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To Republicans, it's nothing short of dishonorable that President Barack Obama would use the Senate budget reconciliation process (which doesn't allow filibusters) to try to pass health care reform."You know, we've witnessed the Cornhusker Kickback, the Louisiana Purchase, the Gatorade, the special deal for Florida," Senate Minority Leader Mitch McConnell said Feb. 22 on Fox News. *"Now they are suggesting they might use a device which has never been used for this kind of major systemic reform." Sen. Orrin Hatch, R.-Utah, wrote Feb. 23 on USA Today' s Web site that the Obama White House is engaged in "an all-out push for the highly partisan 'nuclear option' of reconciliation, special rules to circumvent bipartisan Senate opposition, to jam this bill through Congress. To be clear, this procedure was never contemplated for legislation of this magnitude." Sen. Chuck Grassley, R.-Iowa, said Aug. 23 on CBS News'Face the Nation,"If you have reconciliation, it's a partisan approach." Sen. Olympia Snowe, R.-Me., said much the same in April. "If they exercise that tool," she told the Washington Post, "it's going to be infinitely more difficult to bridge the partisan divide."But look at the Senate roll call on the conference report for the 1996 welfare reform bill, the most momentous piece of social legislation to become law in the last 20 years. The bill's formal name was the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (italics mine). It was called that because it passed the Senate through budget reconciliation, even though the bill's purpose ("ending welfare as we know it") was only peripherally about trimming the federal budget. Yet McConnell voted for the bill. So did Hatch, Grassley, Snowe, and every other Republican in the Senate. So, for that matter, did most Democrats. Why did the Republican-controlled Senate use reconciliation to pass welfare reform? Interestingly, when I posed that question to several welfare-reform experts—including one person (Ron Haskins, senior fellow at the Brookings Institution) who's published a narrative history of it—none could immediately remember why. Why couldn't they remember? Because the decision to use reconciliation was one of the least remarkable things about the bill.
Reconciliation has been used to raise taxes. It's been used to cut taxes. It was used (by a Republican-controlled Senate) to create COBRA, the program that compels employers to allow departing employees to buy into their health plan for 18 months. COBRA stands for the Consolidated Omnibus Budget Reconciliation Act of 1986 (italics mine), signed into law by President Ronald Reagan. Reconciliation was used several times to expand the Earned Income Tax Credit for the working poor during the 1990s and the early aughts. It was used (again, by a Republican-controlled Senate) to create in 1997 the beneficial Children's Health Insurance Program and the wasteful privatization experiment known as Medicare Advantage. It's been used repeatedly to set federal policy regarding higher education loans and grants. "It's done almost every Congress," Senate Majority Leader Harry Reid said on Feb. 23, "and [Republicans are] the ones that used it more than anyone else." (For a complete list of all reconciliation bills signed into law between 1980 and 2008, click here.) In a Feb. 10 essay for the New England Journal of Medicine, Henry Aaron, a veteran health policy expert at the Brookings Institution, argued,
Congress created reconciliation procedures to deal with precisely this sort of situation—its failure to implement provisions of the previous budget resolution. The 2009 budget resolution instructed both houses of Congress to enact health care reform. The House and the Senate have passed similar bills. Since both houses have acted but some work remains to be done to align the two bills, using reconciliation to implement the instructions in the budget resolution follows established congressional procedure.
Reconciliation is not, I should add, what is meant by the term "nuclear option," invented by former Sen. Trent Lott, R.-Miss., to describe a different and riskier (though, I believe, wholly justifiable) parliamentary maneuver also known as the "constitutional option." The nuclear/constitutional option was contemplated five years ago by Senate Marjority Leader Bill Frist, R.-Tenn., to scale back use of the filibuster. Reid opposed it then and (regrettably) opposes it now. Hatch's misuse of the loaded term ("the highly partisan 'nuclear option' of reconciliation") echoes a propaganda campaign at Fox News, which lately has been attempting to sow confusion (a curious ambition for a news organization) by re-branding reconciliation "the nuclear option."
The GOP's use of reconciliation in 1996 to get welfare reform through Congress seems, retrospectively, a little puzzling—not because the use of reconciliation was somehow illegitimate but simply because the Senate votes didn't end up being especially close. The bill passed the Senate 74-24 in late July, then picked up an additional four votes (78-21) when the Senate approved the conference report one week later. The Republicans' reasoning becomes a little clearer when we remember the larger political context.
The 1994 elections gave the GOP control of both houses of Congress for the first time in more than 40 years. Senate Republicans were less conservative than (and slightly alarmed by) their House counterparts, who were champing at the bit to legislate their Contact With America. The Contract called for "a tough two-years-and-out provision [for welfare recipients] with work requirements to promote individual responsibility," and in general was more nakedly hostile to welfare than President Bill Clinton, who in 1992 had campaigned on a pledge to "end welfare as we know it." Senate Majority Leader Bob Dole was a moderate Kansas Republican struggling to shore up his conservative bona fides in anticipation of his 1996 presidential bid. He calculated that the surest way to keep the Senate's Republican moderates lined up behind the Contract's anti-welfare pledge was to wrap it into a larger budget reconciliation bill. "[A]ny objectionable welfare provisions would be less salient in a big package," Georgetown political scientist R. Kent Weaver explains in his book Ending Welfare As We Know It, "and [Republican] moderates would not want to risk sinking a reconciliation bill since their party had such a big stake in it." Lowering the threshold of victory from 60 ayes to 51 would make the measure harder to sink.
The strategy failed because President Clinton wouldn't play along. He vetoed the reconciliation bill on the grounds that it called for excessive cuts in government programs, especially Medicare and Medicaid. Clinton and the Republican Congress then entered a game of chicken, neither willing to back down as budget deadlines came and went, with the result that the federal government temporarily shut down twice in November and December 1995. The public blamed the GOP Congress. (The triumph was not unmitigated, however. The first shutdown required an unpaid White House intern named Monica Lewinsky to sub for furloughed staffers in Chief of Staff Leon Panetta's office, whence she began her affair with President Clinton.)
Congress broke out a separate welfare reform bill and sent that to Clinton. He vetoed that, too, in Jan. 1996. But by now an election year was dawning for Clinton, Dole, one-third of the Senate, and everybody in the House. The Republican leadership became increasingly confident that if it sent a third welfare reform bill to the White House electoral pressures would make it difficult for Clinton (who by now was urging Congress to send him a welfare bill he could sign) to say no yet again. But tempers were still running high and, with 53 Republicans, the Senate remained seven votes shy of a filibuster-proof Senate majority. "As in 1995," Haskins writes in Work Over Welfare, "the major advantage of moving the bill as part of reconciliation … was that Senate rules did not allow a reconciliation bill to be filibustered." Reconciliation also helped move the bill along quickly; without it, the Senate might not have achieved final passage before the fall 1996 election season brought major legislative action to a halt.
Neither Haskins nor Weaver seems to think reconciliation was as important a factor as the mutual unwillingness of Clinton and the GOP to be perceived as an obstacle to welfare reform, which was popular with voters. Today, partisan divisions within Congress are more pronounced, and voter preferences with regard to health reform are less clear. (Its chief provisions are quite popular, but the public is sharply divided over the whole.) The GOP doesn't seem particularly afraid of being perceived as blocking reform, despite efforts by the Obama White House to establish that narrative. That means reconciliation will likely play a more significant role this time out, if a bill is to be passed at all. More significant, yes—but not remotely novel.
E-mail Timothy Noah at firstname.lastname@example.org.
Correction, Feb. 24, 2010: An earlier version of this column referred to McConnell, erroneously, as the majority leader. (Return to the corrected sentence.)