POLITICS
05/24/2010 05:12 am ET Updated May 25, 2011

Byrd Rule To Send Health Care Back To House, Rules Parliamentarian

Senate Republicans succeeded early Thursday morning in finding two flaws in the House-passed health care reconciliation package. Neither is of any substance, but the Senate parliamentarian informed Democratic leaders that both are in violation of the Byrd Rule.

One is related to Pell Grants and the other makes small technical corrections. Why they're in violation of the Byrd Rule doesn't matter; the upshot is that Republicans will succeed in at least slightly altering the legislation, which means that the House is once again required to vote on it. With no substantial changes, House Speaker Nancy Pelosi (D-Calif.) should have little problem assembling the same coalition of 220 Democrats who passed the measure Sunday night. That's already four more than the minimum 216 required for passage.

But the ruling might give Democrats another option -- the public one.

Democratic leadership no longer has to worry that additional amendments would send it back to the House, since it must return to the lower chamber regardless. The Senate is now free to put to the test that much-debated question of whether 50 votes exist for a public option. Democrats could also elect to expand Medicare or Medicaid, now that they only need 50 votes in the Senate and the approval of the House.

The question then becomes whether House Speaker Nancy Pelosi (D-Calif.) could pass the reconciliation changes with a public option. She has long maintained that the House has the votes to do so. Indeed, it did so in late 2009. Since then, however, two members who supported the public option are no longer in the House. But with fewer members, the House also needs two fewer votes than the 218 required for a majority in November, alleviating some of that pressure.

Would they have the votes?

The Huffington Post interviewed House Majority Whip James Clyburn (D-S.C.) on Wednesday evening and asked if he thought he could have gotten the public option back through a second time, when the House voted on Sunday, even without those members who had left. "Yes, sir," he said emphatically. Clyburn added that the problem for the public option has never been in the House. The problem has been in the Senate. And now the upper chamber has a chance to vote on it.

Back in the Senate, after the Parliamentarian Alan Frumin had advised the leadership of his ruling, the Democratic and Republican leaders huddled on the floor and agreed to adjourn until 9:45 a.m.

Shortly after 2:30 a.m., Sen. Al Franken (D-Minn.), sitting in the presiding officer's chair, asked if there was any objection to the adjournment. "I guess we're adjourned," said a punch-drunk Franken, hearing none.

Kate Cyrul, a spokeswoman for Sen. Tom Harkin (D-Iowa), issued a statement saying:

"The Parliamentarian struck two minor provisions tonight from the Health Care and Education Reconciliation Act, but this bill's passage in the Senate is still a big win for the American people. These changes do not impact the reforms to the student loan programs and the important investments in education. We are confident the House will quickly pass the bill with these minor changes."

The bill, however, has yet to pass through the Senate. It will be taken up again Thursday morning. If no further problems are found by the parliamentarian, it can be sent to the House for an immediate vote.

There is no indication that Democrats intend to send Vice President Joe Biden to the Senate chair to overrule the parliamentarian.