RECONCILIATION—OR WAR?

Reconciliation. It’s an odd word for something that could precipitate a knock-down, drag-out fight in Congress, but the process that Senate Democrats agreed this week to adopt if health care reform legislation isn’t passed by October 15 was originally intended to reconcile differences among House and Senate budget bills. What the process does is to replace the usual Senate requirement of a three-fifths majority—needed to end a filibuster, but also consistent with Senate traditions of compromise—by a simple majority.

So, with the Democrats having decided on an aggressive approach (Republican Senator Michael Enzi has called it “like a declaration of war”), what are the implications for the reform legislative process (beyond making Congressional Republicans mad)?

First, is October 15 an absolute drop dead date?

The answer is, not quite. Not only does the reconciliation process provide for up to twenty hours of debate (which could move the deadline out by just two or three days), but Senate Democratic leaders might prefer to continue negotiations on a reform bill if they felt they were close to the magic sixty votes. This would require the vote of at least one Republican, as well as the only Independent (Joe Liebermann), but would allow Democrats to claim bi-partisan support—even if only a little.

Second, will the threat of reconciliation result in the refusal of Republicans to compromise on reform language?

This is the big gamble that the White House and Senate Democrats are taking. No one likes to negotiate with a threat hanging over their head, and most Senate Republicans are already strongly opposed to much that is being proposed from the other side of the aisle. The risk is that Republicans who might be willing to support a reform bill in some form—for example, the handful who have signed on to the Wyden-Bennett bill—could be so alienated that they too will be unwilling to compromise.

On the other hand—and presumably this is Democrats’ hope—at least some Republican senators may prefer to negotiate in order to try to protect the interests of their business, insurance, and medical backers. Grudging support of a reform bill that they have made more tolerable for their constituents—and that will get fifty-one votes in any case—may seem like a rational strategy.

Third, will the reconciliation process do what Democrats hope it will?

Maybe, but there’s more to the process than just changing the majority vote rules. A key part of the reconciliation structure is the so-called “Byrd rule,” named for long-time (fifty years) Senator Robert Byrd. The Byrd rule, part of the Budget Act, provides a point of order in the Senate against extraneous matter in reconciliation bills. Determining what is extraneous can be a procedural quagmire requiring resolution by the Senate Parliamentarian.

To make matters even more tricky, the Byrd Rule and other Budget Act rules, including a prohibition on provisions that would cause the deficit to increase, may only be waived by a three-fifths vote—potentially bringing the issue full circle. Thus, the result of stretching the reconciliation process too far beyond its original intent can be passage of the legislation shielded against filibustering—but with the original bill emasculated by the deletion of the “extraneous” material.