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Budget Reconciliation is NOT the Nuclear Option

September 23, 2009 - by Donny Shaw

Don’t believe the hype. Nobody in Congress is considering going “nuclear” with health care legislation. Fox News and other media outlets may be saying otherwise, but they are wrong. As you probably know, if the Senate Finance Committee doesn’t produce a health care bill that can overcome a Republican filibuster, Democrats have said they are willing to use a procedural tactic that could allow them to bypass a filibuster and pass the bill regardless. The tactic they are considering is called “budget reconciliation,” and it’s completely different from the “nuclear option.” It’s important that this distinction is understood, because it’s true – the “nuclear option” really is something very drastic. The most important distinction is that the budget reconciliation process is explicitly provided by the rules of the Senate, whereas the “nuclear option” is an attempt to change the Senate rules in order to get something passed. Equating budget reconciliation with the term “nuclear option” implies that what the Democrats are thinking about doing to pass health care would be an obliteration of the the Senate’s institutional traditions. Nothing could be further from the truth. Budget Reconciliation The budget reconciliation process allows for any legislation with an impact on the budget deficit to come to a final vote after a maximum of 20 hours of debate. That means that the minority party cannot filibuster beyond 20 hours, and that the legislation would need a simple majority of 51 votes in favor to pass (not the 60 that it takes to break a filibuster). This procedure was established in federal law, which was approved by Congress and signed by President Richard Nixon. It has been used 21 times, by both Democratic and Republican Congress’, since its establishment in 1974. In the case of the current health care legislation, it’s likely that only certain parts of it would be eligible for passage under reconciliation. The decision would ultimately be left up to the non-partisan Parliamentarian of the United States Senate, who is a man named Alan Frumin. Frumin, by the way, was appointed by former Republican Majority Leader Trent Lott, who fired the former Parliamentarian for ruling against the Republican party’s reconciliation wishes. Anyhow, Furmin is the guy who will decide if the Democrats’ attempt to pass health care legislation through the budget reconciliation process is viable under the law. The “Nuclear Option” The “nuclear option” is an entirely different (and uglier) beast. It has been attempted a few times in the Senate’s history, but it’s never actually been invoked. The “nuclear option” involves going beyond the Senate rules and federal law, and calling upon the Constitution’s statement that “each House may determine its rules of proceedings.” Legal precedent has established that this means that the Senate can determine its rules by a simple majority vote that cannot be filibustered. The “nuclear option” would exploit this precedent by changing the rules so that a certain piece of legislation could pass with just 51 votes. The editors at Wikipedia have done a good job explaining how it goes:

A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator’s point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, “Is the decision of the Chair to stand as the judgment of the Senate?” This is referred to as “appealing from the Chair.” An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer’s ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

This is what Republicans were threatening to do in 2005 when the Democrats, then the minority, were blocking some of Bush’s judicial nominees. In fact, former Republican Leader Sen. Bill Frist coined the term “nuclear option,” though he later tried to switch back to the friendlier “Constitutional Option.” Nobody in Congress is considering doing this with health care. Some liberal bloggers are wishing that the Democrats would consider this for health care. But they’re not, and they won’t. What they are considering is the budget reconciliation, but for a number of reasons, they are even hesitant to do that.

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  • Anonymous 09/23/2009 11:29pm

    This flies in the face of what former Senate Majority leader Newt Gingrich has to say on the subject: . I am more inclined to believe what Senators Gingrich and Byrd have to say on this matter.

  • Comm_reply
    Anonymous 09/24/2009 2:45pm

    You note that the “nuclear option” implies that “what the Democrats are thinking about doing to pass health care would be an obliteration of the the Senate‚Äôs institutional traditions. Nothing could be further from the truth”

    I would like to point out that the use of reconciliation in this way could fly in the face of “Byrd’s Rule,” which as been used in the pass to thwart the use of reconciliation on health-care reform.

  • Comm_reply
    donnyshaw 09/24/2009 6:57pm

    If the legislation doesn’t pass the Byrd Rule, it won’t be allowed under reconciliation. That’s up to the Senate Parliamentarian to decide.

  • kentuckygirl 09/23/2009 11:40pm

    That’s funny because the great mr. reid said that exact thing today and peloi also said it. Do you not read the paper or watch the news?

  • daringone 09/24/2009 3:15am

    Maybe we need to better teach our children then. Or at least my school does. Granted, it’s been 13 years since high school, so I may have forgot some things, but last I knew, the normal way to pass a bill was for it to come to a vote and be agreed upon by a majority of Congressmen in both houses. Sounds like a good enough procedure to me. Maybe I’m a bit naive, but I’m not sure why there’s any way to circumvent this at all.

  • need_to_comment 09/24/2009 6:35am

    So you call out Fox by name about labeling the tactic incorrectly, but you lump CNN with “other media outlets”. The article that you linked only talked about Fox and CNN. Vilifying Fox now are we? Why couldn’t you have just stated that Fox misrepresented and CNN followed suit? I know, seems strange that CNN would follow Fox on anything.

  • Anonymous 09/24/2009 6:57am

    You guys are being ridiculous. Just because you want everyone to agree with the Republican stance doesn’t mean you have to blatantly refute facts to meet your agenda. Considering how right leaning the audience is on this site, I think it is a small infraction to ‘villify’ fox news in one article by calling them out by name. Do you really think that every republican candidate is awesome (since they top all the rankings on this site unelss they’re not conservative enough) or are you just ignoring other people’s views to suit your own? Every rep. and senator on this site is a politician and to believe otherwise is nothing more than partisan bickering and favoritism.

  • Anonymous 10/27/2009 1:20pm

    Filibustering is itself a dirty tactic. Regardless of which side is using the filibuster, they are clearly exploiting a loophole. The fact that there are no time limits for debate was not meant to give the minority (AKA the side LEAST FAVORED by the American people) the ability to simply stall a bill forever. Just because we’ve gotten used to the idea doesn’t mean it’s not a trick.

    As far as I’m concerned, filibustering is bad practice, and the nuclear option should be used every single time it is attempted.

    When your side loses elections, there are consequences.

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