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Reconciliation Could Spark Senate Chaos

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As the Left and Right jockey for the political high ground on the use of the controversial - and convoluted - reconciliation process, both sides are obscuring a simple reality: If the Democrats try to use reconciliation to finish a bill as unwieldy, unpopular, and unprecedented as this one, it will set off a parliamentary battle that could make the maneuvers in advance of Christmas Eve look like a study of legislative efficiency.

As Sen. Judd Gregg (R., N.H.) told NRO, "I don't think the prior efforts have any substantive relation at all to this effort. Sure, they have a political connection - they are both labeled 'reconciliation.' But there is no substantive connection."

Using the imagery of the hour, Gregg said that comparing the current Democratic effort to those undertaken in the past "is like comparing using a firecracker with a nuclear weapon."

To understand why the nuclear analogy holds, it should first be acknowledged that there is some truth in the Democrats' charge that Republicans are being hypocrites about the use of reconciliation. Since Reagan, the bare-majority rule has been used more often by Republican Congresses than by Democratic ones, and frequently to pass health-care legislation - CHIP and COBRA being just the two most prominent examples. But most health-care measures passed via reconciliation were incremental changes or extenders of existing programs, and, crucially, most passed with broad bipartisan support as part of larger budget reconciliation packages.

And even in those cases (such as the Bush tax cuts) where reconciliation votes were tight and partisan, the budgetary and policy issues were cut and dry. "It was a movement of rate, which is a pretty black-and-white exercise," Gregg, who vocally championed reconciliation in such cases, told NRO. "Everyone knew the impact; it's very calculable; it's clear what the implications are."

By contrast, the Democrats' health-care bill is "an exercise in changing 16 percent of the American economy," which Gregg called "the most complex policy we've ever dealt with in my time in Congress."

Gregg said that "massive unintended consequences" emanating from the bill would "affect every American in a very personal way," and that measures of such scale demand an open debate and amendment process in the Senate. "That's what the Senate is for."

Indeed, contra the enthusiasm of Democrats who believe that this last bullet in their magazine is a silver one, reconciliation is a narrow process that likes narrow bills. The more unwieldy and contentious the legislation gets, the more likely it becomes that the minority will employ parliamentary tactics that, if they aren't quite filibusters, will have the same effect.

Former Senate parliamentarian Robert Dove explains as much in an NPR interview:

NPR: What are the special rules the Senate must follow in debating and amending reconciliation legislation that contains changes to the already-approved House and Senate bills?

DOVE: Debate - that's easy: Total [Senate] debate on a reconciliation bill is limited to 20 hours. Amendments, that's much harder. There is no limit to how many you can send. And you can send amendments of whatever length and have them read.

NPR: This seems to allow much room for the minority party to delay a vote on a reconciliation bill. How might this play out?

DOVE: I can remember Senator Dole sending up, attached to an amendment, the United States Code. [The code is the compilation of every Unites States law.] That got peoples' attention. After he had gotten what he wanted, he asked for unanimous consent to dispense with the reading.

NPR: Doesn't that become a virtual filibuster?

DOVE: It becomes a way of people forcing votes on many things that senators don't want to vote on. Despite the fact that amendments [to reconciliation bills] have to be germane and cannot violate the Byrd Rule [see below], that doesn't stop senators from sending amendments that are totally out of order, and then asking for a vote on waiving the Budget Act [rules] to allow them. That vote counts as a real vote and is used against senators who can claim they were protecting the budget process, but suddenly are on record as refusing to waive [rules] to deal with Guantanamo Bay, or trying terrorists in New York City. I can imagine the list of amendments that will be sent forward.

Further convoluting the proceedings is the unique role that Vice President Biden, in his role as Senate president, could play if the Obama administration decides to go all-in. Biden could overrule the Senate parliamentarian and become the last word on the procedural matters that make or break reconciliation efforts, essentially deciding the fate of the bill. I leave it to the reader to imagine the popular and political reaction to such a move.

So in addition to the challenge of contorting what should have been a conference-committee report into a reconciliation measure, the parliamentary chaos that would surely attend to the introduction of such a measure is one of the reasons the Democrats are taking their time thinking it through.

Meanwhile, Gregg and the Republicans are loading for bear. As the senator told NRO, there are 18 separate points of order that can be deployed to challenge reconciliation proceedings, promising "some very difficult votes" for senators who want to defend the process.

"Whatever goes into the process is going to come out looking like Swiss cheese," Gregg said. "I will certainly do everything I can on that score, and I think I have a number of legislative tools at my disposal to do that."

- Daniel Foster is NRO's news editor.
By Daniel Foster:
Reprinted with permission from National Review Online