Little-known fact: The Senate killed the filibuster in 1985. They’ve just spent the past 32 years pretending they didn’t. The reconciliation process, which Republicans are currently planning to use to repeal only small parts of Obamacare, is the vehicle they could use to ram through a full repeal if they were brazen enough.
When the Senate adopted the Byrd Rule for reconciliation measures in 1985 — meant to extradite the legislative process, it required only 51 votes to pass matters pertaining narrowly to the federal budget — they killed the filibuster. Since then, there have been multiple times the Senate used reconciliation to affect large legislative changes that only had tertiary budget effects.
Almost all legislation has some kind of budgetary effect. That’s how big and powerful the federal government is. Everything is interconnected. The Senate parliamentarian is the judge of what is and is not eligible for the reconciliation process, and the parliamentarian serves at the pleasure of the majority party in the Senate.
If Republicans are dead-set on wholesale repeal of Obamacare and have no respect for institutional norms, they can pass a repeal bill through reconciliation and expect the parliamentarian to approve it. If the current parliamentarian doesn’t approve it, they can remove her and find one who will.
And if worst comes to worst? No matter who the parliamentarian is, Vice President Mike Pence, as president of the Senate, can overrule the parliamentarian.
There is precedent for this. Senate Majority Leader Trent Lott dismissed the parliamentarian in 2001 for getting in the way of legislative provisions that Republicans wanted to pass through reconciliation and found one who would cooperate.
Some are already angling for this strategy to be implemented. Heritage Action outlined this strategy in a memo, “Congress must act immediately to repeal Obamacare once and for all. There are no more excuses.” Daniel Horowitz at Conservative Review wrote:
“Obamacare is a massive entitlement that incontrovertibly qualifies for repeal through the budget reconciliation process. There is no reason why Congress can’t pass a one-sentence repeal bill and be done with it… A GOP leadership that really wanted to repeal Obamacare would easily overrule the parliamentarian.”
If the GOP wanted to throw all deference to institutional norms to the wind, could they do this? Yes. Should they? No. The only reason that Democrats were able to pass such world-shaking legislation in the first place was that they had 60 votes in the Senate. An effective end-run around the filibuster through partisan games with the parliamentarian would have long-term effects on how Congress is run. Fifty-one votes would be the rule of the land now and forever if Republicans pursued this strategy.
As conservatives have documented time and again, the filibuster is a valuable tool for minority parties and is important to preserve. Killing the filibuster by claiming reconciliation applies to more than the narrow scope that it has traditionally been used for might be more politically viable than formally killing the filibuster, but it would be no less damaging. Past abuses of the reconciliation process are no justification for doing away with the norms that govern reconciliation entirely.
Kevin Glass (@KevinWGlass) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is director of outreach and policy at The Franklin Center and was previously managing editor at Townhall. His views here are his own. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
