The use of reconciliation 1980-2008

If you follow Congressional politics, you may have heard the beginnings of a debate among the parties about the potential use of the reconciliation process, which only requires 50 votes, as a way for Democrats to avoid a Republican filibuster of a health care bill in the Senate. This is one of those annoying topics on which the parties (and their supporters) switch positions each time control of the majority changes. In this case, Democrats who previously opposed the use of reconciliation for policy changes now support it and vice versa for Republicans.

It's a debate that's remarkably short on context -- the politicians obviously don't want to explain the issue in sufficient detail to expose their own hypocrisy and reporters often have a limited understanding of Congressional procedure. That's why I was happy to see that the political scientists Thomas Mann (Brookings) and Norm Ornstein (AEI) have written a TNR Online article with Molly Reynolds (a Brookings researcher) on the history of reconciliation. Their conclusion? Reconciliation has been exploited by both sides to make policy changes without facing a filibuster:

What is the precedent for using reconciliation to enact major policy changes? Much more extensive than the architects of the Congressional Budget and Impoundment Control Act of 1974 had in mind-or than Senate Republicans are willing to admit these days. Reconciliation was designed as a narrow procedure to bring revenue and direct spending under existing laws into conformity with the levels set in the annual budget resolution. It was used initially to cut the budget deficit by increasing revenues or decreasing spending but in more recent years its primary purpose has been to reduce taxes. Twenty-two reconciliation bills were passed between 1980 and 2008, although three (written by Republican majorities in Congress) were vetoed by President Clinton and never became law.

Whether reducing or increasing deficits, many of the reconciliation bills made major changes in policy. Health insurance portability (COBRA), nursing home standards, expanded Medicaid eligibility, increases in the earned income tax credit, welfare reform, the state Children's Health Insurance Program, major tax cuts and student aid reform were all enacted under reconciliation procedures. Health reform 2009 style would be the most ambitious use of reconciliation but it fits a pattern used over three decades by both parties to avoid the strictures of Senate filibusters.

They also provide a handy table of all twenty-two bills for historical reference:

Budget Reconciliation Bills Signed Into Law, 1980-2008

Bill	Major Purposes	Change in Revenue	Change in Outlays	Net Effect on Deficit
Omnibus Reconciliation Act of 1980	First use of reconciliation process.	$29.2 billion	-$50.38 billion	-$79.58 billion; 1981-1985
Omnibus Budget Reconciliation Act of 1981	Made significant cuts to discretionary programs, including welfare and food stamps.		-$130 billion	-$130 billion; 1981-1984
Omnibus Budget Reconciliation Act of 1982	Reauthorized and made changes to food stamp program. Made changes to federal employee pay formula and to the farm support program.		-$13.3 billion	-$13.3 billion; 1983-1985
Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA)	Rescinded some provisions of the previous year's Kemp-Roth tax cuts.	$98.3 billion	-$17.5 billion	-$115.8 billion; 1983-1985
Omnibus Reconciliation Act of 1983	Made changes to federal employee pay and retirement formulas.		-$8.2 billion	-$8.2 billion; 1984-1987
Consolidated Omnibus Budget Reconciliation Act of 1985	Mandated an insurance program giving some employees the ability to continue health insurance coverage after leaving employment (COBRA) and amended the Internal Revenue Code to deny income tax deductions to employers for contributions to a group health plan unless such plan meets certain continuing coverage requirements.	$9 billion	-$15.9 billion	-$24.9 billion; 1986-1989
Omnibus Budget Reconciliation Act of 1986	Ordered the sale of Conrail. Made minor changes to Medicare hospital provisions.	$10.5 billion	-$6.5 billion	-$17.0 billion; 1987-1989
Omnibus Budget Reconciliation Act of 1987	Created federal standards for nursing homes under Medicare and expanded Medicaid eligibility	$23.2 billion	-$16.4 billion	-$39.6 billion; 1988-1989
Omnibus Budget Reconciliation Act of 1989	Made approximately $10 billion in spending cuts	$15.4 billion	-$23.77 billion	-$39.2 billion; 1990-1992
Omnibus Budget Reconciliation Act of 1990	Established Pay-As-You-Go (PAYGO) rules for the first time and implemented a range of tax increases	$137 billion	-$184 billion	-$236 billion; 1991-1995
Omnibus Budget Reconciliation Act of 1993	Created two new personal income tax rates and a new tax rate for corporations. The cap on Medicare taxes was repealed, and gas taxes were raised. The taxable portion of Social Security benefits was increased. The phase-out of the personal exemption and limit on itemized deductions were permanently extended, and the earned income tax credit was expanded.	$250.1 billion	-$254.7 billion	-$504.8 billion; 1994-1998
Personal Responsibility and Work Opportunity Act (1996)	Clinton's welfare reform bill	$1.9 billion	-$52.2 billion	-$54.1 billion; 1997-2002
Balanced Budget Act of 1997	Contained first portion of Clinton's plan to balance the federal budget by FY 2002. Created the Children's Health Insurance Program. Made changes to Medicare hospital payment policy.	$8.6 billion	-$118.6 billion	-$127.2 billion; 1998-2002
Taxpayer Relief Act of 1997	Clinton's tax cut package	-$88.9 billion	$11.5 billion	$100.4 billion; 1997-2002
Economic Growth and Tax Relief Reconciliation Act of 2001	First Bush 43 tax cuts	-$512 billion	$40 billion	$552 billion; 2001-2006
Jobs and Growth Tax Relief Reconciliation Act of 2003	Second Bush 43 tax cuts	-$314 billion	$29.5 billion	$342.9 billion; 2003-2008
Deficit Reduction Act of 2005	Reduced Medicare and Medicaid spending, changed student loan formulas, and reauthorized the Temporary Assistance for Needy Families program.	N/A	-$39 billion	-$39 billion; 2006-2010
Tax Increase Prevention and Reconciliation Act of 2005	Extended several of the earlier Bush tax cuts, including the reduced tax rates on capital gains and dividends and the alternative minimum tax (AMT) tax reduction.	-$70.0 billion	N/A	$70.0 billion; 2006-2010
College Cost Reduction and Access Act of 2007	$20 billion student aid reform package. Included grant increases, loan rate reductions, and created public service loan forgiveness program.	N/A	-$752 million	-$752 million; 2007-2012

Comments

[Rob]

The real villain in this piece is the filibuster. The Founders (remember them?) never intended that a 3/5 supermajority would be required for legislation to pass the Senate. Back in the day, filibusters were used only very rarely, because they required continuous floor speeches and the presence of a quorum, putting enormous burdens on filibusterers and making them appear obstructionist. Then, in the 1970's, Senate Majority Leader Mike Mansfield (D-MT) led the Senate to "reform" the filibuster rule.

Since then, a filibuster doesn't require continuous floor speeches or prevent the Senate from taking up other bills. It is declared simply as a procedural matter, bloodless and without burden. (At the same time, cloture requirements changed from a 2/3 majority to a 3/5 majority.) Not surprisingly, its use has grown enormously.

Reconciliation is simply a way around the easy invocation of a filibuster. The solution isn't to cure the reconciliation process, it's to return the filibuster to a procedure that's difficult, unpleasant and rare.

[Jason]

Wow, that is a completely erroneous reading of what the "Founders" intended. Of course, there is the classic argument about which "Founder" intended what. But, it should go without saying that many "Founders" served in the first House and the first Senate. They created and adopted the rules of procedure for both chambers (as is explicitly required in the Constitution, and as the "Founders" debated and agreed to during the Constitutional Convention).

It is true that the filibuster is more common today than it was in the past -- but so is partisanship. The filibuster results from the Senate tradition that every Senator should be heard, if they desire to be heard, on a measure. From its earliest days, the Senate was a consensus-based body. That's also why the early Senate did not feature filibusters -- with 26 members they literally let everyone talk until they were ready to vote. Obviously, with 100 members that becomes more difficult.

It might surprise you to learn that the House had a form of filibuster too until the late 19th Century. It has been the growing complexity of legislation and the growth of the federal state that has made the rules for Congressional debate a nuisance. It has ABSOLUTELY NOTHING to do with the intent of the Framers of the Constitution -- the men who intended from the very beginning for the Senate to be the saucer that cools the passions of the House of Representatives (Washington to Jefferson).

Parenthetically, you are correct about the outcome about the Reconciliation, but not about its intention. The reconciliation process was invented as a budget tool to allow Congress to have an expedited way to do something very politically painful -- cut programs and raise taxes. Sadly, in recent years, it has been bastardized to circumvent traditional Senate process and undertake all forms of ill-advised initiatives. The Bush tax cuts come leaping to mind, but I throw cap & trade and health care into that basket as well.

The Senate needs to serve its function in the Constutional order. That means, with current membership, you have to convince just two Republicans that your legislation is in their best interest. I do not believe that is too high a bar to climb for something as important as health care reform or global warming.