THE TREATMENT JANUARY 28, 2010
In order to prevent the Senate's forty-one Republicans from blocking a vote on health care reform, Democrats may try to pass some elements of reform through the budget reconciliation process. But just how easy would that be? In particular, even with reconciliation, could a minority of Senators still find ways to obstruct a vote--or at least delay one?
TNR put the question to Treatment contributor Jeff Davis, who publishes and edits Transportation Weekly and who happens to be an expert on the legislative process. Here's what he says:
The Congressional Budget Act of 1974 established a centralized budget system within Congress for the first time. The law declared that the annual budget blueprint setting spending and revenue targets (the budget resolution) and legislation to amend existing law to reach the targets established by that blueprint (a reconciliation bill) were so vital that they would be exempt from the Senate’s normal rules of debate--setting time limits on the duration of floor debate (50 hours for the budget resolution, 20 hours for a reconciliation bill) which, of course, had the effect of lowering the threshold for action from the 60 votes necessary to close debate on a normal bill to a simple majority (51 in a full Senate if the Vice President is against you, 50 if he is with you).
The 1985 Gramm-Rudman-Hollings law added to this, declaring that the budget was so important that once a budget was established, legislation that would violate the terms of that budget would henceforth require 60 votes in the Senate, not the normal 51, at least until the passage of a new budget with new targets. And that same year, the Senate declared that the reconciliation bill’s fast-track procedures were too inviting a vehicle for unrelated items, so that chamber established the “Byrd rule” requiring 60 votes to put any provision in a reconciliation bill that does not have as its primary purpose a change in federal spending or revenues.
The interaction of 51-vote and 60-vote requirements in the Senate makes it impossible to predict, with certainty, the exact boundaries of what kind of health care reconciliation bill could pass that chamber. And even though a reconciliation bill is on a fast track, there are still plenty of opportunities for delay in the Senate.
For starters, there would have to be new committee markups in the Senate. The Finance Committee and the Health Committee would each have to mark up their portions of the reconciliation bill. Neither panel’s rules presently allow anything analogous to the cloture process to shut off debate during a markup, so a “filibuster by amendment” is possible in both committees. The markups will last as long as members keep offering amendments and demanding votes.
Both committees retain the option of rewriting their rules by majority vote to allow some kind of majority-vote motion to shut off debate. But within the confines of a committee, this kind of thing usually depends less on the rules and more on the personal relationship between the chairman and ranking Republican on each panel. Finance’s Baucus and Grassley have a long history of working together to keep the committee running smoothly, and Health’s Harkin and Enzi get along reasonably well considering the philosophical gulf that divides them. It is hard to envision either markup lasting longer than a few days.
Next, Finance and Health would both have to report their parts of the reconciliation bill to the Budget Committee, which would have to hold its own markup of the legislation to combine the two bills into one. However, Budget is prohibited from making substantive changes to the legislation and can only make technical changes. Nevertheless, this presents another opportunity for delay.
Then Budget must report the unified reconciliation bill to the Senate. Once debate starts, the 20-hour clock starts to tick. However, just as a football game’s 60 minutes of playing time can take three hours to complete, that 20 hour figure is somewhat misleading. For starters, a Congressional Research Service report says that “Debate on the measure, all amendments thereto, debatable motions and appeals, and time used in quorum calls (except for those that precede a rollcall vote) is counted under the limit, but time used to read amendments, to vote, or to establish a quorum prior to a rollcall vote is not counted, absent a unanimous consent agreement to the contrary.”
The fact that the time spent reading amendments aloud is not counted under the 20-hour limit is particularly significant, as Senators wishing to hold things up are free to offer amendments which are hundreds of pages in length and demand that they be read aloud by the clerk.
And the fact that the Budget Act neglected to cap the total amount of time spent voting, or the number of amendments that can be offered, makes possible the most visible means of delay--“vote-a-rama.” Once the 20 hours (stretched far beyond that timeframe by the reading of amendments) have expired, Senators can continue to offer amendments which then are immediately voted on, without debate. At the end of debate on a budget resolution or reconciliation bill, it is not unusual for the Senate to hold 20 or 30 roll call votes in a row. If the leadership tries to move a health care bill via reconciliation, Republicans promise that the number of amendments will far exceed that, perhaps into the hundreds. And under Senate rules, each roll call vote can last no less than fifteen minutes unless the Senate gets unanimous consent to shorten the time of the votes. (While this consent is normally granted, it probably would not be in this instance.) And a Budget Committee aide indicated that the normal procedure used by the Majority Leader to forestall amendments – called “filling the amendment tree” – is not operative on a reconciliation bill.
Some critics of the modern filibuster process have expressed a “bring it on” mentality towards the prospect of filibuster-by-vote-a-rama, since it would require Republicans to be physically present during their dilatory tactics, like in an old-school Mister Smith Goes to Washington filibuster. But it would also require most Senate Democrats to be present at all times, to prevent any Republican amendments from actually passing and torpedoing the deal. So under the current precedents, the vote-a-rama will last until the opponents of the bill are physically unable to continue standing up and offering amendments. The only constraints are exhaustion and shame--either the thought that eventually the minority will tire of offering amendments (after 24 or 48 hours of back-to-back rollcall votes, a chamber of septuagenarians might cry “uncle”), or the idea that once all the substantive amendments have been offered, the minority will eventually tire of offering nickel-and-dime amendments just for the sake of slowing things down.
Once the Senate approves the bill, it must be “hooked up” with its House counterpart, since this bill will almost certainly contain tax provisions and therefore, under the Constitution, must have an H.R. bill number. The process by which the Senate brings up a House companion bill, substitutes the text of its own bill for the House text, and sends it back to the House is almost always handled by a quick unanimous consent agreement, but in this case, it is likely that it would require another 20 hours of debate (stretched out by the reading of amendments) and another vote-a-rama.
Then everyone has to take a step back and see what the Senate actually passed. (Because of the hectic nature of vote-a-rama, it usually takes a few days for the Senate enrolling clerk to make heads or tails of exactly what the Senate did and to integrate those changes into the bill.) If the House can live with whatever reconciliation bill the Senate passed, the House is free to accept the Senate amendment to the House reconciliation bill by majority vote and send it to the President. But if the Senate-passed reconciliation bill needs changing, there are further opportunities for delay.
Reconciliation bills have always been sent to House-Senate conference committees. However, back when Bob Dole was Republican leader, his in-house parliamentary genius, Bob Dove, realized that for the Senate to send a bill to conference actually requires three separate motions (to disagree with the House, request or agree to a conference, and appoint conferees)--and that even though they were almost always handled by a single unanimous consent request, each of these three motions is separately debatable, and that shutting off debate on each motion would require no less than 60 votes. The minority has fought this fight rarely, since it is a bit of a scorched-earth tactic, and never on a reconciliation bill, since it violates the spirit (but not the letter) of the Budget Act, but the mere prospect means that this reconciliation bill would probably be “ping-ponged” via amendments between the Houses rather than sent to conference.
If the House tries to change the Senate-passed reconciliation bill, the amended bill would have to be sent back to the Senate, at which a new 20-hour clock would start ticking, followed by a new vote-a-rama. If no amendments were agreed to, the bill would be sent to the President, but if a single amendment passed, the bill would have to go back to the House again.
All of the above explains how things work under the current rules, procedures and precedents. There is always the possibility that the Vice President could assume the chair, reverse previous rulings and shut off some of these avenues for delay. But that approach (similar to the “nuclear option” that has been proposed from time to time to change the filibuster rule by majority vote) would completely poison the well of bipartisan comity in the Senate and ensure that no bills, resolutions, or nominations pass the Senate by unanimous consent for the remainder of the year and making it much harder to pass the remainder of President Obama’s agenda.
The bottom line is this: if the Democratic leadership decides to pursue health care through via a budget reconciliation bill, they will eventually be able to pass a bill desired by a bare majority of both chambers. But in the Senate, the process will be neither quick nor clean.