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Here's the nightmare:

1. The House passes the main Senate bill first, locking in (at least temporarily) the Cornhusker kickback, the Cadillac tax, etc.

2. The House passes the reconciliation fix and sends it to the Senate. But in order to get sufficient votes for it in the House, the leadership has to agree to put the Stupak abortion language in it, even though policy language like that is subject to a Byrd Rule point of order in the Senate, which would kill it. The House leadership sells it to the rank-and-file, telling them they've already voted for it once, anyway, and besides, it'll be killed in the Senate by the Byrd Rule, so don't worry about it.

3. The Senate takes up the reconciliation bill, and Republicans move to waive the Byrd Rule point of order against the Stupak language, which requires 60 votes to pass. But if they don't waive the Byrd Rule, then the reconciliation bill is amended, and will have to go back to the House. Either that, or the Senate will have to move to go to conference, and the motions necessary to do that can be filibustered up at up to three different choke points. So the Senate swallows the Stupak language (after heavy lobbying from the Catholic bishops), and it's done.

4. Unless, of course, the Senate decides to take a turn playing this game, and finds something it wants added to the reconciliation bill that maybe the House doesn't want, and puts that in the bill too, and sends it back to the House.

5. Then the House is faced with the choice of either swallowing the Senate provision in return, killing health care outright, or instead leaving the Cornhusker Kickback and Cadillac tax unchanged.

What do we do?

Looks like the "best" outcome here is passing reconciliation, including a waiver for Stupak. Which will mean that they will have waived the Byrd Rule to pass Stupak, but told the public option people to kiss off because of the Byrd Rule. There won't be much they could have done differently, but the base will, you know, not like that very much.

Who came up with this scenario? Not me. It was everyone's least favorite paper, Politicowho reported it first. Nor am I even the first one to blog about it. I know that coming from Politico makes it suspect for some of you, and others would even go so far as to say the same about Firedoglake, but the procedure is sound, even if the politics surrounding it are open to question.

Still, if the Senate becomes convinced that the only path to passage is to allow the House to have Stupak's language, then who are they to argue? They'll be convinced they're doing the only thing possible, and they may even be right.

Note, however, that this is not something that's necessarily solved by having the reconciliation bill taken care of first. I initially brought it up in that context, but only to hint at the sort of things that can be hidden until the last, most agonizing moment if the reconciliation bill is the last one to pass. Passing reconciliation first does nothing to avert this scenario, but it makes the bargaining plain and open: abortion rights as a trade for health care, or else scrap the reconciliation bill, take the arguably less-damaging Nelson language on abortion, and accept the Nebraska and Louisiana deals plus the Cadillac tax as the trade by passing the Senate bill in the House and calling it a day.

Would you rather have options, or not?

Article from Congress Matters read more here

If the House passes the Senate health insurance reform bill before the Congress completes work on the reconciliation fix (and yes, that's entirely permissible), what then is the incentive for the Senate to hold up its end of the bargain as agreed, and not to try to slip something extra by on the House?

Here's the scenario I worry about:

1. The House passes Senate bill. That leaves Democrats at least temporarily in the position of having ratified a bunch of stuff they say they don't like and which even the sponsors of those measures aren't willing to live with anymore. We're talking about the "Cadillac tax," the state-specific deals that came to be known as the "Cornhusker Kickback," the "Louisiana Purchase," etc.

2. The House passes the reconciliation fix and sends it to the Senate, as agreed.

3. This is the point where the Senate realizes they have the House over a barrel and can add something that perhaps they want, but know the House doesn't. The Senate amends the reconciliation bill and sends it back to the House.

4. At this point, under normal circumstances, the House and Senate could move to go to a conference to settle the differences. But the parliamentary motions necessary to go to conference in the Senate are -- you guessed it! --  subject to the filibuster. So the differences would likely have to be settled some other way.

5. The House now has a choice: 1) eat it and accept the Senate's amendment; 2) kill the reconciliation bill and leave House Dems stuck with the ratification of the Nebraska deal, etc., or; 3) try to amend the amended reconciliation bill and send it back to the Senate yet again.

But the Senate knows that the House knows that reconciliation won't likely survive the Senate twice. It's quite possible that Senate Republicans could make passing it even once moreof a challengethan Democrats are likely to be comfortable with. That creates an opportunity for the Senate to try to slip something by the House, and force the House to either take the bullet on the Nebraska deal, etc. if they decline to swallow it, or watch them knuckle under yet again and give the Senate what it wants.

What will the Senate want? I don't know yet. But I hear ideas bouncing around that people aren't going to like very much, including even more restrictive language on abortion, if you can believe that (though in that scenario, the question of which house wants it more is a lot cloudier).

But why would Senators allow the Nebraska deal to stand? Well, do they care that much? They'll be on record as being the last house to touch the fix, and as far as the Nebraska deal is concerned, they voted to kill it. It's not their fault (they'll say) if they send that fix to the House intact, only to have the House decline to pass it. Their hands are clean!

After watching how Republicans used the negative buzz on the "Cornhusker Kickback" in the special election for the Massachusetts Senate seat, and knowing that the failure to fix the so-called "Cadillac tax" would essentially be spitting in the face of the unions who provide so much in the way of GOTV ground troops, just as we're heading into one of those traditionally low-turnout mid-term elections, well, there are a lot of reasons to want to be sure nothing goes wrong with this reconciliation bill. Including its use by the Senate as a must-pass vehicle to slip something unwanted past the House.

That's the problem. The only way for the House to know what it's getting in the HCR/reconciliation bargain is for the House to wait for reconciliation to be done before passing the Senate HCR bill.

At the very least, having gotten this far with things, the Senate should restrain itself if they're thinking of gaming the situation, and doing anything other than passing unchanged the reconciliation bill handed to them by the House. And that'd perhaps be something you could count on if reconciliation weren't such an unpredictable procedure.

But it is.

Article from Congress Matters read more here

Republican Senators apparently think the House would be wise to make the Senate go first, too. Which they helpfully tell us inadvertently, while trying to look cunning and devious:

Senior Senate GOP leadership aides have settled on a new strategy that, they hope, will stall or kill the Dem health reform push: They are going to use the arcane "Byrd rule" to try to bleed the reconciliation fix to death and ensure that it never passes.

[...]

Presuming the House passes the Senate bill, the House will then pass a reconciliation fix to the bill, after which the Senate will then try to pass that fix, too.

At this point Senate GOPers will repeatedly invoke the Byrd rule to ask the parliamentarian to strip individual provisions (ones fixing this or that in the original bill) out of the fix, on the grounds that they are policy fixes. If individual provisions are stripped, it would change the Senate’s version of the overall fix.

That would force the House to vote on it again and again, stalling the process further.

But wait, there's more!

There’s a larger game plan here. By making it clear they will do their best to tie reconciliation in procedural knots, Republicans are hoping to frighten House Dems into believing reconciliation is doomed. If House Dems are persuaded that the fix later will fail, they will be less likely to pass the original Senate bill in the first place, pehaps killing it.

Well, there are a couple things you can do about this. The simplest, from my perspective, is to pass the reconciliation bill first. That way, even if reconciliation does turn out to be doomed (it's really shouldn't be), then at least the House has the opportunity to vote on passing the Senate's main bill with a clear understanding of the playing field. Why the House wouldn't insist on giving itself that opportunity, I have no idea. But if there's an opportunity to shoot themselves in the foot, you can be sure they'll take it, and probably shoot your feet too, if you stand too close.

Another thing they can do about it is, well, follow normal procedure. I don't know of any reason why this plan would "force the House to vote on it again and again. If the House started the reconciliation process by sending the Senate a bill and the Senate were later forced to amend that bill, the House wouldn't see it again until the Senate had passed its version. And at that point, the House could just pass that version, and the Senate would never get it back. This "plan" appears to assume that every time a provision is struck by the Byrd rule, the bill freezes in the Senate and goes back to the House, as opposed to continuing in the Senate until it's finally passed. Why that is, I'm not sure.

Finally, I can think of one other issue, which is that reconciliation bills are routinely vetted with the Senate parliamentarian ahead of time in order to identify possible Byrd rule issues, and either prepare for how it looks like the rulings will come down, or tweak the bill so that the objections are dealt with before debate even begins. The likelihood that Republicans will discover a significant number of possible issues that the parliamentarian will have missed is probably pretty slim.

But one opportunity for making mischief remains, regarding points of order, at least. If the Republican plan is simply to make objections that the parliamentarian has already informally decided are without foundation, they can in theory create delays simply by playing dumb and pretending they don't know how the parliamentarian will rule.

In other words, even though everyone knows what the outcome will be, Republicans could still insist they have the right to make their points of order, to have the chair rule on them, and if the chair declines to sustain them on the advice of the parliamentarian, the Republicans would then appeal the ruling of the chair, forcing a vote either to sustain the ruling or move to table the appeal. Such votes would be decided by simple majority, but absent a motion seeking to limit such points of order as dilatory (which is technically possible, I suppose), it's possible that the Republicans could gum up the works, at least for a while. I'm unsure whether the exercise could continue once the statutorily-mandated 20 hour time limit on debate ran out, though Republicans have also indicated that they'd seek to push past that limit by offering just as many amendments to the bill as they're now threatening points of order.

The issue of amendments is perhaps simpler to deal with. Or at least, Democrats have options, which I mentioned in the above-linked story:

There's an October 3, 1977 precedent from when Sen. Robert Byrd (D-WV) was Majority Leader, wherein faced with an exploitation of an old cloture rule loophole that allowed Senators to file the same sort of endless stream of amendments, even after cloture had already been invoked, he addressed the chair with this point of order, which was sustained by the chair:

I make the point that when the Senate is operating under cloture the Chair is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.

The point having been sustained (and an appeal of the ruling tabled, which requires a simple majority vote), Byrd used his right of preferential recognition as Majority Leader to call up all the rest of the amendments one at a time, whereupon the chair ruled each of them out of order on its own motion. (Source - warning, PDF)

I would argue that if that point of order can be sustained for the post-cloture environment, when debate is limited to 30 hours, surely it should be sustained for the reconciliation environment, when debate is limited to just 20.

Whether or not a similar strategy could be employed against points of order, I couldn't say. It seems somewhat more difficult to justify just because we normally consider points of order to be something Senators have a clearer right to offer. But it becomes nearly impossible to believe they're offering them in good faith and from solid ground if they're offering dozens or hundreds of such points of order, as they previously threatened with amendments, especially when you consider that there have only been 53 straight-up Byrd Rule points of order raised in the entire 25 year history of the rule (source: PDF).

We'll have to see how many supposed objections they think they can credibly raise to what should be a relatively small bill (though I wouldn't put it past Democrats to consider bulking it up a little). And we'll have to see how much credibility the media affords them if they begin making repetitive or nonsensical objections. Last but not least, we may have to see how willing Democrats are to deal harshly with buffoonery. The odds on that are rarely particularly good. But with the gauntlet already thrown down, another deadline established, and Members already sick to death of dealing with this, they may yet surprise us, even if it's motivated by the never-surprising drive to adjourn.

Article from Congress Matters read more here

Besides me, that is.

Yes, even though Sen. Kent Conrad (D-ND) continues to insist the House must pass the Senate health insurance industry reform bill before anyone would be allowed to consider the reconciliation fix, I still disagree with his reasons.

But who cares what some Cheeto-munching blogger says, right? What about the experts who wear suits and stuff?

Yeah, what about dressed-up expert? Like maybe former Senate parliamentarian Robert Dove?

Dove says the Dems' planned use of reconciliation is highly unusual. "I've never seen a two-bill strategy" where reconciliation is used to fix another piece of legislation, he says. "It's permissible, I've just never seen it."

Oh.

Well, OK then.

But does he just mean it's permissible to use reconciliation to fix another piece of legislation that's just passed? Well, no. Why would anyone need to check with a parliamentarian on that? Of course you can use reconciliation to fix legislation that's already passed. That's the way it normally works. The only question you'd need to ask a parliamentarian is if reconciliation can be used to fix pending legislation that hasn't passed yet. Otherwise it's not a "two-bill strategy." It's a one bill and then another bill strategy. Which is to say, no strategy at all.

So this looks to me like pretty much what I've been saying. The letter of the Budget Act says yes. I say yes. Now it looks like Dove says yes, too.

So... yes!

Article from Congress Matters read more here

Hi.

Would you like to see exactly how fudging turns into a real, live lie?

Here you go:

With the dust settled on the health summit, it is clear that the president and his allies on Capitol Hill intend to plow forward with their sweeping proposal to overhaul the nation’s health sector. As the Los Angeles Times observed, it is also clear that "they will have to do it by themselves."

And there’s only one way they can "do it by themselves": an arcane budgetary procedure known as "reconciliation."

Will Democrats plow forward with their sweeping proposal?

Yes. How? By having the House eventually agree to pass the bill that's already passed the Senate. How did that bill pass the Senate? Under "regular order" and with 60 votes.

Will Democrats do it by themselves?

Yes. How? By passing the Senate bill in the House, likely with no Republican votes. How will they pass that bill? Under "regular order" and without resort to reconciliation.

Is reconciliation "arcane?" Not really. It's been used dozens of times in its 35 year history, and quite often by Republicans.

So what's the Heritage Foundation really talking about? They're talking about "plowing forward" with a narrowly-tailored, all budget-related second bill, which they'll pass under reconciliation. But Heritage doesn't differentiate between the two bills, because if they do, then the whole rest of the argument is shot.

You may have watched me go through the same, sad exercise on Twitter the other day, with former Bush White House Deputy Press Secretary Tony Fratto last week. Fratto's entire argument was premised on the confusion of the two bills: one big one with the "sweeping proposal" in it, which has already passed with 60 votes, and; one small one with "limited budget matters" in it, which will use reconciliation.

That's the entirety of the argument the Very Serious Heritage Foundation and former White House spokesman are making. You have to forget there are two different bills and two different procedures here. Instead, you should fear that... uh... they're being referred to in close proximity. Or something.

Article from Congress Matters read more here

Greg Sargent of The Plum Line does some great follow-up on Kent Conrad (D-ND):

In an interview with me just now, Senator Kent Conrad tore into the media for repeatedly botching its reporting on reconciliation, and confirmed that in his view, the current plan being entertained by Obama and Dems to pass reform via that tactic can, in fact, be made to work.

[...]

Conrad caused a big stir yesterday by saying: "Reconciliation cannot be used to pass comprehensive health care reform." This was widely interpreted as claiming that the Dem way forward is a non-starter.

But Conrad patiently explained that the media interpretation of his comments is wrong. He was merely saying reconciliation would not be used to pass a comprehensive bill, and would only be used to pass the sidecar fix, which he said is workable, depending on what’s in it.

"Reporters don’t seem to be able to get this straight," Conrad said, hitting the "misreporting" he said is widespread. "Comprehensive health care reform will not work through reconciliation. But if the House passes the Senate bill, and wants certain things improved on, like affordability, the Medicaid provisions, how much of Medicaid expenses are paid for by the Federal government, that is something that could be done through reconciliation."

"A sidecar would be a good candidate for reconciliation depending on what’s in it," Conrad said, adding that he didn’t think fixes to abortion or immigration provions would likely work, something that could create obstacles to passing the Senate bill in the House.

There. That's pretty much what we thought he meant.. Kudos to Sargent for giving Conrad the chance to straighten it out, though I do wish it'd come out straight when Conrad had the admittedly larger platform of the Sunday talk shows. Don't you?

Now on to the next round of questions.

Conrad also explained in new detail why he believes that the House must pass the Senate bill first, a view that has been denounced by some critics who want the Senate to pass its fix before the House acts.

Conrad said that under Congressional rules, for a reconciliation fix to be "scored," it’s not necessary that it become law, but it is necessary for it to have passed both houses of Congress before getting fixed. "For the scoring to change it has to have passed Congress, and that means both houses," he said.

"The only thing that works here is the House has to pass the Senate bill," Conrad continued. "Then the House can initiate a reconciliation measure that would deal with a limited number of issues that score for budget purposes." After that, the Senate would pass the same reconciliation fix, Conrad explained, because even on the fix itself the House must go first because the lower chamber must initiate "revenue bills."

Is he talking about scoring the Senate-passed health bill, so that the drafters of the reconciliation bill will know what numbers they need to work with? That is, so that they'll know what numbers they're "reconciling" with the demands of the budget resolution adopted for this fiscal year? Or is he talking about getting a score for the reconciliation bill itself?

I can understand that reconciliation is supposed to reduce the deficit (even though Republicans have used it to increase the deficit in the past, when they've been clever enough to issue reconciliation instructions that actually called for blowing a $1.25 trillion dollar hole in the budget). So it does indeed make some sense that you'd need to be able to demonstrate that a proposed reconciliation bill does what the budget resolution's instructions say it should. And that's something you should presumably have to demonstrate before the parliamentarian will allow you to make use of the expedited procedure to pass it.

And I can understand that a bill's scoring changes as its legislative language changes, such that a committee markup will make a difference, amending it on the floor will make a difference, etc., and that a score awarded to a House-originated bill will not necessarily be valid once it reaches the Senate, or vice versa. Similarly, a bill will likely have a different score yet again when it passes the second house, and another yet again when both houses finally pass a unified version.

But it can't possibly make any difference how the reconciliation bill is scored after it's passed both houses, at least with respect to whether or not the reconciliation process can be used to pass it. That'd be completely illogical. So that can't really be what he's talking about, can it? Because by the time a reconciliation bill is passed by both houses, all the decisions regarding its eligibility will have been made already. If the scoring helps decide a reconciliation bill's eligibility for the expedited process, the score after it's passed can't have any bearing.

So in this case, it seems Sen. Conrad must talking about scoring the main health insurance reform bill passed by the Senate, presumably so that an accurate reconciliation bill can be crafted based on the Senate bill's dictates. He must mean that the score the crafters of the reconciliation bill will need to have in hand must be based on the finalized version of the bill, which typically means the one agreed to by both houses. That makes sense, but only to a point. Remember that in this particular situation -- even as Conrad describes it -- any of the paths forward are supposed to be contingent on the House passing the Senate bill exactly as it's now written, with no amendments whatsoever.

I'm not an economist, and there's a lot about how the CBO works that's still a mystery to me, but I'd have to guess that if the Senate bill has been scored, and the House plans to pass the Senate bill verbatim, then that probably means the score for the final version of the bill is going to be the same as it was when the Senate passed it. Wouldn't you think?

And if that's the case, then the score the bill got when it passed the Senate is the same score it's going to get when it passes the House. Which would mean -- unless there's more to it, and that could always be the case -- that the bill's pretty much been scored, and there's no such obstacle to the Senate dealing first with whatever reconciliation fix the House sends them, before the House takes up the main bill.

What do you think?

Article from Congress Matters read more here

Sen. Kent Conrad (D-ND) continues to insist on discussing the procedural issues surrounding health insurance reform in a way that breeds confusion. It may not be entirely his fault, but it's getting ridiculous.

Last week it was his flat assertion that the House had to act first by passing the Senate bill that even the Senate doesn't want anymore. This week, it's a Sunday show appearance that's giving rise to stories like this one (from Politico, of course):

Sen. Kent Conrad (D-N.D.) threw cold water on the idea of using the reconciliation process Sunday during an appearance on CBS' "Face the Nation."

"Reconciliation cannot be used to pass comprehensive health care reform," said Conrad, chairman of the Senate Budget Committee. "The major package would not be done through reconciliation."

Asked by CBS host Bob Schieffer to elaborate, given that the White House suggested earlier Sunday that they could pass the main bill with a simple majority of 51 votes, Conrad said that reconciliation was not, in fact, an option.

Naturally, Politico insists on hearing and reporting what it wants reported, rather than what Conrad actually said. What he actually said was that, "The major package would not be done through reconciliation." Which is what everybody's saying. It's not the main bill that would be passed by reconciliation, it's just the narrowly tailored package of "fixes." But Republicans (and oh-so-curiously, Politico) insist on confusing those facts and repeating the exact opposite at every opportunity.

Consider the first sentence of the Politico story:

Sen. Kent Conrad (D-N.D.) threw cold water on the idea of using the reconciliation process Sunday during an appearance on CBS' "Face the Nation."

Did he? Not if you can keep straight what is and isn't supposed to go through the reconciliation process, he didn't.

Consider now the last sentence:

Conrad said only "side car" issues could be affected through the reconciliation process.

Ah! All is clear! All it took to get it was... reading every damn other thing the Politico could throw in your way before letting you see that. Thanks, informative media!

Again, the point is that Republicans and a curiously complicit media are confusing people, seemingly on purpose, at every opportunity. Conrad should give them no further opportunities.

Now, as it turns out, although I don't think the confusion over which bills are and aren't eligible for reconciliation isn't necessarily Conrad's fault, things could be a lot clearer with regard to his continued insistence that the House must first pass the Ben Nelson (D-NE) version of the Senate bill -- which even Ben Nelson no longer favors -- before a reconciliation bill to fix it could be considered. Is it a scoring problem, like he told Brian Beutler of TPMDC last week?

He went on to explain his position. He says it's logistically impossible to pass a reconciliation bill, which is meant to amend a separate bill that hasn't passed. "I don't know how you would deal with the scoring, I don't know how I'd be able to look you in the eye and say this package reduces the deficit," he told me.

I asked Conrad why the Congressional Budget Office couldn't treat a reconciliation bill like any other amendment package, and score it together with the Senate bill.

"I don't know the answer to that question."

Or is it a logistical problem stemming from a supposed legal paradox, as Conrad had hinted to Beutler earlier in the week?

The Senate Democrats' top budget guy told reporters today that the Senate can't pass a reconciliation package tweaking a comprehensive health care bill unless the House passes the Senate bill first. And if the House won't do that, he says health care reform is "dead."

"The only way this works is for the House to pass the Senate bill and then, depending on what the package is, the reconciliation provision that moves first through the House and then comes here," said Sen. Kent Conrad (D-ND) outside the upper chamber this morning. "That's the only way that works."

You already know what I think, with regard to the supposed paradox issue. As for whether or not reconciliation adds a new wrinkle, we can't really know how to deal with that until Senator Conrad agrees to detail his objection, which I'm beginning to believe he's not doing precisely so that no one can actually examine it.

Is it scoring? Could be. And we know Conrad himself doesn't know all the answers about that. (Who does?) Is it something about reconciliation in particular that creates its own wrinkle in the "paradox" scenario? Can reconciliation really only be used to make changes in current law, as is sometimes claimed? It doesn't appear so on the surface:

§ 641. Reconciliation

(a) Inclusion of reconciliation directives in concurrent resolutions on the budget
A concurrent resolution on the budget for any fiscal year, to the extent necessary to effectuate the provisions and requirements of such resolution, shall—
  (1) specify the total amount by which—
         (A) new budget authority for such fiscal year;
         (B) budget authority initially provided for prior fiscal years;
         (C) new entitlement authority which is to become effective during such fiscal year; and
         (D) credit authority for such fiscal year,
contained in laws, bills, and resolutions within the jurisdiction of a committee, is to be changed and direct that committee to determine and recommend changes to accomplish a change of such total amount;

I admit I'm no expert in how the relevant authorities in Congress interpret the Budget Act, which is the source of the rules on reconciliation. But it sure looks at first glance like reconciliation is available for the purposes of making changes not just in current law, but also in bills and resolutions still pending. And if I'm reading them right, the Congressional Research Service agrees (PDF):

Congress and the President could use reconciliation procedures to quickly make any adjustments in existing law or pending legislation that were required to achieve budget policies as they changed between the adoption of the spring and fall budget resolutions.

The adoption of fall budget resolutions is a practice that's fallen by the wayside in recent decades, with Congress now preferring to adopt just the one resolution, usually timed in the spring. A number of changes to the process have been adopted along the way, including the infamous Byrd Rule, so it may well be possible that current practice differs somehow on the question of whether reconciliation may be used to change pending legislation. But it seems plain that originally, reconciliation did indeed contemplate the necessity of changing pending, as-yet-unpassed legislation, which is exactly what we're looking at here.

Do you think we could get a clarification of the issues, Senator Conrad? It's kind of important, and we'd all just like to be sure everyone's doing everything they can.

Article from Congress Matters read more here

I've posted on this before, but a comment I just left for someone else made me think I might want to take another crack at answering it and see if it's any clearer.

The reason I think passing an amendment to a bill that isn't law yet can work, at least for normal bills (there's an extra wrinkle possible for reconciliation, of course) is that although you can't fix something that technically doesn't exist, you're also technically not fixing that thing until it does. Get it?

No?

It's said that you can't fix the Senate bill because it doesn't exist as law. That's because it hasn't been signed by the President yet. So "it" -- that is, the law as opposed to the bill -- doesn't exist.

But by the same token, the amendments purporting to fix that bill also don't exist as effective legislation until signed by the President.

So what you have before the President signs anything is a bill that purports to establish a health insurance reform policy, and another bill that purports to amend that health insurance reform policy.

Upon signature of the first bill, what you have is an actual law establishing a health insurance reform policy, and a bill purporting to amend that now-established health insurance reform policy.

Upon signature of the second bill, you have an actual law establishing a health insurance reform policy, and then another actual law amending that health insurance reform policy.

Basically, if you think you can't amend a law that doesn't exist because it doesn't exist, you can't also think that an amendment that doesn't exist can actually amend something. Can you?

Article from Congress Matters read more here

TPM's Brian Beutler has got today's "most likely to piss you off" story with this one:

Conrad: Health Care 'Dead' Unless House Passes Senate Bill First
Brian Beutler | February 24, 2010, 11:01AM

The Senate Democrats' top budget guy says that the Senate can't pass a reconciliation package tweaking a comprehensive health care bill unless the House passes the Senate bill first. And if the House won't do that, he says health care reform is "dead."

"The only way this works is for the House to pass the Senate bill and then, depending on what the package is, the reconciliation provision that moves first through the House and then comes here," said Sen. Kent Conrad (D-ND). "That's the only way that works."

I pointed out that House leadership has repeatedly said they won't take a flier on a reconciliation package--that they will only pass the Senate bill after the smaller side-car reconciliation bill has been all wrapped up.

"Fine, then it's dead," Conrad said.

"That's the only way that works."

I'm going to put this as kindly as possible: I really wish Senator Conrad would state his objection specifically, because there are a lot of people who think there's another way this could work.

I have heard it said that there are some technical problems other than the "amending a bill that hasn't passed yet" objection that could arise from passing the reconciliation fix first, but of course Senator Conrad won't indulge us on that score. Specifically, I have seen it said that if a reconciliation package boosts subsidy levels over and above what the Senate bill provides but is passed first, the CBO may want to score the reconciliation bill by charging it the full freight, as it were. That is, by scoring the costs of the reconciliation bill on that point not just for the additional subsidy boost, but for the entire cost of the subsidies provided in the Senate bill as well. That could conceivably present political and/or procedural roadblocks.

But it continues to be a problem that Senators like Conrad won't take the time to state their objections clearly. Or maybe they're not being asked the right questions. Or whatever. But that's all we have now: "That's the only way this works."

Is it because he thinks (contrary to what House leaders think) that you can't juggle the enrollment process such that you don't create the legal paradox of attempting to enact amendments to a bill that itself hasn't been enacted yet? Is it just that he's refusing to commit to voting for a reconciliation bill he hasn't seen yet? Is it a scoring problem? What?

We don't know, and apparently we're not meant to. File this one under, "People who get the bum's rush from their Senators on stuff they care about and are dying to help with don't stay enthused for very long."

Article from Congress Matters read more here

NPR is running a good roundup aimed at debunking the popular obstructionist myth that the use of the reconciliation process for passing a health care bill would somehow be unprecedented or represent some kind of wild departure from Congressional rules and traditions. But as I've occasionally insisted on reminding people via Twitter:

If you've ever had COBRA coverage, you had it because of reconciliation. It's the "R" in COBRA.

In fact, the whole acronym stands for Consolidated Omnibus Budget Reconciliation Act, which refers to the bill that the well-known program of extended health benefits was included in when it passed Congress in 1985.

But as the NPR story notes, there's much, much more to the picture:

[V]ia a series of budget reconciliation bills, beginning in 1984, Congress began expanding Medicaid coverage. In 1997, also in a budget reconciliation bill, it created the Children's Health Insurance Program, known as CHIP. Today, says [GWU Prof. Sarah] Rosenbaum, who helped write many of the children's health provisions in those bills, Medicaid and CHIP together cover 1 in every 3 children in the United States.

"So literally we've changed everything about insurance coverage for children and families, and we've changed access to health care all across the United States all as a result of reconciliation," she says.

And...

"Going back even close to 30 years, if you start say in 1982, the reconciliation bill that year added the hospice benefit, which is very important to people at the end of life," says Tricia Neuman, vice president and director of the Medicare Policy Project for the Kaiser Family Foundation.

Over the years, budget reconciliation bills added Medicare benefits for HMOs, for preventive care like cancer screenings; added protections for patients in nursing homes; and changed the way Medicare pays doctors and other health professionals.

There's so much there, in fact, that NPR ended up posting it in sidebar chart form, too:

A History Of Reconciliation

For 30 years, major changes to health care laws have passed via the budget reconciliation process. Here are a few examples:

1982 — TEFRA: The Tax Equity and Fiscal Responsibility Act first opened Medicare to HMOs

1986 — COBRA: The Consolidated Omnibus Budget Reconciliation Act allowed people who were laid off to keep their health coverage, and stopped hospitals from dumping ER patients unable to pay for their care

1987 — OBRA '87: Added nursing home protection rules to Medicare and Medicaid, created no-fault vaccine injury compensation program

1989 — OBRA '89: Overhauled doctor payment system for Medicare, created new federal agency on research and quality of care

1990 — OBRA '90: Added cancer screenings to Medicare, required providers to notify patients about advance directives and living wills, expanded Medicaid to all kids living below poverty level, required drug companies to provide discounts to Medicaid

1993 — OBRA '93: created federal vaccine funding for all children

1996 — Welfare Reform: Separated Medicaid from welfare

1997 — BBA: The Balanced Budget Act created the state-federal childrens' health program called CHIP

2005 — DRA: The Deficit Reduction Act reduced Medicaid spending, allowed parents of disabled children to buy into Medicaid

Yes, despite the claim made by the random Republican caller to C-SPAN claimed during Darcy Burner's appearance on Washington Journal this morning that reconciliation had never been used to pass any legislation of any kind (!!!), the procedure has in fact been used dozens of times, on several occasions for exactly what opponents of health care reform insist has never, ever, ever been done.

No wonder Republicans want to eliminate public broadcasting.

Article from Congress Matters read more here