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.”