With President Obama's health care bill on the line, lawmakers from both parties are turning their attention to a complicated procedural tool that could allow Senate Democrats to circumvent a Republican filibuster and push the measure to passage.
The procedure, known as "reconciliation," has been used rarely on legislation that ultimately passed the Senate by close votes and more often by Republicans than Democrats in the past two decades. But the two parties are spinning different tales about whether reconciliation can be justified for the pending health care overhaul bill.
Majority Leader Harry Reid said this week that he hopes the two parties can reach an agreement on a bill, the goal of Mr. Obama's daylong bipartisan health care summit Thursday at Blair House. But the Nevada Democrat added that the reconciliation route is still on the table if necessary.
Republicans are crying foul, arguing that Senate Democrats are merely using a rare parliamentary trick to change social policy in a way that it was never meant to be used. Democrats say Republican obstructionism may leave no option and that reconciliation isn't that rare - citing the nearly two dozen times the procedure has been invoked since 1980.
Reconciliation allows the Senate to fast-track legislation that brings congressional spending in line with the already approved budget. Debate is shortened and no filibusters are allowed, meaning leaders can pass legislation with the support of 50 senators - plus the vice president as a tiebreaker - instead of the 60 needed to end debate, a vote called cloture.
"But along with that came an opportunity to deal with the difficulties of moving legislation through," said Thomas E. Mann, a senior fellow at the Brookings Institution.
While reconciliation was conceived to deal only with issues related directly to the budget, the majority party can pass other provisions as long as the Senate's parliamentarian rules that those provisions are related to the budget. The Senate Republican majority used reconciliation to pass President Bush's tax cuts in 2001 and 2003, and Democrats used the procedure to raise certain taxes in 1993.
Many other laws, including a lot of modern federal health care policy, have passed under reconciliation rules as well - 19 laws since 1980. The measures include the unemployment insurance benefit known as COBRA, the State Children's Health Insurance Program and the landmark welfare reform law of 1996.
Democrats point to these and other examples as precedent to justify using reconciliation on the health care overhaul bill. But in each of these three instances, 65 or more senators ultimately ended up supporting the bill. Few expect that many to back the health care bill, unless it changes dramatically.
Passing a bill under reconciliation that ultimately is supported by fewer than 60 senators has been done only six times since 1989, according to a review of Senate votes.
But it is Republicans who have used it more often than Democrats in those close calls.
Republicans were running the Senate in four instances and Democrats in two when the votes came down to nail-biters. Republicans used reconciliation to narrowly pass Mr. Bush's tax cuts in 2001 and 2003, extend the cuts in 2005, and reduce Medicare and Medicaid spending in 2005. Democrats used the procedure in 1990 to pass "pay-as-you-go" rules and in 1993 to raise taxes on corporations and some Social Security benefits.
Since 1980, the Senate used reconciliation three other times to pass a bill that the president ultimately vetoed.
Mr. Mann said some of the bills that passed with substantial support still would not have been able to overcome a filibuster if they weren't passed using reconciliation.
"Oftentimes, if it wouldn't be used, dilatory tactics would have kept [the bill] from coming up" and getting a vote, he said.
For instance, welfare reform in 1996 first passed the Senate with 74 votes, and changes from the House-Senate conference passed with 78 votes. But "with [President] Clinton and the Republican Congress, and the size of the Republican majority in the Senate, I don't think they could have gotten cloture."
"It's been used by both parties well beyond what the original intention was," Mr. Mann said.
Since the beginning, Democrats have considered reconciliation if health care negotiations fail. But the prospects increased with Scott Brown's surprise win of a Senate seat from Massachusetts last month that gave Republicans 41 votes.
Both the House and the Senate passed health care bills last year, but in order to combine the bills through the traditional process, each chamber would have to vote again to accept changes to make the bills identical. Republicans, who strongly oppose the Democrats' reform plan, now have enough seats to filibuster that vote in the Senate.
The proposed solution is for the House to pass the Senate's bill unchanged. Then, both chambers would pass another bill that "fixes" provisions that the House doesn't like in the Senate plan. It is that legislation that would pass through reconciliation rules.
Congressional and policy analysts say it's plausible that the "fixes" would meet the rigid standards to pass through reconciliation. But there is some resistance even among Democrats to do so and congressional Democratic leaders haven't announced how they're going to proceed.
"It's technically feasible, no question about it," said Len Nichols, director of the Health Policy Program at the New America Foundation. "The political complication is there are literally unlimited amendments."
Under reconciliation rules, Republicans would be able to call up unlimited amendments, giving them a chance to push Democrats on politically difficult votes unrelated to health care.
House Democrats aren't universally sold on the idea either. Many would prefer a bill that looks more like what they passed, not the Senate's plan.
Sen. Robert C. Byrd, West Virginia Democrat and the Senate's president pro tempore who wrote the rules restricting reconciliation, said in a letter to colleagues in April that he opposed using the tool to pass health care reform. His office did not return a request for comment on Thursday.
Sen. Kent Conrad, North Dakota Democrat and chairman of the Senate Budget Committee that handles reconciliation measures, said that he doesn't see a workable way to pass the bill through reconciliation and has warned that doing so would put much of the legislation in the hands of the Senate parliamentarian, who would have to decide whether each provision qualifies for reconciliation.
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