A 51 Senate Vote for Healthcare Reform – To “Reconcilliate” or Not

For those who have been following The Washington Report for the past several months, you are probably sick and tired of hearing the word reconciliation.  I keep referring to it as the “nuclear option,” and it is.  But, is it justified?  Well, let’s consider the facts.  Basically, reconciliation is a budgetary maneuver only used in the Senate whereby legislation passes with 51 votes instead of 60 – for budgetary considerations.  At the moment, reconciliation is the sole option left for the Democrats to pass a comprehensive healthcare package. While Republicans and many others throughout the country will cry foul in using the procedure to force reform through Congress, reconciliation is actually used a lot more than most of us would think.  We examined the history of reconciliation, and here’s what we found.

Reconciliation was created in 1974 as a result of the landmark Congressional Budget Act, which set out to define the Congress’ role in passing appropriations, which created the nonpartisan Congressional Budget Office (CBO).  To put it in perspective, such everyday terms as cell phones, FedEx, and “Watergate” (plus, Thisgate, Thatgate, and Othergate) are all older than the reconciliation process but just by one year.  It was a time of major transformation in Washington, and the allocation of money was one of the bigger issues at the time.

Used since 1974 to enact omnibus spending bills, with some modifications initiated by Senator Robert Byrd (D-WV) in 1985 (known as the “Byrd Rule”), the reconciliation process stipulates that any Senator can object to any element of a reconciliation bill if it is considered “extraneous.” Under the Byrd Rule definition, extraneous is defined as anything that would increase the deficit for a fiscal year beyond those covered by the reconciliation measure.  While there are specific stipulations associated with the Byrd Rule, in effect, it allows a point of order to be raised against any spending increase or tax cut that does not include an expiration date as decided by the Senate Parliamentarian.   So, long and short – it is used to control expenditures and deficit spending by Congress.  So, if the healthcare reform package does not trigger the “deficit” question, the issue to be debated is whether or not the process can be used to pass the legislation.  In effect, it’s a short way around the 60 vote margin required in the Senate to pass legislation.  So, while many of the elements of the healthcare reform package could be passed through reconciliation, other, more contentious issues such as abortion and immigration would likely not pass muster.

Through the 35-year lifespan of reconciliation, the procedure has been used 23 times on a number of different bills, and healthcare is no stranger to the reconciliation process. In fact, the 1985 bill where Senator Byrd created his now infamous rule was titled the Consolidated Omnibus Budget Reconciliation Act (COBRA), which included a measure establishing a new law allowing a person to keep their employer’s health coverage for a set period of time after they left their job.  In fact, in the minds of most Americans – COBRA is tied to that concept, not the other stuff that is part of the reconciliation process. Two other reconciled bills that greatly affected US healthcare are the Balanced Budget Act of 1997, which created the Children’s Health Insurance Program – a program that insures nearly one in three children across the United States – and the Deficit Reduction Act of 2005, which allows parents of disabled children to buy into Medicaid.  Anyone who says that reconciliation is not a mechanism for healthcare should probably check the history books – if, it is applied appropriately.  And, that’s the question. What is appropriate?

But, even more intriguing is the way reconciliation has been used historically.  Since its inception in 1974, reconciliation has largely been a Republican tool used to pass legislation. Republican Judd Gregg (R-NH) argues that 89 percent of the time it’s been used was where bi-partisan support existed.  But according to The Heritage Foundation, once Republicans regained both the House and Senate in 1994 reconciliation was used nine times when the GOP controlled Congress.It appears it has only been use once for non-budgetary considerations.  My fear is not the reconciliation process, but the residual acrimony between Republicans and Democrats following the process.  It’s been described as the “nuclear option.”  I agree with Senator Kent Conrad’s (D-ND) point on the nuclearity of the issue.  It’s nuclear, but it continues to create an even further divide between Democrats and Republicans.  We are moving to the extremes when the nation needs the middle ground.  We need to resolve problems.  And while reconciliation can accomplish the “task,” it may very well foul the “playing field.”  So, enough of the March Madness metaphors.  Let’s see what happens and hope the American people win out.

Kevin Fickenscher, MD

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