"It" is using the budget reconciliation process to "pass" controversial legislation by slipping it into the filibuster-proof process. And President Obama's OMB Director, Peter Orswag, suggested Sunday that getting controversial legislation passed "this year" is so important that the means doesn't matter.
He's wrong.
He's wrong because the budget reconciliation process was codified in 1974 "as a deficit-reduction tool, to force committees to produce spending cuts or tax increases called for in the budget resolution." It was not designed as a way to circumvent policy debate or expand spending.
He's wrong because the budget process should be used to manage federal expenditures for programs that have been enacted by Congress. It's bad enough that enabling legislation runs hundreds of pages and that there is no requirement of nexus (relevance). The budget is not the place to shoehorn policy changes that should be the subject of their own enabling legislation.
And he's wrong because winning 52 percent of the popular vote is not a mandate, in the political sense of the word, regardless of how the press secretary spins it. George Bush won with 51 percent of the vote in 2004 and was derided by Democrats when he talked about a mandate. With the shoe on the other foot, in January President Obama used the "I won" argument with Republicans when he was pushing his economic stimulus package. The mandate claim wasn't valid in 2005, and it's not valid in 2009.
The reason Obama's team is floating this idea is that budget reconciliation bills are not subject to filibuster. Thus, in the Senate, only 50 votes are needed for passage, not the 60 required to end a filibuster and force a vote.
If Democratic leadership pursues this ill-advised plan, moderates do have an out. The out is a constraint on reconciliation that is called the “Byrd rule.” Named after Senator Robert Byrd (D-WV), the constraint means that if a Senator believes that a provision of the reconciliation bill is “extraneous” it may be subject to a point of order. After the Byrd Rule is invoked, at least 60 Senators must vote to waive the Byrd rule.
According to the Center on Budget and Policy Priorities, the Byrd Rule makes it difficult "to include any policy changes in the reconciliation bill unless they have direct fiscal implications." The Byrd Rule prohibits changes to civil rights, employment law, and Social Security.
The more things change, the more they stay the same.
Four years ago, Democrats were grousing about a Republican threat to use the "nuclear option" to end filibuster of judicial nominees. The Senate filibuster is the main tool that the minority party has to effect legislation. In 2005, a bi-partisan group of 14 centrist Senators stepped in and defused the fear of the Senate going nuclear.
It's 2009: will moderate Democratic Senators condone the kind of chicanery embodied in using budget reconciliation to expand, rather than constrain, the size of the federal government? Will they buck their own party, like a handful of Republican Senators did in 2005? Or will they let the Obama bulldozer run them over?
Learn more about the Congressional budget process and the controversy around the balanced-budget amendment.
Update: Related at the New York Times, a guest editorial lamenting the virtual ("phantom") filibuster (the one threatened):
Historically, the filibuster was justified as a last-ditch defense of minority rights. Under this principle, an intense opposition should be able to protect itself from the tyranny of the majority. But today, the minority does not have to be intense at all. Its members have only to disagree with a measure to kill it. Essentially, the minority has veto power.
Comments
Interesting post, Kathy.
I’ve never really understood the political obsession with mandates. It seems to me in this country, winning is about all the mandate a president needs to govern his or her way for four years. So 52 percent of the vote isn’t an Obama mandate, just as 51 percent wasn’t a mandate for Bush. What WOULD be a mandate? Sixty percent? Sixty-five? Anything short of 100 percent leaves a disgruntled minority who never endorsed the candidate and didn’t want him to win. And that doesn’t even allow for the even larger percentage of people who chose not to vote at all. The talk about mandates has always seemed to me more of a political tool used by the opposition to claim the sitting president doesn’t have widespread public support.
As for bipartisanship, it’s a great idea but virtually impossible in a two-party system where the parties have strongly differing ideas about how things should work. Bipartisanship can work quite well sometimes on individual issues, and has, but it’s not a likely scenario for governing overall. Still, I agree that the White House shouldn’t be using the budget process to circumvent debate and a more open legislative process on critical issues.
Thanks, Larry.
I was trying to point out that “mandate” depends on which side of the win/loss your team is on.
And I mention bipartisanship only because Obama preached it so much — and I think Americans truly want it (in the main, not on the edges).
Even going so far as to float this idea is troubling to me. One assumes that the idea is a trial balloon — and I haven’t seen a lot of shots being taken, unlike when the Rs threatened the nuclear option four years ago. If the idea is not shot down, then there will be little fallout from implementing it.