Federal Judiciary

The Reconciliation Pickle -- By: Duncan Currie

House Democrats have repeatedly been told that their concerns about the Senate health-care bill can be addressed via the reconciliation process. Speaking to reporters yesterday on Capitol Hill, Sen. Jon Kyl (R., Ariz.) and Rep. Eric Cantor (R., Va.) pointed to numerous problems with this strategy. (Full disclosure: My wife works for Kyl.)

First, it is unclear whether a bill that has not yet become law can be altered through reconciliation. The Senate parliamentarian is expected to offer a ruling on that question sometime soon. Regardless of his determination, the Senate president -- either Vice President Joe Biden or a Democratic senator acting in his place -- has the authority to ignore it. As former parliamentarian Robert Dove told MSNBC last week, ?The parliamentarian only can advise. It is the vice president who rules.? But Kyl stresses that the Senate president has traditionally followed the parliamentarian?s counsel on procedural matters.

Democratic leaders are essentially asking their House colleagues to place a massive amount of trust in the Senate, which may not have an opportunity to ?fix? the health-care legislation until after Obama signs it. A further problem is that certain controversial provisions are not fixable under reconciliation. The process ?cannot be used to make policy changes,? Kyl and Cantor observe in a new memo. (This is due to the Byrd Rule, named for Robert C. Byrd, the longtime Democratic senator from West Virginia.) A reconciliation bill must also conform to various deficit guidelines.

In other words, using reconciliation to make significant adjustments to health-care reform is a dicey gambit. Democrats would not be able to fix their abortion dilemma through reconciliation, which helps explain why that issue has caused such a ruckus in the ongoing House talks. When liberal House Democrats accepted the pro-life Stupak Amendment last November, they assumed it would later be revised or scrapped either in a formal conference committee or in private negotiations. Then came Scott Brown?s unexpected victory in the Massachusetts Senate election, which gave Senate Republicans their crucial 41st vote against any modified version of Obamacare. The Senate legislation that won approval on Christmas Eve would allow federal dollars to subsidize abortion; hence the current wrangling in the House.

What if Senate Democrats passed a separate health-care bill -- a non-reconciliation bill -- to appease pro-life House members? That would require them to marshal 60 ?yes? votes in favor of strict anti-abortion language, which could prove difficult. In their memo, Kyl and Cantor note that a measure similar to the Stupak Amendment garnered only 45 votes in the Senate.

All told, Kyl and Cantor identify 21 House Democrats who supported Obamacare four months ago ?but may now be on the fence.? One Democrat who has consistently opposed the legislation is Rep. Dan Boren, a pro-life conservative from Oklahoma. Does Boren anticipate that the Senate bill will ultimately receive a green light from the House? ?The chances of it passing are probably over 50 percent,? he told me yesterday. ?But it certainly is going to be a squeaker if it does pass.?

-- Duncan Currie is deputy managing editor of National Review Online.

Full post as published by Bench Memos - National Review Online on March 11, 2010 (boomark / email).