Should passing health care reform come down to the use of reconciliation -- and all signs point that way -- Vice President Joseph Biden could play a hugely influential role in determining not only what's in the bill but whether or not it passes.
Two experts in the arcane rules of the Senate said on Monday that, as president of the Senate, Biden has the capacity not just to overrule any ruling that the parliamentarian may make but also to cut off efforts by Republicans to offer unlimited amendments.
"Ultimately it's the Vice President of the United States [who has the power over the reconciliation process]," Robert Dove, who served as Senate parliamentarian on and off from 1981-2001, told MSNBC this morning. "It is the decision of the Vice President whether or not to play a role here... And I have seen Vice Presidents play that role in other very important situations... The parliamentarian can only advise. It is the vice president who rules."
Dove's point is complex but important. With respect to health care reform, Senate Democrats are likely to offer a package of legislative amendments that they will ask to have passed using reconciliation. The Senate parliamentarian will then make a ruling as to whether or not those changes satisfy the conditions for reconciliation's use (essentially, that they have a budgetary impact). But that ruling does not become the de facto law of the chamber. Biden can choose whether or not to accept the parliamentarian's decision or rule that more or fewer amendments can be passed through reconciliation. That ruling is subject to appeal -- but the appeal is decided by majority vote.
But Biden's powers don't end there. As Dove noted, the minority party does have the ability to offer unlimited amendments during the reconciliation process (ostensibly, as a way to hold up the process).
"At the end of the 20 hours you can offer as many amendments as you can scribble out," said Dove.
However, Biden, as president of the Senate, could effectively put an end to that process by ruling that the amendments are not germane to the legislation and ordering the chamber to proceed to an up or down vote.
"The vice president can rule that amendments are dilatory," Norm Ornstein, a fellow at the American Enterprise Institute and one of the foremost experts on congressional process, told the Huffington Post. "That they are not serious attempts to amend the bill but are designed without substance to obstruct. He can rule them out of order and he can do that on bloc."
"There are time limits," Ornstein added. "It is not that they can keep doing it over and over again."
As Ornstein added, there are potential downsides to the vice president wielding any of these two institutional powers. For starters, it further politicizes a process that is already being criticized as overly political. Moreover, it could spur serious discussion of whether the Obama administration is engaged in an institutional power grab and/or upheaval of Congress. As Dove noted, in a follow up email to the Huffington Post: "I said the VP COULD have the final say--but no VP since Hubert Humphrey has ruled in any instance against the advice of the Parliamentarian."
Indeed, when the Bush administration was trying to get its tax cuts passed through reconciliation and the parliamentarian ruled that they did not qualify, Republicans didn't turn to former Vice President Dick Cheney to steer the process. Instead, they fired the parliamentarian and found a more sympathetic one. That fired parliamentarian was none other than Robert Dove.
Nevertheless, the powers that Biden has over Senate process could play a significant role durin the debate process -- and potentially prove critical to getting health care reform through Congress.
"Biden would have some power here," Ornstein summarized. "But again, this is not a power that you want to exercise. But it is one that exists."