Saturday, August 8, 2009

Reconciliation, the Perilous Road to Health Care

Senator Chuck Schumer (D-NY) on Friday used the word Republicans do not want to hear: reconciliation. That word, as used in the US Congress, is not an attempt to build harmony or friendship, bur is a demand that the minority party submit unwillingly to the majority.."It is certainly on the table", said Schumer*.

Reconciliation is a legislative procedure whereby passage of the pending health care legislation could require, not 60 normal votes, but instead only 51. It would also cut off the possibility of any filibuster of the matter before Congress.

While the hope has existed for a compromise plan in various Senate committees, Democratic leaders have been careful not to talk about reconciliation. But when the Senate recessed this past week, Senator Max Baucus (D-Mont), Chairman of Senate Finance, had not been able to forge a consensus from his committee members. That deadlock brought forth some talk about the use of the reconciliation procedure.

Majority Leader Harry Reid, (D-Nev) said Friday that “We don’t want to use reconciliation unless we have to. I hope we don’t have to.” The White House insisted on Thursday (8-6) that it was open to the use of a parliamentary procedure that would prevent health care reform from being filibustered by the GOP.

The idea of imposing reconciliation is not comforting to Senator Mike Enzi a Wyoming Republican. He said, “I’m afraid that if reconciliation winds up in the [health care] budget bill, it’ll be like a declaration of war.”

Some Senators have expressed the idea that a "Reconciliation Bill" could be brought to the floor of the Senate if it were reported out of committe in that form. That is correct, but what happens at that point is debatable. When the bill reaches the floor, any Senator may offer amendments or rise to a point of order and challenge whether any part of the bill is "extraneous". Any challenged "extraneous" part would be striken from the bill if less than 60 Senators (assuming 100 preent) voted to support it. This activity is called the "Byrd Bath" (see below).

The remaining bill can then get only twenty hours of debate, and amendments are limited. An up-and-down vote then follows with fifty-one (51) votes carrying the bill. There are some restrictions imposed on budget-related portions of the bill.

What is the Byrd Bath?

In 1985-1986 a procedure called the "Byrd Rule" was adopted by the Senate. The rule provided six definitions that judge a provision of a reconciliation bill to be "extraneous". They are

  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.

Again, any provision of the bill determined to be extraneous will be stripped from the bill, unless 60 Senators vote to waive the objection. The process of "scrubbing" through the original bill in search of extraneous provisions is referred to as the Byrd Bath.**

Because of the possibility that numerous items, based on the above provisions, could be striken from a reonciliation bill Senator Kent Conrad, (D-ND) has said the end result with be a Health Care bill that looked like Swiss cheese, because there could be so many holes in it.*** The Republicans could be so angry over the attempt to force through a sweeping Health Care plan that they would probably nit-pick the legislation to death.

“Most of the big public policy stuff, which is really important, would not survive the Byrd Rule,” said Senator Judd Gregg of New Hampshire, the senior Republican on the Budget Committee and someone who could be counted on to use his expertise to make reconciliation as difficult as possible for Democrats.

But there is a potential way around the Byrd Rule:****

Democrats are examining an unusual "two-track" approach. First, some of the most controversial parts of the health plan--taxes, fees, savings from existing federal programs---would be packaged in one "extraneous-free" reconciliation bill and passed by a simple majority. Second all the policy changes and program expansions would be treated like an ordinary bill. As such it would be subject to filibuster and amendment. But these parts of the bill would be popular enough to get the 60 votes, overcome a filibuster, and,what-do-you know: a health care bill.

Of course, there are still bumps in the road. If some senators are angry that the first bill squeaks through, they might not want to help to pass the second one, whether they like it or not

“No matter what happens, we’re going to enact health care reform by the end of the year,” Sentor said Schumer.

Major questions still remain unanswered: Will there be some form of public option in that bill?” Will the final form of the bill have some means of limiting the costs of the health insurance policies? Will people be protected from having their policies terminated if they become sick with a "high-treatment-cost" illness?

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*** c. 8-07-9
**** copied 8-08-09.