Some aspects of congressional process are subject to hard and fast rules that are not open to interpretation. These include needing 60 votes to enact cloture on debate in the Senate, or requiring a majority of those present and voting to for a motion to pass in the House.
However, other aspects of parliamentary process are relatively vague, leaving open significant room for interpretation. One such example would be the "Byrd Rule," which seeks to limit the types of bills that the Senate can use during the reconciliation process. Even the House Committee on Rules explicitly states that the Byrd Rule is open to interpretation. From the Committee's website (emphasis mine):
Under the Byrd rule, the Senate is prohibited from considering extraneous matter as part of a reconciliation bill or resolution or conference report thereon. The definition of what constitutes "extraneous matter" is set forth in the Budget Act; however, the term remains subject to considerable interpretation by the presiding officer (who relies on the Senate Parliamentarian). The Byrd rule is enforced when a Senator raises a point of order during consideration of a reconciliation bill or conference report. If the point of order is sustained, the offending title, provision or amendment is deemed stricken unless its proponent can muster a 3/5 (60) Senate majority vote to waive the rule.
Given this, in the specific case of using the reconciliation process for health care reform, there is no "most accurate" interpretation of the Byrd Rule. That is to say, it is not possible to derive at the one true and proper understanding of the Byrd Rule through sheer linguistic analysis and hermeneutics. Instead, there are a range of interpretations, all of which can be deemed correct, based on the political will of the presiding officer enforcing the rule.
Because they are open to a range of interpretations, arguments that a piece of legislation will be defeated by one of the second, vaguer aspects of parliamentarian process are ultimately bogus. An example of just such a bogus argument comes from Senator Kent Conrad today, when he argues to Ezra Klein that health care reform can't go through the conciliation (that is, 50-vote requirement) process:
Reconciliation was never designed to write substantive legislation. It was designed solely for deficit reduction. The whole idea was you would change numbers, not policy. You would change numbers on the revenue side of the equation and the spending side of the equation.
And so, the way it works, under current rules, if your in reconciliation, you have to be deficit neutral over five years. Under the budget resolution, health care can be deficit neutral under 10 years. That's a big difference.
Two, under reconciliation, you're subjected to the Byrd rule. The Byrd rule says that anything that doesn't cost money or save money, or that only costs money or saves money in a way that's incidental to the policy, are subject to strike. The result, for instance, is that all the insurance market provisions are subject to strike. All the wellness and prevention provisions are subject to strike. The Senate parliamentarian said to us that if you try to write substantive health reform in reconciliation, you'll end up with Swiss cheese.
Now, I freely admit that I do not understand Senate process nearly as well as Kent Conrad. However, I seriously doubt that Kent Conrad has such an elevated understanding of Senate process, that his interpretation on the use of reconciliation in health care completely invalidates the view of the House Rules committee and the Obama White House combined. This is because both the House Rules Committee and the Obama White House have insisted that health care reform can go through the reconciliation process, which is why both successfully pushed for that process to be included for health care in the budget blueprint.
The issue is not whether Kent Conrad or the White House and House of Representatives are offering the one true interpretation of the Byrd rule and reconciliation process in this instance. Clearly, there are arguments on both sides of this debate over process. Instead, the issue is one of political will. Is the Senate Democratic leadership is willing to use reconciliation for health care reform?
The vague aspects of political process are almost infinitely mutable to the will of the people in charge of the process. When someone claims that a piece of legislation cannot pass muster under reconciliation, even though many, many members of Congress and the White House claim that it can, what that claim actually means is that the person does not want to use reconciliation to pass that piece of legislation. It is in this way that many process arguments are ultimately bogus.
The Democratic leadership in Congress and the White House are going to have to start cementing their will to use the reconciliation process on health care reform. This is because there are not enough votes to pass health care reform without a public option through the House, and there are not enough votes to pass a public option through the 60-vote rule in the Senate. This means that there will either be no health care reform, or that health care will go through the reconciliation process. Given that not passing health care reform would be a total political disaster for Democrats, it is reconciliation or bust for health care reform. While it is certainly important to spend a few months making the public case that the opposition to health care reform was simply intractable and would act in good faith, the entire time we better be shoring up the votes and the will to pull this off through reconciliation.
