Our fate in the hands of the Parliamentarian?

Just when I thought the Health care bill is dead, stories like this begin to appear in the news. From today's WSJ OpEd page entitled "Truth and Reconciliation":

Those unversed in the arcana of Congressional procedure should familiarize themselves with "reconciliation." It's just another word for nothing left to lose—that is, it's the tactic Democrats seem increasingly likely to use to bypass the ordinary legislative rules and railroad Obama Care into law with a bare partisan majority of 50 Senators, plus Vice President Joe Biden. Speaker Nancy Pelosi announced this week in an interview with Roll Call that Democrats "have set the stage" for reconciliation. "It's up to us to make sure the public knows that this is not extraordinary," she said. "It would be a reflection on us if we could not convince people that this is not an unusual place to go."

I tracked the story back to Roll Call  - "Pelosi Makes Her Case: A Majority Is 51 Votes" By Steven T. Dennis  Roll Call Staff,  Feb. 10, 2010, 2:08 p.m.

The Speaker, who oversaw her chamber’s passage of a $1.2 trillion health care bill last fall, has repeatedly balked at White House suggestions following Brown’s election that the House merely accept the Senate’s version of the overhaul and has been pushing the Senate to adopt a host of changes through a separate, filibuster-proof budget reconciliation bill.  In her interview with Roll Call, Pelosi stopped short of saying the filibuster should be done away with altogether, but she used some of her bluntest language yet to defend the use of reconciliation as something that has been used with regularity by Republican and Democratic presidents alike. http://www.rollcall.com/news/43170-1.html?mostread=1

I am not sure about you but I find the rules a bit arcane. A number of people are weighing in on what this all means.  According to Edward Holman who commented on the WSJ piece:

Reconciliation can only be used to amend the budget items in a bill. Reconciliation is designed to save money by only requiring 51 votes in the Senate on budget items, so the 60 cloture won't stop cost-savings measures of bills already passed by the House and Senate. The House Parliamentarian rules on the association of the fixes to budgetary items only.

Carl Wright also commented: 

It's one thing to pass unpopular legislation. It's yet another thing to violate Senate rules to do it.  Cloture is a Senate rule; it is nowhere specified in the Constitution. Effectively, using the Senate's reconciliation rules and procedures for the purpose as described is equivalent to blowing up its cloture rule. Once that barn door is open, the Senate is back to requiring a bare majority to pass any legislation, and the filibuster is no longer possible.

So where does this come from? I tracked this back to what appears to be the Byrd Rule described in the American Prospect. 

 If you want to know why we do not today have a 50-vote Senate, the Byrd rule is the reason. The Byrd rule imposes a set of sharp constraints on the reconciliation process, limiting what is considered appropriate for reconciliation. The basic theory of the Byrd rule is that any legislation considered under the budget reconciliation process should principally affect federal revenues. A tax cut, for instance, can be considered under the reconciliation process. A new federal holiday cannot. But between those two examples sit crucial ambiguities.

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?

It's hard to say. The ultimate decision is left up to the Senate parliamentarian, whose rulings are unpredictable. Under George W. Bush, Republicans managed to ram tax cuts, oil drilling, trade authority, and much else through reconciliation. But they were as often disappointed: The GOP leaders fired two successive Senate parliamentarians whose Byrd rule rulings angered them.

Taken as a whole, the uncertainty of the reconciliation process transforms it into a game of chicken: If Republicans refuse to cooperate with health reform and force Democrats to resort to reconciliation, no one knows what will emerge out of the other end. Republicans might have no input, but Democrats will be at the mercy of an obscure bureaucrat's interpretation of an undefined Senate rule. It's the legislative equivalent of deciding a bill on penalty kicks.

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?

It's hard to say. The ultimate decision is left up to the Senate parliamentarian, whose rulings are unpredictable. Under George W. Bush, Republicans managed to ram tax cuts, oil drilling, trade authority, and much else through reconciliation. But they were as often disappointed: The GOP leaders fired two successive Senate parliamentarians whose Byrd rule rulings angered them. http://www.prospect.org/cs/articles?article=the_fifty_vote_senate

Who or what are parliamentarians? When the rest of us were running for class president or treasurer, they were those guys and girls who had the noses in the rule books and told us how to run our meetings, as if anything was actually at stake. No one listened to them anyway. We just did what we wanted and our faculty sponsors were clueless. More to the present point, who are the Parliamentarians of the US House of Representatives and Senate? How do they get there? Somewhere along the line much more came into play and the rules and who sets the rules really mattered. Much is at stake!

Parliamentarians of the House and Senate achieve their positions through many years of experience and service but ultimately are said to serve at the behest of the House and Senate majority leaders. When I looked at the Wikipedia entries for House and Senate Parliamentarians I was amazed at how limited the information was. In particular, I noted that there is NO INFORMATION regarding John V. Sullivan, the House parliamentarian and only limited information on Alan Frumin, the Senate Parliamentarian. There are some brief bios published in books which focus on unelected officials which one can find with some snooping.  However, for the most part these are some of the most powerful and influential people that no one seems to know anything about.

What will happen if the parliamentarian threatens to derail a reconciliation process pushed by Democratic leadership? They could not possibly consider firing him, could they? Roll back the clock a few years (2001)  to when then Senate Leader Trent Lott fired Robert Dove, the Senate Parliamentarian.  http://www.slate.com/id/1007647/pagenum/all/.  Hmm... I can see how this might play out, at least in the short term. Either the Parliamentarians play by the ruling party  rules or they are history. Of course the Republicans could cry foul until someone resurrects recent history. I predict that would not take very long. 


 In the longer term, there have been questions being raised about the viability of the filibuster itself and how any strong arm tactics used by the Democrats will alter how or if filibusters can be used in the future. The filibuster is a real pain in the ass for the ruling party. However, everyone now in the majority understands they also must consider not IF they become the minority party, but when. They will need the filibuster rule to serve their purposes when they become the minority party. http://www.slate.com/id/2244060?obref=obinsite. 

As the government controls larger and larger portions of resources, the stakes get higher and higher. The commitment of trillions of dollars hinge on the procedural decisions of obscure unelected individuals who are so stealth they have no Wikipedia identify. The world gets more interesting every day.

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