For a better understanding of Reconciliation, from last summer, "What is Reconciliation?":

[elocs]

http://keithhennessey.com/2009/08/05/what-is-reconciliation/

Crash course on reconciliation

Reconciliation is a fast-track legislative process that allows a bill to pass the Senate in a limited time period, and with the support of only 51 Senators. A “normal” Senate bill can be slowed down by a single Senator, and blocked by 41 Senators. This is not true for a reconciliation bill.

The downside is that reconciliation “protections” apply only to a very narrow set of policy matters, all relating to changes in taxes, spending, or debt.

In the particular case of health care reform, some Senate Democrats are attracted to the reconciliation process because it would allow them to pass a bill even if there is unified Republican opposition, and even if as many as 9 Senate Democrats oppose the bill. It is, however, nowhere nearly as easy as these advocates might hope. They may be able to enact some parts of health care reform but not others.

Much more at the link to help in understanding what Reconciliation actually is.

The second post: "How reconciliation might be used for health care reform":
http://keithhennessey.com/2009/08/05/reconciliation-part-2/

There is much at the link, but here is an important part about the Byrd rule:

Here are the three most important parts of the Byrd rule:

1. If a provision has no effect on spending or revenues, then it’s extraneous and violates the Byrd rule…
2. … unless it is a necessary term or condition of another provision that does affect spending or revenues.
3. If a provision has a small budget effect that is merely incidental to its broader non-budgetary policy effect, then it is extraneous and violates the Byrd rule.

Looking at the provisions of a likely reconciliation bill, here are my preliminary judgments. The ultimate arbiter is the Senate Parliamentarian. “OK” means that I think it doesn’t violate the Byrd rule, not that I think it’s good policy.

* Medicaid expansions – The spending is clearly OK. Some of the detail changes within the Medicaid expansion are not.
* New health insurance “exchange” subsidies – OK. Same as for Medicaid. Lots of the non-spending related details could violate the Byrd rule.
* Tax increases – OK.
* Individual & employer mandates – OK. They’re basically taxes with conditions.
* Small business tax credits – OK

Here are provisions that I think violate the Byrd rule:

* Exchanges / Gateways, and all the requirements imposed through them – They’re separated from the subsidies. Someone might argue that the exchanges are a “necessary term and condition” of making the subsidies work. That’s a huge stretch.
* So-called health insurance consumer protections – Insurance mandates such as those requiring guaranteed issue and guaranteed renewability, no lifetime or annual limits, extension of coverage to 25-year old dependents, and modified community rating – As I wrote yesterday, I think these clearly violate the Byrd rule. A couple of friends pointed out that these provisions would make health insurance more expensive. That depresses wages, which reduces income tax revenues, which is a budgetary effect. I think this fits in the merely incidental bucket – these provisions would fundamentally restructure the insurance industry with a minor budget effect.
* The public option – As currently drafted, it’s designed to be independent of federal spending. If so, it’s extraneous. I imagine they could redraft it to link it more closely to the spending so it doesn’t violate the Byrd rule.

An additional post about reconciliation: "Doing health care through reconciliation is even harder than I thought":

http://keithhennessey.com/2009/08/06/even-harder/

Yesterday’s Byrd rule examples would allow a bill to pass the Senate, but with major parts possibly excised. A smart friend wrote that while Senator Reid may not be able to get the whole car through reconciliation, he could probably get the chassis, wheels, and engine. He could then come back in separate future bills to add things like seats, steering, and brakes.

And two smart friends wrote to tell me they think that clever Senate Democratic staff can draft around some of the Byrd rule problems I raised. They have convinced me that the public option can be drafted so that it is not vulnerable to the Byrd rule test I described yesterday. I still think the “health insurance consumer protections” are vulnerable. I received mixed views on the individual and employer mandates from a few experts.

But I missed the most important point. I was so focused on provisions that would not affect the budget and might therefore have to be removed, that I forgot to think about provisions that would affect the budget.

You will remember from the past two days that the reason Senator Reid might decide to use reconciliation is that he would then need only 51 votes to pass a bill through the Senate. If he cannot build a 60-vote coalition, either with Republicans or among his 60 Democrats, then he may feel his best option is to try a 51-vote strategy. Reconciliation is the only way he can do that.

If any rules place 60-vote requirements on a reconciliation bill, they seriously foul up that strategy. Yesterday I explained why certain non-budgetary provisions would violate the Byrd rule because they don’t affect the budget. If Senator Reid has 51-59 Senators in his coalition, then those provisions will drop out.

He adds:

I missed that there are two other 60-vote requirements that are triggered by the spending in such a bill.

* There is another prong of the Byrd rule test, which in our case says in effect that if the reconciliation bill increases the budget deficit in any year after 2014, then the spending parts of the bill can be removed unless there are 60 votes to waive the Byrd rule.
* There is a separate Senate point of order against legislation that increases long-term budget deficits. If CBO says that this bill increases the budget deficit by more than $5 B for any of the following periods: 2020-2029, 2030-2039, 2040-2049, or 2050-2059, then the bill dies unless there are 60 votes to waive this point of order.

So imagine that Senator Reid has had clever staff redraft the Senate HELP Committee and Senate Finance Committee language to avoid most of the Byrd rule problems I described yesterday. Assume that he knows from the Senate parliamentarian that, while he will lose some components of the bill if he cannot get 60 votes to defend them, with 51 votes he’ll be able to pass most of the bill.

But then along comes Senator Loper, who is deeply concerned about the fiscal impact that long-term budget deficits will have on her three children. She raises the long-term budget point of order against the reconciliation bill. Assume she has an estimate from CBO which shows that the bill increases budget deficits by more than $5 B in the period 2020-2029. It might look like this key quote from CBO’s analysis of the House Tri-Committee bill, H.R. 3200:

In sum, relative to current law, the proposal would probably generate substantial increases in federal budget deficits during the decade beyond the current 10-year budget window.

If Senator Reid cannot find 60 votes to waive that point of order, the entire bill dies.

Again, much more at the link. The bottom line is that this is not as simple a process as many here might believe and Reid may not be the moron that so many here believe him to be. The trouble here at DU is that people often think they know more than they really do when they are not privy to all of the details and facts of the situation.

[opihimoimoi]

1. KnR :o)

[msongs]

2. with aforethought and malice the senate deliberately renders itself undemocratic lol nt

[No Elephants]

3. The "crash course" seems longer than the Byrd rule itself. This is the Byrd Rule:

TITLE 2 > CHAPTER 17A > SUBCHAPTER I > § 644Prev | Next § 644. Extraneous matter in reconciliation legislation
How Current is This? (a) In general
When the Senate is considering a reconciliation bill or a reconciliation resolution pursuant to section 641 of this title (whether that bill or resolution originated in the Senate or the House) or section 907d of this title, upon a point of order being made by any Senator against material extraneous to the instructions to a committee which is contained in any title or provision of the bill or resolution or offered as an amendment to the bill or resolution, and the point of order is sustained by the Chair, any part of said title or provision that contains material extraneous to the instructions to said Committee as defined in subsection (b) of this section shall be deemed stricken from the bill and may not be offered as an amendment from the floor.
(b) Extraneous provisions
(1)
(A) Except as provided in paragraph (2), a provision of a reconciliation bill or reconciliation resolution considered pursuant to section 641 of this title shall be considered extraneous if such provision does not produce a change in outlays or revenues, including changes in outlays and revenues brought about by changes in the terms and conditions under which outlays are made or revenues are required to be collected (but a provision in which outlay decreases or revenue increases exactly offset outlay increases or revenue decreases shall not be considered extraneous by virtue of this subparagraph);
(B) any provision producing an increase in outlays or decrease in revenues shall be considered extraneous if the net effect of provisions reported by the committee reporting the title containing the provision is that the committee fails to achieve its reconciliation instructions;
(C) a provision that is not in the jurisdiction of the committee with jurisdiction over said title or provision shall be considered extraneous;
(D) a provision shall be considered extraneous if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision;
(E) a provision shall be considered to be extraneous if it increases, or would increase, net outlays, or if it decreases, or would decrease, revenues during a fiscal year after the fiscal years covered by such reconciliation bill or reconciliation resolution, and such increases or decreases are greater than outlay reductions or revenue increases resulting from other provisions in such title in such year; and
(F) a provision shall be considered extraneous if it violates section 641 (g) of this title.
(2) A Senate-originated provision shall not be considered extraneous under paragraph (1)(A) if the Chairman and Ranking Minority Member of the Committee on the Budget and the Chairman and Ranking Minority Member of the Committee which reported the provision certify that:
(A) the provision mitigates direct effects clearly attributable to a provision changing outlays or revenues and both provisions together produce a net reduction in the deficit;
(B) the provision will result in a substantial reduction in outlays or a substantial increase in revenues during fiscal years after the fiscal years covered by the reconciliation bill or reconciliation resolution;
(C) a reduction of outlays or an increase in revenues is likely to occur as a result of the provision, in the event of new regulations authorized by the provision or likely to be proposed, court rulings on pending litigation, or relationships between economic indices and stipulated statutory triggers pertaining to the provision, other than the regulations, court rulings or relationships currently projected by the Congressional Budget Office for scorekeeping purposes; or
(D) such provision will be likely to produce a significant reduction in outlays or increase in revenues but, due to insufficient data, such reduction or increase cannot be reliably estimated.
(3) A provision reported by a committee shall not be considered extraneous under paragraph (1)(C) if
(A) the provision is an integral part of a provision or title, which if introduced as a bill or resolution would be referred to such committee, and the provision sets forth the procedure to carry out or implement the substantive provisions that were reported and which fall within the jurisdiction of such committee; or
(B) the provision states an exception to, or a special application of, the general provision or title of which it is a part and such general provision or title if introduced as a bill or resolution would be referred to such committee.
(c) Extraneous materials
Upon the reporting or discharge of a reconciliation bill or resolution pursuant to section 641 of this title in the Senate, and again upon the submission of a conference report on such a reconciliation bill or resolution, the Committee on the Budget of the Senate shall submit for the record a list of material considered to be extraneous under subsections (b)(1)(A), (b)(1)(B), and (b)(1)(E) of this section to the instructions of a committee as provided in this section. The inclusion or exclusion of a provision shall not constitute a determination of extraneousness by the Presiding Officer of the Senate.
(d) Conference reports
When the Senate is considering a conference report on, or an amendment between the Houses in relation to, a reconciliation bill or reconciliation resolution pursuant to section 641 of this title, upon—
(1) a point of order being made by any Senator against extraneous material meeting the definition of subsections (b)(1)(A), (b)(1)(B), (b)(1)(D), (b)(1)(E), or (b)(1)(F) of this section, and
(2) such point of order being sustained,
such material contained in such conference report or amendment shall be deemed stricken, and the Senate shall proceed, without intervening action or motion, to consider the question of whether the Senate shall recede from its amendment and concur with a further amendment, or concur in the House amendment with a further amendment, as the case may be, which further amendment shall consist of only that portion of the conference report or House amendment, as the case may be, not so stricken. Any such motion in the Senate shall be debatable for two hours. In any case in which such point of order is sustained against a conference report (or Senate amendment derived from such conference report by operation of this subsection), no further amendment shall be in order.
(e) General point of order
Notwithstanding any other law or rule of the Senate, it shall be in order for a Senator to raise a single point of order that several provisions of a bill, resolution, amendment, motion, or conference report violate this section. The Presiding Officer may sustain the point of order as to some or all of the provisions against which the Senator raised the point of order. If the Presiding Officer so sustains the point of order as to some of the provisions (including provisions of an amendment, motion, or conference report) against which the Senator raised the point of order, then only those provisions (including provisions of an amendment, motion, or conference report) against which the Presiding Officer sustains the point of order shall be deemed stricken pursuant to this section. Before the Presiding Officer rules on such a point of order, any Senator may move to waive such a point of order as it applies to some or all of the provisions against which the point of order was raised. Such a motion to waive is amendable in accordance with the rules and precedents of the Senate. After the Presiding Officer rules on such a point of order, any Senator may appeal the ruling of the Presiding Officer on such a point of order as it applies to some or all of the provisions on which the Presiding Officer ruled

[elocs]

5. This was from just last August, so I believe it is still very valid.

Certainly somebody more knowledgeable than me or many of us here went over the Byrd rule and could reasonably easily explain what applies and what does not.

The bottom line is that it is not the simple slam-dunk that many believe it to be and it certainly could not improve upon what is already then because not everything would meet the Byrd rule. Plus, this would take time.

[CTLawGuy]

4. KnR

for an informative article.