This is a rush transcript from "On the Record," March 1, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, HOST: Tonight, Senate Minority Whip Jon Kyl right here and right now!

(BEGIN VIDEOTAPE)

VAN SUSTEREN: Senator, nice to see you, sir.

SEN. JON KYL, R - ARIZ.: Thank you Greta.

VAN SUSTEREN: Senator, before I get to the question of reconciliation, do you think if the Senate Democrats or the Senate were to get a do-over that they would get Senator Ben Nelson's vote minus the "Cornhusker" deal? Because that, of course, is one of the issues here.

KYL: Who knows? There are some other Nebraska provisions in there for a couple of insurance companies in Nebraska. And maybe that's enough to get his vote. I'm not sure.

VAN SUSTEREN: But it's sort of curious we're now discussing reconciliation, but even with sort of...

KYL: Without...

VAN SUSTEREN: ... with even sort of how the modifications, at least what the president has suggested modification...

KYL: Right.

VAN SUSTEREN: ... I'm even curious whether the Senate would pass their own bill with those modifications.

KYL: Well, yesterday on television, my colleague, Bob Menendez, was asked that question, and he did not give a definitive yes answer. I suspect it's because they don't know yet. I don't think it'll pass the House of Representatives. I think, frankly, that's where it's more likely to be stopped.

VAN SUSTEREN: All right, what is the next step? As you anticipate it -- I realize you're the minority party, but what do you understand is the next step forward on this?

KYL: The president is going to have something to say about this Wednesday. But I presume what they might do is to say they're going to have one final attempt at this using the reconciliation process. I presume it would have to start in the House of Representatives because it's a revenue measure, that they would try to pass the reconciliation bill first because they can't pass the Senate bill. But if that passed, then pass the Senate bill, then send the reconciliation bill over to the Senate.

We would have to do it the same way, and if it passed, then both bills would go to the president and he would have to sign the Senate bill first and then the reconciliation bill second.

The problem with that strategy is that they can't fix everything that's wrong with the Senate bill. And it's been a long time since House Democrats voted for the bill. And remember, there were -- they only had three votes to spare. They've lost those three votes right now. So Speaker Pelosi would have to go pick up some other votes somewhere. But in the meantime, the bill has become much more objectionable to people. The public opinion has turned around. It was about 50/50 back then, now it's about 2-to-2 against the bill. So I don't think that House members are going to want to vote for this bill.

VAN SUSTEREN: All right, let me fire (ph) three questions on you. First of all, does Speaker Pelosi, as far as you know, want to go first before the Senate? That's question number one. Question number two, President Obama said at the summit -- he talked about four weeks or six weeks, so I thought that there was going to be some give-and-take between the Republicans and the Democrats. And then the third question is, the thing that matters a lot to American people is this whole idea of preexisting medical problems, and that isn't even something that fits within this whole reconciliation. So fire away.

KYL: First of all, I'm sure the Speaker would like to have the Senate go first. I'm not sure that setting up the procedure right that they can do it that way. I just don't know. But I don't think that it will pass in the House of Representatives. On the third question on preexisting conditions, you're right, they're not going to fix that. Republicans have a way to do that. The Democrats had a different way to do that...

VAN SUSTEREN: But that's not part of reconciliation. Reconciliation is budget. That's what I'm saying, is that -- so unless you can sort of find some way to characterize preexisting -- that preexisting issue as a revenue budget issue...

KYL: Right.

VAN SUSTEREN: ... we're not going to get that even with the reconciliation, is that right or wrong?

KYL: No, you're exactly right because reconciliation is only to either add money or subtract money to reconcile the budget. That's why it's called reconciliation. It was never suited for a big bill like this health bill, and that's one of the reasons why it's inappropriate to use it for this purpose. The second reason, of course, is that when it's been used in the past, it hasn't been used because the votes weren't there. Democrats like to say, Well, it was used on the Welfare bill. The Welfare bill had 78 votes. It wasn't necessary to use the process.

VAN SUSTEREN: Well, then there was the Bush taxes, though, in 2001, when -- when...

KYL: Well, that's -- that's a revenue measure, which is totally appropriate within the budget resolution.

VAN SUSTEREN: I guess the American people are sort of saying (INAUDIBLE) OK, well, both sides have done it. The question is whether it's appropriate now and do we want to do it for something so big as this.

KYL: Right.

VAN SUSTEREN: That's -- I mean, which is...

KYL: Sure. What was your second question?

VAN SUSTEREN: The second question was, is that the president said there was going to be...

KYL: Oh, the six weeks.

VAN SUSTEREN: ... a four-week to six-week discussion. Have you had this -- I mean, if we're going to have this reconciliation, is it on the outside of this four to six weeks or is this going to happen soon?

KYL: My guess is, if they're going to do it, they're going to have to do it quickly. This thing is losing support every day. And I think what they'll try to do is move it up against the Easter recess so that the members won't have time to go home and have a full recess period before they take the vote. If they run up to the vote and then have a recess, they go home, they're going to get an earful from their constituents. I don't think they could pass it, then, when they got back from recess. So my guess is the Speaker is going to make them stay here and vote for it before they have a chance to go back home and talk to their constituents about it.

VAN SUSTEREN: All right, let's talk about reconciliation, a lot of finger-pointing. Both sides have been doing it for different reasons back and forth. I assume your position is that, Yes, we've done it before, meaning Republicans, but appropriately, but this is inappropriate, if I can sum up your position.

KYL: Yes. Robert Byrd himself wrote a letter a little less than a year ago. He's the author of the reconciliation process. And in that letter, he pointed out the places where you should use it. And it has been used by both Democrats and Republicans to reconcile budget numbers, raise revenue, reduce spending. But it has never used beyond that and -- except in the case of Welfare. And I don't know why it was used. I think it was a convenient -- but they didn't need to use it there...

VAN SUSTEREN: So did you think that was...

KYL: ... to get the votes.

VAN SUSTEREN: Do you think, in hindsight, that using it for welfare was wrong?

KYL: I don't know the reason why. It may have been that everybody agreed to use it because it was an easy vehicle to use at the time. But what Robert Byrd has said is that to use it in this context would be an outrage that must be resisted, to use his exact quotation. It was never intended to be used for a bill like this.

VAN SUSTEREN: Why do we even have -- I realize that he wrote this rule in, I think, 1974. But you had this filibuster rule that there were the 60 -- the super-majority rule. Why was it even created to begin with, if you all have these exceptions?

KYL: Great question. You have to do a budget every year. And Robert Byrd's theory, and I think it's a valid one, is so you have to get to a vote on a budget. And you have to do that within a reasonable time limit. So that's all this is for is to adopt a budget and then to reconcile any of the numbers within the budget.

VAN SUSTEREN: You couldn't do it with a super-majority?

KYL: You could. But when the Congress is roughly evenly divided, it's kind of hard to get a super-majority. It's not evenly divided now. The Democrats have a lot more votes, but not all of them like the bill. But reconciliation is not a bad process for the budget itself or from those measures to either reduce or raise revenues in order to balance the budget. But it is not an appropriate process, as Robert Byrd himself -- and he is kind of the dean of the Democrats in the Senate and I think speaks for a lot of us about Senate procedure. As he has pointed out, it was never intended for this purpose, and he says it should be resisted. It would be an outrage that must be resisted if it's used in this context.

VAN SUSTEREN: Senator, thank you, sir.

KYL: Thank you, Greta.

(END VIDEOTAPE)

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