Published: Mar 2, 2010 4:06 p.m. ET


Analysis: Democrats could say: On health-care, majority rules



WASHINGTON (MarketWatch) -- It's becoming more likely that Democrats on Capitol Hill will try to pass their comprehensive health-care bill without any Republican votes, using a legislative tool known as reconciliation.

Republicans say using reconciliation would be anti-democratic and "the death of bipartisanship," but Democrats say the procedure has been used frequently and simply means that the majority rule will prevail, as it should in democracies.

Here are some frequently asked questions about reconciliation:

What the heck is reconciliation?

Reconciliation is a fast-track legislative maneuver that is used to stop filibusters in the Senate. Under normal Senate rules, any senator can speak endlessly - or filibuster - on any bill, amendment, nomination or motion. Normally, a filibuster can be stopped only when 60 senators vote to end the debate. It is this vote to end debate - known as invoking cloture - that people refer to when they say it takes 60 votes to get anything done in the Senate.

Another way to stop a filibuster is for a majority of the Senate to agree to consider a bill under reconciliation, in which case it is debated for just 20 hours before a vote is ordered. Under reconciliation or under the normal rules, a bill must receive a majority of the 100-member Senate to be approved.

In the House, all bills are subject to limited debate, so reconciliation is not an issue in the House. The majority always rules in the House.

When can reconciliation be used?

Under the Senate rules, reconciliation can only be used for legislation that pertains to budget items. Any provision of a bill that is not budget-related must be stricken if it is considered under reconciliation rules. It takes the vote of 60 senators to put something unrelated to the budget back into a bill.

Is reconciliation rare?

The Senate has approved 22 bills under reconciliation since 1980, usually for large, comprehensive budget bills. Other legislation approved under reconciliation include the Bush tax cuts in 2001 and 2003, the Clinton welfare reform bill in 1996, and the 1982 Reagan tax hike. Of the 22 bills, 16 were passed under Republican control of the Senate, and six under Democratic control. Three of the bills were vetoed, all by President Bill Clinton.

Isn't reconciliation cheating, or unconstitutional?

Reconciliation is an established rule, so using it isn't cheating any more than filibustering a bill is cheating. It may not be sporting, but then filibustering bills may not be sporting, either.

The Constitution specifically lists seven instances in which a supermajority is required in the Senate, such as overriding a veto, convicting an officer under impeachment, expelling a member, ratifying a treaty, or proposing a constitutional amendment. In the vast majority of cases, legislation and nominations are approved by the Senate on an affirmative vote of majority (usually 51).

The health-care bill isn't a budget bill, so why is reconciliation even an option?

Many provisions of the health-care bill passed by the Senate are related to either spending or taxes, but some aren't. If the entire bill were to be considered under reconciliation, those non-related provisions would be lost. But that's not the plan of the Democrats. Instead of approving the entire bill through reconciliation, they plan to adopt the health-care reforms in two steps.

Remember, majorities of the Senate and House have already approved similar but not identical health-care bills. Before a bill becomes law, identical versions must be passed by each chamber and the president must sign it.

In this case, the Democrats plan to have the House vote on the version of the bill that passed the Senate on a 60-39 vote on Christmas Eve. If the House approves that bill, it would go to President Barack Obama for his signature. It would be the law of the land.

Yet many Democrats in the House have problems with the Senate bill. They might not vote in favor of it unless the leadership agrees to some changes. It is those changes that would be considered in a separate bill under reconciliation in the Senate and under regular rules in the House. That second bill could only pertain to budget items, such as taxes and spending. That bill would require simple majorities of both chambers - and also the signature of the president -- to become law.

What is the downside to using reconciliation?

Politics, and substance.

On the substance, some members of the House believe the Senate bill is too weak on prohibiting federal subsidies from being used to fund abortions. The abortion language probably cannot be changed under reconciliation. The anti-abortion Democrats could kill health-care reform over this issue.

On the politics, some Democrats in the Senate (and House) say they are uncomfortable with using reconciliation on such a touchy subject and might vote, on procedural grounds, against a bill that they favor on the merits.

Republicans are adamantly opposed to reconciliation, saying it amounts to a power grab or "jamming" health care down the throats of Americans who've rejected it. The Republican argument is based on part principle and part politics, but their overarching goal is to kill the bill.

Naturally GOP opposition has exposed the party to accusations of hypocrisy because Republicans used reconciliation in the past for their top priorities at no political cost to themselves. Likewise, many Democrats who support reconciliation now once criticized the maneuver when it was used by Republicans. The truth is, both parties are guilty of talking out of both sides of their mouth.

Some Democrats may agree with the Republicans about the process or substance, or may fear that voters will agree. So it's not a given that the Democrats - even with 59% majorities of both houses - will be able to pass health care.

If Republicans are right that Americans don't want health care to be reformed this way, the Democrats will lose in November no matter what procedure they use.

Democratic leaders say the public isn't against health-care reform; it is fed up with partisan bickering and the gridlock that prevents Washington from getting anything done.

If that's true, Democrats running for re-election in November might be rewarded - not punished -- for doing what they promised to do during the campaign: Reform the health-care system.


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