Now that the possibility of the Dems going it alone on health care is in the air, a few things are starting to make sense. One of them is the way the whole reform process was being held up by one recalcitrant committee: the Senate Finance Committee, chaired by Sen. Max Baucus (D-MT).
I've been wondering all along why the White House doesn't just tell Baucus to shove his plodding, obstructionist Finance Committee right up his plodding, obstructionist ass. There are plenty of other bills out there, right? Screw the SFC! What makes them so important?
Well, what makes them so important has a lot to do with the most important official in Washington you've never heard of-- although he's about to become famous whether he likes it or not. Tremble, O huddled masses, before the might of... Alan Frumin!
Never heard of him? I hadn't either, till very recently. But follow me over the jump and I'll tell you why the fate of health care reform may very well wind up in his hands.
I won't keep you in suspense-- Alan Frumin is the Senate Parliamentarian, and if the Dems can't muster 60 votes for health care reform, and decide to use the reconciliation process to push it through with 51+, they're going to need Frumin to go along with it.
The American Prospect's Ezra Klein had a good article on this back in March, by the way; I recommend it to anyone who wants to get up to speed on reconciliation in a hurry.
Here's a quick gloss on what Frumin does from Wikipedia:
The Parliamentarian of the United States Senate is the official advisor to the United States Senate on the interpretation of Standing Rules of the United States Senate and parliamentary procedure.
As the Presiding Officer of the Senate may not be fully aware of the parliamentary situation currently facing the Senate, staff from the Senate Parliamentarian's office sit on the Senate dais to advise the Presiding Officer on how to respond to inquiries and motions from Senators. The role of the parliamentary staff is strictly advisory; the Presiding Officer is in no way required to follow their advice, though they almost always do so.
Don't get too excited about that "in no way required to follow their advice." If the presiding officer ignores the parliamentarian's advice, any Senator can initiate a point of order, and I'll give you three guesses how many votes you need to override that. (Hint: It's somewhere between 59 and 61.)
So, let's say you've decided to use reconciliation to pass your bill. All well and good. The problem is, not just anything can skate through the Senate with 51 votes simply by saying the magic word "reconciliation." If a provision is "extraneous" to the budget process which reconciliation is designed to streamline, it can be stricken-- and the Senate parliamentarian rules on what is extraneous.
It's not totally a judgement call, though. A rule you may have heard a few wonks mention, the "Byrd Rule," provides guidance as to what does and doesn't count as extraneous. (If you're wondering what all this has to do with Max Baucus, hang on; we're almost there.)
Here's the rule in plain (sort of) language, again from Wikipedia:
Reconciliation generally involves legislation that changes the budget deficit (or conceivably, the surplus). The "Byrd Rule" (2 U.S.C. § 644) outlines what reconciliation can and cannot be used for. The Byrd Rule defines a provision to be extraneous in six cases:
- (1) if it does not produce a change in outlays or revenues;
- (2) if it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
- (3) if it is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
- (4) if it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
- (5) if it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure, though the provisions in question may receive an exception if they in total in a Title of the measure net to a reduction in the deficit; and
- (6) if it recommends changes in Social Security.
If a provision violates the Byrd Rule, then any Senator may raise a procedural objection and unless 60 Senators vote to waive the objection, then the offending provision will be stripped from the bill.
What leapt out at me from this, aside from the sense that maybe I should stop obsessing about Senate procedure and try to meet a nice girl, was the 3rd provision:
(3) if it is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
Let's say you're the White House, and you've been thinking about the possibility of reconciliation all along. According to Congress Matters' (and Daily Kos's) David Waldman, you're probably allowed to meet discreetly with the Parliamentarian and determine his interpretation of the Byrd rule as you go along. "I think it's entirely permissible for the Majority Leader to consult with the parliamentarian ahead of time, and they probably are doing just that," he told a total stranger by email when I bugged him about it.
So this business about committee jurisdiction may be why the Finance Committee is so important: if Frumin is telling the Senate leadership that his interpretation of the Byrd rule will be more expansive for bills that come out of the Finance committee, then it makes sense to bend over backward to accommodate them, distasteful as it is. Remember, reconciliation was created to address the budget; a case could be made that Finance's jurisdiction over "revenue matters generally" means that a HCR bill that comes out of Finance is less extraneous to the budget process than one that comes out of, say the HELP Committee.
Does that reasoning sound a little wooly? I thought so, too, so I asked Waldman again. Here's his take: "You make a good point about the Byrd rule in relation to committee jurisdictions, and if they're going to use reconciliation, then yes, they'll probably want that, and in any case, the reconciliation instructions in the budget resolution require that Finance report something out."
I think this means that my conclusion might be right even if my explanation is a little weak.
Anyway, I'll wrap up by noting Waldman's caveat to this theory, to avoid quoting him selectively and making it look like he thought my idea was totally brilliant when he actually didn't:
"The two problems I can think of are: 1) that the end product bill that results from the merging of the HELP and Finance bills might not itself necessarily be considered a Finance product anymore -- but that's just a stretch and a guess, and; 2) that if they're doing this with an eye toward using reconciliation, the bill had better be a hell of a lot stronger than anything Finance is likely to report, anyway, since they're still looking for a 60-vote bill, and will be dumping all sorts of good provisions out of the bill (like the public option, for one thing) in order to get there.
"In other words, if they're making up their minds to use reconciliation, I would hope they'd be using it on a much more aggressive bill than some compromised piece of legislation that could have had a decent shot at 60 votes anyway."
That said, if the rumors about going it alone are true, we might see the markup process in the Finance Committee take a different tone when the Senate comes back from its recess.