The Speaker’s Lobby: Through the Health Care Looking Glass

By: Chad Pergram, FOX News

01 March 2010

President Obama announces how he intends to move health care reform through Congress this week.

And Disney releases Tim Burton’s version of “Alice in Wonderland” on Friday.

A coincidence, perhaps?

The course Democrats may choose to pass the health care bill may seem like something right out of the topsy-turvy world depicted in the Lewis Carroll classic. The tale is emblematic of the arcane, parliamentary jabberwocky people will hear the next few weeks on Capitol Hill. The hurdles that Congressional leaders must clear to approve the bill would make the Red Queen’s Race look fair.

In fact, the Queen may as well have been talking about the Congressional machinations necessary to pass health care when she told Alice what it takes to win.

“It takes all the running you can do to keep in the same place,” the Queen said. “If you want to get somewhere else, you must run at least twice as fast as that!”

This sounds so familiar.

The conventional wisdom is that the president will attempt to use a Congressional procedure known as “reconciliation” to pass a final version of the bill. With Brown’s election last month, Democrats only have 59 votes and not the 60 they once had to thwart a Republican filibuster. In short, reconciliation requires a simple majority to approve a bill and it limits debate to 20 hours in the Senate. The gambit doesn’t require a supermajority and it stymies GOP efforts to filibuster the legislation.

But it just gets curiouser and curiouser.

What follows is a scenario more complex than anything you’ve read about health care reform so far. It’s the quantum physics of politics. A calculus that is the Congressional equivalent of Planck’s Constant, Avogadro’s Number, String Theory and Noetics rolled into one. It would make the heads of Albert Einstein and Stephen Hawking spin.

You can quit reading here if you want . As Morpheus said in the movie The Matrix, if you take the blue pill, the story ends. If you take the red pill, you’ll stay in Wonderland and I’ll show you how deep the rabbit hole goes.

So here’s your choice. Keep reading. Or you can stop reading at the break.


Alright. You took the red pill. Fasten your seatbelt Dorothy. ‘Cause Kansas is going bye-bye.

The House and Senate have passed distinct versions of the health bill. Under conventional circumstances, representatives from both bodies would meet in what’s called a conference committee to hash out the differences. The conference committee would then forge a unified, final bill that must be approved again by both chambers of Congress. Once both the House and Senate do that, they could send the legislation to the White House.

The other option is to engage in “Ping-Pong.” That’s when the two bodies bounce the legislation that each has passed back and forth. They make changes each time until they craft an ultimate, unified bill.

But Democrats lack the political will to execute either of those maneuvers now. That’s why they’re discussing the reconciliation process. A kind of short-cut that’s anything but short. And frankly, any commentator who argues that Democrats are going to use the reconciliation technique to “jam” the bill through doesn’t have the foggiest clue how convoluted this method is.

The House approved its health care bill in early November. The Senate okayed its version on Christmas Eve. Going the conference committee route would again require Democrats to run the Senate’s 60 vote trap, which they don’t have. So they easiest thing would be to keep the bill out of the Senate. Just Ping-Pong the measure over to the House and have it approve the Senate version. Then, both houses of Congress have okayed the same, bill and it can go to the White House for the president’s signature.

But here’s the rub. House Speaker Nancy Pelosi (D-CA) doesn’t have the votes to approve the Senate bill. And if the Congressional leadership launched the reconciliation process to “fix” problems in the legislation (thus, lowering the vote threshold to 51, not 60), the House doesn’t trust the Senate to make good on the policy provisions it wants. It would want the Senate to initiate the reconciliation process.

As the Mad Hatter said, “You mean you can’t take less?” It’s very easy to take more than nothing.”

So the Senate would be expected to craft a reconciliation bill that implements the policies that the House insists on.

But there are two problems with that. Reconciliation can only be used on money bills. In fact, reconciliation legislation must reduce the deficit or be budget neutral. So, all non-fiscal elements of the health bill ineligible for reconciliation. Secondly, reconciliation fundamentally deals with raising revenue. And the Article I, Section 3 of the Constitution demands that “All Bills for raising Revenue shall originate in the House of Representatives.”

In other words, the House may want the Senate to go first. But it can’t. Senate Budget Committee Chairman Kent Conrad (D-ND) is emphatic that he can’t trigger reconciliation before the House.

So, that leaves the House initiating the reconciliation bill, moving it through its committees, onto the House floor and over to the Senate.

There’s a problem here, too. The House still hasn’t approved the Senate’s health care bill. Therefore, there is nothing to reconcile. As Alice said when she spies the Cheshire Cat’s grin with no feline present “I’ve often seen a cat without a grin; but a grin without a cat?”

However, a number of sources believe that the House must first pass the original Senate bill to open the gates for the House to launch the reconciliation process. Others theorize that the House could sit on the Senate bill and start reconciliation on its own. Another hypothesis is that the Senate could somehow create a “shell” reconciliation bill, to give the House the policy guarantees it wants and then move it over to the House. The House would then convert that legislative vehicle into its own. That would meet the Constitutional proviso requiring revenue raising bills to originate in the House. The House would then go through the reconciliation process, pass that reconciliation bill, and kick it to the Senate.

Regardless, the House would have to approve the Senate’s health bill at some point.

If everything goes fine, Congress then sends two bills to President Obama to sign. One is the actual health care bill (which is technically the Senate version, finally voted on by the House). The second is the reconciliation bill that makes all of the policy changes.

But this creates a colossal problem. Reconciliation can only be used on money bills.

Then there’s the Byrd Rule, named after Sen. Robert Byrd (D-WV). Under the Byrd Rule, the Senate parliamentarian can then weed out any element of the package that doesn’t pertain to money or revenue. That suddenly makes Senate Parliamentarian Alan Frumin the most-powerful person in Washington. And Frumin could slice the reconciliation bill down to a sliver because so many of the health care components deal with policy and not federal revenue.

In addition, even if Frumin diced the reconciliation bill, it’s possible that the presiding officer in the Senate (always a Democrat, since they’re in charge), or Vice President Biden, in his role as President of the Senate, could overrule the parliamentarian on anything. The presiding officer is not obliged to take the parliamentarian’s advice.

Moreover, Senate Republicans could bind the chamber in knots. Yes, the reconciliation process curbs debate to 20 hours. But that doesn’t include points of order, appeals of the ruling of the chair and motions to table the appeals. That could plunge the Senate into a procedural quagmire.

You’re deep down the parliamentary rabbit hole, now. To Alice said, “It would be so nice if something made sense for a change.” It probably doesn’t. Perhaps that’s why the best advice came from the King of Hearts.

“Begin at the beginning and go on til you come to the end. Then stop,” he said.

–         Chad Pergram covers Congress for Fox News. He’s won an Edward R. Murrow Award and the Joan Barone Award for his reporting on Capitol Hill.

–         The Speaker’s Lobby refers to a long, ornate hallway that runs behind the dais in the House chamber. Lawmakers, aides and journalists often confer there during votes.