Budget Reconciliation and Health Care Reform: Round Three

If this is the best that the Beltway savants can do in asserting that you can’t use budget reconciliation for health care, then it’s even clearer that you can.

“There is only one worse thing than being talked about,” Oscar Wilde noted. “And that is not being talked about.”

So I suppose that I should be happy that Ezra Klein trashed my most recent post on how the Democrats can use reconciliation to get health care reform, from his elevated perch at the Washington Post. (Although you could have bothered to let me know, Ezra. Jeez.). At least Yglesias has got my back.

Anyway, I feel a little like saying what Muhammed Ali said to George Foreman in the 7th round of the Rumble in the Jungle: “Is that all you got, George?” This is all pretty weak tea. Here’s Ezra:

It may be that the rules of the reconciliation process makes much of health-care reform ineligible for reconciliation, and it may be that the Senate parliamentarian will say that explicitly to the chair of the Senate, but the chair of the Senate can simply, for the first time ever, ignore the parliamentarian’s rulings and break what everybody understands to be the rules and pass heath-care reform that way!

It won’t work.

The problem with breaking the rules — or, more to the point, using them in unintended ways — is that anyone can do it. Remember when minority Democrats were threatening to “shut down the Senate” when Bill Frist eliminated the filibuster for judicial nominees? It wasn’t an idle threat. They could well have shut down the Senate. Nearly all Senate business requires unanimous consent to proceed. Republicans are no less aware of this fact than Democrats were. If Democrats try to invoke reconciliation and then override the parliamentarian and rewrite the Senate rulebook on the fly, the GOP will quickly and easily close down the chamber.

(Italics in original). First, Ezra’s assertion that the reconciliation rules ban health care reform is at best unproven and contrary to the plain language of the law. Those rules bar putting things in a reconciliation bill that have only an “incidental” effect on the budget. But, say, prohibiting discrimination against pre-existing conditions would have more than an incidental effect. Such a move, for example, could save billions from Medicaid, because it would allow people to get insurance in the private market who might otherwise have to go to Medicaid. To be sure, as I have acknowledged, the Senate has traditionally interpreted this “incidental” language very conservatively; it has, for example, struck provisions raising the Medicare eligibilty age as “incidental,” which they surely are not. But that interpretation is just that: an interpretation. And it’s a pretty bad one.

Second, Ezra cites nothing for his assertion that a ruling allowing reconciliation would be for the first time ever that a presiding officer of the Senate overruled the parliamentarian. But let’s assume that he’s right: what of it? Historians have characterized the last 50 years of US politics in many ways, but “The Era of the Imperial Parliamentarian” is one of those that has not made much of a dent in the literature. The Senate President has that authority. In any event, the standard use of the filibuster by the minority is also one of those things that has never been done before Mitch McConnell. Things change. As a progressive, Ezra surely knows this. In any event, this is hardball: you guys filibuster everything, we jam something down your throats.

Third, Ezra claims that the real reason why the Dems cannot do this is why the nuclear option failed in 2005: the then-minority Democrats threatened to shut down the Senate if they did it. That’s far less clear than Ezra makes it out to be. What really worried the Senate Republicans was that they would not be able to filibuster Democratic nominees once they were again in the minority. Yes, there was also talk of shutting down the Senate; but since Newt Gingrich, it is generally not seen as great politics to shut down the government. Reid knew that: that’s why the nuclear option gambit, contra Ezra, succeeded. At the end of the day, the GOP got every one of its nominees (including the egregious Jay Bybee) voted on, except for William Haynes, whom many Republicans didn’t want anyway.

In any event, there is a counter-move to this: a point of order to the chair to overturn the unanimous consent rule for purely procedural motions, entering documents in the record, etc. Again: they send one of yours to the hospital, you send one of theirs to the morgue. (Come to think of it, this wouldn’t be a bad idea anyway.).

And this is really what leads to Ezra’s last, and in my view, his weakest point. After using reconciliation, he claims:

you face the added impediment that the media is kicking the hell out of you for cheating, and Republicans can argue — accurately — that you just attempted a thuggish takeover of the Senate.

That’s a joke, right, Ezra? Because we all remember all the heat the Republicans took for threatening the nuclear option? And of course we all know how much press criticism they got in the 110th Congress for doubling the amount of filibusters any minority party had ever used. Anything but: in fact, the media started saying that the term “nuclear option” was solely a Democratic term, and Chip Reid even said that the term meant the Democratic threat to shut down the chamber!

As one of Ezra’s commenters noted:

You think the public will be up in arms because the US Senate passes health care reform with a 55 vote majority? You think the phone lines will be burning up with support for the minority of senators who will bring the senate to a halt over the filibuster?

Bush and Bill Frist did not suffer one iota from the threat of going nuclear. Reid’s threat to shut down the Senate never materialized because the GOP would have loved to have seen the Democrats try to shut down the government in the middle of a crisis. Indeed, according to a fine journalist, one Ezra Klein:

Under George W. Bush, Republicans managed to ram tax cuts, oil drilling, trade authority, and much else through reconciliation. But they were as often disappointed: The GOP leaders fired two successive Senate parliamentarians whose Byrd rule rulings angered them.

Still waiting for the public uproar about those — and the Democratic shutting down of the Senate, The Republicans nowadays know that: that’s why they are squealing about the possibility of using reconciliation in the hopes that they can somehow persuade the DC savants that of course “everyone knows” that you can’t do that.

And then, of course, the coup de grace: that obviously reconciliation cannot be used because if you could, then “the senators of one party or the other would have thought of it, and at least a couple of radicals would have loudly advocated for it.” Except that the senators of one party already did think of it: That’s why it’s already in the reconciliation instructions voted on in the Senate. And while I am rarely (although sometimes) called a radical, that’s what the web is for, right?

This is sort of like that old joke about the economist seeing a $20 bill on the street and refusing to pick it up; it must not exist, he reasons, otherwise someone would have already picked it up. Well, a few weeks ago, my wife and I were walking along the street, and she saw three $20 bills just lying there. And to make economists’ heads spin even more, she then donated the money to charity.

Ezra, you’re getting Beltway fever! Come back to California!

Author: Steven M. Teles

Steven Teles is a Visiting Fellow at the Yale Center for the Study of American Politics. He is the author of Whose Welfare? AFDC and Elite Politics (University Press of Kansas), and co-editor of Ethnicity, Social Mobility and Public Policy (Cambridge). He is currently completing a book on the evolution of the conservative legal movement, co-editing a book on conservatism and American Political Development, and beginning a project on integrating political analysis into policy analysis. He has also written journal articles and book chapters on international free market think tanks, normative issues in policy analysis, pensions and affirmative action policy in Britain, US-China policy and federalism. He has taught at Brandeis, Boston University, Holy Cross, and Hamilton colleges, and been a research fellow at Harvard, Princeton and the University of London.