Commentary: Dems should use 'nuclear option' to pass health care overhaul

So, who's really going "nuclear" in Washington these days?

You might have heard a number of Republican senators caterwauling about the possibility that Democrats might use the "nuclear option" to pass a health care reform bill. From the tone of these speeches, listeners might get the idea that using such an option is both a bad thing and something only low-life Democrats would threaten to do.

But the phrase "nuclear option" actually was invented in 2005 — when the Republican majority in the Senate threatened to detonate it. The Democrats were using the threat of a filibuster to block a floor vote on several of President George W. Bush's judicial nominees, and enraged Republicans called for the "nuclear option."

The plan was to declare that use of the filibuster was unconstitutional because the president is authorized to name judicial nominees with the advice and consent of a simple majority of the Senate. So, they would need only 51 votes instead of 60 to advance a nominee.

In the end, a bipartisan group of 14 senators — dubbed the "Gang of 14" — which included South Carolina Sen. Lindsey Graham, worked out a deal. The deal consisted mostly of Democrats backing off their threat to filibuster Bush's nominees except under "extraordinary circumstances."

What GOP senators now are labeling the "nuclear option" is something quite different and nothing especially out of the ordinary. If Republicans continue the threat to filibuster the health care reform effort, Democrats might resort to the "reconciliation" process, first adopted in 1980, which allows tax and spending bills to be enacted with a simple majority of 51 votes.

"Reconciliation" sounds much less threatening than "nuclear option." It's nicer to reconcile disagreements than to blow everything to smithereens.

Republicans, however, will try to paint reconciliation as an extreme alternative, one that undermines the entire legislative process. But that is bunk.

Bush used reconciliation to pass his tax cut bills in 2001, 2003 and 2006. In 2003, he could round up only 50 votes in the Senate for his biggest tax cut, which forced Vice President Dick Cheney, as president of the Senate, to cast the deciding 51st vote. But the majority prevailed.

The Children's Health Insurance Program (CHIP), which extended health care coverage to millions of children in low-income families, was passed through reconciliation. Medicare Advantage, the supplemental insurance programs for the elderly, was passed through reconciliation.

The COBRA act, which allows people to keep their employee insurance even if they lose their jobs or retire early, passed through reconciliation. In fact, the "R" in COBRA stands for "reconciliation."

Of the 22 reconciliation bills sent to the president's desk since the process was first used, 16 were passed by a GOP-controlled Senate.

If any tactic should be considered extreme, it's the Republicans' abuse of the filibuster. The Republican minority in the 110th Congress, during the final two years of the Bush administration, threatened the use of the filibuster 139 times, in most cases forcing the majority either to withdraw the bill or find 60 votes to force cloture.

That is unprecedented in U.S. history. During the 109th Congress, the filibuster was threatened only 54 times.

The GOP now uses the filibuster, once invoked only rarely, as a routine tool of obstruction. Under those circumstances, the Senate needs 60 votes to pass almost any piece of legislation.

The Constitution doesn't require 60 votes in the Senate to pass legislation. A simple 51-vote majority should suffice.

With the recent loss of Ted Kennedy's Massachusetts Senate seat, the Democrats now command a 59-vote majority. That's not enough to ensure cloture and turn back every Republican filibuster threat.

But it should be a big enough majority to pass a meaningful health care reform bill. And if not one Republican will join the Democrats in bringing this bill to the floor for a fair up-or-down vote, the Democrats should resort to reconciliation.

Call it that or call it the nuclear option if you want. But by all means call it democracy.

James Werrell, Herald opinion page editor, can be reached at 329-4081 or, by e-mail, at jwerrell@heraldonline.com.