Disagreeing With Pete On Reconciliation And Health Care Reform
Pete's post below on reconciliation and healthcare reform takes a far too strict look at what could and could not be included in a health care reform bill considered under reconciliation rules.
Pete's correct that the primary consideration is whether a provision would have an impact on the federal budget. He's also absolutely, positively, no-doubt-about-it correct that the Byrd Rule was created to prevent "extraneous" (that is, having no impact on the budget whatsoever) provisions from being included. I recall one of the things that got Senator Byrd (D-WV) so exercised was the inclusion of a major change in the broadcast fairness doctrine, which had no budget implications of any kind, in a reconciliation bill.
But Pete's very strict interpretation of the rules for what qualifies as an extraneous provision is..well...far too strict.
The key is not the word "extraneous"; instead it's the word "provision," which is not defined in any way in the law. Is it a whole title of a bill, a section within a title, a paragraph within a section, a sentence within a paragraph, or all of the above?
In other words, just because a particular sentence, paragraph, or title of a bill would be extraneous if considered by itself doesn't automatically make it extraneous if it's part of a larger section that as a whole isn't extraneous.
In addition, a provision that by itself would be considered extraneous might not be if it's considered critical to the proper functioning of another provision tha's completely acceptable. For example, a purely regulatory change that is thought to be needed so that another change that reduces federal spending or increases revenues works as intended could be allowed. Definitions and administrative provisions could easily fall into this category. And if they were projected to reduce federal spending on abortions, prohibitions on those procedures might also not be deemed to violate the Byrd Rule.
As Pete quite correctly notes, it all depends on how the bill is drafted and, of course, on what the parliamentarian (and then the full Senate) decides.
But given the extraordinary skill of the people who draft legislation in the Senate, what will be a very obvious goal of using the reconciliation process to consider the bill, and the fact that so much federal spending and so many tax provisions are health care related, unlike what Pete believes it is not inconceivable that most of a major health care reform bill would make it through the reconciliation gauntlet.
