By Alexander Bolton - 02/03/10 11:00 AM EST
As it turns out, Senate Democrats may not be able to force healthcare legislation through the chamber on a simple majority vote.
Republicans say they have found a loophole in the budget reconciliation process that could allow them to offer an indefinite number of amendments.
Experts on Senate procedural rules, from both parties, note that such a filibuster is possible. While reconciliation rules limit debate to 20 hours, senators lack similiarconstraints on amendments and could conceivably continue offering them until 60 members agree to cut the process off.
Another option for Democrats would be to seek a ruling by the parliamentarian that Republicans are simply filing amendments to stall the process. But such a ruling could taint the final healthcare vote and backfire for Democrats in November.
Or Senate Majority Leader Harry ReidHarry ReidCongress departs for recess until after Election Day How Congress averted a shutdown Congress steamrolls Obama's veto MORE (D-Nev.) could use a tactic similar to the so-called nuclear option to quash the GOP tactics.
If those options failed, and Reid couldn’t convince a single Republican to vote with his 59-member conference, Democrats might be forced to consider withdrawing the healthcare bill.
A Democratic leadership aide confirmed to The Hill that the options outlined in this articlee are correct.
House Democrats have said they would not pass the Senate healthcare bill unless changes are made through reconciliation, which is necessary because Republicans control 41 Senate seats, enough to block legislation through the regular process.
But Republicans may end up having that power even under reconciliation.
“You could keep offering amendments until you don’t have any more to offer,” said a congressional aide, who said he did not know how long senators would be willing to stay in the chamber to move the reconciliation package. “What the body’s tolerance would be is unknown.”
A former Senate Republican leadership aide said: “The limit is on debate, not on consideration of amendments.”
DeMint said he’s ready to try anything.
“You’ll see Republicans do everything they can to delay and stop this process,” DeMint said. “They need to get the message the track they’re on is the wrong track.”
Reid spent significant time last year in close study of the Senate rules for fast-tracking healthcare legislation under special budget rules.
Reid stayed away from the special process of passing healthcare reform with only 51 votes because he knew it would be messy.
But since Republicans won a Senate seat in Massachusetts, thereby stripping Democrats of a filibuster-proof majority, it appears Democrats will need to invoke those rules to make crucial changes to healthcare legislation.
“I think you’ll see us offering amendments to get us into November, if we can,” said DeMint.
Sen. Judd Gregg (N.H.), the ranking Republican on the Budget Committee, said: “You could continue to offer amendments, I suspect.
“You can offer an unlimited number of amendments on the budget after time is elapsed so it’s logical that you could also do it on reconciliation,” Gregg said.
Democrats could try to persuade Republican colleagues to back down and withdraw their amendments after several hours or days of voting. With a unified Democratic conference, Reid would need just one GOP senator to cut off the process.
The most likely candidate would be Sen. Olympia Snowe (R-Maine), who voted with Democrats to advance the Senate Finance Committee bill but has since opposed the healthcare measure on the Senate floor.
Reid or another Democrat could make a point of order that using amendments to stall a reconciliation bill violates the spirit of the Budget Act of 1974, which sets up for expedited consideration of budget-related bills.
Reid or another Democrat could argue that offering unlimited amendments violates the spirit of limiting debate.
The parliamentarian has ruled that the limit on debate does not allow senators to filibuster the motion to proceed to a reconciliation bill. The parliamentarian could rule that the same concept applies to amendments.
No one really knows, because a lawmaker has never tried to use amendments to filibuster a reconciliation package.
“We haven’t ever tried it before,” said a congressional aide.
Parliamentarian Alan Frumin could rule Republican amendments after a certain number out of order. But he could also allow the GOP amendments, since they are not expressly barred.
If Frumin ruled with Republicans, Reid would be in a difficult position. He could either pull the bill off the floor or he could appeal the ruling of the parliamentarian.
With a simple majority of 51 votes, Reid could overturn the ruling of the chair and set a Senate precedent that amendments must be limited to within reason. This tactic would be similar to the so-called nuclear option Senate Republicans considered using in 2005 to overrule Democratic filibusters of judicial nominees.