The Senate Parliamentarian is the unassuming man who you often see on the dais, giving advice on proper procedure to the presiding officer when the senate is in session. He is Alan Frumin and he is the individual charged with making sure that protocol and procedures are not abused. That job includes insuring that legislation is pieced together and passed properly. Passing a bill through “reconciliation” is just the type of thing that Alan Frumin could have lots to say in if Democrats try to use reconciliation inappropriately. At the moment, there is widespread speculation which indicates that given some aspects of the health reform bill, the use of reconciliation might not be applicable here. The reason that conclusion could be reached is based on a rule created by North Carolina Democrat Senator Robert Byrd of whom the rule is named after.
To understand what exactly is at play here, you must understand what legislative “reconciliation” is and why it is being considered by Democrats ranging from President Obama to Senate Majority Leader Harry Reid, and House Speaker Nancy Pelosi.
Also called the “nuclear option”, under reconciliation, the Senate could pass health care reform with a simple majority of 51 votes, instead of the usual 60 votes that is normally needed to overcome any attempts to filibuster. With doubt over any republican support for the liberal reform proposal, using this process might be the only way for government health management and care to get passed.
In the real world, reconciliation means the ending of conflict or a return to friendly relationships between disputing entities. But Washington, DC is hardly the real world. Only in Washington can, not raising taxes, be considered a tax cut and only in Washington can “reconciliation” be an undesirable process. Like anything else that government bureaucrats have a hand in, the legislative reconciliation process is hard to explain but essentially, it bypasses any threatened filibusters by limiting debate to 20 hours and designed to make it impossible for a minority to block the passage of critical budget or deficit reduction legislation. Note that I specifically indicated “budget or deficit reduction legislation”. That is because the process was originally designed to reconcile the many different versions of bills that inevitably come out of several different Senate and House committees. The many versions coming out of these committees could spark endless debates, so reconciliation was established to allow legislation effecting the budget to hit certain spending targets by certain deadlines. To achieve that, reconciliation instructions are written into the budget bill and it directs certain committees to staple all the different stipulations in all the different versions into one bill. From there, it goes to the Senate floor for debate that is limited to no more than 20 hours which is followed by a straight up or down vote.
But it was misused. At least, Robert Byrd thought so. He saw that a host of issues not relevant to the budget were being snuck into bills under the cover of the reconciliation process. Instead of being used to reconcile the budget or cut deficits, it was being used to undermine the minority by taking filibusters off the table. In many instances, some senators pushed their entire legislative agenda through by using the reconciliation process. So in 1985, the Byrd bill was adopted. It greatly restricted the use of reconciliation to only that which is considered appropriate. According to the Byrd rule, legislation is unfit for reconciliation if it produces changes in outlays or revenue which merely relate to, or accompany, something in the non-budgetary components of the provision. Essentially it comes down to this; something such as raising taxes can be passed by through reconciliation but something such as hate crimes legislation can’t. Under the Byrd rule senators can object to any portion of a bill being passed under reconciliation by declaring it has nothing to do with the budget or deficit. This argument can be made even if some provisions in question have effects on the budget that are only “incidental in nature”.
On the health reform package, such objections could force the Senate Parliamentarian to rule out many reforms in the Democrat’s bill before it can be voted on. Could aspects of the bill which change hospital delivery systems or effect preventive treatment measures be considered unrelated to the budget? Are provisions which regulate insurers “merely incidental” to government revenues? Would you consider incentives for preventive treatment to be directly to the crafting of a federal for the fiscal year? What about mandates? If the Democrats go nuclear, it will be possible for Republicans to have many of the provisions in the current billed, stripped out of it under the Byrd rule. What a strange twist of fate that would be, wouldn’t it? The Democrat’s decide to go it alone and in doing so, a Democrat’s procedural rule ends up emaciating the Democrat’s health management and control reform bill.
That would be so ironic. I mean, A Democrat bill that would screw so many Americans, ends up getting screwed by a Democrat rule. Now that is justice.
Of course if the Democrats do decide to go nuclear, Alan Frumin, the Senate Parliamentarian, will be the man who could become responsible for rulings that he will be forced to make because of Republican objections. He could rule either rule some of the legislative initiatives in the bill are non-budget-related or that they are. Either way, by trying to pass a strictly partisan bill, on their own and through reconciliation, Democrats will be making the quiet, modest Senate Parliamentarian, the most powerful person in the land. If they choose to go it alone on healthcare, they will force Republicans to apply the Byrd rule to each and every provision in the bill and who knows what Alan Furmin will strip out of it. The possibility caused Tennessee Senator Lamar Alexander, the chairman of the Senate Republican Conference, to say of the Senate Parliamentarian, “To thrust him into the healthcare bill so he’s virtually writing the bill is unprecedented and unacceptable”
If Democrats do use reconciliation as a weapon, Republicans will be prepared. The plans for fighting this battle are being drawn. Senator Tom Coburn is assessing the field of play that the nuclear option will place both sides on. Senators like Jon Kyl of Arizona are also readying for a fight on the field of legislative reconciliation. He has previous experience based on precedent setting objections to the use of reconciliation regarding tort reform.
Back in April, Senate Budget Committee Chairman Kent Conrad said that reconciliation is not likely to be needed to advance health care reform legislation and he pointed out that he “sincerely” believes Democrats will use reconciliation only as a last resort, adding that reconciliation only exists “as an insurance policy”. In response to that, New Hampshire Senator Judd Gregg, who is the ranking Republican on the Senate Budget Committee, angrily declared to Congressional Quarterly “Gun’ would be more accurate than insurance policy”. He then added “I fully agree that the U.S. health care system needs significant overhaul, but using the budget reconciliation process is not a constructive way to accomplish it.” He added that “reconciliation would completely shut out the minority from having any input whatsoever.” In my estimation, in the end, reconciliation may not be necessary. Olympia Snowe and Susan Collins, the Maine Morons, the Republican Pigeon Sisters who have both indicated a willingness to accept the partisan bill under almost any conditions, will provide a filibuster proof margin, thereby making the nuclear option unnecessary. In any event, if the Democrats do find that reconciliation is the only chance they have at getting the bill passed and use it, it will bring us down a long road and at the wheel will be Alan Frumin, an unelected, neutral, official whose job is dedicated to neither Republicans or Democrats but to the Senate as an enduring institution.
But one thing should be noted. In the past, Senate Parliamentarians have coincidentally been fired after making too many procedural rulings that did not go in the majority’s favor. So as non-partisan as Alan Frumin is, job security, especially during these times of high Obamaployment could become a factor here.
For a closer look at the rules regarding “reconciliation’ visit the following link to the Legal Information Institute’s U.S. Code collection by clicking HERE
And the House of Representative’s Committee Rules regarding the reconciliation process HERE: