Video: The filibuster and reconciliation explained in regards to the health care reform bill

Reconciliation would effectively stop the red dots from making a filibuster.

Increasingly we see signs of a nuclear war coming soon.  Luckily, unlike the Cold War this nuclear war will not destroy life on earth as we know it.  However, if things shape up as they appear life in the U.S. Senate may never be the same.

The controversy surrounds the recent health care reform bill.  Most of the 58 Democrats (blue dots) support the bill with a public option and all  40 Republicans (red dots) do not at this point.  That leaves two independents who lean slightly Democrats (yellow and off-blue dot).  The numbers are crucial for the following reason.

What it takes to pass a bill in the Senate

While many believe that you only need a simple majority (51 votes) to pass a bill practically that is not a reality in the U.S. Senate.  The rules of the Senate specify that before a debate on a bill can be ended to a separate vote must be held to just to end debate.  That vote to end the debate requires 60 votes.  So, essentially you need to have a vote to vote on the bill.  Why is this?  Well it is long and complicated and the entire history of how this developed can be read here.  Basically, to sum things up, the Senate wanted to respect the right of Senators to debate so if a Senator felt really strongly about something he was allowed to talk as long as he wanted in order to stall a vote.  This practice of stalling a bill by talking has become known as the "filibuster."  The only way to stop a filibuster is to either wait the Senator(s) out or to force him to stop speaking with a vote of 60 (not 51) Senators.  This process is unique to the Senate.  In the House of Representatives time is limited for debate and it only takes a simple majority to pass a bill.

What does this have to do with the health care bill?

Republicans are opposed to the health care bill in its current form.  However, they can not stop the bill alone as they only have 40 votes.  The problem for the Democrats is that signs indicate some of the independents and even some of the conservative-leaning Democrats (see Kent Conrad) have indicated they would support a filibuster.  This means Republicans + one other Senator could stop the Senate from voting on the health care bill.

Earlier to try to get more of these Senators on board the Obama administration hinted that it may be willing to give up the "public option" or government run health insurance plan.  This also created problems however as liberal Democrats would likely vote against, or even filibuster, a bill with no public option.  So essentially under the current rules mandating 60 votes to even have a vote President Obama can not pass bill with or without a public option.  Simply put, we likely will not see a health care bill passed under current rules.

What is reconciliation?

Reconciliation is a rule adopted recently by the U.S. Senate which allows for the ending of a debate on budget related items with a simple majority vote of 51.  The rule was adopted to try to prevent a stalling of budget bills which could influence the deficit.  Reconciliation has been used by Bill Clinton to pass one of his budgets and by President George W. Bush to pass two of his tax cuts.  Republicans were ready to use reconciliation to pass through some of George W. Bush's judicial nominees being stalled by Democratic filibuster but that plan was avoided at the last minute through compromise of some Republicans and Democrats.

So what is the big deal?

While it is called "reconciliation" the usage of this method actually has the opposite effect.  The party whose right to speak is ended tends to get very upset and respond negatively by shutting down the Senate in return.  By supporters (both Democratic and Republican) the method is always called "reconciliation" but the opponents of this method frequently call it the "nuclear option."  For example, Republicans who were in favor of "reconciliation" in the Bush years now would call any use of the method by Democrats a "nuclear option."

If Democrats used reconciliation to pass the health care bill Republicans would likely respond by shutting down the Senate and keeping any other non-budgetary items from passing through.  In effect the Republicans would hold the rest of the Democratic agenda hostage.  Democrats threatened the same over the possible use of Republican reconciliation to pass through judges.

What are the arguments for use of reconciliation for the health care reform bill?

First, health care is such a controversial issue that we may never get any reform without reconciliation.  One party is likely always able to get enough support to stall a vote through debate.  The Democrats have 58 votes and they still can not officially get passage of a bill through.  If Obama compromises by taking out things like the public option a bill will still not pass because many liberal Democrats will then jump ship.  So the only way reform gets passed is through reconciliation

Secondly, while health care reform is not labeled a "budget" issue in reality it has more to do with the deficit and the budget than anything else.  Medicare is set to cost the United States trillions of dollars over the following decades and the bill does in fact attempt to reduce costs through a number of measures.  The bill is certainly more related to budgetary matters than the confirmation of federal judges.

Thirdly, some say the filibuster has been abused and has become inconsistent with its original purpose.  Originally filibuster were only done when a party genuinely wanted to debate something out for a longer time period.  In addition, in the past filibusters actually required a Senator to keep speaking on the floor of the Senate until another Senator took over for him.  If a Senator stopped speaking and no one took a over a vote could be held.  Senator Strom Thurmond, for example, once filibustered a bill for 24 hours and 18 minutes to try and defeat the Civil Rights Act of 1957.  Eventually when his party lost patience and Thurmond quit speaking a vote was held and the Act was passed.  Now instead of requiring a Senator to actually speak Senators only need to notify the President Pro-Temp of the Senate that they intend to filibuster and no vote will be held.  In addition, the use of the filibuster has dramatically increased in the last two decades.  In the 1960's the Senate would have about seven filibusters but now the number has grown to over one hundred.

Finally, some say the filibuster is inconsistent with the Constitution.  The first filibuster was not even used until a full fifty years after the Constitution was written.  While the Constitution does not specify how many votes a needed to pass a bill most everyone assumes the framers intended for a simple majority to be sufficient.  The House passes everything through a simple majority and the Senate does so on every bill in which there is not a filibuster.

What are the arguments against reconciliation?

First, Senators and the minority party argue that the Senate has always respected the right of a debate and the Senate was intended to be a chamber for slow and thorough consideration of issues.  By using reconciliation you essentially rob the minority party of power and take away from this historical value of the Senate.

Secondly, Republicans argue that the health care bill has many things in it that have nothing to do with the budget.  In fact the bill does contain many provisions which regulate the health care industry and do not directly deal with the federal budget.  In addition, Republicans argue that while they were considering using reconciliation on a non-budget issue they never actually went through with the threat.

Finally, Republicans argue that if the Democrats use reconciliation they will essentially shut down the Senate and keep anything from getting done because of their partisan way of doing things.

Conclusion: 

The President finds himself in a difficult situation as he can not pass a bill with the current procedural rules of the Senate.  Rather than using reconciliation and risking a "nuclear war" I believe the President and Democrats should simply force a filibuster.  Only instead of the "new" filibuster the President and Democrats should actually force Republicans to speak on the floor and force independents or Democrats to officially side with Republicans in support of the filibuster.  If Republicans can outlast the Democrats and keep talking despite public pressure for reform than let reform die.  If Republicans tire out or, more likely I believe, Democrats and independents turn against them in voting to end the filibuster then reform will succeed.

Video:

Below is a great video in which Senator George Mitchell explains the absurd nature of filibusters.