Tuesday, March 2, 2010

Can They Pass DonkeyCare By Reconciliation?

The big question over the past few days has been whether or not the Democrats can pass their health care reform creature using the reconciliation process. Answer: It’s not clear. Indeed, the process will be much more difficult that people realize.

1. The Non-Filibuster Filibuster

We all know the Republicans can’t filibuster DonkeyCare if the Democrats go the reconciliation route, right? Actually, that’s not entirely true. While debate would be limited to only 20 hours, there is no limit to the number of amendments that can be offered to slow the process down. Republican Sen. Judd Gregg (R-NH) pointed this out in a letter a few months back, which the Democrats called “a manual on obstruction.” Sen. Jim DeMint (R-SC) has promised to offer enough amendments to delay any vote until November.

2. The Byrd Rule

Any reconciliation attempt will run smack dab into “the Byrd Rule” (Section 313(b)(1) of the Congressional Budget Act). The Byrd Rule is a Senate rule that determines what can and what cannot be done through reconciliation. If any part of the legislation does not satisfy the six part test created by the Byrd Rule, then that portion of the bill can be knocked out of the bill as the bill passes through reconciliation.

Of particular interest, the Byrd Rule provides that elements in bills that are not strictly designed to have a budget impact can be removed on points of order. Many believe this would prevent the Democrats from getting their abortion language through this process, and their attempts to impose requirements on private insurers. Without the insurance provision, this is nothing but a health care tax bill.

There is one caveat on this, however. To achieve this, the Republicans need to raise point of order motions against the individual pieces. These are decided by the Senate Parliamentarian. But Joe Biden could overrule the Parliamentarian. However, he would need to do so in direct opposition to parliamentary procedures and likely CBO conclusions. In other words, Slow Joe not only would need to lie, he would need to accuse the CBO and the Senate Parliamentarian of incompetence. And while worthless Joe is certainly shameless enough to make himself into a hated national joke, it is questionable whether many Democrats would be comfortable following his lead.

There are other exception, but they must be certified by the Senate Budget Committee chairman AND the ranking minority member, i.e. Mitch McConnell. So there is no chance of that.

4. Reconciliation Expires.

Right now, many on the right fear the Democrats will willingly sacrifice themselves with the idea that once a bill like this is passed, it will stay passed, i.e. the Republicans won’t have the nerve to repeal it. Thus, they win by shifting the country permanently to the left. This is wrong.

First, it totally misunderstands human nature. Current politicians will not sacrifice their careers so that their party can make ideological gains in the future. Indeed, as Rep. Jason Altmire (D-Penn) noted, “People who voted YES would love a second bite at the apple to vote NO this time, because they went home and got an unpleasant experience. On the other hand, I don't know anybody who voted NO who regrets it.” That hardly sounds like wagon circling.

But more importantly, everyone is forgetting that reconciliation bills expire. That’s right. Whatever the Democrats pass would need to be renewed (usually in either five or ten years), or it will repeal itself. It will take the Democrats more than ten years to recover from this debacle, which means renewal ain’t happening. Thus, when Democrats start to realize that they are being asked to sacrifice their seats for a half-bill that will expire a few years after they are cast out of office, Pelosi's support will collapse.

5. Pelosi doesn’t have the votes.

Finally, as I noted the other day, several Democrats are now starting to waver, and it’s fairly clear that Pelosi doesn’t have the votes to get this out of the House. With Pelosi losing four of her 220 votes already, she is now one short, barring further surprise. They have now announced that nine Democrats who voted NO may reconsider, but they have offered nothing solid to date. Moreover, this still only leaves Pelosi with a five vote margin before the other 216 Democratic YES's weigh in.

And Bart Stupak has indicated that his band of supporters cannot live with the Senate bill, and that the abortion language is just the first problem they see. Others are making similar noises about their pet peeves as well.

Further adding to the suspicion that Pelosi lacks the votes, she is now demanding that the Senate go first on the reconciliation process before she tries to pass this bill through the House. That's a pretty clear indication she lacks the votes.

Finally, let me finish with the very wise words of Republican Representative Marsha Blackburn (R-TN), who notes that: “If they had the votes, we wouldn’t have had the summit.”


Writer X said...

If they had the votes, wouldn't they have done it already? I think Blackburn said it right!

Thanks for clarifying this mess.

patti said...

I always look forward to you making things crystal clear. well done. makes me breath a little (just a little) easier.

AndrewPrice said...

Writer X, You're welcome! I think that does clarify it. Pelosi can talk all she wants about having the votes, but when she refuses to act on that, it becomes kind of clear that she's just puffing.

AndrewPrice said...

Thanks Patti! This does kind of change the current debated doesn't it? It will be interesting to see what happens next.

ArmChairGeneral said...

If they passed this they would be saying goodbye to their offices.

EricT said...

I hope you're right about Pelosi not having the votes. I think you're right, but I just hope the Dumocrats don't decide to risk everything on a big splash.

AndrewPrice said...

ACG, I think that's the problem with the thinking that the Democrats will go this course.

They've really let this devolve to the point that voting for this thing will be career suicide.

I think Pelosi would still love to ram it through -- it fits her ideology and she's in a safe district. But for the 200 or so Democrats who are not in safe districts and who aren't as ideological as Pelosi, this has professional suicide written all over it. Add in that their efforts would be wasted when the bill expires, and it begins to look like pointless suicide rather than noble sacrifice.

AndrewPrice said...

EricT, Welcome. I agree with you. There is a strong chance that they will simply try this no matter what, though it really does appear that they just don't have the votes. . . and the odds are that their ability to get the votes will start to fade more and more every day.

Still, that's no reason to be complacent, because they could still of a lot of damage if they get this through.

LawHawkSF said...

Andrew: Just when you thought it was safe to go back into the water . . . . I genuinely don't think they can pull this off, no matter how hard they try. Still, until I see them throwing the dirt over the casket, I'm not going to relax completely. There is one possible ploy left that they could try (even though I don't think they will, and if they did try, they'd probably fail).

Still, they are determined to get something out of this by hook or by crook, so I'll link back to my January 22 article for reference: We Don't Need No Stinking Reconciliation. If we suddenly see them taking two seemingly inconsistent votes, we'll know what they're up to. It's a last feeble attempt to avoid the Byrd rule that their own hero and former Grand Kleagle came up with.

I'm completely with you on your conclusion, though. I think the Republicans will remain united, wavering RINOs have gotten the message, and blue dog Democrats aren't going to throw themselves on their swords for Obama or Pelosi.

BevfromNYC said...

I agree with all you say, but I am still going to hold my breath until this zombie of a bill finally dies.

On a side note - Interesting doings in Texas primary today.

Tennessee Jed said...

A very nice post, Andrew, but I am with Bev. Healthcare is THE holy grail for Dem's and they are like a ratty little terrier or the Chinese coming over the hill in Korea; they just never seem to stop trying. As I said recently, I'll breath easier when the good guys control both houses. That said, all that you say is certainly cause for optimism.

Joel Farnham said...

Here is a thought, Could it be that the rank and file Democrats in Congress really don't want this type of goverment takeover?

So far, it has been politics as usual in Congress. People accusing back and forth ad nauseum. But something is amiss. I am starting to think, reluctantly, that some of these Democrats are being stubborn out of principle not just thinking about their chances in November. I mean some of these guys have got to know their re-election chances are nil.

Why? Why not give the electorate the digitus impudicus and vote it in? Yes, I do know, most of them are pragmatic, but not all of them. Some of these Democrats won't vote for a goverment takeover, no matter what.

AndrewPrice said...

Bev, I agree with you -- we really aren't safe until this thing dies.

Give us an update on Texas if you get the chance! :-)

AndrewPrice said...

Jed, Thanks. There certainly is cause of optimism in that it appears they just can't get there from here. But, like you say, they will keep trying because this is their Holy Grail. So people need to keep calling the Congress and attending rallies and just generally making this as hard as possible on the Democrats.

And you're right, until the Republicans take back the entire Congress, this always remains a threat.

AndrewPrice said...

Joel, Very astute. I think that in politics, people tend to view the other side as having a singular motivation. The reality is that each side has people that span the political spectrum. Right now, the Democrats are dominated by their left flank, but that doesn't mean that all of the rank and file fall into that line of thought.

I do believe that some Democrats are better defined as old-school liberals, who believe in limited government, but do want to it to help solve problems. They can't see this bill as anything good, though they may agree with some pieces.

I think the problem with this bill has been all along that the hard left (i.e. Pelosi and the leadership) simply decided they were going to ram through the biggest, most far left thing they thought they could force on their own members. That's come back to hurt them because it alienated the public and their method of ramming it through cost them the flexibility they needed, and it made enemies.

AndrewPrice said...

Lawhawk, I think that every day that this thing drags out, they are losing more and more people. If they wanted to do this, they had to do it fast before people had a chance to think about it. But I truly don't believe they had the votes they needed.

Joel Farnham said...


I think of it as more like the High Command in Hitler's Bunker. Some of them were willing to blow up Hitler because of principle.

I am beginning to believe that Pelosi is going to be voted out of the leadership after November. I don't think she will be totally stripped from power, but I don't think she will have this much sway over her fellow Democrats.

AndrewPrice said...

Joel, Excellent analogy, and you may well be right. If she either loses the majority or gets really close to losing the majority, I could easily see a leadership challenge. The only question is going to be if enough "moderates" are left after the election to vote her out?

BevfromNYC said...

This just in - Barry is considering adding in some of those Republican ideas to the zombie..er...his healthcare proposal -


Doesn't indicate which ideas, but he'll let us know tomorrow. Another indication that they don't have the votes yet. {{still holding my breath}}

Joel Farnham said...


Are you sure? Do you think the Liberal Dems will still be happy with her? She got in by a squeeker. I don't know if she can duplicate it.

They might be doubly unhappy with her. Losing the majority and NOT getting any of the Democrat plank through this last Congress. She has made quite a few enemies close to her to get her position. So far, all she has to show for it is a Private Plane loaded with alcohol.

AndrewPrice said...

Joel, Honestly, I'm not sure in either direction. She definitely has made a lot of enemies, even on the left, and she certainly hasn't gotten them anything. I guess we'll have to wait and see.

On the one hand, I'd love to see her dethroned. On other other hand, she's been our strongest asset.

BevfromNYC said...

I just read that according to San Fran Nan, the new healthcare bill will be "much smaller". Do you think they just went to a smaller font size or what?

AndrewPrice said...

Bev, I saw that, and I think your instincts are right -- if he had the votes, he wouldn't need to court Republicans.

I doubt he'll get any though. I think they've made this bill so poisonous that it's highly unlikely any Republican could support it now.

But, like you, I will hold my breath!

AndrewPrice said...

P.S. LOL -- smaller format! I don't know what she means. I've been wondering lately if she isn't just choosing words because they sound good.

LawHawkSF said...

Here in San Francisco, we refer to Pelosi as "The Lemming Leader." And she doesn't even have to follow her fellow Democrats over the cliff.

StanH said...

Reconciliation, though convoluted, and was never designed to deal with something as large an all encompassing as healthcare, however, I still think they will try it. As Jed said, this is their Holy Grail the ultimate power grab, a Bolshevik’s wet dream. Though a Kamikaze mission…I still say they get something through.

AndrewPrice said...

We'll see Stan. Nothing is certain in either direction. All we know for sure is that it's going to be close.

CrispyRice said...

Thanks again, Andrew. A very enlightening summary!

AndrewPrice said...

You're welcome Crispy. I hope it helps!

patti said...

andrew, i link'd! this article today.

AndrewPrice said...

Thanks Patti!

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