Congress in Wonderland

Richard White Contributor
Font Size:

I can’t believe that!” said Alice.

“Can’t you?” the Queen said in a pitying tone. “Try again: draw a long breath, and shut your eyes.”

Alice laughed. “There’s no use trying,” she said: “one can’t believe impossible things.”

“I daresay you haven’t had much practice,” said the Queen. “When I was your age, I always did it for half-an-hour a day. Why, sometimes I’ve believed as many as six impossible things before breakfast.” —Lewis Carroll, “Alice’s Adventures in Wonderland and Through the Looking Glass” (Oxford University Press, 1982)

As if from a scene of Lewis Carroll’s novel, Speaker Nancy Pelosi is asking doubtful House Democratic Members to believe in the impossible and overcome their re-election fears or outright opposition to provisions (e.g. abortion language and Cadillac tax) in the Senate-passed health care reform bill and to vote on it as is.

Addressing her subjects at a mandatory Democratic Caucus meeting, Speaker Pelosi decreed the that there would be a House vote on health reform and warned Members that they need to be prepared to stay in the weekend of March 20 and possibly through the following week until this vote happens. President Obama has even pushed back his Asia trip, now not departing until March 21 in order to focus on moving health care reform next week.

As a result of resignations and the death of Rep. John Murtha (D-Pa.), Speaker Pelosi only needs 216 votes, rather than the usual 218, to pass the Senate health care reform bill. Even this slightly lower bar may prove too high. As anywhere from six to 12 House Democrats, led by Rep. Bart Stupak of Michigan, who previously voted yes on health care reform are threatening to withhold their votes for the Senate bill because it contains language they perceive as less strict on preventing federal funds from being used to pay for abortions.

This reality has caused Democratic leaders to use their full imaginations to devise a way somehow for nervous House Democratic Members to avoid taking a direct vote on the Senate health care bill until there is some assurance that the Senate will approve House sought changes to be included in a budget reconciliation bill; a special legislative process designed to protect measures affecting the budget from threat of a filibuster.

Passage of a reconciliation bill only requires a simple majority vote and debate on the measure is limited to 20 hours. Amendments must be germane and have a budgetary impact, which cannot be a secondary purpose of the amendment. Notwithstanding the limit of 20 hours of debate there is no limit on the ability of Senators to offer germane amendments, so Republicans could potentially continue to offer amendment after amendment without time for debate until they are literally physically unable to offer anymore making it more like a scene out of the “Mad Hatter’s Tea Party” than a ordinary Senate debate. As reconciliation itself is a more modern Senate tool there are no precedents for how the Senate would handle such a delaying tactic.

If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrary wise, what is, it wouldn’t be. And what it wouldn’t be, it would. You see? Lewis Carroll, Alice’s Adventures in Wonderland and Through the Looking Glass (Oxford University Press, 1982),

As if in their own world, House Democratic leaders are contemplating a way to avoid having House Members directly vote for the Senate bill prior to the Senate passing a budget reconciliation bill. The option being discussed would call for the House Rules Committee to develop a rule which would “deem” the Senate bill as passed upon adoption of the House rule. The rule would provide for one vote on the reconciliation provisions (amendments to the Senate health reform bill and the student aid package) and the Senate passed reform bill. The Senate bill would not receive a separate vote. Thus a bill never actually directly voted on would be deemed passed by the House of Representatives.

“I don’t think they play at all fairly,’ Alice began, in rather a complaining tone, ‘and they all quarrel so dreadfully one can’t hear oneself speak — and they don’t seem to have any rules in particular; at least, if there are, nobody attends to them.” Lewis Carroll, Alice’s Adventures in Wonderland and Through the Looking Glass (Oxford University Press, 1982)

Republican Senate leaders taking lines from Alice have sought guidance from the Senate Parliamentarian with regards to the legality of the House’s contemplated maneuvers. In response to whether the Senate could pass a budget reconciliation bill prior to the House taking a final vote on the Senate passed health care bill, the Parliamentarian has reportedly ruled that the Senate Budget Reconciliation bill can only amend existing law, so one would assume that the President would need to first sign the Senate passed health bill once it is passed by the House before the Senate could consider the budget reconciliation bill. But one never knows.

So there are several parliamentary questions outstanding, first can the president sign the Senate passed health care bill if it is not directly voted on and approved by the House and thus make it existing law allowing the Senate to proceed with amending it under budget reconciliation? Second, what changes to the Senate health care bill, sought by the House Democratic leadership, can be included in a budget reconciliation bill under the so called “Byrd Rule” named after Sen. Robert Byrd, which bars provisions that do not have budgetary impact affecting either outlays or revenues? The Senate Parliamentarian will be the judge of all such questions.

If the House and Senate are able to return back through the “looking glass” one would envision that the House of Representatives will be forced to vote up or down, probably before the beginning of the March 26 congressional recess, on the Senate-passed health care reform bill with little or no assurances of Senate action on the changes sought through budget reconciliation. In the end, I believe Sen. Lamar Alexander (R) of Tennessee may have summed up the situation best, “What the president is doing is asking House Democrats to hold hands, jump off a cliff and hope Harry Reid catches them.”

Richard White is a founding principal of the Alpine Group, a Washington based federal legislative consulting firm, and co-head of the firm’s health care policy practice. His practice areas include Medicare reimbursement coverage and payment issues, FDA and drug approval issues, as well as Medicaid policy.