'Reconciliation,' revisited

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Democratic Senate leaders speak to reporters after passing a sweeping health care reform bill by a 60-39 margin on Dec. 24, 2009. A final version of the bill was not approved before a Republican win in a special election eliminated Democrats' 60-vote supermajority. PAUL J. RICHARDS / AFP - Getty Images
/ Source: NBC News

Senate Majority Leader Harry Reid swore he wouldn't use it. Senate Republicans have demonized it. Most Americans have never heard of it. But a little-known legislative procedure called "reconciliation" is making a fierce comeback as congressional Democrats' best hope to end the Senate’s stalemate over health care reform.

Reconciliation is a fast-track legislative process — specifically designed to reduce deficits — that cannot be blocked or filibustered. Congress created the procedure in 1974, amid concerns that legislation cutting popular social programs like Medicare and Medicaid would never get the 60 votes necessary to break a filibuster.

Early last year, Democrats dusted off their rulebooks and began examining the intricacies of passing the health care bill using reconciliation, which would require only a simple 51-vote majority. Almost all of them reached the same conclusion: using an obscure budgetary procedural to pass a massive overhaul of one-sixth of the nation’s economy would be politically perilous and alarmingly unpredictable.

Democratic leaders publicly dismissed pulling the reconciliation trigger last year, after it became clear that they would be able hold the 60 members of his caucus together to pass the overhaul package. Questioned by knots of reporters when he walked the Senate hallways, Budget Committee Chairman Kent Conrad threw cold water on the idea every time.

Top aides to Reid circulated memos that outlined scores of potential problems with the process. “I’m not using reconciliation,” Reid declared flatly at a November news conference.

Revisiting reconciliation
But the political landscape has changed dramatically, making the procedure once called a "non-starter" by one Democratic senator into a very real possibility. Both chambers have each narrowly passed their own health care bills, and campaign season is now in full swing. Most importantly, when Republican Scott Brown thundered to an astonishing victory in a special election to replace the late Sen. Ted Kennedy of Massachusetts, Democrats lost their ability to break filibusters on the Senate floor.

One thing that hasn't changed in the Senate is fierce GOP opposition to the Democratic health care bills. In fact, it's only solidified with Brown’s arrival on Capitol Hill, forcing Democrats to find a way to sidestep a solid block of 41 Republican “no” votes.

The fastest route to final passage would actually be for the House to approve the health bill that passed the Senate in a dramatic Christmas Eve vote last year. Such a move would literally put legislation on the president’s desk in a single day, but House Speaker Nancy Pelosi says she doesn't have the votes to pass the Senate bill "as is."  In other words, there will need to be some additional "fixes" — or revisions to the Senate bill that could win over wavering House Democrats.

That's where reconciliation comes in. The Senate could pass these fixes with only 51 votes and avoid a filibuster.

In simple terms, Senate Democrats could revise their bill by passing a package of provisions that addressed Medicare, Medicaid, taxes, government subsidies, and revenues collected by the government, which would likely survive the rigorous rules of reconciliation.

Conrad said that approach would work.

"The only possible role that I can see for reconciliation would to be make modest changes in the major package,” he said Sunday on CBS' "Face the Nation."

"The role for reconciliation would be very limited. It would be on sidecar issues, designed to improve what passed the Senate and what would have to pass the House for health care reform to move forward," he said.

GOP flipping the "Byrd"
While a smaller reconciliation bill would appear to increase Democrats' chances of success, Republicans still have weapons to wage war against the process. Every line in the bill must adhere to strict rules to ensure a budgetary impact or risk being eliminated by the non-partisan Senate parliamentarian.

(Alan Frumin, the current parliamentarian, is viewed by Republicans and Democrats alike as an impartial umpire. He was promoted to the top spot by then-Republican Majority Leader Trent Lott.)

Expected to lead the charge for the GOP is Sen. Judd Gregg of New Hampshire, the top Republican on the Budget Committee. "Reconciliation is a very technical exercise," Gregg said last week. "You'd have to go through each section, each sentence, each paragraph and take a look and see whether the policy exceeded the budgetary impact."

At Gregg's disposal are 18 different "points of order" to challenge sections of the bill and force a ruling from the parliamentarian. If the parliamentarian sustains or agrees with Gregg, that section would be removed from the bill. There is no limit to how many objections can be raised, leaving the potential, according to Democrats, for Republicans to force dozens of votes.

The most well-known point of order is referred to as the "Byrd Rule." Named after its creator, West Virginia Democrat Sen. Robert Byrd, the rule generally allows sections of the bill to be eliminated if they do not have a direct impact on deficit reduction.

For example, Gregg says, a proposal introduced by President Barack Obama last week giving the government authority to regulate insurance premiums might be struck down by the parliamentarian. The measure, Gregg says, could have “very serious Byrd issues."

The Byrd Rule is so popular that it has its own lexicon. If someone thinks he or she can strike a section of the bill, that section is considered "Byrdable." Once it is struck from the bill, it's called a "Byrd dropping." A bill that has been riddled by the Byrd Rule has gone through a "Byrd bath."

Democrats could vote to overrule the parliamentarian’s decision, but in several cases it would take 60 votes — which Democrats no longer have — to be successful. The vice president, whose constitutional duties include serving as the president of the Senate, also has the authority to overrule the parliamentarian’s verdicts. But aides say that there is virtually no chance that Joe Biden, himself a senator for 36 years, would risk such high-profile meddling in Senate business.

Is it fair?
Republicans argue that reconciliation is a partisan tactic that would limit their ability to offer amendments and limit debate to 20 hours in what's considered "the world's most deliberative body." They also say it's inappropriate to use a fast-track budget process to craft health care policy.

But Democrats are quick to point out that the process has been used by both parties — more than 20 times since 1980 — on things like tax cuts, student loan programs, children's health insurance, and welfare reform.

"They should stop crying about reconciliation as if it's never been done before," Reid said last week. "It's done almost every Congress, and they're the ones that used it more than anyone else."

Msnbc.com's Carrie Dann contributed to this report.