Senate Democrats contemplating a controversial parliamentary maneuver that would allow them to pass key provisions of a health care bill with just 51 votes are exploring an option that would not require the bill to be split into two.
Should Democrats use the procedure known as reconciliation, the assumption has been that certain elements would have to be stripped out of the bill and passed separately, because a Senate rule known as the Byrd Rule only allows reconciliation for legislation that costs or raises substantial amounts of money. That would include the expansion of Medicare or Medicaid, revenue-raising tax provisions, and even the creation of a public health insurance option, depending on how it's written. But non-budget-related items -- most of the new insurance industry regulations, for instance -- would presumably be put in a separate bill that would go through regular order -- and would therefore need 60 votes to overcome a filibuster.
Passing two separate bills, however, is seen by some Democrats as too much of a lift for the slow-moving Senate.
But there's another alternative, according to Martin Paone. Paone, who served as a Democratic Senate floor staffer for 29 years, has been advising Democrats as they craft their legislative strategy. He proposes that Democrats try to get 60 votes to waive the Byrd Rule -- which would then allow the inclusion of those non-budget-related provision in one bill that would require only 51 votes for final passage.
What's the advantage? And why would any senator who opposes the entire bill vote for such a waiver?
The answer can be found in the specific proposals that would be in violation of the Byrd Rule. Mostly, those would include reforms to the way the insurance industry operates -- for example, a ban on using preexisting conditions to deny coverage, or a law that insurance companies can't drop a client just because they get sick.
Those are wildly popular reforms. Getting 60 votes to support those policies is much easier than getting 60 for a public health insurance option, which Republicans and some conservative Democrats oppose.
Conservative senators such as Mary Landrieu (D-La.), Ben Nelson (D-Neb.) or Olympia Snowe (R-Maine) could, in voting for a Byrd Rule waiver, put themselves on the record as being in support of popular insurance industry reforms, while still opposing final passage of the bill -- a political strategy that may be appealing to them.
Paone was involved in the effort to push a health care bill through Congress 15 years ago. Democratic leadership at the time met repeatedly with the Senate parliamentarian, he said, asking for a judgment on whether particular parts of the bill would be ruled as violations of the Byrd Rule and struck out. Piece after piece, the parliamentarian told the Democrats, would be ripped out, leaving little of the health care reform effort intact.
"This, this, and this wouldn't score," Paone recalls parliamentarian Alan Frumin saying, in a reference to whether a net dollar figure could be attached to a measure. "We couldn't do it."
Democrats made the judgment in 1994 that getting around the Byrd Rule wasn't politically possible. The biggest impediment was Bob Byrd himself. The Democrat from West Virginia is fiercely protective of Senate rules and tradition and was a much more powerful presence. Today, his poor health and advanced age have reduced his power, making him less of an obstacle to overriding the rule he created.
But the Democrats in the Senate are also a generally more progressive bunch than they were in 1994. The 102nd Senate caucus included 58 Democrats -- two fewer than today -- and many more southern and conservative members.
Reconciliation may seem like an esoteric parliamentary maneuver -- which it surely is -- but it is also increasingly on the minds of progressive voters who want to see reform passed.
And moving the entire package through at once overcomes the legislative difficulty of getting two separate pieces done. Sen. Kent Conrad (D-N.D.), long a foe of using reconciliation, suggested Sunday that passing two separate bills would be difficult. "I think it's very unlikely ... for that to work," Conrad said on CBS's "Face the Nation." "When you look at the legislative agenda, it's very hard to see how you put two packages through and coordinate them well."
Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.), said that while Democrats continue to prefer a bipartisan approach, "patience is not unlimited and we are determined to get something done this year by any legislative means necessary."
No decisions have been made, he said. "We cannot and will not be able to determine what we are doing until we determine whether we are doing it with or without Republicans. We will not know that until September 15th or so at the latest," said Manley. "While there are certainly Republicans of good faith negotiating, it's evident that House and Senate Republican leadership are determined to stop any health care reform efforts this year."
Under the one-bill strategy, the legislation would be written front to back with an eye toward getting a score from the Congressional Budget Office. That kind of legislative crafting takes time, but Democrats have it: budget reconciliation, by statute, can't be attempted until October 15th, a month after the Senate Finance Committee's (latest) deadline to come to some bipartisan agreement.
There's a policy upside, too, as far as progressives are concerned. In order for a measure such as the public option to "score" and be in line with the Byrd Rule, it would need to cost or save a substantial amount of money over five years. Advocates of a robust public option would then be able to argue that it needs to be generously funded in order to stay in the package and away from the Byrd Rule's razor.
Waiving the Byrd Rule is not without precedent. "It's happened more than once, both in 1990 and 1997," said Bob Dove, a former Senate parliamentarian, who started his career as an assistant parliamentarian in 1966 and left in 2001.
Dove, in an interview with the Huffington Post, concurred with Paone's analysis.
Ryan Grim is the author of This Is Your Country On Drugs: The Secret History of Getting High in America