Health care reform legislation is mired in public disapproval. There is a lot of discussion about using special reconciliation procedures in order to pass the legislation in the Senate. What is not being discussed is the need for a nuclear trigger to make it happen.
The use of standard reconciliation procedures is mostly being pushed by those who have little understanding of how this complex process operates. The problem has nothing to do with whether or not it is appropriate to use these special procedures to make drastic changes to one-sixth of our economy. That is a political decision.
The problem lies with the complexity of the health care reform legislation that is proposed. That legislation does not fit within the restrictions of reconciliation rules designed to address spending and revenue issues. The health care reform legislation contains many policy changes that do not directly affect the federal budget. Under the reconciliation rules, these provisions could be stripped from the bill before a vote in the Senate.
The bill remaining, after it has been sliced and diced to remove non-compliant provisions, will be ugly and unworkable.
Another strategy discusses using two bills. This would require the House passing the Senate bill and then cleaning up all the remaining problems with a second bill that would move under reconciliation rules. This has been dubbed “the sidecar strategy.” It suffers the same problems as a large reconciliation bill.
However, there is one strategy under discussion to pass a comprehensive bill under reconciliation procedures, but it requires a nuclear trigger. It requires shredding the rules of the Senate by a fiat issued by Vice President Joe Biden.
The parliamentary procedure is complex, but important to democracy.
In order to keep the bill intact, the Democrats are discussing a procedure to have Biden ignore the rule of law -- and the ruling of the Senate Parliamentarian -- and tell the Senate to proceed because the rules do not matter.
Any challenge to provisions in the health care reconciliation bill upheld by the Parliamentarian would simply be overruled by Joe Biden.
This is very different from the fight over judicial nominees from a few years ago. Senate Republicans threatened to have Vice President Dick Cheney rule that the Senate had a constitutional obligation to force votes on judicial nominations to fulfill the “advice and consent” requirement of appointments made by the president.
The current controversy is over legislation. The Constitution allows the Senate to set its own rules -- which has been done. This nuclear trigger option would simply ignore the rules that are in place.
To stop Biden from shredding the rules of the Senate, any senator could appeal the ruling of the chair. Senate Majority Leader Harry Reid would then be recognized by Biden to make a motion to table the motion appealing the ruling of the chair. This is not debatable and only needs a simple majority to pass.
This change would adopt a very dangerous precedent. This is the nuclear trigger that would shred the rule of law that enacted the reconciliation procedures and allow them to be waived on the whim of Vice President Joe Biden.
Roger Morse is a Senior Fellow at the Institute For Liberty.