The House might be finished with reconciliation (for now), but the bill is still FAR from passing. Get ready to add some new words to your Congressional glossary.
The singular question of the moment: Harry Reid has the 50 votes he needs for final passage of reconciliation legislation, but can he and his deputies get through the reconciliation game unscathed? Not one word can be changed with the bill, or it must return to the House for another vote (we call this “ping pong”).
If history is any guide, this bill will hit a trap, get changed, and then will immediately be sent back to the House. Only ONE reconciliation bill has ever made it through this process CLEAN, that is, with no changes: the 2001 Bush tax cut package.
Indeed, former Senate Parliamentarian Bob Dove called reconciliation “a game,” and the winner is the side who knows the most about the rules.
It’s a game with Olympic aides on the Budget Committee.
The entire process was created by the Budget Act of 1974; revisions and additions were made over the years; there are additional restrictions created by this fiscal year’s Budget Resolution Democrats created. The resolution opened the possibility of using reconciliation on both health care and the student loan overhaul.
Reconciliation was originally intended for politically difficult deficit reduction measures – i.e., spending cuts &/or tax hikes. Short-handed, people refer to reconciliation measures as having to deal with dollars.
Reconciliation has been used 22 times since it was created, a majority of that time by Republicans.
All of this is reason for the very difficult rules process, outlined more below, so as to curb abuse of the process. Most specifically, the Byrd rule, named for the senator, was created in 1985 to try to keep senators from cramming a bunch of policy by that has no budgetary impact. The Byrd rule, quite simply, says the substance of any provisions in a reconciliation bill must be substantially weighted to THE BUDGET, and not to POLICY. (more below)
Here’s a guide on what to expect:
PRE-GAME ACTION
Both Democrats and Republicans have spent hours over the past few weeks with Senate Parliamentarian Alan Frumin and his small staff of lawyers. Remember, Frumin and his staff are experts on Senate rules, NOT the subject matter at hand, so Democrats & Republicans literally go before Frumin and argue their case – why they think something should not be ruled out of order (Democrats); why they think something should be stricken from the bill (Republicans). Frumin is the judge & jury.
Democrats have attempted, to this point, to scrub the bill of any challenges, but remember – Frumin can only give advice. He does NOT counsel or recommend changes.
So, as Bob Dove said, Democrats have to be experts in playing the game, asking the right questions.
THE PLAYERS
*MEMBERS
Aside from the GOP & Dem leadership teams, these are the people to watch.
• For Democrats: the manager of their bill will be Budget Committee Chairman Kent Conrad, D-ND (you’ll hear him most; he has huge power in this); other key players: Finance Committee Chairman Max Baucus, D-MT, and Health, Education, Labor, & Pension Cmte Chairman Tom Harkin, D-IA (he is THE lead on student loans).
• For Republicans: the lead, or manager, is Budget Cmte top Republican Judd Gregg, R-NH(you’ll hear him most); Baucus & Harkin counterparts, respectively: Chuck Grassley, R-IA, and Mike Enzi, R-WY.
• Wild card Dems: watch liberals Bernie Sanders, I-VT, Jeff Merkeley, D-OR, and Sherrod Brown, D-OH; as well as, endangered 2010 Dems, like Blanche Lincoln, D-AR.
• Wild card GOPers: watch the docs – Tom Coburn, R-OK, John Barrasso, R-WY; watch conservative climber Jim DeMint, R-SC, as well as John McCain, R-AZ – both outspoken critics of the bill.
*THE PARLIAMENTARIAN
Alan Frumin
A nonpartisan Senate aide; a lawyer.
Got his start as a precedents writer in the House.
Remember, Frumin is like a judge --- VERY aware of setting precedent with his decisions.
Age 63; a registered Independent.
**The Parliamentarian is selected by the Majority Leader, but most often, there is no change.**
1977 – Frumin became assistant Parliamentarian.
1987 – Sen. Majority Leader Robert Byrd, D-WV, installed Frumin as Parliamentarian, before Bob Dove took over when Republicans took the chamber.
2001 --- Sen. Majority Leader Trent Lott, R-MS, fired Dove and re-installed Frumin.
Technically, the Parliamentarian’s rulings are NOT BINDING --- he merely offers advice – but over time this has evolved to more of a final arbiter-type role. That said, the top officer in the chamber, called “the Presiding Officer,” CAN overrule the Parliamentarian. In this case, that officer COULD be Vice President Joe Biden. (The VP is, technically, the President of the Senate, though he rarely occupied that role. Not since fmr Sen.-turned VP Hubert Humphrey has the Presiding Officer overruled the Parliamentarian.)
**Former Sen. Parliamentarian Bob Dove has confirmed this power of the Veep.**
Budget Committee Ranking Republican Judd Gregg, R-NH, says Frumin is a “stand-up guy””; no bias; “totally fair.”
**LAST YEAR’S PROBLEM W/ FRUMIN:Last year, Republicans were enraged when Sen. Bernie Sanders, I-VT, introduced an amendment to health care that would have created a “public option.” Sen. Tom Coburn, R-OK, insisted that the Senate clerks read the 767-page amendment. Sanders then moved to withdraw the amendment. Republicans objected, saying unanimous consent is required to withdraw an amendment. Alan Frumin ruled in the Democrats’ favor. Coburn and Mitch McConnell, at the time, were furious.
2-PART GAME
*THE DEBATE
• 20 hours of debate equally divided: 10 hours Dems, 10 hours Repubs.
• You will see NO votes on amendments this time around, though it is allowed.
• You will hear debate on the bill, on all amendments, on motions and appeals.
*VOTE-A-RAMA
• This is the frenzied period immediately following the 20 hours of debate; it involves 2 minutes of debate (1 Dem; 1 GOP) followed by a 10-minute vote.
• This voting literally goes on for as long as members are standing to put forward amendments, points of order, etc.
• The longest Vote-a-rama that Budget Cmte experts could recall? The 2004 budget resolution creating reconciliation for a jobs & tax bill took 2 ½ days.
*FORCING A FINAL VOTE?
• Normally, Vote-a-rama comes to a natural end. The chair asks if anyone wishes to be recognized, and literally, no one stands.
• BUT – this time around, it is unclear if Republicans will attempt to offer unlimited amendments (basically – filibustering by amendment). Former Sen Parliamentarian Bob Dove said recently that Republicans can offer “as many amendments as they can write.”
• Democrats have said they could find NO precedent for unlimited amendments, so they have decided that at some point, the Presiding Officer (possibly Biden) will shut the process down, if they find that Republicans are simply being dilatory with their amendments (e.g., an amendment changes a previous amendment by a dollar).
• Dick Durbin, D-IL, on Face the Nation 3/21/10:
**“Republicans are going to try to use reconciliation, which was supposed to be a more direct process, to offer amendments to a breaking point. I certainly think that we’re ready to tackle that if that’s what they want to do.”
**“We’re going to deal with honest amendments on substance that meet the test of the Senate rules, but there’s going to come a point when the American people and the people in the Senate say ‘This really isn’t about substance. It’s all about politics. Now, let’s make a final decision, up or down vote.”
THE RULES OF THE GAME --- scalpels and axes
This is THE toughest part of the game, navigating the rules. There are traps everywhere.
There are points of order (basically, these are motions that try to either get pieces of the bill removed or to kill the entire bill --- think of these as either scalpels or axes) and amendments.
Republicans will literally go line by line thru the bill, says Sen. Gregg, and “any sentence where policy is more significant than the budgetary effect, I will raise a motion that it’s “Byrdable.”
AMENDMENTS
Members can offer amendments on any topic that touches the jurisdictions of the committees involved with this reconciliation bill: the Finance Committee and the Health, Education, Labor, & Pensions Committee. That’s a HUGE corral in which to operate – taxes, labor issues (like “card check”), immigration, Medicare, Medicaid, Social Security, etc.
These can be wicked-tough political votes.
BUT – it’s not THAT simple. The amendments are, like the entire bill, subject to points of order (see below) and MUST NOT create a deficit. Chairman Kent Conrad will have WIDE LATITUDE here in deciding whether or not something could create a deficit. Republicans will try to have a CBO price tag (a “score”) on their amendments to help their cause, but that will be a heavy lift for CBO.
POINTS OF ORDER
**There are 19, in total, created by the Budget Act, and there are still others that apply to any legislation in the Senate.**
1. THE “BYRD RULE”
You will hear this a lot: that something is “Byrdable.” This is probably the most important and often-used point of order.
Byrd, in the 1985 debate on COBRA (a reconciliation bill), created what’s now called “the Byrd rule” ---- the senator explained at the time that the basic purposes of his amendment to COBRA (amendment passed 96-0) were to protect the effectiveness of the reconciliation process by excluding extraneous matter and to preserve the deliberative character of the Senate by excluding from this fast-track procedure measures not central to deficit reduction.
The Byrd rule provides a point of order against anything that is far more weighted toward creating policy, rather than having a budgetary affect. (In Senate speak, the budget affect cannot be “merely incidental” to the policy.)
There is also a Byrd rule challenge when a provision, like possibly the Cadillac tax (see #2), contains recommendations relative to Social Security.
And a Byrd rule point of order lies against any provision that does not produce a change in revenue or outlays.
This is a SCALPEL point of order --- if the Parliamentarian finds in favor of Republicans, that is to say a Byrd rule point of order lies against the bill (Senate-speak), then that provision is dropped from the bill. It’s not devastating, but because there’s a change, the bill MUST go back to the House.
2. SOCIAL SECURITY AFFECT – A “310(g)” POINT OF ODER
Republicans have said they have found at least one instance that violates this point of order: the excise, or “Cadillac tax”.
This section of the Budget Act (310g) says no reconciliation bill may make recommendations to Social Security.
The “Cadillac tax”, according to Republicans, places a tax on high-cost insurance policies, which will then lead companies to buy cheaper policies, thereby resulting in increased salaries, which has an affect on Social Security revenues.
**This is a “trickle down” affect on Social Security.**
Democrats say they infuse the Social Security trust fund w/ more money. It is held harmless, so no point of order should lie against it. Republicans say that fact bears no point in the ruling.
**This should be a rough ruling for Frumin.**
This is an AXE point of order– if Frumin rules in favor of Rs, the bill is, essentially, torpedoed. It is sent back to committee (the Senate Finance Committee in this case), and the reconciliation protections are stripped from the bill.
3. GERMANENESS
Sounds stuffy, but it’s a big deal. Requires that all amendments deal with the subject matter of the 2 committees outlined previously (Finance & HELP).
4. ALLOCATIONS
This is simply any provision that exceeds the budget of the committees involved. This should NOT come up this time.
POINTS OF ORDER #5 THRU #19 ----- these points of order are not as likely to arise.
**BUDGET POINT OF ORDER**
This is another type of point of order that could affect any bill the Senate considers, so it is not counted among the 19 that are specifically delineated under reconciliation rules of the road.
Example: CADILLAC TAX ---- Reconciliation is supposed to have a 5-year budget window, but President Obama and Democrats have, to appease the unions, pushed the effective date for this excise tax to 2018. That’s OUTSIDE the budget window. So, you have the original Senate health care bill that starts the Cadillac tax in 2013. It assumes that $10 billion will be coming in for all these years: 2013, 2014, 2015, 2016, 2017. Democrats are trying to pass a reconciliation bill that then changes the start date to 2018; so for 2013 to 2017, you suddenly have a REVENUE LOSS.
WAIVING THE POINT OF ORDER: Should Alan Frumin find in favor of Republicans, Democrats have a chance to “move to waive the ruling”, but this take 60 votes – and Republicans have already said, in a letter to Harry Reid, they will stand united against votes to waive. So Reid is expected to LOSE every vote to waive.
WAIVING THE RULING OF THE CHAIR: Republicans can move to “waive the ruling of the chair,” if it’s not in their favor, but they, too, will need 60 votes – something they, in no way, have.
DELAYING TACTICS
There are very few available to the Minority, as reconciliation FORBIDS a filibuster.
BUT – in the past, members of the Minority have demanded a “live quorum call” – this merely instructs the Senate Sergeant at Arms (currently: Terrance Gainer) to compel all members to appear in the chamber. This STOPS debate, and it does not count against the 20-hours of debate time.
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