As noted in several sources (such as the Wall Street Journal), Democrats definitely do not seem to care that the American public hates their ideas about healthcare. So they are strongly considering an end run around us.
The idea is this: right now, the Healthcare Reform Bill has little chance of surviving a vote in the Senate. The votes are not there, so the Republicans can filibuster the debate with conversations about Hello Kitty unless the supporters can muster 60 votes to stop the filibuster. But the little-known reconciliation process could allow the Democrats to pass the bill in the Senate with only 51 votes. And the supporters might have 51 votes.
Therefore, the plan is to pass the expensive portions through reconciliation, rather than let the Republicans kill it via filibuster.
What is the reconciliation process? The procedure, and its name, started in 1974 (but first applied in 1980) was a way to pass any legislation that could have an unplanned effect on the budget: the goal is that passing the bill allows you to reconcile the deficit or surplus. The theory is that by not using it, you wind up passing a budget that does not include the legislation in question; then, later, when you do pass it, the cost impact skyrockets your deficit. It’s actually a budget concept that lends itself well to passing legislation you don’t want filibustered. Both sides have used it as such, and it is used at least once a year.
The trick here is that reconciliation rules limit discussion on the bill in question to 20 hours of debate—that takes the teeth out of a filibuster counterattack. So all you need is 50 votes plus 1 to pass the bill.
The premise is that healthcare reform will have a tremendous impact on our deficit, so therefore it needs to be passed so that its terms—which affect national budgets for the next few years—can be incoporated into the 2010 fiscal budget. Clever, eh? Kill the filibuster, and squeak the bill through the Senate. And then the House of Representatives will (with a substantial Democratic majority) almost certainly pass it into law.
The Democrats believe this is justified because so much of the bill involves funding the enormous expense and expanse of the bill. Pass those under reconciliation procedures (since they impact the budget), and you’re home free. The rest of the bill won’t matter since the most dangerously socialist elements are now law. We get that stuff in later when we have time to deal with any filibusters.
Despite portrayals in the media as a little-used plan, a secret loophole, or a recent strategy, the use of reconciliation is a common strategy in many large bills (even before there is concern about a lack of votes). Fact is, the Democrats have been talking about reconciliation of the health care bill since April—before we even had the bill. Makes you think they knew something stinky, eh?
The problem is this. Items not affecting the budget have to be stripped out, and unfortunately, that’s basically the whole public option and market exchange. To get that stuff passed later risks the reality that the Republicans and many Democrats seeking to keep their jobs will vote against it.
As far as reconciling the first part, even many Democrats are hesitant to pass the expensive parts but lose the rest since it would accomplish little. What good is winning the reconciliation battle if we lose the war?
Even Robert Byrd is adamant that reconciliation not be used to reform healthcare, as it leads down a slippery slope. Byrd is important here, because he developed the now-called Byrd Rule, that sets six conditions by which a provision can be excluded from reconciliation. This was intended to prevent abuse of the reconciliation tactic; otherwise, what stops anyone at anytime using this trick to avoid filibuster? The six conditions simply demand that if any provision of the bill is not about the budget, deficits, surpluses, or funding, then the whole package is thrown out.
Good news for Democrats: all they have to do is remove every provision of HR 3200 that has nothing to do with money, right? Great news for Republicans: good luck finding every provision that has nothing to do with money. The problem is, Byrd well knows, that the concept of provision is not and has never been legally defined! All the GOP has to do, in theory, is point to something in the bill and say “this violates the Byrd Rule.” And the whole thing is over.
As we have seen in our reading of HR 3200, the entire package is a vomit-pile of cross-references, implications, undefined terms, and organizational procedures. Determining what consitutes a reconciliation-eligible provision will be nigh impossible.
No wonder Democrats aren’t too excited to try this trick. Make one mistake—and God knows they have made so many thus far on the contents of the bill—and the whole thing is tanked. Will they use it? Will it work? Is this good news or bad?