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Q&A: Norm Ornstein on the Senate and the Reconciliation Vote on Health Care

As President Obama prepares to sign health care reform into law, the U.S. Senate still has steps to take to consider a package of revisions to the legislation – a promise made to House Democrats who wanted changes made to the reform measure passed by the Senate.

We spoke to Norm Ornstein, congressional scholar at the American Enterprise Institute and a regular NewsHour guest, about the details of the process ahead in the Senate.

On Sunday, the House of Representatives passed the Senate version of the health care reform bill and President Obama said he will sign it into law. But the Senate has agreed to make changes to the legislation – how can the Senate change a bill that has already become law?

NORM ORNSTEIN:The Senate will actually vote on a reconciliation bill that has passed the House, designed specifically to change an existing law to enable it to conform to the budget resolution. The bill the Senate will vote on does not fit the narrow definition of a reconciliation bill as defined by the Budget Act, but it fits the pattern of nearly all the twenty-plus reconciliation bills that Congress has considered over the past thirty years.

Media reports say that the Senate could bring up the reconciliation issue as early as Tuesday. Is there a time limit for the Senate to act on this bill after the president signs it? How long might it take for the Senate to actually vote on the changes to the reform package?

NORM ORNSTEIN:There is an expedited process for reconciliation, with debate limited to twenty hours, but after that debate, there is no limit on the number of amendments that can be offered (though each has to be germane, or relevant under the reconciliation rules.) Republicans have threatened to offer hundreds of amendments, to do the equivalent of a filibuster by amendment. But at some point, the president of the Senate (in this case, Vice President Biden) could declare the amendments dilatory and rule them out of order. Most likely, Republicans will use their amendments for a few days to dramatize their opposition, but since the bill has passed the House with great fanfare, it is doubtful that they would risk the criticism of obstructionism by trying to extend the debate for weeks. So a final resolution by Saturday or Sunday is most likely.

The rules for the reconciliation process are different from the typical Senate rules. Can you explain the differences?

NORM ORNSTEIN: The most significant difference in reconciliation rules is that there are no filibusters– the threshold for passage is a simple majority, not the 3/5ths of the Senate required for most other measures, and not with the opportunity for unlimited debate without achieving the 60 vote threshold that normally applies. Under reconciliation, there is a 20 hour debate limit. But the issues that can be considered under reconciliation are severely constrained– they have to be substantially related to the budget. At the same time, there is a separate provision known as the Byrd Rule. If any part of the reconciliation bill raises deficits via spending or tax increases, it can be flagged by a point of order by any senator, and on these matters it would require 3/5ths of the Senate to adopt the provision.

House Democrats were assured that their Senate colleagues would act on the changes to the reform package. Is there any doubt in your mind that Senate Democrats will follow through with their promise?

NORM ORNSTEIN: I have no doubt that the pledge by Senate Democrats is sincere. But the Senate has enough twists in its rules and practices that it is at least possible that the package could get tied up in knots, or face an unexpected twist by a ruling by the parliamentarian declaring some part of the package out of order. Any change, even a minuscule one, from the reconciliation package that passed the House would have to then go back to the House for yet another vote.

Senate Republican leader Mitch McConnell has vowed to “do everything in our power to replace the massive tax hikes, Medicare cuts and mandates with the reforms our constituents have been calling for throughout this debate.” Do they have the power to do those things? Could the Senate Republicans potentially derail the process?

NORM ORNSTEIN: Senate Republicans are hoping that they can succeed with a point of order on the part of the reconciliation package that changes the tax treatment of high-end health insurance plans, arguing that this change will alter the Social Security tax payments by many taxpayers, and reconciliation bills are not allowed to contain changes in Social Security. It is doubtful, but not impossible that this challenge could succeed (doubtful because most previous reconciliation bills made tax and other changes that also indirectly affected Social Security.) They will also offer other points of order. And Republicans hope that at least one of their amendments will attract enough Democratic votes to make a change in the bill, requiring it to go back to the House. That would probably not derail health reform, but anything that causes a delay in enactment is a fallback goal for the minority.

Is this the most significant legislation to be passed in the Senate via the reconciliation process? Can you think of other examples when influential legislation was approved by the Senate via this process?

NORM ORNSTEIN: Many of Ronald Reagan’s tax and budget changes went through reconciliation in 1981. President George W. Bush’s tax cuts in 2001 and 2003, totaling $1.7 trillion over ten years, were done via reconciliation; the 2003 tax cuts passed on a 50-50 vote, with Vice President Cheney casting the tie-breaking vote. There were other major reconciliation packages as well in the 1990s, including bills that created the COBRA program to enable people to keep insurance for a while after losing their jobs, and the S-CHIP program for childrens’ health insurance, as well as welfare reform.