Unprecedented or not, here they come

As has been expected for some time, President Obama has announced that he will forge ahead with Obamacare, this time attempting to push it through via reconciliation. Doing so, of course, avoids a filibuster and thus permits Senate approval with only 50 votes unless the Republicans can find some other method of indefinite delay.
In his speech today, Obama didn’t use the term “reconciliation.” Instead, he spoke of an “up or down vote” on a measure that, in similar form, already won a Senate super-majority. He also cited welfare reform, CHIP, and the Bush-era tax cuts as legislation that passed via the same maneuver he will employ on behalf of Obamacare.
Much ink will be spilled over whether the use of reconcilation here is “unprecedented.” There’s no dispute that reconciliation has been used before in controversial circumstances. Whether the Dems are acting in an unprecedented way depends on how material one considers the factors that appear to distinguish this use of reconciliation from past controversial ones.
The two main factors cited by opponents of Obamacare are (1) the existence in past instances of bipartisan support (and even super-majority support) for what was being legislated and (2) the sheer magnitude of the legislation being pushed. The combination of these factors certainly makes what the Dems are about to attempt unprecedented in its boldness. Whether it makes the move illegitimate as compared to past instances of reconcilation will likely depend on what one thinks of the underlying legislation. For this reason, the debate over the procedural issue is probably beside the point.
What matters now is that the Democrats are attempting the gambit, not whether there is precedent (however one defines that term in this context) for it. And the key question is whether the Republicans can prevent the Dems from succeeding, either by winning the up or down vote in the House or by mounting an arguably unprecedented procedural assault of their own in the Senate.
UPDATE: For a good presentation of the case that the Dems are acting in an unprecedented manner, and some thoughts on what might be done about it, see these posts by Daniel Foster.


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