Time to Reconcile with Reconciliation
Just as everyone expected, today’s bipartisan healthcare summit did not alter the basic political landscape facing reform. Both parties showed a united front, and all that’s left to do is for the party with more votes to pass identical legislation in both houses of Congress for the President to sign into law. It’s not clear who the crucial votes are in the House, or what they want, as Jonathan Bernstein has noted, so it’s not clear if the summit reassured them in any way. But as soon as the Democrats have thoroughly braced themselves for victory, it will be theirs.
There’s just one question left to resolve. Who goes first, the House or the Senate? That is, must the House first pass the Senate bill (H.R. 3590) before both chambers pass a reconciliation bill to patch the Senate bill up? A lot of people think that’s the only option. After all, it would seem to be some sort of procedural paradox to pass a reconciliation bill to amend the Senate bill before the Senate bill itself has been passed. But, says David Waldman, there is another way. Waldman contends that Congress can first pass the reconciliation bill but hold it—that is, not send it to the President for signature—until after HR 3590 has been passed by the House and signed by the President. The trick is to recognize that neither bill “does” anything until it becomes law, and it doesn’t become law until signed by the President (or, if he doesn’t sign, until ten days, not counting Sundays, elapse after the bill is presented to him). So the “paradox” would arise only if the President were to actually sign the reconciliation amendments to HR 3590 before signing HR 3590 itself.
Jeff Davis, writing at The Treatment, has a good reconciliation primer for health reform, also suggesting that the bills could be passed in any order.
The major obstacle with a reconciliation bill, in whatever order, is compliance with the Byrd Rule (2 U.S.C. 644), as Tim Jost explains here:
Before the rule on the reconciliation bill was reported in the House, the substitute amendment would have to be carefully vetted with the Senate Parliamentarian to make certain that it would comply with the Senate reconciliation rules, which are much more complex than those in the House. In particular, it would need to comply with the “Byrd Rule,” 2 U.S.C. 644, which provides that an “extraneous” provision in a reconciliation act can be challenged. A provision is extraneous under the Byrd Rule if it does not produce a change in outlays or revenues, is inconsistent with the committee’s instructions, outside the jurisdiction of the committee that submitted it, produces a change in outlays or revenues that is “merely incidental” to the provision, increases the deficit for a fiscal year beyond the “budget window,” or changes Social Security. If a challenge to a provision is upheld by the Senate Parliamentarian, it must be overridden by a 60 vote margin. According to Davis, any provision must also be upheld by a 60 vote margin that is successfully challenged as increasing the deficit over a five- or ten-year period, increasing the deficit by more than $10 billion in any one year over the next five years unless covered over the five year period, or increasing the deficit by more than $5 billion in any ten year period over the next 50 years. The CBO will need to score reconciliation amendments to assure compliance with these requirements.
(Emphasis added.) The final difficulty, then, is to determine whether compliance with the Byrd rule is possible if the reconciliation bill does not propose to amend current law, but only the hypothetical law of HR 3590. The CBO score, for example, might not strictly satisfy the rules with respect to existing law. Then again, it might. My understanding is that it all comes down to the Senate parliamentarian1, and the Senate parliamentarian doesn’t do hypotheticals. So there’s only one way to find out if it will work: try it.
Or, the House can take a not-so-blind leap of faith and actually pass the damn Senate bill, then pass the reconciliation patch when HR 3590 is law. Would that be so hard?
- However, it is technically possible for the Vice President, who is of course the president of the Senate, to overrule the parliamentarian. [↩]
Comments
2 Responses to “Time to Reconcile with Reconciliation”
Leave a Reply
About Me
- I write this blog.
-
My twitter feed:
[...] current President pro tem, fittingly, is Sen. Robert Byrd, author of the Byrd Rule. As I’ve mentioned before, the Byrd Rule sets the standard for what is “out of order” (i.e., impermissible) in [...]
I can sympathize though with the House’s reluctance to trust the Senate to hold up its end of the deal. I believe right now there are over 200 bills passed by the House that are waiting to be addressed by the Senate. Doesn’t inspire confidence. I liked the idea of getting 50 Senators to sign a letter promising to pass the reconciliation fix, which would seem to give them more incentive to actually do it when it comes time.