act of 1996 amended the Social Security Act to end the entitlement to Aid to Families with Dependent Children and replace it with the non-entitlement program Temporary Assistance for Needy Families. PRWORA passed the Senate 74-24 and a subsequent conference report passed 78-21. So like COBRA, PRWORA passed via reconciliation, but not in an effort to bypass negotiation and compromise.
  • The Balanced Budget Act of 1997 and the creation of the State Children’s Health Insurance Program (SCHIP) represented the culmination of true bipartisan negotiations in the Senate. SCHIP, a program to provide grants to states to provide health care to children with family incomes too high to qualify for Medicaid was the work product of Democratic Senator Ted Kennedy and Republican Senator Orrin Hatch. After several early roadblocks over funding mechanisms and worries about the creation of a new social program broad agreement was eventually reach on SCHIP and it was attached to the Balanced Budget Act of 1997. Although the Balance Budget Act was passed via reconciliation it initially passed the Senate with Unanimous Consent and a subsequent Conference Report passed by an 85-15 margin. So SCHIP was technically created via reconciliation, but only after negotiations garnered broad support for the program, and it was merely attached to a budget bill as “last train leaving the station” means by which to enact an already bipartisan piece of legislation. Reconciliation was not used to bypass negotiations.
  • The Economic Growth and Tax Relief Act of 2001 (EGTRA) amended existing tax law to utilize projected surpluses to provide broad tax reductions. Consistent with the reconciliation process the law included an expiration date of 10 years post enactment and it passed the Senate by a vote of 62-38. The subsequent Conference Report was passed by a vote of 58-33. Two Republicans, that supported the measure, were not present to cast votes – Mike Enzi (R-WY) and Pete Domenici (R-NM). So the bill enjoyed a filibuster proof majority.
  • The Jobs and Growth Tax Relief Reconciliation Act of 2003 amended existing tax law – namely the Economic Growth and Tax Relief Act of 2001 – to accelerate tax reductions. This is the one example that could be pointed to as an effort by the Republican majority to circumvent the process – because they did. The GOP violated the letter and spirit of reconciliation to accelerate the bipartisan tax cuts approved in 2001 – they did not, however, create any new programs.
Although 19 bills have passed via reconciliation since the creation of the process, the five that I just cited are the ones most frequently mentioned as evidence that the reconciliation process has been used to create new programs – including new health programs - and would therefor be appropriate for enacting health care reform. The fact of the mater is that these bills show quite the opposite. The most extensive health reform, SCHIP, represented the culmination of intense bipartisan negotiations and though it was attached to the budget bill passed via the reconciliation process reconciliation was not “used” to create a new program. The President and Congressional Democrats are seeking to use reconciliation so as to avoid compromise and negotiation - this is not what has been done in the past.

The use of reconciliation to enact comprehensive health care reform would be a violation of the process. The only reason that reconciliation is being considered is because health reform, as currently written, cannot overcome a filibuster threat. In other words, reconciliation is being proposed solely for the purpose of bypassing normal rules of procedure in the Senate. This represents a clear abuse of process and one that should be rejected by all responsible. James Madison warned that men are not governed by angels nor are they angels themselves – as such we rely on auxiliary precautions to prevent the abuse of power. The division of the legislature into a House and Senate, each with a distinct connection to the electorate, and each with divergent interests and motivations, was done to prevent majoritarian tyranny – in other words, it was never expected that in America 51 votes would be enough for a majority to do whatever they wished.