There is a lot of talk about
reconciliation when it comes to the health insurance reform bill in the Senate,
but I get a sense that many who use the term don’t really understand the
process. There’s actually a good reason why Harry Reid is saving it as a last
resort. Hopefully, I can clear up some of the confusion. The process is a bit
complicated, so bear with me.
Reconciliation is a fast-track
process for passing a bill in the Senate. This is useful, because most Senate
bills are subject to several rules that can keep them bogged down and even stop
them in their tracks, and it would simply be too easy to essentially shut the
In the case of regular Senate bills,
any Senator can offer any amendment to a bill, whether it’s relevant to the
main subject or not. For example, a Senator could conceivably add an amendment
legalizing pot onto an abortion bill. Also, debates are unlimited. If any
Senator or group of Senators wants to add hundreds of amendments to a bill,
they can. It’s certainly not unusual for Senate bills to be debated for weeks,
and Senate rules place the protection of debate and amendment rights over
efficiency and majority will. The only way to shut off debate or put a limit on
the number of amendments and set a date for final passage is to invoke cloture.
The cloture process is usually initiated by the Majority Leader, and requires
60 votes. It doesn’t matter if one or a dozen Senators want to hold things up;
it still takes 60 votes to invoke cloture. And that’s 60 votes, or three-fifths
of the total number of Senators. If two Senators from one party are not
present, they will need a couple of votes from the other to make it happen. Even
if the vote for cloture is 59-1 because Senator Byrd is in the hospital, the
debate and/or amendment process will continue.
A budget reconciliation bill (its
full name) is completely different. It’s a very powerful process that bypasses all
of the above, but it has a limited purpose. Senators like the idea of having
unlimited debate and amendment rights most of the time, so they are reticent to
expand the use of reconciliation much beyond its stated purpose, which is to
change spending and tax laws.
Every spring, the House and the
Senate passes a budget resolution, which establishes the practical spending
limits it imposes on itself. These resolutions also establish the rules
limiting how much various committees can spend on legislation they produce, and
establish reconciliation instructions, which can then become reconciliation
bills. The process was used initially to facilitate deficit reduction; the
instruction given to various Senate committees to produce bills that reduce the
deficit by a certain amount intended to meet specific targets. The Senate
Budget Committee combines all those bills into a single bill. As long as the
Committees have met their targets, the Budget Committee has no authority to
change any of the bills contained in the reconciliation bill, although the
Majority Leader does (more about that later).
They then report it to the Senate floor for debate, amendments and
voting, but under the fast-track reconciliation process, the minority’s ability
to filibuster or kill the bill by amendment is severely curtailed.
The strict limits for a
reconciliation bill include; a 20-hour limit on debate and voting, with a
guarantee of a vote on final passage; all amendments must be relevant to the
subject matter of the bill; and they cannot violate the Byrd rule. (I’ll get
back to this later on, as this is the one reason Harry Reid doesn’t go straight
A reconciliation bill never requires
cloture, so a simple majority is all that’s needed to pass such a bill. As you
have seen with the Democrats’ 60-vote majority, there is a huge difference
between 50 and 60 votes. But you can also see why Harry Reid is reticent to
just change the rules and pass the health care bill through reconciliation. But
let’s be clear; it’s not just the tendency to avoid circumventing the rules
that makes Reid hesitant.
But don’t let the wingnuts fool you;
he very well could create a reconciliation bill, and still might, although the
process isn’t as clean and pretty as you might think.
This year’s reconciliation
instruction ordered two Committees – the HELP and Finance Committees — to
report legislation to the Budget Committee. Each bill must reduce the deficit
by at least $1 billion between 2009 and 2014.
You read that right. That’s one
BILLION dollars, not one TRILLION.
For those of you who think Harry
Reid is a moron, he set things up so that the bill merely had to be deficit
neutral in order to send it through the reconciliation process. This is no
dummy, folks. Both Senate bills reduce the deficit by far more than $1 billion
over the next five years. If the various Blue Dogs keep on trying to hold up
the process by promising to vote against cloture, all Harry Reid has to do is
note the CBO’s scoring of the bill, and send it through as a reconciliation
bill. Then, he would only need 50 votes to win. (VP Biden would break any tie,
if it came to that.)
Now, here’s why Reid is reticent to
go straight to reconciliation. Of course, the Budget Committee would make sure the
Kennedy/Dodd (HELP) and Baucus (Finance) versions of the bill both met the
instruction above, and the two bills would then be clipped together and that
would become the reconciliation bill. He could then take portions of both bills
and put them together in a way that at least 50 Senators could support; he has
that much freedom. Sounds great, doesn’t it?
I told you I would get back to the Byrd
That’s the biggest problem with this
process, and the main reason why Reid sometimes seems like a wuss. As with
anything having to do with the Senate, it’s just not that simple. While the
rules make it difficult to impossible to tack ridiculous amendments onto the
bill or to debate it endlessly, the Byrd rule creates problems. Here is a link to the
The provisions of the Byrd rule relevant
to the health insurance reform bill define a portion of any reconciliation bill
that has no direct effect on either revenue or spending as “extraneous,” unless
it’s a “necessary term or condition” of another provision that does affect revenues or spending. Of
course, if any portion of the bill has a small effect on the budget that is merely
incidental to its broader non-budgetary policy effect, then it, too, is
extraneous and violates the Byrd rule, as well.
Any Senator can use the Byrd rule to
cut portions of the bill they contend violate it, and Reid would need 60 votes
to kill any of those attempts. This could potentially create a field day for
the right wing, because a lot of the health care legislation – especially the
portions of the bill that pertain to insurance company practices, and don’t
directly affect the federal budget – could end up on the cutting room floor. In
other words, these guys mean business, and they mean to protect their insurance
company buddies. If they can convince one Democrat (or even Joe Lieberman) that
forcing insurance companies to insure people who have pre-existing conditions
was a bad idea, that provision goes away. If a Senator decides the employer
mandate is too much, that, too, could be history, if 60 votes can’t be mustered
to “waive” the deletion. You could conceivably kiss all or most of the bill’s consumer
protections goodbye. What if the increased Medicaid spending survives, but the
changes (expansion) of the program do not? What about insurance exchanges?
Those could end up going by the wayside, as well, because they don’t have a
direct effect on spending.
In other words, if you think a bill
without a public option is bad, imagine a bill in which a public option
survives, but no other reforms manage to make it out alive.
That’s not to say we can’t win
through reconciliation. But you can see why Reid’s reticent to go in that
direction. It’s not because he’s a wimp; it’s because he’s trying to keep as
much of the bill together as possible.