"Poison pills," errors could derail reconciliation process

After having lost on the attempt to stop ObamaCare from becoming law, Senate Republicans have to settle for the next-best thing — keeping the health-care debate alive.  In order to do that, they have to find ways to amend the bill that purports to “fix” ObamaCare that the House passed on Sunday night.  If that bill changes in the Senate, then the House has to reconsider the bill yet again, creating the potential for another several weeks of focus on a bill that is deeply unpopular with the public.  And thanks to errors in the House bill, that may not be avoidable:

After the White House signing ceremony Tuesday, the Senate plans to launch into the debate over the reconciliation bill, which would institute a series of “fixes” that House Democrats demanded as a condition for clearing the Senate version of the bill. Even if Senate Majority Leader Harry Reid (D-Nev.) succeeds in keeping his team largely united to beat back GOP amendments, Senate parliamentarian Alan Frumin could throw a wrench in the process.

Frumin is considering a series of GOP challenges contending that provisions in the reconciliation bill violate the Byrd rule — named after its author, Sen. Robert Byrd (D-W.Va.) — which prohibits the inclusion of measures that lack a budgetary impact. If Frumin agrees with the GOP and the Senate’s presiding officer does not overrule him, Democrats would almost certainly lack the 60 votes needed to override Frumin’s decision.

That would require that Democrats either dump the reconciliation bill or pass a modified version that would be sent back to the House for further modification or final approval. To be clear, the House does not want to touch health care again this year, which is why Democratic leaders need to reject every GOP amendment.

“The thing that concerns me is the unknown,” a Senate Democratic aide said Monday.

Democratic leaders have for weeks been meeting privately with Frumin for guidance on what could withstand challenges under the budget process, and Senate Budget Committee Chairman Kent Conrad of North Dakota said Monday that he is confident their bill could remain unscathed.

Still, GOP aides said Monday that they see several drafting errors that could cause portions of the reconciliation bill to be stricken. For example, they argue that a $1 billion appropriation in the bill for the Health and Human Services Department to implement the new law does not fall within the purview of either the Finance Committee or the Health, Education, Labor and Pensions Committee.

The reconciliation process allows for an unlimited number of amendments to be offered by Republicans, at least in theory.  They plan to offer a large number of them that would change the nature of the House bill both technically and substantively.  The most impactful would be a rescue of the Medicare Advantage program, which would eliminate a major funding source for ObamaCare.

Democrats have the votes to defeat all of the amendments, but some of them may be difficult to openly oppose.  The Medicare Advantage restoration could be a big problem for Democrats who need seniors to support them in upcoming votes, for example.  The amendment process puts each issue on the floor individually, making it much more difficult for Senators to vote one way and proclaim themselves another in the future.

Drafting errors would present a more technical problem.  If the bill changes in any way, the other chamber has to pass it again.  The one mentioned here in Politico sounds like an arguable technical defect, one that an adverse ruling by the parliamentarian could override.  They already have suffered one defeat in that venue already, and it wouldn’t surprise me if the parliamentarian decided to give the majority the benefit of the doubt in most of these cases.