By George F. Will
Thursday, April 30, 2009
Reconciliation: The action of bringing to agreement, concord, or harmony.
-- Oxford English Dictionary
But under Senate rules, "reconciliation" can be a means for coping with disharmony by deepening it. The tactic truncates Senate debate and curtails minority rights. The threat to use it to speed enactment of health-care reform has coincided with talk about possible prosecutions relating to the previous administration's interrogation policies. Harmony is becoming more elusive.
Under "reconciliation," debate on a bill can be limited to 20 hours, enabling passage by a simple majority (51 senators, or 50 with the vice president breaking a tie) rather than requiring 60 votes to terminate debate and vote on final passage. The president and Senate Democrats have decided to use reconciliation by Oct. 15, unless Republicans negotiate compliantly regarding health care. But the threat of reconciliation mocks negotiations.
The reconciliation process was created in 1974 to facilitate adjustments of existing spending programs. Former senator John Sununu, a New Hampshire Republican, writing in the Wall Street Journal, says using reconciliation to ram through health-care reform would "circumvent the normal and customary workings of American democracy." But those workings have changed markedly.
The most important alteration of the legislative process in recent decades has been the increasingly promiscuous use of filibusters to impose a de facto supermajority requirement for important legislation. And "important" has become a very elastic term.
It should be difficult for government to act precipitously. "Great innovations," said Jefferson, "should not be forced on slender majorities." Revamping health care -- 17 percent of the economy -- qualifies as a great innovation. This is especially so because the administration and its allies, without being candid about what is afoot, are trying to put the nation on a glide path to a "single-payer" -- entirely government-run -- system. They would do this by creating a government health insurance plan to compete with private insurers. It would be able to -- indeed, would be intended to -- push private insurers out of business.
But when Republicans ran the Senate, they, too, occasionally made dubious use of reconciliation. And Republicans' merely situational commitment to legislative due process was displayed in 2003 when they held open a House vote for three hours until they could pressure enough reluctant Republicans to pass the prescription drug entitlement.
As Washington becomes increasingly opaque to normal Americans, its quarrels come to seem increasingly trivial, even when they are momentous. The reconciliation tactic is unknown to most Americans, and so, too, is the institution at the center of the controversy about torture -- the Justice Department's Office of Legal Counsel. From it came the so-called "torture memos" arguing the legality of certain "enhanced interrogation" techniques.
The OLC provides opinions about what is and is not lawful government behavior. By not quickly quashing talk about prosecutions of the authors of the memos -- or, by inference, higher officials who acted on the basis of those memos -- the president has compromised the OLC's usefulness: If its judgments can be criminalized by the next administration, the OLC can no longer be considered a bulwark of the rule of law.
On the other hand, four things are clear. First, torture is illegal. Second, if an enemy used some of the "enhanced interrogation" techniques against any American, most Americans would call that torture. Third, that does not mean that the memos defending the legality of those techniques were indefensible, let alone criminal, because: Fourth, the president might be mistaken in saying that there is no difficult choice because coercive interrogation techniques are ineffective.
A congressional panel, or one akin to the Sept. 11 commission, should discover what former CIA director George Tenet meant when he said: "I know that this program has saved lives. I know we've disrupted plots." And what former national intelligence director Mike McConnell meant when he said: "We have people walking around in this country that are alive today because this process happened."
House Speaker Nancy Pelosi, who was frequently briefed as a member of the intelligence committee, could usefully answer the question: What did you know and when did you know it? She regularly conquered reticence about her disapproval of the Bush administration. Why not about the interrogation methods?
Furthermore, four of the president's 15 Cabinet members are former members of Congress, as are the president, vice president and White House chief of staff. So seven of the administration's 18 most senior figures might usefully answer those questions, and this one: What did you do about what you knew?