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ObamaCare and the ‘R’ Word

Using the reconciliation process to pass ObamaCare would be an assault on the tradition of the Senate.

by
Jennifer Rubin

Bio

September 2, 2009 - 12:03 am

As House members and senators drift back from the August recess with the shouts of angry constituents still ringing in their ears, they face a knock-down, drag-out fight over the fate of health care reform. And while conservatives may take pride in the outpouring of public opposition to a government-run health care program, they shouldn’t take comfort. The future of American health care and control of 17 percent of the economy may be determined by a procedural sleight of hand and an anonymous bureaucrat.

How could this be? Well, earlier this year Senate Democrats pushed through reconciliation instructions in the budget. Although Senate Budget Chair Kent Conrad objected, he was in fact the decisive vote to bring out of committee and to the floor for passage a federal budget with a set of instructions that now could control the health care debate.

A Senate aide describes reconciliation as “a partisan process rigged in favor of the majority.” It works as follows: The Democratic Senate leadership would at some point make a decision to use reconciliation rather than the normal lawmaking process to pass health care. The budget instructions would come to the floor and together with the proposed health care bill go to Senate Parliamentarian Alan Frumin. Appointed by both parties after then-Majority Leader Trent Lott fired his predecessor, he is supposedly a neutral arbitrator of the Senate rules, but simple survival dictates that his rulings will generally favor the majority.

Frumin’s job will be to determine if the health care proposal meets the reconciliation rules and specifically the Byrd Rule, which requires that only items germane to the budget be included in the reconciliation process. Would a public option meet the test? Would empowering a Medicare board to control costs? Those and hundreds of other queries will be Frumin’s calls.

Once Frumin agrees that the health care plan in conformity with Senate rules, the bill would go to the calendar and to the floor. Remarkably, that will be in all likelihood the first time the Republicans even see the bill, which is likely to be another thousand-page tome.

The debate on the future of America’s health care then would be limited to just twenty hours. No filibuster is allowed. At the end of the debate, a series of votes on proposed amendments would take place, culminating in a simple majority vote — an unprecedented process on a hugely important piece of legislation. If Frumin finds any portion of the bill to violate the Byrd Rule, that ruling could still be overridden and the provision at issue could then be passed with 60 votes.

Numerous questions remain. For example, could the Republicans filibuster some other piece of legislation in order to shut down the Senate and preempt the reconciliation process? A Senate budget guru points out that given the Senate calendar, that would likely entail a spending bill, meaning the Republicans would be threatening to shut down (at least a part) of the government. With  memories of the disastrous face-off with Bill Clinton still vivid for many Republicans, that option doesn’t seem very attractive or likely.

The more practical question is would Democrats, faced with Obama’s collapsing approval numbers and a precipitous drop in support for government-run health care, really try this stunt? Obama fan David Brooks warns:

This would be suicidal. You can’t pass the most important domestic reform in a generation when the majority of voters think you are on the wrong path. To do so would be a sign of unmitigated arrogance. If Obama agrees to use reconciliation, he will permanently affix himself to the liberal wing of his party and permanently alienate independents. He will be president of 35 percent of the country — and good luck getting anything done after that.

Other observers agree:

Resorting to a budget procedure called reconciliation would infuriate Republicans and force Democrats to settle for more limited changes, said Jennifer Duffy, senior editor at the nonpartisan Cook Political Report in Washington. “Both procedurally and politically, this may be a no-win,” Duffy said.

And indeed, many Democrats, including Sens. Conrad, Robert Byrd, Max Baucus, Jay Rockefeller, Byron Dorgan, Tom Carper, Russ Feingold, Mark Begich, and Mark Pryor, have, at one time or another, spoken out in opposition to using the reconciliation process for health care. So have Sens. Ben Nelson and Evan Bayh. The prospect of ramming through an historic and controversial health care bill on a bare majority vote in contravention of Senate tradition raises serious concerns for Democrats already struggling to avoid criticism that they are too partisan and too rushed in their approach to health care.

Given the uncertainty about the parliamentarian’s rulings, there also is no telling what sort of bill would come out of the reconciliation process. Some have described the potential result as “Swiss cheese.” Moreover, according to the budget rules the bill must present a net savings to the government. That will take mammoth tax increases or Medicare cuts to pay for over a trillion dollars in costs which the CBO estimated for some prior versions of health care reform. It simply isn’t clear then that Democrats could come up with a viable bill given the reconciliation requirements.

Republican senators do not expect Democratic leaders to make a decision on reconciliation immediately. Majority Leader Harry Reid gave Baucus until September 15 to come up with a Senate finance bill. Even if that effort falters, others may try to craft an alternative bipartisan approach before resorting to reconciliation.

But there really is no legal deadline to implementing the reconciliation option. It is “rare,” according to Senate minority aides, for reconciliation to be carried over from one congressional session to another. But Senate tradition and etiquette may not count for much this time around.

What will matter on health care is how desperate Democrats are to jam home a bill that can’t get 60 votes in the U.S. Senate. Public sentiment and Obama’s poll numbers may influence the decision, but in the end Reid will make the call. Whether he will pull the trigger is still anyone’s guess.

Jennifer Rubin blogs at the Washington Post.
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