Reconciliation on health care would be an assault to the democratic process

By Orrin Hatch
Tuesday, March 2, 2010

America's Founders gave us a system of governance designed to limit government power and maximize liberty. The legislative branch is different from the executive, and the Senate is different from the House. No single branch has all the power. That can be frustrating for those with ambitious agendas, but everyone benefits by respecting those checks and balances even as we fight over policies.

While the House is designed for action, the Senate is designed for deliberation. That is why Senate rules and procedures give a minority of senators the power to slow or even stop legislation. Both parties do it when in the minority, and both find it frustrating when they are in the majority. But such checks are central to the nature of the institution and to the Senate's place in our constitutional system. These rules temper majority power and generate strong incentives to develop mainstream legislation that commands broad, bipartisan support.

To impose the will of some Democrats and to circumvent bipartisan opposition, President Obama seems to be encouraging Congress to use the "reconciliation" process, an arcane budget procedure, to ram through the Senate a multitrillion-dollar health-care bill that raises taxes, increases costs and cuts Medicare to fund a new entitlement we can't afford. This is attractive to proponents because it sharply limits debate and amendments to a mere 20 hours and would allow passage with only 51 votes (as opposed to the 60 needed to overcome a procedural hurdle). But the Constitution intends the opposite process, especially for a bill that would affect one-sixth of the American economy.

This use of reconciliation to jam through this legislation, against the will of the American people, would be unprecedented in scope. And the havoc wrought would threaten our system of checks and balances, corrode the legislative process, degrade our system of government and damage the prospects of bipartisanship.

Less than a year ago, the longest-serving member of the Senate, West Virginia Democrat Robert Byrd, said, "I was one of the authors of the legislation that created the budget 'reconciliation' process in 1974, and I am certain that putting health-care reform . . . legislation on a freight train through Congress is an outrage that must be resisted." Senate Budget Committee Chairman Kent Conrad, also a Democrat, said last March, "I don't believe reconciliation was ever intended for the purpose of writing this kind of substantive reform legislation." They are both right.

Reconciliation was designed to balance the federal budget. Both parties have used the process, but only when the bills in question stuck close to dealing with the budget. In instances in which other substantive legislation was included, the legislation had significant bipartisan support. For example, Congress used reconciliation to carry welfare reform in 1996, which ultimately passed with 78 votes. And when reconciliation was used to create the Children's Health Insurance Program that I authored with Sen. Edward M. Kennedy in 1997, the program got 85 votes and served as the glue to passing the first balanced budget in 40 years. Both plans were negotiated with, and signed into law by, President Bill Clinton.

But when President George W. Bush and Congress created the prescription drug benefit in 2003, we Republicans in the Senate decided against using reconciliation because it would have made the plan partisan and condemned this important legislation to failure. Instead, the bill garnered significant bipartisan support -- demonstrating why reconciliation was not even attempted. That precedent should carry the day here.

Rejected at first by a majority of senators as an inappropriate way to pass health care, reconciliation was revived after Scott Brown's Senate victory in January. Confronted with the inconvenient truth of an electoral rebuke, the president is pivoting to this tactic that polls show a growing majority of the American people oppose. Some of my colleagues, and others, have wrongly argued that using reconciliation to change only parts of this enormously unpopular bill would not be an abuse of the process. But if the only way to pass this $2.5 trillion bill is through reconciliation, then this continues to be an abuse that stifles dissent and badly undermines our constitutional checks and balances.

The president said in his State of the Union address that "we were sent here to serve our citizens, not our ambitions. So let's show the American people we can do it together." I agree. Poll after poll tells us that is what Americans want. To do that we must start by taking the reconciliation procedure off the table. Let's move forward instead with bipartisan legislation that doesn't abuse the Senate's rules but that does address the challenges our country faces.

The writer is a Republican senator from Utah.

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