This week, there was a major development that could give one political party carte blanche to remake the country's health care system. No, it was not Arlen Specter's decision to bolt the Republican Party and caucus with Senate Democrats. For the time being, at least, Specter remains an unreliable supporter of President Obama's domestic agenda.
Instead a procedural vote occurring with much less fanfare increased the likelihood of a federal government takeover of health care. Both houses of Congress passed a $3.5 trillion budget resolution. Included in the conference report was reconciliation language that would allow health care legislation to be rammed through the expedited budgetary process with no amendments, no filibusters, and minimal debate.
The fun won't necessarily stop with health care reform. In addition to restructuring the 17 percent of the American economy represented by health care, reconciliation authority could also be used to raise taxes and revamp the energy sector via cap and trade. No filibusters allowed, just 20 hours of debate before the final up-and-down vote. As few as 50 Democratic senators plus Vice President Joe Biden would be necessary to prevail.
Reconciliation was designed as part of the Budget Act of 1974 to help the federal government save money and reduce deficits. Republicans, no strangers to legislative shenanigans themselves, have used the fast-track process to cut taxes, reform welfare, and drill the Arctic National Wildlife Refuge. But health care reform has legal implications beyond the budget and will cost vast sums of money.
That's why some leading Democrats didn't think it was a good idea to use the reconciliation process for health care reform. One of them was Senate Budget Committee Chairman Kent Conrad (D-N.D.), who hails from a state carried by George W. Bush and John McCain. For months, Conrad argued that the normal Senate rules should be followed.
"I've been as clear as I can be publicly and privately that I don't think reconciliation is the right way to write fundamental reform legislation," the Wall Street Journal quoted Conrad as saying. "It wasn't designed for that purpose." Conrad was similarly emphatic when interviewed on ABC's This Week.
"Well, look, I have said for weeks, I don't think it would be wise to use the reconciliation process to write major legislation, reform legislation," he said. "That's not what reconciliation was designed for. It was designed purely for deficit reduction."
As a member of the conference committee that approved the final budget outline, Conrad was in a position to do more than opine on the wisdom of using reconciliation to force through major legislation. He was in a position to stop it. Yet he meekly acquiesced to Democratic leaders, who may crow that they are nearing a filibuster-proof Senate majority but don't seem to want to take any chances.
It didn't have to end up this way. In 1993, a new Democratic president wanted to use reconciliation to pass his wife's ambitious health care reform plan. Sen. Robert Byrd (D-W. Va.), the powerful champion of the Senate Appropriations Committee and defender of Senate traditions, went to the White House and told Bill Clinton: Not gonna happen.
Byrd pointed out to the president that reconciliation was designed to save money, not spend it, to hammer out the federal budget, not federalize one-seventh of the American economy. Clinton backed down. Writes Jennie Kronenfeld in The Changing Federal Role in U.S. Health Care Policy, "The failure to convince Byrd to add the health care plan to the reconciliation bill may have doomed the reform."
When it comes to Obama's health care and cap-and-trade plans, the old man still hasn't changed his mind. In April, Byrd wrote that such a use of reconciliation "would violate the intent and spirit of the budget process and do serious injury to the Constitutional role of the Senate." He continued: "Reconciliation was intended to adjust revenue and spending levels in order to reduce deficits. It was not designed to cut taxes. It was not designed to create a new climate and energy regime, and certainly not to restructure the entire health care system."
For this reason, Byrd voted against the budget resolution. While he is no longer in a position to do much to halt the process, a rule bearing his name does offer some potential for containing the damage. Senators will be allowed to challenge provisions of the legislation as extraneous to the budget process. If the procedural objection is upheld, the item will be stripped from the bill unless a filibuster-like supermajority of 60 senators waives the Byrd Rule.
Robert Byrd won't be remembered as a champion of liberty and limited government. But his stalwart defense of Senate traditions and public debate has often put a brake on both parties' ambitions. Would that Kent Conrad and today's senior Democrats show similar resolve.
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