Whatever works

Using budget reconciliation as a vehicle for health care reform would be clumsy. So the Democrats should do it only if the Republicans make it necessary. But they should make it clear that it takes 50 Senators plus the Vice-President to pass legislation, not 60.

The budget reconciliation process, which sharply limits debate and constrains policy options, is not the right vehicle for a policy as complicated and contentious as health care reform. Much better to pass it as ordinary legislation.


The routinization of the filibuster – or, more commonly, threatened filibuster – to the point where reporters write without reflection of the 60 votes needed to pass a bill in the Senate, is a change of Constitutional proportions, and not one that the majority has any obligation to respect further than the actual rules of the Senate demand. And budget reconciliation is the one vehicle around that roadblock.

So the President and the Democrats on the Hill should work in good faith with Republicans to arrive at a health-care bill that will command some support on both sides of the aisle. But that negotiation should take place with the understanding that the Democrats’ fallback – what the negotiation analysts call their BATNA (Best Alternative To a Negotiated Agreement) is not inaction, but instead writing health reform into the budget reconciliation bill in a way that commands 50 votes plus the Vice-President’s tie-breaker. Once Al Franken is seated, Reid can afford up to nine defectors, or more if (for example) Arlen Specter decides that he doesn’t want to run for re-election carrying the burden of having blocked health care reform.

The Republicans threaten that, if the Democrats ram health care reform through under budget reconciliation, they will refuse to cooperate on anything else.

And that would differ from the Republicans’ current stance just how, precisely?

It’s too bad for the Republicans that their man Rush Limbaugh blabbed what should have been a secret: that their goal is to create a failed Presidency. (If that weren’t the case, you’d expect someone on the Republican side to tell Rushbo to STFU, but apparently no one dares to.) But now that the word is out, there’s no reason for the Democrats to tamely put up with it. Even in crassly electoral terms, the Democrats need to go into the mid-term elections with a string of accomplishments far more than they need a reputation for sportsmanlike conduct.

I have a thousand bucks that says we get a health care reform bill signed this year.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com