Recent reports indicate that House and Senate leaders are considering using reconciliation as a means to pass Obamacare (again).  The reconciliation process is a fast-track way to bypass the normal legislative process and to speed up consideration (and passage) of such a bill.  And The Hill reports that there are political reasons to go with reconciliation: “reconciliation is enormously appealing to Democratic lawmakers and the White House because it would let them finish up health care reform by a simple majority in the upper chamber, where passing major bills usually requires 60 votes.”  Clearly the liberals want to use reconciliation because it is the easiest way to get a bill to the President’s desk before Easter.  But if they use it on Obamacare, then they will completely toss aside the letter and spirit of reconciliation rules.

Reconciliation is the last step in the annual budgeting process and is optional.  It was originally designed in the Congressional Budget Act of 1974 to affect permanent spending and revenue programs in order to promote deficit reduction.  Reconciliation instructions call for reduced spending or increased revenues, and in 1985 and 1986 these instructions were further clarified with the Byrd Rule, which allows Senators to raise a point of order against extraneous matter that is included in the reconciliation bill.  This new rule includes 6 criteria to determine if legislative language is “extraneous” or not, and they all serve to further protect the purpose of reconciliation: to reduce the deficit.

In order to enact the Byrd Rule, the following the process has to happen:
1)    A Senator is recognized by the Presiding Officer and raises a point of order against extraneous matter in the reconciliation bill according to the Byrd Rule.
2)    Then, the Presiding Officer, generally acting in accordance with the Parliamentarian’s ruling, either acknowledges the point of order and strikes the legislative language as extraneous, or denies the point of order, and allows the language to stay in.  Both motions can be done without debate.

Now let’s apply this process to Obamacare.  According to the Congressional Budget Office (CBO), “federal outlays for health care would increase during the 2010–2019 period, as would the federal budgetary commitment to health care” in the Senate and House bills.  The bills both commit the federal government to over $2 trillion in spending.  Clearly, adding Obamacare to a reconciliation process would be quite contrary to the spirit of reconciliation (to reduce the deficit).

Normally rulings such as whether a point of order stands is done by the Senate parliamentarian, and enforced by the Senator acting as Presiding Officer.  But there is no rule against bucking the parliamentarian, assuming the parliamentarian follows the letter of the rule.  In fact, because the Vice President is the President of the Senate, he can reside as Presiding Officer himself and rule the legislative provisions of Obamacare in order, and leave the only recourse for Republicans to be to appeal the ruling of the chair.

Reconciliation was not intended to be the procedure of last resort when other means fail, and to do so would be a complete abuse of reconciliation rules.   Some may bring up other examples of massive legislation passed through reconciliation bills as proof that using reconciliation bills to explode government spending is okay, but past instances of wrongdoing does not make it acceptable to add $2 trillion dollars worth of health care spending acceptable for a bill that is supposed to reduce the deficit.  In this time of trillion dollar deficits, is nothing sacred?  Even the one bill that is tasked with decreasing the deficit?

But there is hope for conservatives.  The aforementioned Hill article quotes former Senate Parliamentarian Bob Dove on a recent Galen Institute conference call where Dove argued that health care reform and reconciliation are a bad mix. Dove explained that the reconciliation “process is not designed to do a lot of policy making and it would be very difficult to achieve a number of things that people want to achieve” in the health care reform legislation.  He points out that the reconciliation process does not limit amendments, leaving an opportunity for conservatives to delay passage by offering slews of amendments.  So, while the majority party may be able to control what language is allowed in the bill or amendments, the minority may still have a chance to delay passage with a strategic amendment strategy.