Senate Liberals May Push 'Reconciliation' to Achieve Government-Run Healthcare

Tuesday, October 13, 2009 6:25 PM

By: David A. Patten

"And I know one thing -- wild horses aren't going to drag me off this floor till those people've heard everything I've got to say." -- Jimmy Stewart as Jefferson Smith, in the 1939 Frank Capra classic Mr. Smith Goes to Washington.

New Hampshire GOP Sen. Judd Gregg says using reconciliation to pass healthcare reform is like "walking into a heart transplant operation with a chain saw."

Democrats on Tuesday made big strides toward conducting drastic surgery on millions of Americans' healthcare plans. Maine GOP Sen. Olympia Snowe announced she would support the Senate Finance Committee's version of the bill, which later made it out of committee by a 14-9 vote.


Senate Majority Leader Harry Reid of Nev., right, speaks during a news conference with Senate Finance Committee Chairman Sen. Max Baucus, D-Mont., left, and Senate Health, Education, Labor and Pensions Committee Chairman Sen. Tom Harkin, D-Iowa, center, listen. (AP Photo)

The next step in the process: Sen. Majority Leader Harry Reid will merge the Finance Committee legislation with a more liberal bill that contains a public option -- a measure that already has made its way through the Senate's Health, Education, Labor and Pensions Committee.

Healthcare reform could still suffer a cardiac arrest, however.

The Obama administration and Reid, it appears, lack the support they need from moderate Democrats to stop a Mr. Smith Goes to Washington-style filibuster -- unless they drop the public option that progressives insist is essential to meaningful reform. Conservatives, of course, see the public option as a path to European-style, single-payer healthcare.

The legislative standoff in the Senate increased the odds the Obama administration will resort to "Plan B," the parliamentary maneuver known as reconciliation.

Sen. Mike Crapo, R-Idaho, told The Hill last week that the end game for healthcare reform in the Senate will take one of two paths. Either Reid will drop the public option, or he'll have to try to invoke reconciliation.

"If they do move to reconciliation," Crapo said, "I do think they actually have a very good chance of passing that."

Opponents of reform, who contend it will open the door to bloated bureaucracies and bigger deficits, may find it sadly ironic that reconciliation originally was intended to help Congress pass more fiscally responsible budgets. It dates back to the Congressional Budget Act of 1974.

Unlike regular legislation, reconciliation requires a simple majority of 51 votes for approval, rather than the 60 votes ordinarily required to get modern-day Mr. Smiths to bite their tongues.

Once reconciliation is invoked, debate is strictly limited to just 20 hours, and the time-honored practice of proposing unrelated amendments is strictly verboten.

Such rules significantly shift the balance of power to the party in power – in this case to Democrats.

Reconciliation begins with a "reconciliation instruction." The reconciliation instruction orders a committee to achieve a fiscal target. Democrats have been preparing their Plan B on healthcare at least since March, when the House passed its FY 2010 budget resolution.

That resolution included a "reconciliation instruction" ordering various House committees to find $1 billion in healthcare savings -- hardly a difficult challenge in a healthcare industry that represents about one-sixth of the nation's economy.

The reconciliation instruction opened the door to later invoking reconciliation. But there was a problem: The Senate's version of the FY 2010 budget resolution contained no such instruction to Senate committees.

GOP Sen. Jon Kyl, the Minority Whip, told the Washington Times in March that House leaders were plotting to use reconciliation to "sneak through" health reform. Reconciliation, he said, is "a special rule that was never intended to create energy or health care policy for our country -- issues so significant that our regular order should prevail."

Republican concerns notwithstanding, in April a Senate-House conference committee announced that the merging of the two budget measures resulted – voila! – in a reconciliation instruction making its way into the Senate budget as well.

Under the compromise budget resolution, both the House and the Senate would direct the appropriate committees to find $1 billion in savings. That backroom maneuver effectively presented healthcare reform for legislative purposes as a deficit-cutting measure, rather than the vast new entitlement program that it is. Reconciliation's six-shooter was loaded, cocked, and aimed squarely at Republicans' heads.

Theoretically, that means congressional Democrats need only introduce legislation that would reduce federal outlays for healthcare by $1 billion, and just 51 votes would be needed to pass it. No extraneous amendments would be permitted, and debate would be shut off after only 20 hours.

Democratic leaders continue to waffle, however, saying they only want to invoke reconciliation "as a last resort." And there's a good reason why.

Ironically, Senate Republicans can thank the dean of Senate Democrats, West Virginia Sen. Robert Byrd, for Democrats' reluctance to sweep the GOP out of the way.

Byrd was Majority Leader of the Senate in the 1980s when members of Congress began abusing the reconciliation privilege, using it to fast-track legislation that had nothing to do with fiscal discipline. Byrd responded with a set of strict limitations on when the reconciliation procedure could be applied -- circumstances codified as the Byrd Rule.

In essence, the Byrd Rule held that: "A provision shall be considered extraneous if it produces changes in outlays or revenues which are merely incidental to the nonbudgetary components of the provision."

Moreover, each senator had the authority to challenge whether a bill's provisions were really fiscal. If not, they were simply deleted.

This meant a social program masquerading as a budget bill might not fly.

That means if Democrats resort to pushing healthcare reform via reconciliation, they don't know precisely what bill they'll get.

Certain key provisions – prohibitions against insuring illegals, incentives for preventative medicine, public funding of abortions, pre-existing conditions, health-insurance exchanges, and possibly even the public option itself -- could be ruled of social rather than fiscal significance.

In a bill containing over 1,000 pages, there could be hundreds of such extraneous items. Healthcare opponents would no doubt snipe away at the fiscally irrelevant provisions in the bill until it resembled a slab of Swiss cheese shredded by a load of buckshot.

All of which raises the trillion dollar question: Who decides whether a particular provision is fiscally relevant?

Enter Alan Frumin, the genial, mustachioed Senate Parliamentarian whom most voters have never heard of. Neither Congress, nor the president, nor the president's cabinet secretaries determine which healthcare provisions are legally subject to reconciliation.

Instead, it's all up to Alan Frumin, whom senators frequently consult when drafting legislation.

"You'd end up with the parliamentarian of the United States Senate writing a health-care bill," Tennessee GOP Sen. Lamar Alexander told Bloomberg.com.

Technically, of course, the senate parliamentarian's decisions could be overruled. But during reconciliation, that requires a 60-vote majority. Given that the whole point of reconciliation is to push legislation forward without 60 votes, Frumin likely would find himself in the uncomfortable position of becoming the de facto arbiter of what actually goes in the bill.

The man who probably knows better than anyone what Frumin is up against is a Georgetown lawyer and professor by the name of Bob Dove. Dove served as Senate Parliamentarian for about a dozen years, and he recently warned Bloomberg.com that any healthcare bill subjected to reconciliation "has the potential of being very badly chopped up," he said.

"It will be a huge mess," he predicted.

Dove, who says the parliamentarian plays a "huge role" in reconciliation, tells Newsmax he once dropped some 250 extraneous provisions from the 1995 Budget Reconciliation bill.

"It is not out of the realm of possibility that hundreds of provisions might be stripped from a proposed healthcare reform bill on the same basis," he says.

In all his time in the Senate, Dove says, he never had a parliamentary ruling on a reconciliation bill overruled.

"Reconciliation is not designed for some huge new program," Dove says. "It's designed to reduce the budget deficit. So that when it is used to reduce the budget deficit it can be quite effective. But when it's used for other purposes, then you run into problems."

Reconciliation is "a rather imperfect tool" to enact healthcare reform, Dove adds.

Democrats have pointed out that Republicans used reconciliation to enact the Bush tax cuts in 2001 and 2003, which arguably increased the budget deficit. Senate rules have changed since then, however, to "absolutely forbid" the use of reconciliation for anything that would increase the budget deficit, according to Dove.

Such rules, Dove says, mean the parliamentarian, a relatively obscure government official, could have an "enormous substantive effect" on healthcare reform.

Democrats are well aware of the uncertainty they face if they invoke reconciliation. According to MSNBC's FirstRead blog, they're considering an alternative: A two-track process whereby strictly fiscal elements would be submitted to reconciliation, while social measures and programs would make up a second bill that would pass through the Senate's regular legislative process. The second bill would have to get by the 60-vote hurdle to cut off filibuster, however.

Of course, the Obama administration would prefer to avoid such maneuvers altogether. That may be one reason Democrats bash Republicans at every turn for being uncooperative and partisan.

The real problem are the moderates in Obama's own party. They got an earful from voters during this summer's town hall meetings. So far it appears they aren't quite willing to bet their political futures on unpopular, big-government healthcare reforms.

Politicians who steamroller reform may have a different kind of reconciliation to worry about: The kind that comes at the hands of angry voters on Election Day.

2009 Newsmax