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April 25, 2012 12:09 PM Superbill vs. Reconciliation

By Jonathan Bernstein

Ezra Klein today notes that if Mitt Romney wins, he’ll almost certainly have a Republican House and he’ll probably have a Republican Senate. Which means:

Right now, the GOP’s agenda is the Ryan budget, and that’s entirely fiscal: It’s a premium support plan for Medicare, and tax cuts, and deep cuts to Medicaid, food stamps and other domestic programs. All that can be passed through budget reconciliation — which is to say, all that can be made immune to the filibuster.
So if Romney wins and the Republicans take control, they could accomplish quite a lot on party-line votes, even if their majorities are slim, and Democrats are opposed.

I’m actually not all that convinced that the results would be as “transformational” as Klein believes; it’s one thing to pass the Ryan budget through the House when everyone knows it’s going nowhere, and another to kick off a presidency by actually slashing popular spending programs. I’m not saying it won’t happen, but if I had to put my money on it I’d bet on significant tax cuts along with symbolic spending cuts and a huge amount of harumphing about entitlements.

But it certainly could happen, and through reconciliation.

The things is…that’s really sort of weird. Why should things with a particular kind of budget effect be able to fit through reconciliation, while other legislation cannot? The fact that reconciliation exists and has the rules it has is basically a historical accident; no one ever sat down and decided that the Senate should function this way. And yet, accident or no, reconciliation has some real advantages. It allows Senate majorities to pass some of their high-priority items, while still allowing intense minorities to defeat other measures.

Which is why I’ve argued that expanding reconciliation is the best model for limiting the effects of filibusters in the Senate. My proposed Superbill! — or with it’s less fun name, Leader’s Bill — would be, basically, reconciliation without limits. The majority would get to put one bill on the Senate floor every year that would need only a simple majority to win. The majority would be able to wrap as many bills as it could manage into that omnibus legislation. The only constraints within the Senate would be, first, that the minority would also be able to add germane amendments by a simple majority vote, and, second, that the whole thing would of course actually have to pass. That second one matters quite a bit! For example, in the historic 111th Congress Democrats might have tried to pass ACA with a public option and climate legislation using Superbill!, but they would have lost different votes for the public option and for climate, perhaps meaning that the overall effort would crash even if it turned out there were different slim majorities for both a public option and cap-and-trade. Remember, too, that the bill would have to get through the House in a form that could pass the Senate, so that’s part of the “passable” constraint.

However, it would at least mean that Senate rules would no longer bias policy formation in favor of bills that could be scored within the budget process (why should a regulatory climate bill need 60 votes, but a carbon tax only a simple majority?). In my view, it would allow the Senate to remain the Senate — it wouldn’t entirely eliminate the filibuster at all — but also allow a party which wins unified control of government to pass its top priorities.

The best thing, in my view, about Superbill! in a Senate with a filibuster is that it tracks the democratic intuition that intensity should matter. Presumably, majority party Senators and the interest groups within the majority party coalition would compete to get their proposals included in that year’s Superbill! (just as they compete now over scarce floor time for regular bills). That’s a way of keeping intensity in the picture — while the filibuster on ordinary bills allows intense minorities to block them. Granted, what would happen in such a Senate wouldn’t map perfectly onto intensity/indifference, but it would be a step closer, and that seems like a good step to me.

[Cross-posted at A plain blog about politics]

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Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.
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