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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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