It's clear that Republicans are gearing up for an avalanche of procedural challenges as the Democrats are poised to use a fast track procedure to get healthcare reform legislation through Congress by skirting the power of the filibuster.
But the filibuster does actually exist inside this fast track procedure, known as reconciliation. Though it sets up a tight schedule for debate, just 20 hours, it leaves the door entirely open to Republicans to essentially filibuster by amendment during a period that comes after the debate, called "Vote-a-Rama." The Minority can literally offer as many amendment challenges as it can write.
As designed, reconciliation was intended for items that substantially affect the budget, with the Majority needing only 51 votes for passage, allowing members to get politically difficult deficit reduction bills through Congress.
But the procedure has been gamed out over the years, more by Republicans, but definitely by both parties ---- a total of 22 times since 1980. Tax cuts, the COBRA benefits program, the Children's Health Insurance Program, and more have been created using reconciliation.
This time, Democrats want to use it to make adjustments to the Senate's healthcare bill which past at the end of last year.
They will have to get past the Senate's Parliamentarian, the nonpartisan arbiter of the rules, who will judge whether or not provisions violate what's called the "Byrd rule".
This rule, named for Sen. Robert Byrd, D-WV, says anything in a reconciliation bill must be much more heavily weighted toward having an affect on the budget, rather than weighted to policy.
Why? Byrd wanted to keep members from abusing the process and attempting to legislate using this tactic. Too late...
It's important to note -- mostly all of this will be worked out in advance.
Right now - and in the week(s) ahead -- Democrats will be traveling to the first floor of the Capitol to the office of the Senate Parliamentarian, Alan Frumin. He is the man who will ultimately determine whether or not something violates the Byrd rule ---- that's right, an unelected official will make that ruling.
Frumin will tell them whether or not something passes muster, BUT - he will not give them any other advice, this according to several aides on both sides of the aisle who have been through the process.
Republicans will also visit with Frumin --- taking their challenges to Frumin to get his view of whether or not they are on solid footing.
Frumin is a 30-year veteran of the chamber, a highly-respected lawyer around here, and he has a staff of lawyers to assist him. He was first chosen by Republicans and later brought back by Democrats when Republicans fired his predecessor (that's right -- Parliamentarians serve at the pleasure of the Majority Party ---- weird, right?).
So, for some advice on how Republicans mount a challenge, I turned to an expert on the ways of the Senate, a former longtime GOP staffer, Eric Ueland. Here's how the challenge looks/sounds, according to Ueland:
- "Functionally, any member who makes a Byrd challenge will stand up and explain the provision at issue, make a point of order that the provision violates the Byrd rule.
- "The Majority then moves to waive that section of the Byrd rule."
So, say Sen. Judd Gregg, R-NH, top GOPer on the Budget Cmte, stands and says that section X of the Dems' bill violates the Byrd rule. The Parliamentarian would then say whether or not Gregg's motion stands. Let's say it does.
Budget Committee Chairman Kent Conrad, D-ND, would likely then move to waive (or get around) the Byrd rule.
Back to Ueland:
- "Then Senate has to vote up or down on whether or not to waive the rule.
- "If the member succeeds in waiving - which requires 60 votes - the provision is protected. If the member doesnt get 60, it falls. It's stripped out."
The challenges do not necessarily have to be directly related to healthcare. This opens the door for Republicans to offer all sorts of amendments. Sen. John Thune, R-SD, a member of leadership, told reporters today that Republicans could certainly write any number of amendments that are very difficult for Democrats to oppose --- but Republicans, like Democrats, are keeping details close to the vest.
One secret weapon Democrats are holding in their back pocket, Vice President Joe Biden. He is the Presiding Officer of the Senate, and in that capacity, he can overrule the Parliamentarian.
Not since Vice President Hubert Humphrey has a VP overruled the nonpartisan Parliamentarian, but remember one thing --- Humphrey was a former long time member of the Senate and was reportedly quite comfortable with this power. And Biden --- well, he served in the Senate much longer than Humphrey.
Now -- the Byrd rule is just one area where Republicans can mount a challenge. There are a whole host of other challenges open to them.
Democrats have to show $2 billion in savings in their reconciliation bill over FIVE years and cannot create any deficits thereafter, or Republicans can pounce with a budget challenge. Their bill cannot create any unfunded mandates of more than $69 million, according to Budget Committee staffers, or there's another budget challenge.
So, it's not easy, but you can bet, if Democrats can actually get a reconciliation bill to the floors of the House and Senate, the bill will be scrubbed thoroughly -- and Republicans might have a difficult time finding areas in which to mount challenges.