'Going Nuclear' Explained

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This is a rush transcript from "On the Record," January 20, 2010. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Is the nuclear option coming? The GOP's stunning win in Massachusetts blew up Senate Majority Leader Harry Reid's filibuster- proof majority. So now what? Can the Democrats push through legislation with only 51 votes?

We went to Capitol Hill today, where Republican senator Judd Gregg went "On the Record."


VAN SUSTEREN: You had some news in a neighboring state last night.

SEN. JUDD GREGG, R - N.H.: Sure did.

VAN SUSTEREN: Surprised?

GREGG: Obviously! I mean, for Massachusetts to elect a Republican to the Senate -- that hasn't happened since the early '70s. And you know, everybody assumed that they were just going to anoint the attorney general and that she would be the next senator. And then all of a sudden, the people of Massachusetts said, Wait a minute, we've got an opinion here, too. So let's hear from us.

Watch Greta's interview with Sen. Gregg

VAN SUSTEREN: I'm curious, though, the behind-the-scenes when you come back to the U.S. Senate today after such a huge event -- they've lost the filibuster-proof Senate, the Democrats have -- what goes on in the halls? I mean, have you run into any Republican senators, any Democratic senators? Is there any -- I mean, I assume you're talking about it.

GREGG: Well, you know, it's sort of interesting. There's general confusion, to be very honest.

VAN SUSTEREN: Is that different?

GREGG: Well, yes, that's a good point!


GREGG: No, that's actually a legitimate criticism. But this confusion today is nobody knows what's going to happen because, obviously, the health care bill was the referendum item here. The people of Massachusetts spoke very clearly, and I think they spoke on behalf of the country, basically, that this bill is too big, too expensive, too much debt, too much government interference with people's health care decisions and that they want something else.

And so it's not clear what's going to happen because you've got the Speaker Pelosi and Harry Reid today saying they're going to march on with the health care bill that they have, and that is not something that I think makes a whole lot of sense, and it's certainly not good policy, in my opinion.

VAN SUSTEREN: Have you met or talked to Senate -- Senator-elect Brown?

GREGG: I have met him, but I haven't talked to him since the election.

VAN SUSTEREN: Going to see him tomorrow?

GREGG: Oh, absolutely. He's coming here. We're looking forward to saying hello and seeing him. You know, it's great to have another Republican from New England. We love that.

VAN SUSTEREN: All right, now, the -- now that it's not a filibuster- proof Senate, I imagine the Democrats are trying to, you know, figure out, you know, and marching this legislation along on health care, to try to get to it so that they can avoid some of the hurdles that this has now created for them. What's reconciliation?

GREGG: Oh, that's a good question. This is a very arcane Senate procedure. It's part of the budget process. And it essentially says that with 51 votes, you can pass bills which make the budget work. In other words, in the budget, there's certain spending restraint, theoretically -- in this budget, there weren't any. But theoretically, let's say, in the budget, that you were supposed to save X billions of dollars by adjusting the spending or reducing the spending in Medicare or reducing the spending in some other account. Reconciliation would allow that change in spending to occur and be passed with only 51 votes in the Senate, which means it eliminates the filibuster as being a way to stop the spending reductions. It can also apply to tax increases.

So it's a way to adjust the activities of the federal government in the areas of spending and in the area of tax policy to bring the budget numbers in line and to basically, theoretically, make the budget more balanced.

VAN SUSTEREN: All right, in terms of reconciliation, the slang is "nuclear option." In your -- since the time you've been in the U.S. Senate, or even do you know, has this nuclear option-slash-reconciliation been used for a non-budget tax matter?

GREGG: You can't. See, this is the problem that reconciliation presents to people who want to use it for a big public policy issue like health care. There's a rule that says -- it's called the Byrd rule -- that says that if the policy is more important to the language in the bill than the adjustment's in the budget, the savings or the tax increases, then it cannot get reconciliation protection. It cannot be -- that part of the language cannot be passed with 51 votes.

And this applies by sentence. So here you have a 2,074-page bill right now -- or it's even longer now. Every sentence in that bill would have to be scrubbed in every paragraph to see if the policy purposes of it exceeded the budget activity. And there's a lot of policy in the health care bill that has nothing to do with budget adjustments. And when those were challenged by a point of order, they would be knocked out unless 60 people voted -- 60 senators voted to keep them in.

So the way I describe it is that after you finish going through that process of challenging things that aren't subject to -- that aren't part of the budget, that are simply policy on health care, you'd end up with a piece of Swiss cheese. I mean, the bill would look like Swiss cheese, it would have so many holes.

VAN SUSTEREN: Now, that -- is that the view, likewise, of Senate Majority Leader Harry Reid and the Democrats? I mean, if I were talking to them, would they say, No, that's not how we see reconciliation, it's not simply limited to those narrow areas, that the health care bill is part of budget and spending?

GREGG: They would have to conclude that they've got big problems trying to use reconciliation, which is why they didn't use it in the first place. Remember, they had a tough time getting to their 60 votes originally. They theoretically could have used reconciliation and used 51 votes. But they knew that if they did, they'd have all these challenges to all the different sections of the bill, and large sections of the bill would be knocked out.

VAN SUSTEREN: Is there any way to move this bill along through the Senate, to the end process, to the final vote to then go on to the White House, where they don't face a 60-vote problem? Is there -- I mean, is there a way to do this bill for the Democrats besides the nuclear option?

GREGG: No. But they could reduce the bill just to the budget parts, which would be the tax increases and the spending cuts, and they could get that through on reconciliation. But I don't think too many people would want to vote for that.

VAN SUSTEREN: So there's no other -- so it's -- this bill will -- is always subject to 60 votes as it is now. There's no way to sort of -- the process isn't such that they could get around all this?-.

GREGG: There will always be at least one 60-vote hurdle. Now, it won't -- might not be on final passage. For example, if it came back from conference -- they're not having a conference, they're doing it behind closed doors. But if they were to have a conference and send it back to the Senate as a conference vehicle, then it would be subject to 60 votes once. But it wouldn't be on final passage. Final passage would be a 51- vote event.

VAN SUSTEREN: You have any quick advice, couple word of advice, for Senator-elect Brown as he makes his way down here?

GREGG: Heck, I'll take advice from him! He's just won one of the biggest elections in the history of the country. What an amazing feat for anybody. And I'm looking forward to hearing what he thinks made the difference. I think many of us sense what it was, the public outrage at the direction of the country especially in the area of growing the government and adding to the debt and passing on to our kids a country they can't afford. But we're looking forward to hearing from him because he's obviously fresh from the field, and he's going to have some strong and thoughtful views, I hope. I know he will.

VAN SUSTEREN: Thank you, Senator.

GREGG: Thank you, Greta.


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