GOP Will Give Healthcare the Byrd
All 41 Senate Republicans signed a letter to Majority Leader Harry Reid (D-Nev.) Wednesday saying that they would reject any health care provision in violation of the Byrd Rule if Democrats move forward with reconciliation.
Per the letter, the GOP intends to use the rule, which states that any measure passed through reconciliation must be directly related to the federal budget, as a tool to strike down questionable provisions and slow progress on a bill they are working to kill.
”We urge you to not use reconciliation to pass a partisan bill that is opposed by the majority of Americans,” wrote the GOP senators. “[But] to endeavor to ensure that the reconciliation process is not used to fast-track an unpopular bill through Congress, we wish to inform you that we will oppose efforts to waive the so-called Byrd Rule during Senate consideration of any reconciliation bill concerning health reform.”
Oooh. Thanks for the heads up, guys. It’s funny how helpful Republicans have been lately, really going out of their way to prevent Democrats from shooting themselves in the foot with this hugely unpopular healthcare bill—even though the GOP has a lot to gain if the Dems self-destruct and the public hates the new law. But that’s the GOP for you—always so sympathetic to those less fortunate than themselves.
The Theory of Constitutional Moments
Jack Balkin had an interesting post about the dispute over use of the reconciliation process and the Senate’s vanishing capacity to do important legislative business without it.
[U]sing reconciliation in this case will not fundamentally change the dynamic in the Senate, and it will probably not significantly alter constitutional understandings. We will still have polarized parliamentary style parties in a constitutional system that is not designed for parliamentary government because of its super-majority rules and many different veto points. In an important sense, this is the larger structural problem. The party system has mutated in ways that are inconsistent with existing constitutional mechanisms.
If reconciliation fails, Obama will have to attack the filibuster directly. But even if reconciliation succeeds, the constitutional moment will not have been concluded. The worst, I fear, is yet to come.
Here Balkin is alluding to Bruce Ackerman‘s theory of transformative “constitutional moments,” times of political crisis in which the electorate acts collectively to effect constitutional change through informal, extra-constitutional means. In the current context, Balkin is using the idea to describe a potential confrontation between the President and the Senate over the Senate rules. Those rules live behind the constitutional forcefield of Art. I, § 5, a bulwark for the separation of powers, and an inter-branch confrontation over them could be understood as a constitutional moment akin to FDR taking on the Supreme Court with the court-packing scheme.
I’m not wild about Ackerman’s theory, but I do think it supplies a useful vocabulary in which to frame the historical interplay between politics and constitutional law. The theory is meant to explain the great paradigm shifts in constitutional interpretation that occurred at crucial points in our history: reconstruction, the New Deal, and the civil rights era. For example, under Ackerman’s theory, the constitutional standoff between New Dealers and the Lochner era Supreme Court was resolved by the decisive action of the electorate who sided with the liberals and re-elected FDR with overwhelming support, thereby “ratifying” the New Dealers’ more expansive vision of congressional authority to intervene in the national economy.
The term “constitutional moment” can be useful for historical description—it’s certainly true that there was a kind of jurisprudential paradigm shift in the mid-Thirties, as the Supreme Court broke with old-guard doctrines like the freedom of contract—but I’m not sure Ackerman’s theory achieves much beyond that. In its strongest form, the theory ascribes to these epochal constitutional realignments a force equivalent to that of formal, Article V amendments to the text. An obvious problem here is this: how are you supposed to know when a constitutional transformation has occurred? And how are you supposed to resolve disagreements about the scope of such a transformation? When voters “speak” at the polls, the final tally of their votes does not in any obvious way translate into well-formed propositions of law. There are other criticisms—and plenty of rejoinders to them, I’m sure—but I’ve already taken this detour too far.
I’ll follow up with more thoughts on Balkin’s post later.
UPDATE: Made some needed clarifications suggested by Lee’s comment. Lee is right, of course, that the rules of congressional procedure involved in the filibuster and in the budget reconciliation process are not derived in any way from the Constitution. The point here though is not that these specific political disputes are about constitutional issues, but that they implicate the balance of powers among the branches in a constitutionally significant way. Changes above should clarify that.
Joe the Parliamentarian?
In ordinary times, a sentence beginning with the words “the former Senate parliamentarian” would not bode well for the ensuing blog post. But these are not ordinary times.
The former Senate parliamentarian, Robert Dove, has made some interesting news of late. Today, Dove told MSNBC that Vice President Biden is the ultimate decider on parliamentary questions arising in the reconciliation process.
Ultimately it’s the Vice President of the United States…. It is the decision of the Vice President whether or not to play a role here…. And I have seen Vice Presidents play that role in other very important situations…. The parliamentarian only can advise, it is the vice president who rules.
This authority of the VP derives, of course, from the fact the Constitution designates the VP as “President of the Senate.” (See Article I, Section 3.) I would also note that the Constitution provides that the Senate shall choose a “President pro tempore” to preside in the vice president’s absence. The current President pro tem, fittingly, is Sen. Robert Byrd, author of the Byrd Rule. As I’ve mentioned before, the Byrd Rule sets the standard for what is “out of order” (i.e., impermissible) in the budget reconciliation process. It’s conceivable that Sen. Byrd could be the final arbiter of whether a health reform patch passes muster under his eponymous rule.
Time to Reconcile with Reconciliation
Just as everyone expected, today’s bipartisan healthcare summit did not alter the basic political landscape facing reform. Both parties showed a united front, and all that’s left to do is for the party with more votes to pass identical legislation in both houses of Congress for the President to sign into law. It’s not clear who the crucial votes are in the House, or what they want, as Jonathan Bernstein has noted, so it’s not clear if the summit reassured them in any way. But as soon as the Democrats have thoroughly braced themselves for victory, it will be theirs.
There’s just one question left to resolve. Who goes first, the House or the Senate? That is, must the House first pass the Senate bill (H.R. 3590) before both chambers pass a reconciliation bill to patch the Senate bill up? A lot of people think that’s the only option. After all, it would seem to be some sort of procedural paradox to pass a reconciliation bill to amend the Senate bill before the Senate bill itself has been passed. But, says David Waldman, there is another way. Waldman contends that Congress can first pass the reconciliation bill but hold it—that is, not send it to the President for signature—until after HR 3590 has been passed by the House and signed by the President. The trick is to recognize that neither bill “does” anything until it becomes law, and it doesn’t become law until signed by the President (or, if he doesn’t sign, until ten days, not counting Sundays, elapse after the bill is presented to him). So the “paradox” would arise only if the President were to actually sign the reconciliation amendments to HR 3590 before signing HR 3590 itself.
Jeff Davis, writing at The Treatment, has a good reconciliation primer for health reform, also suggesting that the bills could be passed in any order.
The major obstacle with a reconciliation bill, in whatever order, is compliance with the Byrd Rule (2 U.S.C. 644), as Tim Jost explains here:
Before the rule on the reconciliation bill was reported in the House, the substitute amendment would have to be carefully vetted with the Senate Parliamentarian to make certain that it would comply with the Senate reconciliation rules, which are much more complex than those in the House. In particular, it would need to comply with the “Byrd Rule,” 2 U.S.C. 644, which provides that an “extraneous” provision in a reconciliation act can be challenged. A provision is extraneous under the Byrd Rule if it does not produce a change in outlays or revenues, is inconsistent with the committee’s instructions, outside the jurisdiction of the committee that submitted it, produces a change in outlays or revenues that is “merely incidental” to the provision, increases the deficit for a fiscal year beyond the “budget window,” or changes Social Security. If a challenge to a provision is upheld by the Senate Parliamentarian, it must be overridden by a 60 vote margin. According to Davis, any provision must also be upheld by a 60 vote margin that is successfully challenged as increasing the deficit over a five- or ten-year period, increasing the deficit by more than $10 billion in any one year over the next five years unless covered over the five year period, or increasing the deficit by more than $5 billion in any ten year period over the next 50 years. The CBO will need to score reconciliation amendments to assure compliance with these requirements.
(Emphasis added.) The final difficulty, then, is to determine whether compliance with the Byrd rule is possible if the reconciliation bill does not propose to amend current law, but only the hypothetical law of HR 3590. The CBO score, for example, might not strictly satisfy the rules with respect to existing law. Then again, it might. My understanding is that it all comes down to the Senate parliamentarian1, and the Senate parliamentarian doesn’t do hypotheticals. So there’s only one way to find out if it will work: try it.
Or, the House can take a not-so-blind leap of faith and actually pass the damn Senate bill, then pass the reconciliation patch when HR 3590 is law. Would that be so hard?
- However, it is technically possible for the Vice President, who is of course the president of the Senate, to overrule the parliamentarian. [↩]
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