HELP on the way? Health care and budget reconciliation

Health care reform does not need 60 votes to pass. It can be done under reconciliation.

Paul Krugman celebrates the Health, Education, Labor and Pensions (HELP) Committee’s recent draft legislation, which will create universal coverage at a cost of somewhere between $1 and $1.3 trillion over ten years — far less expensive than previously thought, and around where the Senate “moderates” were targeting, no doubt because they thought it couldn’t be done.

But the question is whether that bill will ever see the light of day.

Let’s assume that the bill can come to the floor. Can it be filibustered? I believe not if Obama really wants this thing. Already, savants are claiming that reconciliation cannot be used for health reform. They have some good points, but at the end of the day, this is not about the rules of the Senate. It is about Barack Obama and the Democrats in the Senate.

The key here, as I understand it, is the Byrd Rule, which prevents legislation dealing with matters “extraneous” to the budget from being considered under budget reconciliation legislation. Since a reconciliation bill only requires 50% + 1, then anything properly in a reconciliation bill cannot be filibustered.

We need to know, then, what counts as “extraneous”? According to a valuable Congressional Research Service report on the issue, the Rule applies to measure that:

do not produce a change in outlays or revenues;

produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision;

are outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;

increase outlays or decrease revenue if the provision’s title, as a whole, fails to achieve the Senate reporting committee’s reconciliation instructions;

increase net outlays or decrease revenue during a fiscal year after the years covered by the reconciliation bill unless the provision’s title, as a whole, remains budget neutral;

contain recommendations regarding the OASDI (social security) trust funds.

It is obvious here that the HELP bill, if it contains changes to Medicare or Medicaid, would have to get Finance Committee approval before being eligible for reconciliation, for those programs clearly fall under its jurisdiction.

Moreover, the Report also has a comprehensive summary of points of order made under the rule, when they have been upheld, rejected, or waived (the last of which requires 60 votes). My reading of this summary is that the Senate has been quite conservative on the matter: for example, a measure that would have raised the age for Medicare eligibility, which clearly affects the budget, was rejected on the grounds that it was “merely incidental.”

But it seems to me that all of this assumes a certain amount of good faith on the part of the Senators, a good faith which, in the case of the GOP, is simply not there.

Most importantly, who makes the ruling on whether the Byrd Rule applies? In an interview with Ezra Klein of the Washington Post, Senate Budget Committee chair Kent Conrad suggested that it was the Senate parliamentarian. This is a deliberate and grotesque evasion of responsibility. Just as disingenuously, Jim Cooper suggested the same thing.

It is, in fact, the President of the Senate, otherwise known as the Vice President of the United States, who makes the ruling. His ruling can be overriden by a majority of Senators, but that motion is itself subject ot filibuster.

The bottom line is that this is not about bipartisanship, and it is not about the rules of the Senate. It is about whether Barack Obama and the Democrats want this thing: if the Democrats on the Finance Committee are unified, then the HELP bill can get to the floor, where the Chair can rule that its provisions do not violate the Byrd Rule.

Will the Republicans scream about this? Yes. Will David Broder? Yes. Should anyone care? No. Won’t the Republicans take revenge if they come into power? Yes, but that doesn’t matter because they will do so anyway. They have shown time and time again that they are simply uninterested in legitimate compromise, and that moderation will only be greeted with greater extremism on their part.

Will this provision last only 5 years? I believe so, although I am not clear on that. But if so, then that is a disadvantage, not a reason for trying to get chimerical Republican cooperation. It won’t happen. Pass the bill. Start the system. If in 5 years the Republicans have unified control of the government, then they will try to repeal it. Democrats (and the general public) will oppose them, and I believe that they will succeed because enough people will have benefitted from the program that this will not be politically possible. 24 years after the 1985 budget reconciliation, people can still get “COBRA” care, because it has developed political support. That’s called democracy, and it is still a good idea.

BLEG: Obviously, Senate rules are very complex, and I am anything but an expert. Readers with knowledge of how this works are invited to write in and provide more information. I will update and correct if necessary.

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.