Michelle Malkin is live blogging the Reconciliation Shell Game

Good stuff at Michelle Malkin's. Read what the Republicans are doing and have tried to do. Find out which Democrat Congressman slated to vote "no", voted for the reconciliation in the budget committee.

Michelle Malkin Liveblogging the House Budget Committee wreckonciliation mark-up.

Related and Background:
Pelosi will Pass Senate Bill in House: Slaughter Rule Ruled Out? Reconciliation a Shell Bill

The Meat of Reconciliation and the Republican Advantage

 by Maggie Thornton

I struggle to understand how "reconciliation" can be used, or fail, especially once I understood that Vice President Joe Biden could override a decision to utilize the Bryd Rule. Two articles reveal the meat of reconciliation and a possible Republican advantage.

Indulge me readers: In the Health Care Schematic above - Courtesy Democrats, the following are a few of the departments included:

Departments of Civil Rights, Minority Health, CULTURAL AND LINGUISTIC COMPETENCE TRAINING, Nurse Education and Training, Language Demonstration Program,
Accountable Care Organization, Federal Mandates for Websites, Low Income Subsidy, Health Affordability Credits, MANDATE BUY INSURANCE

Marc Thiessen, writing in the Washington Post today, explains it all the way down to the bottom line.

In order to get a reconciliation bill with the fixes they demand to the Senate floor, Stupak and his pro-life colleagues must first vote to pass the original Senate health care bill -- including the abortion language they oppose. Only after this bill is passed in the House can the chamber then take up a reconciliation bill and send it to the Senate for its approval. 

That’s where the “Byrd rule” comes in. Designed to protect the rights of the minority, the Byrd rule allows any Senator to raise a point of order demanding that “extraneous” (non-budgetary) provisions be removed. According to former Senate parliamentarian Bob Dove, “If a ‘Byrd Rule’ point of order against a provision is sustained, the provision is stricken from the bill….Appealing the rule of the chair requires 3/5 vote of duly elected and sworn Senators (60 votes).” (This process is known colloquially in the Senate as a “Byrd bath” and the dropped provisions are known as “Byrd droppings.”)

Republicans intend to raise points of order against the reconciliation package. They believe it is virtually certain that the Senate parliamentarian would find any abortion deal Pelosi makes with pro-life House Democrats to be “extraneous” (there is no reasonable way to argue the provision is primarily budgetary). So any abortion deal with Stupak and his allies would be struck from the bill....

 From the Huffington Post: This is where Joe Biden comes in. As president of the Senate he can overrule the parliamentarian:

Ultimately it's the Vice President of the United States [who has the power over the reconciliation process]," Robert Dove, who served as Senate parliamentarian on and off from 1981-2001...

It is the decision of the Vice President whether or not to play a role here... And I have seen Vice Presidents play that role in other very important situations... The parliamentarian can only advise. It is the vice president who rules." 

 Biden can choose whether or not to accept the parliamentarian's decision or rule that more or fewer amendments can be passed through reconciliation. That ruling is subject to appeal -- but the appeal is decided by majority vote.

Back to Theissen:

Using the Byrd rule, Republicans will proceed to pick apart every element of these deals Pelosi makes, piece by piece. It is unclear which provisions would survive scrutiny under the Byrd rule. But each time a point of order is sustained, it requires 60 votes to overturn that ruling -- which means Senate Republicans have the votes necessary block key elements of the reconciliation package.

...If this happens, the amended reconciliation bill would go back to the House , where Stupak and others would then likely oppose it. Reconciliation would be dead. 

And now the bottom line from Robert Dove:

I said the VP COULD have the final say--but no VP since Hubert Humphrey has ruled in any instance against the advice of the Parliamentarian."

There is a next step, though, that might leave the Speaker a happy lady. Read it at the Washington Post. 

In the end, Thiessen says Stupak and other pro-life Democrats in the House have no leverage IF they choose to go along with Pelosi with reconciliation. The only way to ensure that abortion funding language is eliminated is to reject reconciliation and demand that the House and Senate start over.

Related:

Scheming Pelosi and House has new maneuver to pass health care: "Hold-Plus-Reconciliation"

Linked by ReaganiteRepublican - Thank you James!

Obama Video: The Importance of 60 Votes Over a Majority Vote: Can't Govern with a Majority Vote

In this video, Obama talks about the importance of having a 60+ vote to "govern" properly in America:

You need 60 votes to get something significant to happen.

50+1 margin - "you can't govern - you can't deliver on health care"

"If we want to transform the country though, that requires a sizeable majority."

Barack Obama on the importance of a super majority vote

Democrat Kent Conrad: Byrd Rule Disqualifies Reconciliation of Health Care

Refreshing. A rule actually matters to one Democrat. Senator Kent Conrad (ND) says he is the Chairman of the Senate Budget Committee, and he understands how reconciliation works, and under the Byrd Rule, reconciliation cannot be used to pass the health care bill. See video below.

Kent Conrad was elected to the Senate in January, 1987. He became President of the Senate Budget Committee in January 4, 2007, replacing Republican Judd Gregg. Conrad was profiled by The American for his knowledge of economic issues. He is a member of the Gang of 10, which is now a Gang of 20 and advocates for more offshore drilling, and other energy measures. He endorsed Barack Obama in 2008, but is considered a somewhat conservative Democrat. He voted with Republicans against a health care bill that included a public option, and voted for the Stupak amendment which denies public-funded abortion. He has consistently voted against partial-birth abortion.

Senator Kent Conrad - No Reconciliation for Health Care Bill (video)

"The major package would not be done through reconciliation." 

Asked by CBS host Bob Schieffer to elaborate, given that the White House suggested earlier Sunday that they could pass the main bill with a simple majority of 51 votes, Conrad said that reconciliation was not, in fact, an option. 

"I am the chairman of the committee in the Senate, and I think I understand how reconciliation works and can't work," he said, arguing that the so-called Byrd Rule would prevent the use of reconciliation for the main health care bill. "The only possible role I can see for reconciliation would be to make modest changes in the major package." 

Obama, Clinton, Schumer, Reid on Nuclear Option and Naked Power Grab (Video)

The video below stars then-Senator Barack Obama, Hillary Clinton, Chuck Schumer, Joe Biden and Harry Reid. In 2005, the Senators were piling shame on Republicans for using Reconciliation, also known as the Nuclear Option. Note that Republicans DID NOT use Reconciliation. The video follows some history on Reconciliation and the Nuclear Option.

Video pull-out quote:

I pray God when the Democrats take back control we don't make the kind of naked power grab you are asking. ~ Senator Joe Biden 2005

While researching Senate Rule XXII, cloture, filibusters and Reconciliation (nuclear option), I found a long essay which says Rule XXII is not what the Founders had in mind:

Rule twenty-two lends itself to criticism just in its very nature. The idea of a supermajority being needed in order to do the business of the country upsets a lot of reformers who wish to see what the founders pictured: a majority driven legislature. 

A vital note about Reconciliation, the Nuclear Option, comes from The Snooper Report, which reminds us that the only time Reconciliation can be used  is in passage of a budget bill. The health care bill is not a part of a budget bill...yet. Here's how that will work:

Congress includes reconciliation instructions in the budget. Those instructions direct certain committees -- say, the Finance Committee and the Health, Energy, Labor, and Pensions Committee -- to produce health-reform legislation hitting certain spending targets by a certain deadline. Once finished, the legislation is tossed back to the Budget Committee, which staples it together into an omnibus bill and sends it to the floor of the Senate for 20 hours of debate followed by an up-or-down vote.    

Senator Robert Byrd has a "rule" named after him - The Byrd Rule. The question is, will the Byrd Rule rule when it comes to Obama's health care?

The Byrd rule states that legislation is unfit for reconciliation if it "produce[s] changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision." I asked Jim Horney, a budget expert at the Center for Budget and Policy Priorities, how you define "merely incidental." And what, exactly, is a "provision"?

He sighed. A provision, he said, is "not defined anywhere. It goes well below a title or section of a bill and even below a paragraph. But exactly what it is nobody knows." And the Senate rules offer no more clarity on the definition of "merely incidental." Asked if anyone had developed an accepted meaning, Horney seemed almost apologetic. "No," he said. "Absolutely not."

The matter is not simply academic: The Byrd rule allows senators to challenge the acceptability of any provision (undefined) of a reconciliation bill based on whether or not its effect on government revenues is "merely incidental" (undefined). Thus, if you enter reconciliation with a health-reform bill, it's not clear what's left after each and every provision -- however that is defined -- is challenged and a certain number of them are deleted altogether: the tax portions, certainly. And the government subsidies. But is regulating insurers "merely incidental" to government revenues? How about reforming hospital delivery systems? How about incentives for preventive treatment? Or the construction of a public plan? An individual mandate?  

A supermajority vote of 60 was needed until 1975, under a Republican President and a Democrat Congress holding the majority in both the House and the Senate: Source.

The liberal Senate majority, determined not to be blocked by endless argument over legislation in a period of economic crisis, last week approved a compromise that achieved the first new limitation on debate since 1959. A filibuster will be choked off if 60 Senators (three-fifths of the total membership) vote to do so. That is seven less than the number (two-thirds) that had been required under the Senate's celebrated Rule 22, assuming the entire Senate was present and voting....

The fight was led by Democratic Senators Walter Mondale of Minnesota and James Pearson of Kansas, with an invaluable assist from Vice President Nelson Rockefeller, whose partisanship as presiding officer enraged his conservative critics....

Although conservative Senators angrily assailed Rockefeller for this high-handed tactic, Rocky was technically right. The Senate rules specifically permit the presiding officer to ignore a parliamentary inquiry when he believes it is being used as a dilatory tactic.

In 2005, when Democrats threatened to filibuster Bush's judicial nominations, Senator Bill Frist suggested that a filibuster on judicial nominees was inconsistent with the constitutional grant of power, and have VP Dick Cheney rule a simple majority was all that was needed to seat the nominees. Other events intervened and what was to be known as the Nuclear Option was not used.

History of the Nuclear Option:

The Senate's rules have allowed unlimited debate, or filibusters, since 1806, when senators dropped a rule that allowed a majority of the Senate to put an end to discussion and call for a vote. For the next 111 years, there was no way to stop a filibuster once it had started. 

But in 1917, when filibusters were blocking Woodrow Wilson's plans for World War I, the Senate adopted Rule XXII, which allowed senators to end a filibuster by a two-thirds vote on a motion to cut off debate -- a procedure called "cloture." 

In 1975 the Senate amended Rule XXII so that cloture required, in most cases, the vote of not two-thirds but rather three-fifths of the senators. In today's 50-state, 100-member Senate, that means it takes 60 rather than 67 senators to put an end to most filibusters. 

The Founders did not "found" the filibuster.

There, however, is no constitutional framework that says that senators should not have the right to unlimited debate. But, the filibuster which permits a small minority and even one Senator to stop a piece of legislation, was not intended by the framers at all. In fact, it has been argued by some that because the Constitution does lay down the times when a supermajority is needed, (e.g. 2/3 vote for convicting an impeached president and for signing treaties), therefore, only a majority should be needed to pass any legislation. This is further backed up by the Supreme Court Decision in United States v. Ballin, 1892. 

In this case, Justice David Brewer, speaking for the majority says, “the general rule of all parliamentary bodies is that when a majority is present, the act of the majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case, the terms of the organic act under which the body is assembled have prescribed specific limitations. ”

About Cloture:

What is cloture? In simple terms, it is the ability of a supermajority to shut off debate thus ending a filibuster. Any senator may file a motion of cloture providing that sixteen senators have signed it. Two days after a cloture motion is presented to the presiding officer, it is available for a vote one hour after the senate convenes. After cloture has been invoked, the Senators have thirty hours to debate, add amendments, and raise points of order . Once the thirty hours are completed, a vote on the pending legislation will be taken. Also it is important to note that once cloture is invoked, senators are only allowed to introduce germane amendments.

Cloture has not always been like this. When rule twenty-two was adopted in 1917, it took 2/3 of the Senate who was present to vote for cloture providing there was a quorum. In 1949, rule 22 was amended to state that 2/3 of the entire senate, or 67 members were required to vote to end debate. In 1959, rule 22 was amended again lowering the required number of senators to 2/3 of those who were present and voting. In 1975, cloture was lowered to 3/5 of membership or 60 members to vote for it. Since the drop in the number of members needed to invoke cloture, cloture votes were twice as successful then in the period from 1959.

The other major reform that took place in cloture was the time allotted to debate after cloture was invoked. Originally rule 22 never specified the amount of time that was permitted for debate after cloture was invoked, senators began to exploit the rule in the late 1970s. They started what became known as the post-cloture filibuster, where after debate had been supposedly ended, they would continue to tie up the floor with more debate, amendments, and points of order. For example, Senator X would have control over the floor and ask for every amendment to be read, despite relevance or necessity. This post-cloture filibuster would eat up a large amount of time. 

Thus, in 1979, the Senate amended rule 22 to state that post-cloture debate would be limited to one hundred hours or one hour per Senator. The only problem with this reform was that the one hundred hours did not include points of order or readings of amendments, so the post-cloture filibuster still worked in delaying the passage of a bill. Again in 1986, the senate voted to amend rule 22 to limit post-cloture debate to 30 hours including all points of order. This recent amendment has pretty much eliminated the post-cloture filibuster. 

This is what happens when we fool around with the original intent of the Founders.




Democrats Rail Over Nuclear Option 2005 (video)

Orrin Hatch Declares War on Reconciliation: Permanent Damage to Parties

Senator Orrin Hatch (R-UT) says there will be an "all-out political war" if Democrats turn to reconciliation to pass their health care reform. That's not all. Hatch believes if reconciliation is employed, it will cause "permanent" harm to any hope of bipartisanship.

Senator Hatch is expecting that war; he expects Democrats to "go to reconciliation," and "promised a new high in partisan tensions," if they do.

The day after the President's State of the Union, with Obama admonishing Republicans for their tone, and asking for bipartisanship, Hatch said he didn't believe Democrats will participate in bipartisanship [my interpretation of his remarks]:

"They haven't acted in good faith on this, nor do I expect that they will," he said in an interview with The Salt Lake Tribune . "I expect them to go to reconciliation."...

Hatch said Thursday that using reconciliation would be "one of the worst grabs for power in the history of the country" that would permanently impact relations between the two parties.

"It is going to be outright war and it should be, because it would be such an abuse of the reconciliation rules," Hatch said. "If they abuse those rules it is going to lead to even more heated animosities between not just the two parties, but even between individual senators." 

Reconciliation allows one party to bypass a filibuster and pass legislation with a simple majority - 51 votes, rather than 60 votes needed to avoid filibuster.

Hat Tip to Hot Air - read their commentary, and Senatus

More on Senator Hatch: Government in Control of Everything - Including College Football?

More on "Bipartisanship:"
Marsha Blackburn Questions Obama at Baltimore Conference

Paul Ryan Questions Obama on Budget: Obama Runs for the Hills

Obama Says Health Care Centrist: Angry, Delusional President (videos)