Lest We Forget: Dem Sen Russ Feingold’s Move Against Reconciliation

Posted on March 4, 2010

All we seem to hear out of Senate Democrats these days is the history and number of Republican uses of the reconciliation process. But no one seems to remember Senator Russ Feingold’s (D Wisconsin) stirring oratory on the Senate floor against use of it. He almost approaches the current Republican sentiment regarding its use.

Certainly the President has forgotten that he is no longer in the Senate and has taken to dictating the procedures they will choose to pass his health care reforms. Recently he has been researching executive powers with an eye to use them to circumvent some measures used to pass legislation. Is this the result?  Legislation by presidential fiat? see

Obama Reviews Executive Powers to Bypass or Leverage Congress to Legislate his Agenda

The Republican argument continues to be what it was in the time of President Reagan: it is useful in the budgetary process to resolve problems in this theater.

While an expected adjunct benefit of the Health Care Reform Act  would be deficit reduction, it really is an adjunct, not a guaranteed outcome. Only general measures are recounted in the bill that would reduce the deficit. It is not part and parcel of proposed offices and measures targeted to deliver health care or to purchase insurance to ensure coverage.

Cuts in Medicare services and reduction of abuse of the program have been cited in the proposed legislation as the primary means to pay for the reforms. But until the bill is enacted and review of practices and procedures in the Medicare program have been completed, the true amount to be put in place for monies to cover additionall people cannot be known, and it cannot be known how long it will take to uncover needed information to determine this.  Further it will take time to know how the other aspects of the bill in combination with this will reduce the deficit.

When Republicans were busy using reconciliation for budgetary purposes,

  • pretty much known figures were being reconciled.
  • the nation was not in the midst of a financial crisis to rival the Great Depression.
  • We are not out of the woods in the current crisis and many see another downturn – possibly worse that last year’s slide.

Against this background, arguments in favor of the use of reconciliation are out of line.  Here are Feingold’s words of 2000 put to use in an impassioned plea not to utilize this process [Congressional Record]:

Mr. President, the two fundamental pillars of those rules in the Senate are the right to debate and the right to amend. It is these rights that distinguish the Senate from the House of Representatives and from other parliaments. It is these rights of Senators that allow the Senate as a body to preserve the rights of minorities.

in 1981, in an effort to expedite President Reagan�s first budget, the budget resolution included instructions for years beyond the first fiscal year covered by the resolution, extending the reach of reconciliation bills to more permanent changes in law.

Since then, reconciliation has become a regular feature of most budget resolutions. Since then, Congress has accomplished most significant deficit reduction through the reconciliation process.

The reconciliation process is so powerful that the Senate chose in the mid-1980s to adopt the “Byrd Rule,” named after Senator Robert Byrd, to limit reconciliation solely to deficit reduction.

But the current majority dramatically extended reconciliation in 1996. The new Republican Congress sought to move three reconciliation bills � on welfare, Medicare, and tax cuts. And in a marked departure from past practice, the budget that year devoted one of the three reconciliation bills � the one to cut taxes � solely to worsening the deficit.

The Democratic Leader [Senator Byrd] formally challenged the procedure, but to no avail. Through a series of exchanges with the Presiding Officer, the Democratic Leader demonstrated that the new reconciliation procedure has few limits. After the Democratic Leader appealed the ruling of the Chair, the Senate sustained the procedure on a straight party-line vote.

But the character of the Senate has been unmistakably altered. The majority�s actions are transforming the Senate into a much more majoritarian institution. And that is not how the Founders wanted it.

Recall that the Constitution itself manifests a belief in supermajorities. Supermajority requirements are evident in the veto power, in the ratification of treaties, in the Constitutional amendment process, and in a number of other places.

Recall, as well, that the Founders who created this Senate also expressed a healthy distrust of simple majority rule.

James Madison said that “[i]n Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.”

Expediency trumps the rights of the minority and it is doubtful that either the founding fathers or voters today can tolerate this sea change. The argument that the process has been used in the past for deficit reduction cannot go past the barrier of the rights of the people and the extraordinary circumstances in which this country now finds itself. This is not a time to bend rules. This is a time to observe and practice rules formulated in less turbulent times.


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