Senators are looking ahead to a battle next week over budget rules in the expectation that healthcare reform will pass the House this weekend.
They don’t know how long the parliamentary fighting will last.
Democrats are confident they can pass the package with a simple majority; Republicans agree that is likely. What’s in question is how many of its provisions will fall to procedural objections.
If the House passes healthcare reform on Sunday, as some GOP lawmakers expect, the Senate-passed bill will go to President Barack ObamaBarack ObamaConservative media struggles with new prominence under Trump Speculation grows over Trump FCC pick Graham: Left is 'going insane' after Trump's win MORE’s desk and a reconciliation measure making changes to it will go to the Senate for approval.
A Democratic leadership aide said the reconciliation package would hit the floor as early as Tuesday.
How long the process takes depends on how many procedural objections GOP senators raise. It also depends on the number of amendments they offer. Lawmakers and aides said they could not predict with any certainty.
Republicans have vowed to challenge virtually every line of the 153-page bill, which includes changes to a Senate-passed healthcare reform bill and a student lending reform bill.
To be eligible for special budget protections, which allow senators to pass bills with a simple majority of votes, they must survive challenges under the Byrd rule, named after Sen. Robert Byrd (D-W.Va.), author of the 1974 Budget Act.
The most frequent objection will state that various proposed changes have merely an incidental impact on the budget and thus do not deserve special procedural protection.
After the House acts and sends the bill over to the upper chamber, lawmakers and staff will meet with the parliamentarian to argue over provisions that could run afoul of the Budget Act.
This process is known as the “Byrd bath,” and it’s expected to take a full day or longer. Any provisions scrapped as a result of these early consultations are known as “Byrd droppings.”
Even senior Democrats acknowledge it’s likely Republicans will be able to derail certain provisions, requiring another House vote on a revised package before it becomes law.
“Will there be things challenged that might still come out? Yeah. You have to say the odds are there will be some additional things com[ing] out,” said Senate Budget Committee Chairman Kent Conrad (D-N.D.).
Democratic leaders spent eight hours with Senate parliamentarian Alan Frumin over the weekend giving the healthcare and education reform package a careful review.
“Believe me, there have been sections removed because they were judged Byrd-able, so we think we have scrubbed this clean,” said Senate Democratic Whip Dick DurbinDick DurbinThe Hill’s Whip List: Where Dems stand on Trump’s Supreme Court nominee Gorsuch rewrites playbook for confirmation hearings Gorsuch: I'm 'sorry' for ruling against autistic student MORE (Ill.).
But Republicans say these preliminary judgments are not definitive because GOP lawmakers and aides were not present to argue their side, an assertion Conrad supported.
“The parliamentarian has been very careful not to give final conclusions,” Conrad said.
It’s hard to say how he will rule in many instances, because there are no recent Senate precedents for many of the expected questions.
But Conrad agrees with Durbin that Republicans will not be able to knock out major chunks of the reconciliation package, despite a vow from Sen. Judd Gregg (N.H.), ranking Republican on the Budget Committee, that he would turn it into “Swiss cheese.”
“I don’t think it will affect the score much and I don’t think it will affect the policy much,” Conrad said of the GOP procedural objections.
Normally, it requires 60 votes to waive a Byrd Rule objection if the parliamentarian sustains it. That would be unlikely, because Republicans control 41 seats and uniformly oppose the healthcare bill.
Otherwise, Democrats could have the chamber’s presiding chair (a member of their party) overrule the parliamentarian and sustain the chair’s decision with a majority vote. But the leeriness of centrists makes this highly unlikely.
“To the extent that it’s humanly possible to be 100-percent incorruptible, he is that,” Sen. Bob CaseyBob CaseyUnder pressure, Dems hold back Gorsuch support The Hill’s Whip List: Where Dems stand on Trump’s Supreme Court nominee Friends, foes spar in fight on Trump’s Supreme Court nominee MORE Jr. (D-Pa.) said of the parliamentarian.
This high opinion of Frumin makes his judgment on procedural questions all but final.
A major question is whether Republicans will be able to take down the bill on the basis of proposed changes to the excise tax on high-cost health plans. Republicans assert this would amend the Social Security Act, which is not allowed under the Byrd Rule.
But Democrats, after consulting with the parliamentarian, say this objection will fail.
“There’s no change in law occurring ere, there is a provision to transfer money to the Social Security fund to make up for any indirect effects to the fund, which is just a good-policy thing to do,” said Conrad. “Our people think [the objection] will be stricken.”
After battling over Byrd Rule objections, Republicans will attempt to delay the bill by offering a slew of amendments when the 20 hours of limited floor debate expires.
There’s no limit as to how many amendments GOP senators may offer, and lawmakers such as Sen. Jim DeMint (R-S.C.) have vowed to propose as many as necessary to keep the bill on the floor.
But Durbin noted that amendments must have a score from the Congressional Budget Office to be considered germane. The CBO is overworked to the point that it took longer than Democrats expected to get a cost analysis for the healthcare reconciliation package.
Democratic leaders doubt Republicans have many amendments that would be
Democrats are confident the parliamentarian will rule Republican efforts to slow the process with a storm of amendments as dilatory and out of order. The lack of germane amendments will make it difficult for Republicans to argue otherwise.
Even if the parliamentarian allows the amendments, centrist Democrats, such as Sen. Ben Nelson (D-Neb.), say they are ready to vote to sustain a ruling from the presiding chair to quash a GOP effort to filibuster through amendments.
“I’m not much for dilatory practices, as you know, so that will probably drive my decisionmaking as much as anything,” Nelson said.