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Does the emerging reconciliation strategy make sense?

By       Message David Waldman     Permalink
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opednews.com Headlined to H2 8/26/09

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reprinted with permission from Congressmatters.com

HuffPo covers what's said to be the latest thinking on the procedural strategy for health care. Much of the discussion lately has focused on splitting the bill into two parts and sending just one through reconciliation. One complaint, though, is that moving two bills through the Senate is, well, twice as hard.

But there's another alternative, according to Martin Paone. Paone, who served as a Democratic Senate floor staffer for 29 years, has been advising Democrats as they craft their legislative strategy. He proposes that Democrats try to get 60 votes to waive the Byrd Rule -- which would then allow the inclusion of those non-budget-related provision in one bill that would require only 51 votes for final passage.

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What's the advantage? And why would any senator who opposes the entire bill vote for such a waiver?

The answer can be found in the specific proposals that would be in violation of the Byrd Rule. Mostly, those would include reforms to the way the insurance industry operates -- for example, a ban on using preexisting conditions to deny coverage, or a law that insurance companies can't drop a client just because they get sick.

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Those are wildly popular reforms. Getting 60 votes to support those policies is much easier than getting 60 for a public health insurance option, which Republicans and some conservative Democrats oppose.

Waiving the Byrd Rule was always an available option, of course. But like waiving other, similar Budget Act points of order on previous high profile measures, it's not always something Senators are willing to do.

The thinking here is that the parts of the bill most widely anticipated to be non-Byrd Rule eligible (by which I mean that they would pass muster under the rule and not be subject to its point of order which would strike it from the bill) are the consumer-oriented reforms like the prohibition against refusing coverage due to preexisting conditions.

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Those parts are what's said to be wildly popular, so they might well be able to garner 60 votes for a waiver, and thus remain in the bill. Once all required waivers are secured, the entirety of the bill would be free to pass by a simple majority. And by the way, that something that has always been true, whether it comes under the reconciliation process or not. Journalists and commentators have of late taken to referring to the 60 vote threshold as "traditional," when in fact both the rule and the "tradition" (if there is one) is that -- hey, guess what? -- majority actually rules.

Can it work? Absolutely. There's nothing at all that's procedurally problematic about it. But it depends on Senators who are opposed to the public option being willing to tightly compartmentalize their voting, and in a way not all that dissimilar to ways they've been asked to do in the past, but have so far refused.

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David Waldman is a Contributing Editor blogging as Kagro X at DailyKos.com, the largest and most visited political blog in the world. A non-practicing attorney, a former Capitol Hill aide, his online work includes a comprehensive study of the Senate's "nuclear option," written at (more...)

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