With the frustration caused on health care reform by the "Fantastic 4" of Senate conservadems, many have suggested the rest of the caucus just bypass them by using reconciliation to pass the bill. This process would allow the legislation to pass with 50 votes rather than 60. But is this even possible? Let's examine.
If the Democratic leadership decides to proceed with reconciliation, the most important person in the Senate would not be Harry Reid, Kent Conrad, Chuck Schumer, or any other Senator. No, the most important person in the chamber would be the senate parliamentarian, the person tasked with the responsibility of determining which provisions of the bill run afoul of the Byrd Rule.
The Byrd Rule, named for Senator Robert Byrd, was designed to prevent filibuster-proof reconciliation from being used to pass things in the Senate that had nothing to do with the budget.
It's all explained in Section 313 of the Congressional Budget Act. A provision triggers Byrd Rule issues if it:
- Doesn't produce a change in outlays or revenues
- Produces changes in outlays or revenue that are incidental to the non-budgetary parts of the provision
- Is outside the jurisdiction of the committee that submitted the title or provision to be for included in the reconciliation bill
- Increases outlays or decreases revenue if the provision's title, as a whole, fails to achieve the committee's reconciliation instructions
- Increases net outlays or decreases revenue during a fiscal year after the years covered by the reconciliation bill unless the provision's title, as a whole, remains budget neutral
- Contains recommendations regarding the Social Security trust funds
The problem with these conditions is one key word, as laid out by
Stan Collender, noted budget wonk:
The key word that appears most often in these six is "provision" and it typically is the critical factor in determining whether something fits a Byrd Rule description. The problem is that the word isn't defined so it's up to the parliamentarian to decide what is and isn't a separate "provision."
The question isn't at all clear cut. Is a provision a line in a bill, a phrase in a line, a whole section of legislation, etc.? Even if a section of a bill doesn't affect outlays or revenues and, therefore, seems to qualify under #1 to be excluded, is it integral to other parts of the legislation that do change outlays or revenues and, therefore, should be allowed to stay.
That explanation triggered this reply from Kevin Drum @ Mother Jones:
I don't know if Harry Reid can find 60 votes to break a filibuster of a bill that contains a public option provision. But if he can't — something that seems pretty likely — and he has to try the reconciliation route, we're in terra incognita. And once we get to that point, the shape of the bill won't be a matter of negotiating skill, or liberal spine, or presidential leadership, or backroom deal cutting. It will be a matter of the Senate parliamentarian tossing out provisions randomly based on his good faith understanding of the rules.
Call me gutless, call me chicken, call me whatever. But that's a process that won't turn out well. It's just not a realistic option to take a big, complex piece of legislation, toss out individual provisions here and there, and expect to have anything other than a complete hash of a bill that will end up so unworkable it can't pass at all. Like it or not (and I don't!), we need 60 votes to get healthcare through the Senate. The question is how best to do that.
If you go through reconciliation, what kind of bill will you get? Ezra Klein offers an idea, based on Howard Dean's 2004 proposal:
Dean basically folds the Children's Health Insurance Program and Medicaid into one program called the Families and Children Health Insurance Program and makes everyone up to 185 percent of the poverty line eligible for it. He also allows people between the ages of 55 and 65 to buy into Medicare. He creates a tax credit for people in the middle.
Not horrible, but there is a great deal missing. No exchanges. No insurance regulations. No delivery or payment reforms. No wellness programs. Essentially, all you can do is expand an existing federal program. It would be great to expand Medicare, but if you can't get 60 votes to create a weak public option, why would there be 50 to expand Medicare?
Our health care system needs much more than a public option, but if you try to use reconciliation, you won't get any of the other necessary reforms. It does no good to attack a person's liberal credentials because they would consider some sort of compromise. If a compromise is necessary, it should be made. Because failure is not an option.