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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

By Ezra Klein  |  January 25, 2010; 3:15 PM ET
Categories:  Health Reform  
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I don't understand why Senators can't just ask the Parliamentarian what he will and won't allow under the Byrd rule. It seems like there was extensive back and forth between Congress and the CBO over what provisions they would score as reducing the deficit and which they wouldn't. Why can't the Parliamentarian do the same thing - provide some guidance on what is allowed and what is not?

Posted by: mattalvarado | January 25, 2010 3:30 PM | Report abuse

Good to know things are doable in Congress (we always suspected that for some reason, it is only their 'intentions' which are for suspect here).

So where is the Turkey? When is it going to come? Is it coming for real?

Nah, we would not harass you in comments. We will be good, patient folks here; waiting for Congressional Democrats to make their Martini carefully...

Are we there?

Posted by: umesh409 | January 25, 2010 3:41 PM | Report abuse

Agree they should do it, and soon, but is there sufficient political courage?

You didn't mention dumping the Nelson provision, but I assume that is clearly covered under the Byrd Rule.

Posted by: Mimikatz | January 25, 2010 3:43 PM | Report abuse

Oh god. They look like they're dressed for a funeral.

Posted by: eRobin1 | January 25, 2010 3:58 PM | Report abuse

I don't understand why an unelected nonentity like the Parliamentarian gets to have so much power over everything. It seems pretty close to ridiculous.

Posted by: jlk7e | January 25, 2010 4:09 PM | Report abuse

"would be for the parliamentarian to decide"

The Parliamentarian of the Senate only advises. The presiding officer decides points of order.

Posted by: thehersch | January 25, 2010 4:25 PM | Report abuse

*****I don't understand why an unelected nonentity like the Parliamentarian gets to have so much power over everything.*****

Republicans sure do. Just ask Trent Lott.

It would be the absolute HEIGHT of idiocy if a party with a substantial super-majority allows an unelected, appointed bureaucrat to green light the GOP's minoritarian plans for obstruction.

Posted by: Jasper99 | January 25, 2010 4:57 PM | Report abuse

Is there any requirement that fixes to the senate bill have to be in ONE bill?

Otherwise I would divide and conquer the process. Bundle all the stuff that can pass via reconciliation in one bill. Bundle all the stuff that might pass in another bill. And bundle all the stuff that cannot pass in additional bills.

Then have the republicans take all the hard votes on the additional bills for the stuff that does not apply to health care. Make them filibuster the stuff not suited for reconciliation to document their unwillingness to participate. Especially the Stupak stuff would be a nice vote in the senate.

Posted by: flevan1 | January 25, 2010 5:08 PM | Report abuse

Republicans convinced the parliamentarian that drilling in ANWAR could go through reconciliation. I think the same guy is still running things.

Posted by: flounder2 | January 25, 2010 5:19 PM | Report abuse

I have no idea how the Parliamentarian would rule, but I do wonder what would be the effect on that person's decision if, you know, Harry Reid kinda mused aloud about how it might be time to, well, think about . . . putting fresh blood in the Parliamentarian's office. Not that it would be connected to a ruling on this legislation, of course! Perish the thought!

Posted by: robbins2 | January 25, 2010 5:30 PM | Report abuse

So where does this put Alan Frumin on the list of the most important people in Washington? Top 100? Top 10?

Posted by: you-dont | January 25, 2010 6:04 PM | Report abuse

Everyone seems to be glossing over the fact that reconciliation is a great opportunity to make the bill more progressive. There are 51 Senators on record supporting the public option. Presumably there are 58 who would support a Medicare expansion. Put it back in. We're bending over backward to accomodate people like Lieberman who are no longer relevant.

Posted by: bmull | January 25, 2010 6:12 PM | Report abuse

You forgot a final limitation.

This is due to the use of the word BUDGET in the Byrd rule.
The budget is only valid for 10 years.

Thus anything passed via reconciliation MUST expire after 10 years.

Thus anything they set will need to be revisited again in 10 years and passed ( at least via a NEW reconciliation vote ) or EXPIRE.

SO ... 2020 ... unless the Democrats AGAIN hold House, Senate, Presidency ... if they do not control even ONE of those three?

Excise tax softening? EXPIRED
Subsidy increases? EXPIRED
Federally Regulated exchanges? EXPIRED
Tweak on abortion language? EXPIRED

Again ... 10 year sunset is MANDATORY to qualify for the Byrd Rule.
And in 10 years the Republicans do not need to negotiate or filibuster or anything.
They just need to control ONE of House, Senate, White House ... and do nothing.

Posted by: chromenhawk | January 25, 2010 6:16 PM | Report abuse

Ezra Klein is engaging once again in a favorite pastime: theorizing about how progressives should go about achieving the irrational. So, for example, if you've just been told, "NO ICE CREAM BEFORE SUPPER!" you reply, "And what flavor would you prefer that I have? And in which bowl? Should I use a teaspoon or tablespoon?"

Yes, by all means, progressive Democrats, derive from the recent elections that the public wants you to stretch and mangle every conceivable oblique strategy for passing a Senate bill you don't mean to honor and then convincing majorities that you couldn't get the first time around -- when the political climate was considerably sunnier -- to force feed the nation a Rube Goldberg-inspired reconciliation in light of the Scott Brown victory.

Sounds like a plan!

Posted by: Imperfections | January 26, 2010 12:32 AM | Report abuse

Of course, the last time a Parliamentarian ruled against the majority leader, Trent Lott got himself a new parliamentarian.

It's funny how obstacles for Democrats melt away in the face of Republicans.

Posted by: pj_camp | January 26, 2010 8:48 AM | Report abuse

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