Can reconciliation save the health-care bill?
"Senior aides on both sides tell me that despite Nancy Pelosi’s claim that she doesn’t have the votes to pass the Senate health bill in the House, the Dem leadership still thinks it’s possible to win over enough House members to do it," reports Greg Sargent, "if they’re convinced that fixing it through reconciliation is procedurally realistic."
That seems fair. So I spent some time today asking experts on the budget reconciliation process -- which defangs the filibuster and allows certain bills to pass the Senate with a 51-vote majority -- whether it was a "procedurally realistic" vehicle for compromises on health-care reform. James Horney, a former staffer for the Senate Budget Committee, articulated the consensus well: "Yes," he said.
The difficulties with the reconciliation process boil down to the Byrd rule, which states that "provisions that do not produce a change in outlays or revenues; [or] produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision," are not eligible for reconciliation.
There are two difficulties there. First, what is a "provision?" Is it a bill? A title? A paragraph? A policy? A sentence? It's never defined. Second, what's "merely incidental?" Since everything can be argued to change federal revenues or spending in some way, the question of whether that's what the policy is attempting to do or whether that's an unimportant side effect is a bit esoteric.
There are four major compromises that the health-care bill probably needs in order to move forward: The excise tax has to be softened, the subsidies need to be increased, the exchanges need to become federally-regulated, and the abortion language needs to be tweaked. The experts I spoke to said that the subsidies and the excise tax were no problem for reconciliation. Abortion and exchanges are less clear.
"If it’s strictly a prohibition against federal funds going towards abortions," says budget expert Stan Collender, "it's probably okay. Simply a regulation, probably not. If you can make the case that the government will spend more or less due to national exchanges, then the ruling could be that it’s a material impact. But if it’s just regulations, it could be extraneous."
Collender, however, takes an expansive view. "Given how intertwined everything seems to be in health care, I could make the case that there’s very little that doesn’t belong in reconciliation." Whether he's right would be for the parliamentarian to decide. Which is why the reconciliation process is rarely the first choice for a bill like this one. It's unpredictable. The outcome depends on the Senate's equivalent of an umpire, and no one knows quite how he'll rule.
But what choice do Democrats have but to try? "Necessity is the mother of legislative invention," Collender observes. And if it fails for abortion and exchanges, the abortion compromise could likely pass both chambers using the normal order, and federal -- as opposed to state -- regulation of the exchanges shouldn't be a deal breaker.
Photo credit: By Linda Davidson/The Washington Post
January 25, 2010; 3:15 PM ET
Categories: Health Reform
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