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The Senate parliamentarian’s key role in health care.


Alan Frumin May Determine Fate of Obamacare

The Senate parliamentarian’s key role in health care.

Senate Majority Leader Harry Reid (D-Nev.) may attempt to get a health care “reform” bill to the floor on Friday before the week-long Thanksgiving break. Much depends on resolution of the abortion and illegal immigration issues: Reid may not be able to muster 60 votes without bartering for the votes of a few Democratic moderates.

Should Reid fail to reach the 60 votes required to move a bill to the Senate floor, Reid would be left with his threat to use the budget reconciliation process in an attempt to pass a government takeover of health care in the Senate with only 51 votes.

Part of the Budget Act of 1974, reconciliation was created to set time limits on debate as a means to move deficit reduction measures more speedily through the Senate. Designed by our Founders to be the slower, more deliberative body of Congress, the Senate enjoys unlimited debate that requires 60 votes to bring to a close, “invoking cloture.”  Budget reconciliation restricts debate to 20 hours with no cloture vote.  A reconciliation bill automatically moves to a vote on final passage which requires only a simple, 51-vote majority.

Never before has the arcane budget reconciliation process been used as a means to pass sweeping policy legislation.  As keeper of the legislative rules, practices and precedents of the Senate, an unprecedented responsibility would be placed on Senate Parliamentarian Alan Frumin. It would fall to Frumin to rule which elements of the health care bill are germane to budget reconciliation.

Frumin first became parliamentarian when his predecessor, Robert Dove, was fired by Sen. Robert Byrd (D-W.V.), when he became Majority Leader. It was an unusual move as parliamentarians are non-partisan employees of the Senate. Dove, who had been rehired to the top post when Republicans regained the majority, was again fired by then Majority Leader Trent Lott. Go figure.

Frumin has seen first-hand the pressures that can be placed on the office, and never has there been so much riding on parliamentary rulings.  Budget reconciliation was never intended to be bastardized for use in the passage of hefty policy matters.

To get an inside look at the reconciliation process, I spoke with Elizabeth Letchworth, who was four times elected United States Senate Secretary for the Majority/Minority.  She is presently a senior legislative advisor at Covington & Burling and the owner-founder of

Letchworth worked on the floor of the Senate during 19 of the 23 times reconciliation has been used to pass Senate legislation.  

“There are a minimum of six cloture votes Reid would have to go through to get a bill through regular order, and that’s only if he does one substitute and you don’t need cloture on one big amendment like Stupak,” Letchworth told HUMAN EVENTS.  “It’s going to be hard to hold 60 votes throughout.”

The Stupak-Pitts pro-life amendment language passed the House overwhelmingly.  It would bar federal funding for abortion in the government run health care system preferred by the radical wing of the Democrat party.  The ban is expected to be offered as a Senate bill amendment if the language is not included in the original bill being constructed behind closed doors by Reid.

“I believe after Reid fails once or twice on regular order, you’re going to see some of the warning signs,” Letchworth continued.  “The first thing that has to happen for reconciliation is that the Finance Committee has to kick something to Budget. We’re going to see that process start.”

The Finance Committee can quickly vote to kick out a pre-written reconciliation bill on a straight party line vote.  

There is one major constraint on a reconciliation bill:  The Byrd rule, named after Sen. Robert Byrd (D-W.V.), the provision’s author.

“In the early 80’s, as reconciliation was first being used, the legislation began to include provisions outside the reconciliation instructions adopted by the budget resolution,” Letchworth said.  “As these ‘overreaches’ began to include items of no budget effect or items from other committees, members of the Senate began to search for ways to tamp down this new abuse of the expedited procedures included in the reconciliation legislation.”
The Byrd rule was formulated in 1985, was tweaked and then formally included in the Congressional Budget Act in 1990.  It allows any Senator to raise a point of order to strike an extraneous matter or disallow it from being added to the bill.

“A motion to waive the Byrd Rule is also available to the Senate,” Letchworth advised.  “The smart maneuver is to bundle the ‘overreaching’ provisions that have the most weight, that get the most votes together, so that the ultimate motion to waive will garner 60 votes.  It’s a chess game.”

Letchworth warns that by the time a reconciliation bill hits the Senate floor, nothing is left to surprise.  

“The owner of the reconciliation bill, in this case it would be [Senate Finance Committee Chairman] Baucus, knows well what provisions are going to be attacked,” Letchworth said.  “He and his staff will have worked out every possible angle to convince the parliamentarian otherwise and they fail.  This is not a surprise.  It’s almost orchestrated.”

“They come on the floor, they’re ruled extraneous, and in this case Baucus would move to waive the provisions of the Byrd rule, then you would have an hour of debate,” Letchworth continued.  “All of this is scripted.”

“You’re not overturning the parliamentarian [in waiving the Byrd rule].  You’re saying notwithstanding the fact that we did not follow reconciliation to the letter of the law and the parliamentarian is calling us out on it, we think it’s so important we want to waive his ruling and we’ve got 60 Senators to vote to waive it.”

From 1985 to 2004, the Senate was able to raise the Byrd rule in 55 cases — 42 of those cases were successful in either striking the offending language or banning it from being included in the bill.  In 41 of those cases, the Senate attempted the motion to waive.  Nine of the waiver motions were successful.

I asked Letchworth if the process has any level of transparency.
“The Budget Committee submits for the record a list of potentially extraneous matters as well as determining the budgetary levels for purposes of enforcing the Byrd rule,” Letchworth said.  “These two Budget committee submissions help to aid the Senate parliamentarians as they are considering various rulings under the Byrd rule. This scenario also creates a scripted, transparent scene leading up to most Byrd rule votes that have occurred in the Senate.”

“Over the life of reconciliation in the Senate, of the 23 times they’ve passed bills, the average vote has been 67.25 votes in favor of passage,” Letchworth added.  “History shows that leaders haven’t used it to get a majority 51 votes; they’ve used it for the debate caps, the time restraints, because the Senate can take so long to move things.”

Last week, Senate Majority Leader Harry Reid (D-Nev.) began the “Rule 14” process that will make the House-passed health care bill available on the Senate calendar tomorrow, Tuesday, November 17.  Because a tax bill cannot originate in the Senate, Reid is using the House-passed version as a shell to move on his health care bill in the Senate.

In order to immediately begin consideration on Tuesday, Reid must have a unanimous consent agreement, which is unlikely. Without unanimous consent, Reid is forced to file for cloture on Tuesday if he wants to get a bill to the floor this week.  The vote on the Motion to Proceed to the health care bill could then not occur until Thursday morning earliest.

Should cloture be invoked, there are 30 hours of post-cloture debate that, if used, would delay any adoption of a Motion to Proceed to health care under regular order until Friday afternoon.  This would be the first opportunity Reid would have to offer an amendment to substitute Harrycare in place of the House-passed version of the bill. 

Cartoon by Brett Noel.

Written By

Connie Hair writes a weekly column for HUMAN EVENTS. She is a former speechwriter for Rep. Trent Franks (R-Ariz.).

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