Irreconcilable differences

Unlike the House, the Senate has a procedural tradition that allows Senators very generous latitude for debate of bills and for proposed amendments. In the House, the powerful Rules Committee provides rules that govern the debate on a proposed bill. Requirements of germaneness limit the number and scope of amendments. By contrast, the smaller number of Senators and the tradition of the Senate as a debating body allow Senators to talk as equals on each bill. There is none of the sense that junior members “should be seen, but not heard,” as there is in the House.

Senators, then, can talk. And talk. And talk. Filibustering a bill is also a time-honored Senatorial tradition that, on the one hand, promotes consensus and collegiality and, on the other, paralyzes the Senate’s business. Through rules proposed and amended over the years, the Senate can vote to cut off debate and end a filibuster. That is known as a cloture vote. It takes 60 Senators to impose cloture, which still gives a determined minority considerable clout to derail, slow down, or dilute controversial bills.

There are a few scenarios where filibuster is not permitted and bills are approved without debate or with limitations. One of those is a bill that already was debated in the Senate, but then went to a Senate-House conference to resolve differences in the language between the two chambers’ versions of the bill. Another is the “reconciliation” process that attends to certain budget bills. Invoking this process requires that the bill, indeed, be related to the budget, such as reducing the deficit. Or, at least be made to appear so.

The Democrats, fearful of a filibuster on their ObamaCare proposals, want to circumvent the usual enactment process and use “reconciliation.” They face two hurdles. One is that they need coordination between the House and Senate to set the bill up as a budget bill. They have been assiduous in laying the groundwork for that, which is one reason why the focus on the Baucus bill is misplaced. There is a rival bill in the Senate, and there are other proposals in the House. The Senate bills need to be coordinated, which gives the leadership considerable flexibility in drafting the bill. Moreover, having the House bill originate in the Ways and Means (Taxation) Committee and move to the Budget Committee allows that to be the bill considered by the Senate for purposes of the reconciliation process. Indeed, the Senate can make that bill its own, but strike essentially all language and substitute its own as an “amendment” to use the simple majority of reconciliation. Then, the House-Senate conference can iron out the details and come up with whatever bill it chooses (on which both houses then must vote, of course, but with a simple majority).

The problem, and thereby the second hurdle, is that this is using a budget process to enact a policy that really has nothing to do with the budget. It is a perversion of the process. But it can be challenged under Senate rules for each provision of the bill. The Senate’s parliamentarian, who emerges as a central figure in this tactic, can be asked to issue a rule whether the challenged provision really reduces the deficit (one reason that the contrived Baucus framework sought an opinion from the Congressional Budget Office about the proposal’s effect on the deficit). If it does not, the parliamentarian can rule that reconciliation does not apply and the provision (e.g., insurance company mandates re: preexisting conditions) has to be dropped from the bill. Needless to say, this can complicate adoption of a comprehensive reform bill. The parliamentarian’s rule can be overridden by sixty votes, the same as for cloture. Alternatively, the dropped provision can be enacted as a separate law, making it vulnerable to the filibuster. As a final alternative, the Senate could ignore the parliamentarian’s ruling, but it is loath to do so because of the internal strife such a blatant power play would induce in a body with a long institutional memory.

The lesson is that it is always important to keep one’s eyes on the ball. In the Congress, especially in the Senate, with its arcane procedural rules, appearances can be deceiving. That is one reason why the hullabaloo about the Baucus proposal is misplaced in so many ways. Such trickery and deception can provide political cover to politically endangered politicians by allowing them to fudge their votes. For example, a Senator can vote to impose cloture and shut down debate, but then vote against a bill that is unpopular with this constituents, as long as his vote is not needed by his party to pass the final bill by majority vote. That may sound like a lot of deception, but it may be the best way for the Left that is controlling Congress to get a politically unpopular bill enacted over the wishes of the voters.