Health Care Reform: Democrats Debate the 'Nuclear Option', Republicans Cry Foul

WASHINGTON, Feb. 26, 2010— -- If Thursday's summit at the White House doesn't bring lawmakers closer to a compromise on health care reform, Democrats may turn to a little-used legislative process known as "reconciliation" to push their plans forward.

Reconciliation -- also called the "nuclear option" these days by Republicans -- is a legislative procedure for passing budget-specific policy without the possibility of filibusters, which require 60 Senate votes to overcome.

Instead, reconciliation allows for a simple majority vote on bills, which would effectively allow Senate Democrats to pass through health care reform legislation over the unanimous opposition of the GOP.

Established in 1974, reconciliation's original purpose was to allow Congress to make taxing and spending adjustments in order to close gaps in previously approved budgets. In 1985, lawmakers tried to eliminate loopholes in the legislation by passing the Byrd rule, which prohibits the use of reconciliation on any legislation that does not produce a change in expenditures or revenues.

The Byrd rule combined with numerous other restrictions and procedural hurdles limiting the use of reconciliation has limited Congress's use of the process.

But if Senate Democrats can tie their health care plans to the budget, even congressional Republicans have admitted they might not be able to stop the use of reconciliation this time.

But they are not happy.

"[Reconciliation] was never designed for a large, comprehensive piece of legislation such as health care, as you all know," Sen. Jon Kyl, R-Ariz., charged this week. "It's a budget exercise."

Other Republicans, such as former House Speaker Newt Gingrich, have been blunter, calling the Democrats' potential use of reconciliation "cheating" and "breaking the rules."

While Senate Majority Leader Harry Reid continues to respond with a definitive "no" when asked whether reconciliation is the only way left for Democrats to get health care through Congress, he's also been quick to lay the groundwork for its future justification.

"I've been told that my Republican friends are lamenting reconciliation, but I would recommend for them to go back and look at history," Reid said earlier this week. "Since 1981, reconciliation has been used 21 times. The vast majority of those reconciliation efforts have been by Republicans. So ... nothing's off the table."

A Nuclear History

According to a Congressional Research Service report on reconciliation, the process actually has been used 19 times since 1981.

It took six years from its introduction in the 1974 Congressional Budget Act before reconciliation made its legislative debut in the Omnibus Reconciliation Act of 1980. Only two years later, as part of the Tax Equity and Fiscal Responsibility Act, reconciliation was used to open Medicare to HMOs.

In fact, health care reform and the reconciliation process share an intertwined history:

In 1986, the Consolidated Omnibus Budget Reconciliation Act prevented hospitals from discarding emergency room patients because they weren't able to pay for treatment and allowed people who'd lost their jobs to maintain their health coverage.

In 1987, reconciliation was used to institute a no-fault vaccine injury compensation program.

In total, no less than nine reconciliation acts since 1981 have involved some form of health care reform.

More recently, reconciliation was used by Democrats to pass pay-as-you-go legislation in 1990 and raise corporate taxes in 1993.

Republicans recently used reconciliation to push through three large tax cuts -- the Economic Growth and Tax Relief Reconciliation Act of 2001, the Jobs and Growth Tax Relief Reconciliation Act of 2003 and the Tax Increase Prevention and Reconciliation Act of 2005.

In total, 14 of the 22 total reconciliation bills -- including three presidentially vetoed pieces of legislation -- were initiated by a Republican-controlled Congress.

"They should stop crying about reconciliation as if it's never been done before," Sen. Reid said on Tuesday. "It's done almost every Congress, and they're the ones that used it more than anyone else."

Republicans counter that it's not the use of reconciliation but rather the way it's being used that's the problem.

"You can say that this process has been used before, and that would be right. But it's never been used for anything like this," Sen. Lamar Alexander, R-Tenn., said at Thursday's White House Summit. "It's not appropriate to use to write the rules for 17 percent of the economy."