Health Care and Reconciliation: Nate Silver Messes Up

Even the great Nate Silver makes a mistake once in a while. And he certainly did by suggesting that whether health care can be enacted through reconciliation is up to the Senate parliamentarian. It’s actually Joe Biden’s call.

Maybe people want to give me a coronary on this, but Nate Silver passes along the current — and so far completely unsupported — conventional wisdom on budget reconciliation and health care.

The extent to which the [health care] bill remained intact would depend upon the rulings of the obscure Senate Parliamentarian, and going through reconciliation would cause mayhem on the Hill with somewhat unpredictable political consequences.

Yet again, I see no reason to believe this. And in fact, Nate proves it. His link for this assertion is to the Wikipedia entry for the Senate parliamentarian, which never claims that the parliamentarian makes Byrd Rule determinations. In fact, it says:

The role of the parliamentary staff is strictly advisory; the Presiding Officer is in no way required to follow their advice, though they almost always do so.

That means one thing and one thing only: the person making the determination as to whether the health reform package can be enacted whole under reconciliation is Senate President Joe Biden. His rulings can be overturned by the whole Senate, but a motion to do can be filibustered, and it can also be laid on the table with 51 votes.

There are good reasons for enacting health care reform through reconciliation (viz. GOP obstructionism) and good reasons against it (viz. it will only last 5 years). But chaos resulting from the Senate parliamentarian is not one of them.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.