Obama clearly announced today plans on using the nuclear option, and will attempt to pass health care via reconciliation.
This is a complicated and archaic process. It was never really intended for legislation of this scope. Senator Judd Gregg compared the current Democratic effort to those undertaken in the past “is like comparing using a firecracker with a nuclear weapon…[the Democrats’ health-care bill is] an exercise in changing 16 percent of the American economy.” Gregg called Obamacare “the most complex policy we’ve ever dealt with in my time in Congress.” However, technically it isn’t against the rules to use reconciliation for such purposes, it does come with great risks and hurdles.
I point you to Keith Hennessey’s excellent articles on reconciliation and the current Democrat legislative process, which go over the details in (sometimes) painful detail. Daniel Foster at National Review has a nice overview as well.
But couple key questions, and answers as far as I understand them.
1. Who will go first?
This is really the essential question. Remember: if the House wanted to, it could pass the Senate bill tonight. There is no filibuster or minority blocking technique in the House. The problem is simple: Nancy Pelosi doesn’t have enough Democrat votes to pass the bill right now. And of course, we all know why the Senate can’t pass the House bill.
So, where does that put us? First, one chamber must go first. The realistic choice is the House, and it appears that is the strategy that Democrats are going to take. It should be easier to pass anything there, since they have such a huge majority. Problem is, they passed the initial bill by only 3 vote margin, and have since lost three members. Not to mention, Bart Stupak insists that his abortion language preventing spending on abortion coverage be included, and he has at least 10-15 members that will follow him. Additionally, the House already feels that the Senate has not been carrying its own weight…can Pelosi get them to do the heavy lifting (with the obvious political costs) once again?
2. O.K. What about reconciliation?
Well, lets take a step back. Remember what reconciliation is; the full title is ‘budget reconciliation’. It is a fast track procedure that allows a simple majority in the Senate to pass bills that will help narrow budget deficits. To make it very simple, you can use a reconciliation bill only to change spending, taxes, or the debt limit.
That is what it is meant for, though the use of the procedure has often strayed from its original purpose, as Democrats suggests. That said, nothing even closely resembling health care has ever been passed under reconciliation.
There are numerous hurdles that must be jumped to get a bill through reconciliation:
- Initially, the Senate gets 20 hours of debate on the bill. All amendments at this time must be germane to the bill, i.e. it must be related to the bill (such as a defense bill can only talk about defense projects, not, say, abortion).
- Byrd rule – This is the essential keystone of the entire debate. Robert Byrd (D) created this rule so the majority could not abuse the rule to run over the minority (ironic, isn’t it?).
- The Byrd rule has six tests (which I won’t go through here). The main tests are the following:
- If a provision has no effect on spending or revenues, then it’s extraneous and violates the Byrd rule…
- … unless it is a necessary term or condition of another provision that does affect spending or revenues.
- If a provision has a small budget effect that is merely incidental to its broader non-budgetary policy effect, then it is extraneous and violates the Byrd rule.
- But ultimately, any amendment or change to the initial bill must meet these test, otherwise reconciliation cannot be used to alter those passages in the bill.
- If there is a question about the legitimacy of an amendment, the Senate President (i.e. whichever Senator is presiding over the hearing, or the Vice President) can ask a judgement from the Senate parliamentarian (an appointed, supposedly nonpartisan post). The current Senate Parliamentarian is Alan Frumin, FYI.
- The Parliamentarian must then decide if an amendment affects federal spending, taxes, or the debt limit; if not, it violates one of the prongs of the Byrd Rule, and thus cannot be altered by reconciliation. This is a key point.
- The Senate can override the parliamentarian’s ruling with a 60 vote majority…unlikely now.
- Here is the kicker: ultimately, the parliamentarian can be overruled by the President of the Senate, i.e. Vice President Joseph Biden. That is right. No V.P. has done that since Hubert Humphrey, and it would certainly be against 40 years of precedent…but this is “uncle” Joe we are talking about, so anything is possible.
3. The Byrd rule…so what?
What is so important about the Byrd rule? Well, the major point of contention (although Democrats spin it otherwise) is abortion. Bart Stupak is a big wall blocking Democrat passage of the bill in the House. So, the question is, can the Senate ‘fix’ the abortion language through reconciliation? Keith Hennessey doesn’t believe so, and I don’t either. There are several other possible amendments that would be exempted by the Byrd rule as well, and many are not so minor.
There is a recent example. The 1995 Omnibus reconciliation bill attempted to ban all federal spending on abortions. However, it was challenged during the reconciliation process, and omitted by the parlimentarian.
Keith Hennessey again deserves credit for the term.
For a normal reconciliation bill, there are anywhere from 15 to 60 amendments stacked up. Assume 15 minutes per vote when the Senate is working at top speed. The Senate spends many hours in a seemingly endless series of stacked votes. This is called the vote-a-rama.
This is the ultimate stalling tactic. The minority can force the Senate to vote on very politically challenging amendments. For example, the Senate had a much more liberal take on abortion coverage. But forcing every Senator to take a stand on whether they are for funding of abortions is a wholly different matter. Of course, Democrats have 59 votes, so could lose 8 votes and still defeat the amendment.
But here is the awesome part about reconciliation. Usually, since it is used for budgets, Senators are reluctant to offer amendment after amendment, because the government could stop working all together (people in Washington consider this a bad thing). But here, you have a wholly new bill, new bureaucracy, and new spending. Stalling this stops nothing.
A single Senator could offer infinite number of amendments, as long as their stamina holds. They could offer an amendment on every single word in the 2,500 page bill if they wish. Bob Dole once sent the entire U.S. Code (in other words, every federal law in the land) as an amendment, and didn’t dispense with the reading of the code until he got exactly what he wanted from the opposition. They could challenge the use of the word ‘is’ if they deem it valuable.
There is debate on whether there are procedural ways to halt the admission of amendments, but if you give relevant amendments (and I bet I could come up with an infinite number of those if necessary), there is no way to stop the Senate from hearing and voting on them.
Now, this tactic has never been used by the minority to this extent…but then again, the tactic of using reconciliation for such a huge new government program has never been done either. And this week Sen. Bunning showed exactly how a single senator can disrupt the inner workings of the Senate if determined enough. The question ultimately is whether or not Republicans are willing to fight the ‘scorched earth’ policy need to stop Obamacare.