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 last 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.

Roger Collier was formerly CEO of a national health care consulting firm. His experience includes the design and implementation of innovative health care programs for HMOs, health insurers, and state and federal agencies.  He is editor of Health Care REFORM UPDATE.

9 replies »

  1. In a few years the democrats are going to have to say “no” all by themselves, no matter what. So why not kidnap those that will not hear “no” unless they too are hostage to political patronage and have to grovel for their healthcare like the CMS menagerie.

  2. “A few years from now, these same blue dogs are going to be faced with a choice between yet more trillions in spending as costs escalate or severe rationing,”
    Adam, you speak as if there is no problem with present healthcare inflation and affordability. If no hard decisions are made now about controlling costs where do you think we will be, “a few years from now”?
    The entire U.S. economy for the past 25 years has been “a castle on a foundation of sand” where Americans have been spending more than they can afford using debt instead of investment to finance their future. You seem to assume that doing nothing is a strategy for success and that we will have never ending disposable income to fund healthcare.

  3. MG: blue dogs (which admittedly haven’t had much bite so far) are concerned most of all about SPENDING. The bait-and-switch HC plan will require lots of upfront dollars in order to lure an unsuspecting public. So, Obama and the leadership are asking blue dogs to swallow a couple of trillion in new spending. And for what? A few years from now, these same blue dogs are going to be faced with a choice between yet more trillions in spending as costs escalate or severe rationing, which will infuriate constituents. Funny, the current system dosen’t create nearly as many political problems for centrist Democrats as the new, more ideologically pure one.

  4. Specter basically made this entire post largely meaningless by his defection late last week. Once the Minnesota Senate race finally gets out of the court and Franken emerges as the 2nd senator from Minnesota, the Republicans are going to be reduced to twiddling their thumbs until Jan. 2011. They can only play minor delaying tactics, smear campaigns, and hit and runs.
    All of the news networks covered the Specter thing in gory overkill last week but it was monumental. The only real battle now in healthcare reform (along with just about every other major bill or issue like Supreme Court confirmations) is going to be among the more centrist Democrats (including the Blue Dogs and those just recently elected in ’06 and ’08 House races) and Pelosi and her minions.

  5. If this process is done by reconciliation, the Dems will have created a castle on a foundation of sand. It will be the Democrat health care system, and when the cuts and limitations begin a couple of years down the road, the Dems will be blamed. At some point, the Republicans will regain control of the Congress, and they will then have a public mandate to undo the whole enterprise.
    If, on the other hand, this process is done the traditional way, by building a very broad coalition, the outcome will be far more durable.

  6. The government might re-form healthcare finance, but they cannot “provide” healthcare if the real provider is not on board. More and more real providers are dumping the CMS programs. Amen.

  7. Two thumbs up for Dr. Lippin, but I view “reconciliation” as bad news for patients and premium payers as it will mean the money stays in control of the system. Republicans have decided they need to oppose everything from the Obama administration because it’s their only chance at saving something from 25 years of wrong Republican ideology that low taxes for the rich, free unregulated markets, debt, and corporate bailouts will bring us all success. They are hoping Obama will fail and see no upside in supporting any part of his agenda.

  8. Interesting stuff, Roger. What I find interesting is how much macho posturing about “we are going to have our way with you” on this issue and how little actual content to talk about. What is it, exactly, that is so repugnant about the proposed changes to our health system that it has to be shoved in the minority’s and public’s ear? I would hope that the proposed policy changes would be so compelling and necessary this type of parliamentary thuggery would not be needed.
    I’d be amazed if 1) health reform ended up being less than 700 pages and 2, it did not increase the deficit. Whoever’s chairing the Senate when this comes to the floor will have to swallow hard to overrule the two objections that Roger mentioned.
    The Republicans seem to be getting angrier and angrier as the strip of beach on which they are cornered seems to be getting smaller. Unless they can connect with the hopes and aspirations of voters, not merely their fears, they could find themselves irrelevant not only on health reform but just about everything else.
    Driving away thoughtful moderates like Arlen Spector could feed on itself and make the party even smaller and less defensible. Time for a third party may be at hand.

  9. Thanks for the lesson procedural legislative matters.But my take is that the health care reform issue is “as ripe as Georgia peach in the hot summer sun”. Obama and his team knows it!
    Basically the stars have finally aligned.
    Furthermore the Republican party is in real time meltdown.
    The only groups I see remaining standing to resist health care reform are those who have profiteered from our terribly broken system.
    Dr. Rick Lippin