Not that kind of reconcile.

Time magazine has a good summary of a possible path to passage of the health care bill, which stalled after the Massachussetts special election last month resulted in the loss of the 60th vote for Senate Democrats to block a Republican filibuster.

Now that it is clear that yesterday’s big inter-party health summit won’t yield any breakthrough in the logjam, it looks like the Dems will have to go it alone, if they go at all. And any attempt at passing a bill will have to involve the parliamentary tactic called “reconciliation.”

From Time:

So what, exactly, is reconciliation?

Economist Keith Hennessey posted a comprehensive explanation of the process on his blog last year.

Reconciliation is a fast-track legislative process that allows a bill to pass the Senate in a limited time period, and with the support of only 51 Senators. A “normal” Senate bill can be slowed down by a single Senator, and blocked by 41 Senators. This is not true for a reconciliation bill.

The downside is that reconciliation “protections” apply only to a very narrow set of policy matters, all relating to changes in taxes, spending, or debt.

In the particular case of health care reform, some Senate Democrats are attracted to the reconciliation process because it would allow them to pass a bill even if there is unified Republican opposition, and even if as many as 9 Senate Democrats oppose the bill. It is, however, nowhere nearly as easy as these advocates might hope. They may be able to enact some parts of health care reform but not others…

A reconciliation bill is a special type of bill. The full name is a “budget reconciliation” bill. It’s purpose is to combine into one bill the work of multiple committees that are changing federal spending and tax laws. It is an incredibly powerful tool that bypasses (1) and (2) above, but only for very limited purposes…

To oversimplify, you can use a reconciliation bill only to change spending, taxes, or the debt limit. The process was used initially to facilitate deficit reduction — various Senate committees are each given a deficit reduction target, and are “instructed” by the budget resolution to produce bills that reduce the deficit by those amounts. The Senate Budget Committee then packages all those deficit reduction bills into a single bill, and reports it to the Senate floor for debate, amendments, and voting, all under a fast-track process that limits the minority’s ability to filibuster or kill the bill by amendment…

When the Senate Majority Leader starts debate on (a) reconciliation bill, there are strict limits, unlike for a normal bill:

* Debate and voting time is limited to 20 hours. There is a fixed back-end that guarantees a vote on final passage.
* Amendments must be “germane” to the bill. No going wildly off-topic.
* Amendments must not violate the Byrd Rule.

The first point means that a reconciliation bill cannot be endlessly debated (filibustered) or endlessly amended. This means there is never a need to invoke cloture to shut off debate or amendments, so the majority needs only 51 votes to complete and pass the reconciliation bill. In practical legislating, the difference between needing 51 votes and needing 60 votes is enormous….

The Byrd Rule

Now suppose the Senate (bill) also contains a section to create a new Green Hair Mandate, requiring that all Americans dye their hair green. This provision is in the reconciliation bill that comes to the Senate floor.

Senator Tompkins opposes the Green Hair Mandate. Or maybe she just thinks that it has nothing to do with the budget (she’s right), and that it therefore doesn’t belong in a reconciliation bill (also right). During the floor debate on the reconciliation bill, she raises a “Byrd rule point of order” against this provision: “Mr. President [of the Senate], I raise a point of order that section 542 of the bill violates Section 313(b)(1)(A) of the Congressional Budget Act of 1974.”

The Byrd Rule was created by Senator Robert C. Byrd (D-WV). Sen. Byrd is one of the strongest defenders of individual legislative rights for Senators, and he wanted to make sure the reconciliation process would not be abused to slip non-budgetary legislation past the normal Senate debate and amendment process. The Byrd rule consists of six tests. If a provision violates any one of these tests, it must be removed from the bill (upon the challenge of a single Senator).

In this case, Senator Tompkins asserts that the Green Hair Mandate provision does not affect federal spending or taxes, and is therefore “extraneous” to the bill and violates the Byrd Rule. In practice, the presiding officer of the Senate (whichever Democratic Senator happens to be in the chair) asks the Senate Parliamentarian for a ruling on this point of order. In this case, the Parliamentarian would agree, and would advise the chair that the Green Hair Mandate does not affect federal spending, taxes, or the debt limit, is therefore extraneous, and therefore violates one of the prongs of the Byrd Rule. The Chair would then rule to uphold the point of order, and section 542 containing the Green Hair Mandate provision would be removed from the bill without a vote.

Now suppose that Senator Sprague, who authored the Green Hair Mandate provision, wants to try to keep that provision in the bill. She could, before the chair rules on Senator Tompkins’ point of order, move to “waive” the Byrd rule: “Mr. President, I move to waive the point of order.” If 60 (!) Senators vote to waive the Byrd rule, then the provision stays in the reconciliation bill. In this context, waiving a point of order means that a super-majority of the Senate is saying, “We don’t care whether it violates the Byrd Rule, and don’t bother ruling on that question. We’re OK leaving it in the bill.”

This balances out rather well. If there are 60 Senators who vote to keep it in the bill, there would in all likelihood be 60 Senators who would vote to shut off a filibuster if the Green Hair Mandate provision were moved as its own freestanding bill through the normal legislative process. If the provision has nothing to do with the budget and more than 50 but fewer than 60 Senators support it, it will come out.

More explanations of reconciliation at Daily Kos, Wikipedia, and MSNBC.

Posted on February 26, 2010 at 2:36 pm
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