On realclearpolitics, Jay Cost has an interesting discussion on the use of reconciliation. Anyone wondering what tactics Republicans will have available if Democrats try to use this path to push through their unpopular health care legislation must read this piece. Here is one Senate rule to know about, since it may be critical to the outcome of this legislative battle. Cost writes:
The Byrd rule, named after Senator Robert Byrd (D-WV), was implemented in the 1980s because the Senate had used reconciliation to pass items that were not related to the budget. In other words, Senators were getting around the filibuster, that ancient device which is either the final protection against an extreme majority or the last recourse of a discredited minority (depending upon which side one finds oneself!). The Byrd rule puts limits on what reconciliation can be used for. Extraneous provisions are stricken from reconciliation bills, and have to be passed through the typical procedure. Here are several relevant definitions of “extraneous” (quoting a report from the Congressional Research Service by Robert Keith and Bill Heniff, Jr.):
A provision is considered to be extraneous if it fails under one or more of the following six definitions:(1) It does not produce a change in outlays or revenues…
(4) It produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision.
(5) It would increase the deficit for a fiscal year beyond those covered by the reconciliation measure…This suggests why smart Democrats never seriously discussed using reconciliation to pass an entire health care bill. If a provision does not alter spending or tax revenues, does so only “incidentally” (an unimportantly ambiguous word!), or adds to the deficit – it can be stricken.
The Byrd rule will set the parameters of the legislative battle, should the Democrats take this path. In that case, the Democrats will write a reconciliation bill that resolves the differences between the two chambers and, so they hope, does not include extraneous measures, as defined by the Byrd rule. The Republicans will test how well the Democrats have drafted their legislation – raising points of order in the hopes of striking provisions that they argue are extraneous.
It’s important to know what Members of Congress can do to stop the bill, but it doesn’t change what the public can do, and that’s keep talking to your elected representatives and educating your friends and colleagues about the importance of defeating this government take-over of medicine.