With the death of the public option in the Senate version of the health care reform bill, more attention is being paid to the budget reconciliation process. The House-Senate conference could bring back the public option, but a filibuster could still kill it. The reconciliation process would allow the bill to pass with a simple majority of 51 votes rather than the 60 needed to overcome a filibuster.
Some conservatives are comparing this proposed use of reconciliation as being comparable to the "nuclear option" that Republicans proposed to use to end filibusters of judicial confirmations. The proposals are completely different.
Both procedures would end up coming down to someone raising a point of order. The similarity ends there.
Under the nuclear option, it was proposed to have a conspiracy to uphold a falsehood.
The conspiracy consisted of having a Republican Senator challenge the Republican leadership by raising a point of order. The fact that Republican would have to challenge Republican should raise suspicions.
The falsehood was the claim that Senate rules already forbade judicial filibusters. Nothing had ever been written in Senate rules to that effect, and what was written clearly contradicted the claim. Past precedent saw a number of blocked nominations, so it is clear there never was such a rule.
One Republican Senator would have raised a point of order falsely claiming that a filibuster violated existing Senate rules. As the script played out, the Republican Chair would have upheld the point of order.
The remainder of the Senate would be powerless to achieve the supermajority needed to overrule the Chair. The result would be that just two Senators would be sufficient to change the rules of the Senate.
Using budget reconciliation for health care reform would be neither a conspiracy nor a falsehood.
Republicans can be expected to raise points of order that various parts of the bill have no more than an incidental effect on the budget and must be stripped from the bill. This follows what is known as the Byrd Rule.
The Republican challenge would be ruled upon by a Democratic Chair. No conspiracy. No similarity to the Republican's nuclear option. This is how the Byrd Rule was expected to be used. This is conventional and part of the respectful debate in the Senate. There is nothing nuclear here.
There would also be no falsehood. Senate Majority Leader Harry Reid or anyone else acting as Chair should not be asked to make anything but an honest appraisal backed by precedent of whether any particular provision was incidental or material to the budget.
While the public option will be deficit neutral, it will have a very large effect on both spending and revenue. It is perfectly appropriate to include it in the budget reconciliation process.
Furthermore, to know the effect on the budget, you must define what the public option will cover. Will it cover pre-existing conditions? Will it have life-time limits? These decisions will have a material effect on the budget by defining how money can be spent, so it is appropriate to include them in the bill.
And once you have both a public option and an exchange for private insurance, the number of people who will elect the public option will depend on how the different plans compare. Requiring all plans to compete fairly and equally will have a material effect on the budget. This means requiring that the private plans follow the same rules on things like pre-existing conditions and life-time limits.
It is thus appropriate to include a substantial amount of insurance regulation in the budget reconciliation. Let the Congressional Budget Office score all of these regulations for how much effect they would have, so we know which ones have a material effect.
Making these decisions will not be easy for the Chair. No matter what decision is reached, the Chair will be heavily criticized by one side or the other. It is no wonder that Sen. Reid is trying to avoid using reconciliation.
How should the Chair reach these conclusions? Sen. Reid should allow the Chair to stay with the Senate President pro tempore, Sen. Robert Byrd. Who could be better for determining the original intent of the Byrd Rule? With Sen. Byrd left in control of interpreting the Byrd Rule, we can be confident that Senate rules will be preserved.
Richard M. Mathews
Richard M. Mathews is Vice President of the North Valley Democratic Club. He is a delegate of the California Democratic Party serving on the Legislative Committee and is an elected member of the Los Angeles County Democratic Central Committee serving on its Rules Committee. He is a manager and computer architect for Curtiss Wright in Chatsworth, CA.