Hidden cloture in reconciliation?

For the past few weeks, Democrats have attempted to strategize to get ObamaCare through Congress without invoking cloture, especially after losing the Senate seat in Massachusetts in a shocking setback.  They have mainly attempted to find a way to make the budget reconciliation process work for even non-budgetary components in order to get as much of ObamaCare as possible through with the minimum number of Senate votes, in order to accommodate House Democrats being forced to accept most of the Senate’s compromises.  However, Republicans have done their own research and have discovered a way to force reconciliation into a cloture vote:

As it turns out, Senate Democrats may not be able to force healthcare legislation through the chamber on a simple majority vote.

Republicans say they have found a loophole in the budget reconciliation process that could allow them to offer an indefinite number of amendments.

Though it has never been done, Sen. Jim DeMint (R-S.C.) says he’s prepared to test the Senate’s stamina to block the Democrats from using the process to expedite changes to the healthcare bill.

Experts on Senate procedural rules, from both parties, note that such a filibuster is possible. While reconciliation rules limit debate to 20 hours, senators lack similiarconstraints on amendments and could conceivably continue offering them until 60 members agree to cut the process off.

Republicans warned that an attempt to use reconciliation would spark a firestorm in the upper chamber.  Most people assumed that the GOP quiver would be limited to the end of unanimous consent, thus requiring repeated full readings of bills and amendments, which would slow the Senate to a crawl and keep other business from being heard.  This new twist would mean that Republicans could continue offering amendments to the bill throughout 2010 and push the vote closer and closer to the fall, when desperate red-state Democrats on Capitol Hill would see this as a Sword of Damocles about to drop on their collective noggins.

In this case, though, the strategy depends on one vote — and that isn’t Scott Brown.  The Senate Parliamentarian will have to rule on whether the GOP can continue offering amendments, as Harry Reid will undoubtedly invoke a point of order to limit amendments.  The reconciliation rule itself doesn’t have any limitations on amendments, only on debate on the main bill.

Reid will argue that infinite amendments violate the “spirit” of the 1974 budget agreement that created the reconciliation exception to cloture, but parliamentarian Alan Frumin has no precedent from which to work.  He could side with Reid, but that would put Frumin in the position of creating a Senate rule by fiat.  Frumin would be more likely to point out that the rules don’t preclude the GOP strategy and leave Harry Reid to find a political solution to his problem — which was what a few Democrats told The Hill anonymously.

So even reconciliation has its problems, and Democrats may find themselves in the unique position of manhandling the rules to get to a finishing line and seeing Republicans already there.  They would be much better off opening a dialogue with the GOP and creating a new reform bill with their input.

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