Democrats Could Turn to Reconciliation to Pass Healthcare

September 15 has long been Sen. Max Baucus's deadline for his Senate Finance Committee's "Gang of Six" to complete its work on a bipartisan healthcare bill. Based on comments today, Baucus may just meet that deadline.

But if there's no agreement tomorrow or, for that matter, later this week, Senate Democrats will almost certainly have to consider using partisan tactics to pull off health reform this fall.

Democrats still have some hope of winning over Maine Sen. Olympia Snowe, a moderate Republican. But there also is growing talk that Senate Democrats may have to resort to an obscure but powerful parliamentary tactic known as "reconciliation" to pass a bill. The choice, which hasn't been made, presents risks and rewards.

"With a bill like healthcare, reconciliation is not the ideal way to do it," says Jim Horney, a policy director at the nonprofit Center on Budget and Policy Priorities. But given Sen. Ted Kennedy's death—reducing the Democrats' majority to 59—and cracks within the Democratic coalition, it may be the only way. "From the beginning [of the debate], reconciliation was preserved by Democrats out of the fear that at the end of the day it wouldn't be possible to get 60 votes" for healthcare reform, Horney says.

Put simply, reconciliation is a special procedure that would allow Senate Democrats to pass a bill with only 51 votes. Usually, the party in power in the Senate needs 60 votes to override minority opposition. But reconciliation sets up an alternative, "fast-track" route that prohibits filibustering, so that a simple majority of 51, not 60, is the magic number.

Both parties have used reconciliation before: the Democrats in 1993 to pass President Clinton's first budget, the Republicans in 2001 and again in 2003 to pass President Bush's tax cuts.

But trying to use reconciliation to pass a massive healthcare bill could prove problematic. Reconciliation evolved in the early 1980s in the Senate as a tool to cut the federal deficit by making spending bills easier to pass. Accordingly, Senate rules say reconciliation can be used only for bills that affect spending, revenues, and taxes.

Does the healthcare bill fit that definition? Well, parts clearly do, experts say. But other provisions could be challenged by Republicans, potentially creating a scenario in which Democrats pass a scaled-back bill that contains only portions of their original proposal.

Things like subsidies to help low-income Americans buy health insurance are probably safe, because they clearly affect federal spending. But other big elements, like a government-run insurance plan or the insurance exchanges that would let Americans comparison shop for health plans, could be subject to debate because their direct impact on government spending is either minor or unclear.

The final decision, it turns out, rests with an obscure figure known as the Senate parliamentarian, who will basically give a thumbs up or thumbs down if Republicans claim that certain parts of the bill don't fall under the reconciliation rules, as they are almost certain to do. The current parliamentarian is Alan Frumin, who's served in both Republican- and Democratic-controlled Senates. For most duties, the Senate parliamentarian isn't viewed as a political figure. But if Democrats pursue reconciliation, Frumin could be one of the most politically influential figures of the year.

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