Healthcare reform and reconciliation a bad mix, ex-parliamentarian says

The budget reconciliation process, with its arcane rules and potential for political chicanery, is not suited to healthcare reform, according to the Senate's former parliamentarian.

Reconciliation is enormously appealing to Democratic lawmakers and the White House because it would let them finish up healthcare reform by a simple majority in the upper chamber, where passing major bills usually requires 60 votes. Indeed, since Senate Democrats hold 59 seats and no Senate Republican appears eager to help the governing party pass its legislation, reconciliation could be the only way to advance the bill, which has been a year in the making and was supposed to be President Barack Obama's landmark achievement.

Not so fast, said Robert Dove, who was the chief Senate parliamentarian for 12 of his 36 years working in the office, during a conference call hosted by the conservative Galen Institute.

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Though the Senate has employed reconciliation for a number of bills over the past few decades -- including major economic measures backed in their time by President Ronald Reagan, President Bill Clinton and President George W. Bush -- the procedural rules will not work well for healthcare reform, said Dove, now a professor at George Washington University. Dove retired from his Senate post in 2001.

"This process is not designed to do a lot of policy making and it would be very difficult to achieve a number of things that people want to achieve" in the healthcare reform legislation, Dove said. "This could be a very long, exhausting process."

Not only was budget reconciliation created and modified as a means to enact laws to reduce the deficit, which means all the provisions must result in a change in budgetary outlays, but the parliamentarian wields considerable authority to strip anything from the bill that he or she deems to be extraneous, Dove said.Dove oversaw some budget reconciliation measures in his time and, he notes, ruled out around 300 provisions from a 1995 budget reconciliation bill.

The parliamentarian can rule any provisions as "incidental" and remove it from the bill if he or she judges that its purpose is to write new policy not simply to alter the federal budget. "The 'incidental' test is a very difficult test because it is very subjective," Dove said. "You are trying to judge peoples' motives," he said. The Senate can overturn the parliamentarian's rulings with 60 votes -- but if Democrats had 60 votes, they would not be using reconciliation. Dove also noted that Vice President Joe Biden, in his Constitutional role as President of the Senate, is the ultimate authority and could overrule the parliamentarian. He added, though, that "no vice president, frankly, since Nelson Rockefeller in 1975, has exercised that right.

Senators are also entitled to offer as many amendments as they choose during reconciliation. Though Democrats have a large enough majority to beat back GOP attempts to alter the bill, neither they nor the parliamentarian can limit the number of amendments introduced, Dove said.

The nonpartisan Alliance for Health Reform issued a primer on reconciliation rules Tuesday that includes links to source material prepared by the Congressional Research Service and other experts.

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