Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

03/12/2010 (5:40 pm)

Democracy At Work. Don't Look.


The dictum says that one should never watch bills being passed or sausage being made. The Congressional machinations over the ObamaCare bills the last couple of days illustrate why. It’s not a pretty process, and it’s not easy to understand.

Chris Muir’s Day By Day cartoon today illustrates; it posits an attempt to pass legislation without voting on it. That’s not exactly what’s happening — any more than the Dept of Defense bundling 3 years’ worth of contracts into a single bid constituted a “no-bid contract” for Halliburton. Daniel Foster had a pretty solid explanation of the maneuver being contemplated by the Democrats at The Corner yesterday. The short version is that the House Rules committee decides before debate what the rules governing that bill’s debate will be, and the House votes on the rules by a simple majority. They thus have the ability to bundle bills together, such that the passage of one automatically produces the passage of the other by the same vote. However, the House does get to vote on the rule itself.

So, the current situation being the confused and confusing mess that it is, I’ve decided to summarize the parliamentary machinations. Health care reform for dummies.

The Federalist Society has about the simplest explanation of Congressional reconciliation that I’ve seen so far. In fact, it describes the entire health care reform process in a nutshell. But I’m going to try to reduce it even more here. Here we go:

Once the Democrats passed health care reform through the Senate on Christman Eve, the Democrats path to health care reform looked like this: (1) House and Senate Democratic leaders would meet off-line to agree on what needed to be changed to make the two bills compatible. (2) The House would pass the Senate bill, but with amendments stipulated that would make it acceptable to the House. (3) The Senate would consider the Senate bill with the House’s recommended amendments, and pass it. The bill would become law.

The Democrats super-majority in the Senate made it possible to pursue this path, since Senate Majority Leader Harry Reid (D, NV) would have been able to lock Republican amendments out of the Senate bill, and would have been able to defeat a filibuster.

The voters in Massachusetts, of which I proudly count myself one, threw a roadblock into that path on January 19 of this year by electing Scott Brown to the Senate. Brown, of course, ran on the basis of being “Number 41,” the vote to stop health care reform. Suddenly, Reid is no longer able to pass the amended House version of health care reform, as described above.

Democrats had two options: (1) scrap the current bill, and produce a version that would garner bipartisan support; or (2) find a way to side-step the filibuster in the Senate. They chose (2).

The only avenue they’ve found to side-step the filibuster is an arcane process created in a budget bill in 1974 called “reconciliation.” Reconciliation is designed to streamline the act of making a budget resolution conform to existing Senate and House budgeting laws — things like “Paygo,” spending caps, or required deficit reduction. Without reconciliation, dozens of committees would have to coordinate their separate processes, and each individual committee output would have to be debated and voted upon. Under reconciliation, the entire process gets bundled into a single resolution that gets voted on once, and gets debated under vastly restricted rules. The Senate’s version of reconciliation prohibits filibuster; it preserves the Senate’s tradition of empowering minorities only in that it gives the Senate power to excise from the reconciliation bill any measure that does not pertain to actually reconciling the budget — the so-called Byrd Rule. In other words, reconciliation was supposed to be used for fixing a budget, and only for fixing a budget.

Democrats have been engaging in their usual, steroid-enhanced rationalization since President Obama announced his intent to use reconciliation. Their rationalization has been that reconciliation has been used dozens of times, mostly by Republicans, and not only on budget matters. They omit that when used, it was used with bipartisan agreement to streamline a difficult process, not by a majority to bypass Senate filibusters. Be that as it may, Democrats are still restricted by the rules of the game; the Senate Parliamentarian still has the power to remove from the reconciliation bill any item that does not pertain to budgeting.

Wednesday, a report originating in the Senate Parliamentarian’s office claimed that the Senate could not begin the reconciliation process before the Christmas Eve version of the Senate bill had been signed into law. This cannot happen without the House voting on the Senate bill and passing it just as it stands, without any amendment. House Speaker Pelosi agrees that this is what must occur.

With reconciliation, and with this ruling, the Democrats’ path to passing health care reform now looks like this: (1) House and Senate Democratic leaders will meet off-line to agree on what needs to be changed to make the two bills compatible, just as before. (2) The House will vote on the Christmas Eve version of the Senate bill, unchanged, and pass it. (3) The President will sign the bill into law. (4) The Senate will engage in the reconciliation process to bring the bill into conformity to the pre-agreed-upon form that is acceptable to the House. (5) The President will sign the reconciliation bill, which will change the now-passed health care reform bill into agreement with what House and Senate leaders agreed upon.

This means that anti-abortion Democrats in the House have to agree to pass a version of health care reform that frankly forces the federal government to pay for abortions — trusting that the Senate will thereafter pass an amendment to nullify that fact. House Democrats likewise have to trust Senate Democrats to cooperate with them on any other particular with which they disagree. The outcome rests largely on the ability of Democrats in the House to trust Democrats in the Senate. Whether they can trust will say a great deal about the Democrats’ view of members of their own party.

Details of the differences between the House and Senate health care reform bills are here.

Bruce McQuain at QandO has the current magic numbers for the House vote on the unadjusted Senate bill.

MichaelW, also at QandO, has this neat summary of what the House Democrats are facing buried in his discussion of the latest legislative maneuvering:

Again, whether or not the “fixes” required by House members to get their vote will actually survive the Byrd Rule part of the reconciliation process is a huge question. In addition, Republicans will have other means of attacking the bill, such as challenging its long-term budget effect which could scuttle the entire thing. So, not only do the wavering House members need to be assured that the Senate will vote for their fixes in the reconciliation bill, they also have to know that those fixes will survive the process, and that the reconciliation bill as a whole will be capable of being passed under the budgetary constraints peculiar to such legislation. That’s a whole lot of “if’s” that need to be answered before the Senate bill comes to the floor for a vote.

What is happening here is democracy in action, making it well-nigh impossible for a well-entrenched majority to barrel-roll the minority. This is how the process is designed to work, and illustrates just how lucky we are that our forefathers were far-sighted enough to make the law-making process difficult for a simple majority to pass. The Democrats may be operating in bad faith, but by God, the system is still working.

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March 13, 2010 @ 9:50 am #

It’s hard for me to conclude this is an example of “Democracy in action” when close to 2/3 of the America public hates this bill.

I’d say this is more an example of Tyranny in action.

March 13, 2010 @ 2:04 pm #

Wait. After step 4, when Barack has signed the original bill and a “compromise” has passed both houses, the president will just VETO the “compromise” and the unamended Senate bill will be the law of the land.

March 13, 2010 @ 2:16 pm #

What the Demarcates are learning is that it’s still very difficult to roll over the constitution. They had assumed that the constitution had been weakened enough that they could get away with this.

Their strategy is sound it’s just that their timing may still be a little off.

March 13, 2010 @ 2:38 pm #

Here’s a “must read”. It won’t tell you anything you don’t already know, but it _does_ put it into a nice concise package. From someone who’s been there…


March 15, 2010 @ 3:04 pm #

Rob J wrote:

Wait. After step 4, when Barack has signed the original bill and a “compromise” has passed both houses, the president will just VETO the “compromise” and the unamended Senate bill will be the law of the land.

This is in fact what the House expects, which is why they’re not sure they’re going to go along with this.

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